PLD 2025 Judgments

P L D 2025 Federal Shariat Court 1

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

Syeda FOUZIA JALAAL SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad

and 14 others---Respondents

Shariat Petition No. 10/I of 2023, decided on 19th March, 2025.

Enforcement of Shari'ah Act (X of 1991)---

----S.13---Penal Code (XLV of 1860), S. 498-A---Constitution of Pakistan, Art. 203-D---Shariat petition---Women rights---Right to inheritance---Social evils---Chaddar/Parchi, custom of---Petitioner was aggrieved of depriving women from their property rights under the custom of Chaddar/Parchi, prevalent in District Bannu of Khyber Pakhtunkhwa---Held, that such criminal practice, whereby women are deprived of their right of inheritance, is quite common---In such regard generally a core illegal practice is commonly known asحق بخشوای (Haq Bakhshwai) or حق بخشوانہ (Haq Bakhshwana), which literally means "giving up of rights"---Such practice is in vogue throughout the country in different forms, whereby the perpetrators or usurpers try to give a kind of legal cover to their illegal and criminal actions, whereby either forcibly or by emotional blackmailing female members of the family are asked to relinquish their right of inheritance in favour of male members---Petitioner also mentioned somewhat similar practices in her petition that she was forced by the Jirga to relinquish her right from her ancestral property---She named such practice as "Chaddar" or "Parchi"---During the proceedings several names of such custom and usage were brought in the knowledge of Federal Shariat Court on the pretext of which women were being deprived of their right of inheritance---Federal Shariat Court instead of analyzing such usages or customs by name which were being used for committing such heinous crime, declared all or any custom by virtue of which any female member of a family was being or had been denied or deprived of her right of inheritance, which was granted by the Holy Quran and Sunnah as un-Islamic, having no legal force whatsoever---Federal Shariat Court declined to extend any relief to petitioner in the form of relief in-personam, as the same was out of the scope of jurisdiction of Federal Shariat Court---Shariat petition was disposed of accordingly.

Verses 7, 11, 12 and 14 of Surah Nisa; Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Sajid Tareen v. Government of Balochistan and others C.P. No.901 of 2021;

Verse 10 of Surah Nisa; Verses 19 - 20 of Surah Al-Fajr;

Satto v. Mst. Sughran and others 1969 SCMR 296; Fazaldad v. Mst. Noor Nishan and others 1969 SCMR 607; Muhammad Iqbal and others v. Durab Khan 1976 SCMR 149 and Fatima Bibi v. Nur Muhammad Shah PLD 1951 Lah. 147 rel.

Counsel for Petitioner:

Hammad Saeed Dar for Petitioner along with Petitioner.

Counsel for Respondents:

Mian Muhammad Faisal Irfan, Deputy Attorney General for Federation.

Dr. Muhammad Usman Mirza, Advocate on behalf of Advocate General Islamabad

Sana Ullah Zahid, Additional Advocate General, Punjab

Barrister Ahsan Hameed Dogar, Law Officer, on behalf of Advocate General Sindh

Sami Ullah Jan, Asst. Advocate General, Khyber Pakhtunkhwa.

P L D 2025 Federal Shariat Court 18

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

Mst. MUSSARAT FAYYAZ and 4 others---Petitioners

Versus

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

Shariat Petition No. 13/I of 2022, decided on 20th October, 2022.

Constitution of Pakistan---

----Arts. 203B (c) & 203D---Shariat petition---Muhammadan Law---Applicability---Dispute between parties was with regard to change of family name of adopted child---Petitioner relied upon provision of S. 346 of Muhammadan Law by D. F. Mullah---Validity---Principles of Muhammadan Law had no force of law as the book was authored by Dinshah Fardunji Mullah and was only a reference book---Book in question did not have force of law and did not come under the ambit of law as provided under Art. 203B(c) of the Constitution---Federal Shariat Court declined to interfere in the matter as the matter had already been thrashed out in an earlier judgment titled Najaat Welfare Foundation v. Federation of Pakistan and others, reported as PLD 2021 FSC 1---Shariat petition was dismissed, in circumstances.

Messrs Najaat Welfare Foundation v. Federation of Pakistan and others PLD 2021 FSC 1 fol.

Muhammad Gulfam Arshad Rana for Petitioners.

P L D 2025 Federal Shariat Court 21

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

Dr. MOHAMMAD ASLAM KHAKI, ADVOCATE SUPREME COURT OF PAKISTAN and another---Petitioners

Versus

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

Shariat Petitions Nos. 12/I of 2020 and 17/I of 2022, decided on 2nd May, 2024.

Constitution of Pakistan---

----Art. 203D---Penal Code (XLV of 1860), Ss. 496-B & 496-C [as inserted by S. 7 of Protection of Women (Criminal Laws Amendment) Act (VI of 2006)]---Shariat petition---Fornication and false accusation---Repugnancy to Injunctions of Islam---Petitioner assailed provisions of Ss. 496-B & 496-C, P.P.C., as un-Islamic---Validity---All those sections which were introduced in Penal Code, 1860, by virtue of Protection of Women (Criminal Laws Amendment) Act, 2006, were primarily considered as Islamic for either akin, auxiliary, analogous or supplementary to or germane with Hudood Offences, hence were declared to be included within the scope of term "Hudood"---As a consequence of such declaration, it was decided that appeal against a decision/judgment of any case by Trial Court involving section in question shall lie to Federal Shariat Court under Art. 203DD of the Constitution---Federal Shariat Court in its earlier judgment clearly defined term "Hudood" which included those offences which were introduced by Protection of Women (Criminal Laws Amendment) Act, 2006, in Penal Code, 1860---Federal Shariat Court declined to interfere in the matter which had already been decided earlier and was subject matter of appeal pending before Shariat Appellate Bench of Supreme Court---Shariat petition was dismissed, in circumstances.

Mian Abdur Razzaq Aamir and others v. Federal Government of Islamic Republic of Pakistan and others PLD 2011 FSC 1 and

Shahid Orakzai v. Pakistan through Secretary Ministry of Law, Islamabad PLD 2017 FSC 63 rel.

Counsel for Petitioners:

Dr. Mohammad Aslam Khaki, Advocate - Petitioner in person (in S.P. No.12-I of 2020).

Irum Malik, Petitioner in person (in S.P. No.17-I of 2022).

Counsel for Respondents:

Mian Muhammad Faisal Irfan, DAG for Federation.

Ch. Muhammad Usman Mirza, Law Officer on behalf of A.G. Islamabad

Sana Ullah Zahid, Addl. A.G. Punjab

Mrs. Imrana Baloch, State Counsel/Advocate-on-Record on behalf of A.G. Punjab.

Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh.

Anees Muhammad Shahzad, State Counsel on behalf of A.G. Khyber Pakhtunkhwa.

Muhammad Fareed Dogar, Asst. A.G., Balochistan.

P L D 2025 Supreme Appellate Court (G.B.) 1

Present: Sardar Muhammad Shamim Khan, C.J.

Reference No. 01 of 2023, decided on 3rd May, 2024.

(a) Gilgit-Baltistan System of Financial Control and Budgeting Rules, 2009---

----R. 11(a)-Annex-I (Entry No. 1)---Gilgit-Baltistan Rules of Business, 2007, R. 3(3)-Schedule-II, Serial No. 4(7)---Government of Gilgit-Baltistan Order, 2018, Arts. 92, 99(1)(a) & 118---Advisory Reference before the Supreme Appellate Court---New posts in Gilgit-Baltistan, creation/upgrading of---Gilgit-Baltistan Government, powers of---Federal Government, concurrence of---Scope---Opinion sought by the Governor Gilgit-Baltistan through Reference under Art. 92 of the Government of Gilgit-Baltistan Order, 2018, with regard to the questions of law concerning creation and up-gradation of any post without prior concurrence from Federal Finance Division, Islamabad---Supreme Appellate Court opined that under R. 3(3)-Schedule-II, Serial No. 4(7) of Gilgit-Baltistan Rules of Business, 2007 and R. 11(a)-Annex-I (Entry No. 1) of Gilgit-Baltistan System of Financial Control and Budgeting Rules, 2009, the Gilgit-Baltistan Government was empowered to create new posts after approval by Finance Department, Gilgit-Baltistan---Record revealed that a meeting pertaining to Package/distribution of funds for Gilgit-Baltistan was held on 13.12.2012 under the Chairmanship of Federal Finance Secretary Islamabad wherein Sr. Minister, Chief Secretary and Finance Secretary of Gilgit-Baltistan duly participated---In said meeting it was unanimously agreed that Government of Gilgit-Baltistan shall not create/upgrade any post without prior concurrence of Federal Finance Division, Islamabad---Said decision stipulated that "Since the Federal Government has to finance the budget of Gilgit-Baltistan. Government of Gilgit-Baltistan shall not create any vacancy without prior concurrence of the Finance Division. Otherwise, Finance Division will not provide any funding for the vacancy created by Finance Department, Gilgit-Baltistan (G.B)at its own. Finance Department will convey department-wise existing sanctioned posts to Finance Division by 31.12.2012"---Record (Annexures) revealed that Federal Government through as many as four letters from time to time (spanning from the year 2015 to year 2021) issued instructions restraining G.B. Government from creation and up-gradation of any post without concurrence of Federal Finance Division Islamabad---It was further noticed that the said instructions/letters were being complied with (implemented by) G.B. Government by transmitting the cases of creation and upgradation of posts to Federal Finance Division Islamabad for their requisite concurrence---Article 118, of the Government of Gilgit-Baltistan Order, 2018, provides that in case of conflict between the Laws of Pakistan and the laws framed under GB Order 2018, laws of Pakistan shall prevail---Word "Laws", as defined in Article 99(1)(a) of the Government of Gilgit-Baltistan Order, 2018, includes ordinance, orders, rules, bye-laws, regulations and any notification and other legal instruments having the force of law---Thus, said provisions of law prima facie stipulates that the instructions/orders/policy/Notification issued by Federal Government from time to time qua restraining the G.B. Government from creation and up-gradation of any post without prior concurrence from Federal Finance Division comes within the ambit of Article 99(1)(a) of G.B. Order, 2018---Thus, Supreme Appellate Court was of the considered opinion that in the light of the summary approved by the Prime Minister of Pakistan (having been annexed) and letters instructions/Policy issued by Federal Government and the laws laid down by Federal Government, the Govt. of G.B while creating and up-grading the posts in different Departments was under an obligation to get prior concurrence of the requisite posts from Federal and Finance Division Islamabad and G.B Government/G.B. Finance Division was not competent and empowered to create/upgrade any post at its own level because G.B.

Government Finance Division G.B. was legally bound to follow the laws made/issued by the Federal Government---Keeping in view the decision taken in the meeting (pertaining to Package/ distribution of funds for Gilgit-Baltistan held on 13.12.2012 under the Chairmanship of Federal Finance Secretary Islamabad wherein Sr. Minister, Chief Secretary and Finance Secretary of Gilgit-Baltistan duly participated), it was clarified that G.B. Government shall not create or up-grade any post without prior concurrence of the Federal Finance Division Islamabad, otherwise the Finance Division Islamabad shall not provide any funding for the requisite created/upgraded posts---Thus, creation and up-gradation of any post by the G.B. Government/Finance Division G.B. would be totally useless for the purpose of implementation of the judgment passed by any Court in said regard---Reference was disposed of accordingly.

(b) Government of Gilgit-Baltistan Order, 2018---

----Art. 92---Gilgit-Baltistan System of Financial Control and Budgeting Rules, 2009, R. 11(a)-Annex-I (Entry No. 1)---Gilgit-Baltistan Rules of Business, 2007, R. 3(3)-Schedule-II, Serial No. 4(7)---Advisory Reference before the Supreme Appellate Court---Creation/upgrading of new posts in Gilgit-Baltistan---Federal Government, non-concurrence of---Scope---Opinion sought by the Governor Gilgit-Baltistan (G.B.) through Reference under Art. 92 of the Government of Gilgit-Baltistan Order, 2018 with regard to the legal position of the judgments passed by the Chief Court/subordinate Courts on the matters relating to creation/ upgradation of posts---Supreme Appellate Court opined that Gilgit-Baltistan Government is not competent/empowered to create/ upgrade any post without prior concurrence of the Federal Finance Division Islamabad, therefore, G.B. Government is bound to transmit the cases pertaining to creation and upgradation of posts to Federal Government/Federal Finance Division, Islamabad, for their concurrence and thereafter in the light of requisite concurrence sought from Federal Government G.B., Government will be in a position to comply with the judgments/orders of G.B. Courts in true letter and spirit---However, the Court, which has issued the direction for creation or up-gradation of any post in the judgment, should not adopt coercive measures or issue contempt of court notice to concerned Secretary while dealing with implementation petitions till the requisite concurrence is received---Supreme Appellate Court while dealing with so many CPLAs, pending before it, has issued directions to the Chief Court not to press hard the authorities of the concerned Departments in the cases wherein the concurrence has been sought from Federal Finance Division Islamabad, by the G.B. Government, rather the Supreme Appellate Court issued directions from time to time to the Chief Court for granting sufficient time to the authorities of concerned Departments in implementation of the judgments in question till the receipt of requisite concurrence---Reference was disposed of accordingly.

Muhammad Nazir, Advocate-General, Gilgit-Baltistan.

P L D 2025 High Court (AJ&K) 18

Before Syed Shahid Bahar, J

Mir MUHAMMAD FARID and 2 others---Petitioners

Versus

EX-OFFICIO JUSTICE OF PEACE/ SESSIONS JUDGE DISTRICT MUZAFFARABAD, AZAD JAMMU AND KASHMIR and 3 others---Respondents

Writ Petition No. 1477 of 2024, decided on 17th October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 22-A--- Application filed under S. 22-A, Cr.P.C. for the registration of FIR---Dispute of civil nature---Stay of criminal proceedings---Principles---Record reflected that complainant and petitioners were business partners having a joint venture of stone crushing plants; after winding up the said business, the partners came forward with conflicting civil suits which were pending adjudication before the Court---In such type of cases it was advisable to wait for the verdict of the Civil Court which had the jurisdiction to direct the registration of the case if the Court came to such conclusion ultimately---Although civil liability was independent of the criminal liability and no invariable rule existed to the effect that pending decision of a civil suit, criminal proceedings must be stayed, as it was purely a matter of discretion yet, while exercising the discretion the guiding principle should be to see as to whether the accused was likely to be prejudiced if criminal liability was dependent on the outcome of civil litigation, then criminal proceedings must be stayed, particularly when dispute was with regard to title of the property---Court was not inclined to terminate the criminal proceedings or for that matter to embark upon the order passed by the Justice of Peace in such regard---Simultaneously the complainant himself opted to file a civil suit asking for declaration and perpetual injunction regarding the same machinery vis a vis the accused party and someone else had also filed two suits pertaining to same moveable property (involved in the instant matter)---Thus, conscious of the Court required to stay the criminal proceedings awaiting verdict of the Civil Courts and result of the civil proceedings be regarded conclusive in the matter---In a case where criminal liability was dependent on the result of the civil litigation or was so intimately connected with it that there was a danger of grave injustice being done in the case, or if there was likelihood of conflict of decision between the Civil Court and the criminal Court then in such an event the Criminal Court should also keep its hands off until the civil litigation was disposed of---In the present case, relief claimed qua quashment of FIR and annulment of order of the Justice of Peace was declined and by molding the relief criminal proceedings initiated in furtherance of the impugned FIR were stayed---First Information Report was put to hibernation till the decision of the civil suits from the relevant Court of law---Writ petition was disposed off accordingly.

Sohail Ahmed v. Justice of Peace 2017 PCr.LJ 1314; Shahroom Khan v. Justice of Peace 2022 SCR 267; Akhlaq Hussain v. Zafar Iqbal Kiani 2010 SCMR 1835 and Muhammad Akbar v. The State PLD 1968 SC 281 rel.

Nasir Masood Mughal for Petitioners.

Ms. Aliya Abdul Rehman for Respondent No.4.

P L D 2025 High Court (AJ&K) 25

Before Syed Shahid Bahar, J

SAKEENA BEGUM (widow) and 5 others---Appellants

Versus

ABDUL KHALIQ and 9 others---Respondents

Civil Appeal No. 49 of 2019, decided on 23rd January, 2024.

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

----S. 100---Concurrent findings of facts, assailing of---General allegations---Second appeal---Scope---Concurrent findings of fact could not be disturbed unless and until it is specifically pointed out by the appellants (litigant party), that which part of evidence, oral or documentary, or which evidence as a whole was misread and non-read---A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge---It is necessary for the party to specifically point out the witnesses whose statements were misread---Concurrent findings of fact will not be disturbed in second appeal even if the Court disagrees with that findings on its own view of the evidence---Mere erroneous findings will not suffice to reverse the same when concurrence of two Courts is found, that too, in the course of appraisal of the evidence.

PLD 2009 SC (AJ&K) 13 distinguished.

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

----S. 3---Gift deed, assailing of---Limitation---Gift deed impugned in the suit was a registered instrument and definitely limitation runs from the date of registration of the same---Gift deed was registered/attested in 1987 while the suit against the same was brought in 2003, with an inordinate delay of 16 years---Thus, limitation in such cases went to the roots of the case and was purely a question of law rightly dealt with by the Courts below---Time barred lis on the very face of the case could not be entertained in view of S. 3 of the Limitation Act, 1908---Under S. 3 of the Limitation Act, 1908, it is the bounden duty of every Court of law to take notice of question of limitation---Suit, appeal or application filed after the period of limitation is to be dismissed---Section 3 of Limitation Act, 1908, is couched in a mandatory form which empowers the Court before whom a lis is brought to dismiss the same if it is found that the same has not been brought before the Court within the time prescribed by the First Sched. of the Limitation Act, 1908---Appeal, being merit-less, was dismissed, in circumstances.

2015 SCMR 380 and 2017 YLR 229 ref.

(c) Limitation---

----Question of limitation not set up as a defence---Legislative intent provides a clear indication that it is not left to the parties to take or not take the objection that the suit, appeal or application is outside the time limit fixed by law---Court must dismiss the suit, appeal or application, if it has not been made timely---Court must dismiss the lis which is filed outside the time limit prescribed by law.

1993 MLD 2126 ref.

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

----S. 3---Limitation, question of---Doctrine of preponderance of probabilities of evidence---Scope---Section 3 of the Limitation Act, 1908, is a mandatory provision of law and must be construed as per its plain language---Section 3 of Limitation Act, 1908, is a mandatory codal provision and cannot be overlooked and brushed aside---Where limitation is purely question of law then Court in such like matter is obliged to independently advert to the question of limitation and to determine the same---It is not merely a formality but it is couched in a way to be observed as being of mandatory nature; it takes breath from the analogy that lapse of time creates rights in favour of other party and burdens the party which fails to act within time---Resultantly such right becomes unenforceable---Appeal, being merit-less, was dismissed, in circumstances.

2015 CLC 1290; PLD 2016 SC 705 and PLD 1985 SC 153 ref.

Ch. Mehboob Elahi for Appellants.

P L D 2025 High Court (AJ&K) 31

Before Ch. Khalid Rasheed, J

GOHAR ZAMAN---Petitioner

Versus

BABAR-UR-REHMAN---Respondent

Criminal Revision Petition No. 134 of 2024, decided on 20th September, 2024.

High Court of Azad Jammu and Kashmir Procedure Rules, 1984---

----R. 44(2)---Limitation Act (IX of 1908), Ss. 5 & 13---Criminal revision petition, filing of---No limitation provided in the statute---Scope---Trial Court passed order whereby the complaint filed under Ss. 492-B & 492-C Azad Penal Code and S. 203-H, Cr.P.C had been endorsed for further proceedings and respondents were ordered to deposit personal bond---Revision petition was filed against the said order---Held, that allegedly, the revision petition was time barred---Period of limitation provided in other statutes and for civil revision petitions normally extended to 90 days hence, while fixing a period not provided in the statutes it should be fixed in a lenient way in order to provide a reasonable time to an aggrieved party for redressal of the grievance---No period of limitation had been provided under any statute for filing a writ petition before the High Court under Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---In the High Court of Azad Jammu and Kashmir Procedure Rules, 1984, no period of limitation had been mentioned in the said Rules for a criminal revision petition but under R. 44(2) a civil revision petition was illuminated to be presented within a span of ninety days from the day of impugned order, thus a criminal revision petition before High Court would be justified to be considered within limitation if filed within a reasonable time of ninety days from the date of the impugned order---Criminal revision petition could be filed before the High Court within the span of ninety days of impugned order and if a person approached the Court beyond that period then he had to satisfy the Court regarding a sufficient cause for not preferring the revision petition, and if he succeeded to satisfy the Court, regarding the delay, the same could be condoned under S. 5 of the Limitation Act, 1908---Period of limitation could also be condoned under S. 13 of Limitation Act, if the applicant was out of territory of the State, and other exclusion of time provided by the said Act could also be pondered as a sufficient cause for delay---In the present case, the impugned order was announced in presence of the petitioner on 07.05.2024 but he remained indolent towards his rights and filed the instant revision petition after 105 days of the impugned order on 20.08.2024 without assigning even a single word of explanation for such delay, hence, the same was declared as time barred---Revision petition was dismissed, in circumstances.

2022 YLR 2332 rel.

Muhammad Mamoon Mughal for Petitioner.

P L D 2025 High Court (AJ&K) 35

Before Syed Shahid Bahar, J

TRANSPORT OPERATOR UNION through Representatives and 2 others---Petitioners

Versus

CHAIRMAN TRANSPORT AUTHORITY, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 13 others---Respondents

Writ Petition No. 2272 of 2024, decided on 10th October, 2024.

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

----Art. 44---Civil Procedure Code (V of 1908), S. 9---Disputed question(s), adjudication of---Constitutional petition---Maintainability---Petitioners (Transport Operator Union)filed writ petition seeking directions that certain Transporters (Private respondents) be restrained from running their vehicles from their destined point and be directed to run their vehicles from D-Class Adda (Bus Stop) as well as to relocate to the bus stops (old and new)at appropriate places outside the city area---Said stance of the petitioners had been negated by the respondent who categorically alleged that they were running their business completely in accordance with NOCs and permits allotted by the relevant quarters---Validity----Disputed questions of facts requiring a detailed probe and inquiry are not normally resolved by the High Court in exercise of its extraordinary jurisdiction---Proper fora for adjudication of the disputed question of facts requiring detailed probe and evidence is the Civil Court of competent jurisdiction as envisaged in S. 9 of the Civil Procedure Code, 1908 (if the dispute qualifies the criteria of S. 9, C.P.C.)---Writ petition, being non-maintainable, was dismissed, in circumstances.

(b) Azad Jammu and Kashmir Motor Vehicle Rules, 1973---

----Rr. 95-A, 230, 237 & 242---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Functions/operation of bus stops, matter of---Remedy of appeal, availability of---Invoking writ jurisdiction of the High Court---Maintainability---Petitioners (Transport Operator Union) prayed for ceasing the operation of all the bus stops (old and new) and relocation of the stops---Validity---Under S. 230 of the Azad Jammu and Kashmir Motor Vehicle Rules, 1973 ('the Rules 1973') consideration governing location of the stand have specifically been given which is to be taken into consideration at the eve of granting permission for Bus vehicle stand---District Magistrate in view of R. 237 of the Rules, 1973 is authorized to inspect every stand---Under R. 242 of the Rules, 1973 a right of appeal has been given to the aggrieved person by an order of the Transport Authority sanctioning the establishment of a stand or revoking or modifying an order permitting the establishment of a stand---In view of Rr. 242 & 95-A of the Rules 1973, the petitioners have to file an appeal against the order of the Transport Authority instead of filing the constitutional petition in order to resolve the disputed question of facts requiring detailed investigation and evidence---Disputed questions of facts cannot be resolved by the High Court in extraordinary jurisdiction particularly when alternate remedy is provided to the petitioners qua redressal of their grievance---Appeal is a creation of statute and must be shown to exist before the higher forum---Writ petition, being merit-less, was dismissed, in circumstances

(c) Azad Jammu and Kashmir Motor Vehicle Rules, 1973---

----Rr. 95-A, 230, 237 & 242---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Functions/operation of bus stops, matter of---Remedy of appeal, availability of---Invoking writ jurisdiction of the High Court---Maintainability---Petitioners (Transport Operator Union) prayed for ceasing the operation of all the bus stops (old and new) and relocation of the stops---Validity---All the respondents are running their business activities in pursuance with the licenses/permits issued by the competent authority---Attempt is impliedly being made to challenge the permits and NOCs issued in favour of the respondents---Remedy against such orders is provided qua filing of an appeal---Statutory remedial forums for the purpose of adjudication of grievances ex-facie meet the purpose of dispensation of administrative justice, thus, bypassing said statutory fora without disclosing solid reasons and switching over to writ jurisdiction cannot be allowed at random---Right of appeal is not a mere matter of procedure, but it is a substantive right---Right of appeal bestowed by a statute is the right of entering a higher appellate forum and invoking its aid and Interposition to redress the error of the lower authority---Writ petition, being merit-less, was dismissed, in circumstances.

Raja Tariq Bashir Khan/Mir Sharafat Hussain for Petitioners.

Naeem A. Chaudhary, Legal Advisor for Official Respondents.

Syed Zulqarnain Raza Naqvi for Respondent No.11.

P L D 2025 Islamabad 1

Before Babar Sattar, J

The STATE OF LIBYA through Head of Mission in Pakistan---Petitioner

Versus

CIVIL JUDGE (WEST), ISLAMABAD and 2 others---Respondents

Writ Petition No. 02 of 2023, decided on 27th September, 2024.

Diplomatic and Consular Privileges Act (IX of 1972)---

----Ss. 3, 4 & First Schedule---State Immunity Ordinance (VII of 1981), Ss. 3, 4, 5 & 17---Civil Procedure Code (V of 1908), S. 86A & O. VII, R. 11---Rejection of plaint---Diplomatic immunity---Recovery of damages---Lease agreement with foreign State---Petitioner/State of Libya entered into lease of house owned by respondent/plaintiff---Respondent/plaintiff sought recovery of damages for breach of lease agreement and cost of repairs to the damage caused to leased house---Trial Court declined to reject the plaint---Validity---When it comes to foreign affairs and inter-state relations, Courts exercise their powers cautiously and while exhibiting deference to the position of Federal Government---Exercise of judicial power in relation to foreign states may have consequences for inter-state relationships---It is Federal Government aided by Foreign Office and not municipal Courts that are best placed to comprehend consequences that assumption of jurisdiction in relation to foreign states may have on inter-State relations---Given the principle of reciprocity, to the extent that municipal Courts assume jurisdiction in relation to missions of foreign states and/or diplomatic agents, such actions could have consequences for the manner in which other states treat Pakistani missions and diplomatic agents abroad---Provision of S. 4 of Diplomatic and Consular Privileges Act, 1972 provides that final determination of whether or not a person is entitled to any privilege or immunity is to be determined by Federal Government by issuing a certificate in such regard---While it is for the person claiming immunity to establish that it falls beyond the jurisdiction of Courts in Pakistan, any waiver of immunity is to be strictly construed---Provisions of Diplomatic and Consular Privileges Act, 1972 read together with provisions of Treaties clarify that even where a state waives immunity, the execution of a judicial verdict requires a separate and express waiver---Where a foreign state or a foreign mission has been made party to a judicial proceeding and such state or state agent makes a claim for immunity, the Court seized of the matter must issue a notice to Federal Government for purposes of S. 4 of Diplomatic and Consular Privileges Act, 1972 in order to determine whether or not the foreign state or state agent is entitled to the privilege or immunity claimed---Claim made by respondent/plaintiff did not fall within the exclusion from immunity in terms of S. 17 of State Immunity Ordinance, 1981---High Court set aside order passed by Trial Court whereby it held that the Agreement constituted a commercial transaction and failed to appreciate that petitioner/State of Libya enjoyed immunity from judicial proceedings in relation to the claim under provisions of the Diplomatic and Consular Privileges Act, 1972 and State Immunity Ordinance, 1981---Suit filed by respondent/plaintiff was barred by law---Constitutional petition was allowed, in circumstances.

A.M. Qureshi v. Union of Soviet Socialist Republics and another PLD 1981 SC 377 rel.

Aftab Rashid and Haroon ur Rashid for Petitioner.

Aqeel Akhtar Raja, Assistant Attorney General for Respondents.

Barrister Waqas Aziz Qureshi for Respondent No.2.

P L D 2025 Islamabad 14

Before Arbab Muhammad Tahir, J

MOHSIN ABBAS---Appellant

Versus

SUZUKI MOTORS COMPANY LTD. through General Manager and another ---Respondents

Criminal Appeal No.280 of 2022, decided on 23rd February, 2024.

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

----Ss. 2(c)(i), 2(f), 5 & 9---Criminal Procedure Code (V of 1898), S.544-A---Consumer rights---Unfair trade practice---Appellant booked three pickup vehicles with respondents against payment of Rs. 29,97,000/----Respondents failed to provide the vehicles within stipulated period---Appellant filed a complaint, which was dismissed by the Consumer Court without recording evidence on the grounds that the booked vehicles constituted future goods within the meaning of Sale of Goods Act, 1930, thus civil suit was maintainable instead of a consumer complaint---Validity---Section 9(1) of Islamabad Consumer Protection Act, 1995 provided that where any right of consumer required to be protected under S. 5 of the Act of 1995 is in any way infringed, the person responsible for such infringement shall be punished with imprisonment which may extend to two years, or with fine which may extend to forty thousand rupees, or with both---Section 9(3) provided that the Authority (the Court of Session) may, where it deems appropriate, order for payment of compensation to the consumer to the extent the consumer has suffered any damage or loss through any unfair trade practice---Without prejudice to subsections (2) and (4), the function of the Authority is two-fold, (i) to determine criminal liability, and (ii) determination of the value of compensation---Both the determinations can be made together, but are not dependent upon one another---Unlike S.544-A, Cr.P.C., the award of compensation has not been made conditional to award of conviction by the Legislature---Section 544-A, Cr.P.C., opens with the words "whenever a person is convicted of an offence", contrary to subsection (3) of S. 9 of the Act of 1995 where the Authority is empowered to award compensation keeping in view the extent to which a consumer suffers damage or loss through any unfair trade practice---Court below had confused the scheme of two distinct provisions of different statutes and the manner in which a Court had to proceed while dealing with cases thereunder---For the purpose of determining the value of compensation under the Act of 1995, the Authority has to frame separate issue and accept evidence in support thereof, so as to achieve the purpose for which the Act of 1995 is enacted---Each provision of the Act of 1995 carries meaning and is enacted for the purpose of achieving its object---Unless a statute itself provides an exception, deviation from the provisions of a statute is unlawful---Therefore, all subsections of S. 9 of the Act of 1995 were independent of each other and not conditional to conviction of a respondent in the consumer complaint---Findings of the Consumer Court to such extent were, therefore, not justified in law and were contrary to the provisions of the Act of 1995---Divergent claims of the parties available on record contained substantial disputed questions of facts and law, which could have been resolved after recording evidence of the parties---Consumer Court should have refrained from knocking out the complainant on erroneous interpretations of the expressions contained in the Act of 1995---In the case in hand, prima facie, the appellant fell within the meaning of 'consumer of service' to the extent of delivery of vehicles---Therefore, the appeal was allowed by setting aside the impugned order and remanding the matter to the Consumer Court to decide the same afresh in accordance with the law after recording evidence of the parties.

Imperia Structures Ltd. v. Anil Patni and others AIR 2021 SC 70; Chandigarh Housing Board v. Avtar Singh and others AIR 2011 SC 130; Rohit Chaudhary and others v. Vipul Ltd. AIR 2023 SC 4229; K V Muthu v. Angamuthu Ammal AIR 1997 SC 628; National Insurance Company Limited v. Deepa Devi (2008) 1 SCC 414 and National Insurance Co. Ltd. v. Harsolia Motors 2023 SCC OnLine SC 409 rel.

Sajjad Haider Malik for Appellant.

Shahryar Tariq and Muhammad Taimoor Khan for Respondents.

P L D 2025 Islamabad 24

Before Babar Sattar, J

Doctor NAUMAN HAMID NIAZ---Petitioner

Versus

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

Writ Petitions Nos. 2997, 3161, 3332 and 3502 of 2022, decided on 21st November, 2024.

Criminal Procedure Code (V of 1898)---

----S. 160---Constitution of Pakistan, Art. 199---Constitutional petition---Inquiry proceedings---Notice to join inquiry---Civil and criminal proceedings---Petitioners assailed notices issued to them by Federal Investigating Agency to join inquiry in the matter of execution of Joint Venture Agreement between a private television channel and Pakistan Television Corporation---Validity---Lahore High Court had already declared that the procurement process and JV Agreement did not suffer from illegality---Such question could not be reopened by Executive authorities in exercise of State's police power under the garb of undertaking criminal proceedings in relation to such question, without judgment of Lahore High Court first getting set aside in appeal---Federal Investigating Agency inquiry and notices in question could not be allowed to result in framing of any criminal charges against petitioners---During pendency of matters before two High Courts, Federal Investigating Agency could not continue its investigation and/or frame criminal charges against petitioners as doing so could have the effect of prejudicing the matter(s) pending before Lahore High Court and Sindh High Court---To the extent that the two High Courts issued declarations with regard to legality of procurement process and JV Agreement itself, any criminal proceedings against petitioners would be tantamount to defeating the judgment and/or process of two High Courts---High Court directed petitioners to join investigation and had allowed Federal Investigating Agency to continue its investigation in inquiry No. RE-150/2022 during pendency of present Constitutional petitions---High Court directed Federal Investigating Agency not to frame criminal charges against petitioners, notwithstanding its findings in such inquiry and/or investigation, and would instead stay its hand till the decisions of the High Courts in the related petitions, unless appropriate applications were filed before such High Courts and permission was granted by them to initiate criminal proceedings during pendency of the matters before two High Courts---Constitutional petition was allowed accordingly.

Independent Media Corporation (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2022 Lah. 288; SW Sugar Mills Ltd v. FBR, Islamabad and others 2020 PTD 925; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Misbah ud Din Zaigham and others v. FIA and others 2021 CLD 906; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; Universal Cables Industries Ltd. v. Federation of Pakistan through Secretary and others PLD 2020 Sindh 601; Muhammad Akbar v. The State and another PLD 1968 SC 281; ARY Communications Limited v. Independent Music Group (SMC-Pvt.) Limited (Suit No.223 of 2023); M. Tufail v. The State 1979 SCMR 437; SW Sugar Mills Ltd. v. FBR 2020 PTD 925; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677; Saeed Ahmed Khan v. M.R.Toosy PLD 1974 SC 151; Talib Hussain v. Angar Gul Khan 1993 SCMR 2177; Seema Fareed v. The State 2008 SCMR 839; State v. Jahangir Akhtar 2018 SCMR 733; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; B.N. Kashyap v. Emperor AIR 1945 Lahore 23 and Malik Khuda Bakhsh v. The State 1995 SCMR 1621 ref.

Qazi Umair Ali and Nasir Mehmood for the Petitioners (in W.P No. 2997 of 2022).

Muhammad Ahmad Pansota for Petitioner (in W.P. No. 3161 of 2022).

Kashif Ali Malik for Petitioners (in W.Ps. Nos. 3332 and 3502 of 2022).

Muhammad Usman Warraich, Assistant Attorney General for Respondents.

Feisal Hussain Naqvi for PTV.

Malik Sajid Mehmood, Assistant Director, FIA/ACC Islamabad.

Abid Mehmood Ch., Section Officer (Legal), Ministry of Information and Broadcasting, Islamabad.

P L D 2025 Islamabad 35

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

MUHAMMAD SHAHID---Appellant

Versus

The STATE and others---Respondents

Jail Appeal No. 21 and Criminal Appeal No. 113 of 2023, decided on 3rd June, 2024.

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

----S. 9(c)---Transfer of Offenders Ordinance (XXXVII of 2002), Ss. 6 & 9---Possession of narcotic substances---Appreciation of evidence---Foreign judgment---Transfer of offender---Scope---Prosecution case was that 8.3545 kilograms heroin was recovered from the possession of accused---Record showed that the accused was arrested in the year 2010 in Sri Lanka on the charges of trafficking 8.3545 kilograms heroin and after a full fledged trial, he was convicted and sentenced to death by the High Court of Negombo in Sri Lanka---However, sentence of accused was later commuted to life imprisonment by the President of Sri Lanka---Accused was subsequently transferred to Pakistan under the Transfer of Offenders Ordinance, 2002 ('Ordinance') for serving out the remaining portion of his sentence---Case of the accused was that since he was convicted for possessing 8.246 kilograms of heroin, therefore his sentence be reduced to 14 years under S. 9(c) of Control of Narcotic Substances Act, 1997, particularly keeping in view the proviso thereof---Validity---Court in Pakistan could not act as a Court of appeal or revision in respect of the order of imprisonment inflicted upon the offender in a foreign State---In fact the offender was transferred to Pakistan to serve out his sentence after his conviction and sentence had attained finality in the foreign State---Scope of interference under subsection (4) of S. 9 of the Ordinance is limited to a case where the sentence of imprisonment imposed upon the transferred offender is incompatible with the laws of Pakistan---In the case in hand, the accused had been transferred to Pakistan to serve out the sentence of imprisonment for life, which as per S. 9(3) of Control of Narcotic Substances Act, 1997, is imprisonment in jail for a period of twenty-five years---Punishment provided in S. 9(c) Control of Narcotic Substances Act, 1997, for possessing narcotic drugs, psychotropic substance or controlled substances weighing more than 01 kilograms, is death or imprisonment for life or imprisonment for a term which may extend to fourteen years---Purpose of the proceedings under S. 9(4) of the Ordinance is not to sit in appeal or revision over the original order of a Court of foreign State, rather to remove the incompatibility of the foreign sentence with the municipal laws of Pakistan---In the case in hand, possessing heroin weighing more than 08 kilograms is punishable under S. 9(c) Control Narcotic Substances Act, 1997, and the sentence of life imprisonment is provided thereunder---Principle that when a statute provides for more than one type of sentences, then the accused shall be awarded punishment which is less severe, is observed by the Courts while inflicting sentences on conclusion of trial after recording of evidence within the municipal laws of Pakistan---In the case in hand, the accused had exhausted the available legal remedies against the original order of conviction in Sri Lanka and consequently his death sentence was converted into life imprisonment---Such sentence could, therefore, not be reviewed, modified, reduced or otherwise altered by Courts in Pakistan, except the proceedings under S. 9(4) of the Ordinance, which power is limited to "adoption of corresponding sentence as far as practicable to the sentence imposed on the offender by the Courts of a foreign State" that too in case of incapability of the sentences of transferring and receiving States---Thus, the sentence of life imprisonment inflicted upon the accused by the foreign State was compatible with sentence provided in S. 9(c) Control of Narcotic Substances Act, 1997, and did not call for interference by way of "adoption"---Appeal was dismissed accordingly.

Amjad Makhdoom for Appellant.

Rana Zulfiqar Ali, SPP, ANF, Muhammad Ammar Aziz, SPP, ANF, Muhammad Ali, State Counsel and Sarfraz Akhtar, SI for Respondents.

P L D 2025 Islamabad 41

Before Sardar Ejaz Ishaq Khan, J

HIGHER EDUCATION COMMISSION through Project Director, Islamabad---Petitioner

Versus

Dr. NOUSHEEN IRAM and 2 others---Respondents

Writ Petition No. 2480 of 2022, decided on 28th February, 2024.

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

----S. 2(5)---Criminal Procedure Code (V of 1898), S. 514(6)---Contract---Surety bond---Liability upon guarantor beyond his death---Scope---Abatement of the suit against deceased guarantor---Scope---Higher Education Commission (HEC) filed suit for recovery of the scholarship funds extended to a scholar, claiming that breach of the scholarship agreement was occasioned as the defendant/scholar did not serve in Pakistan for 5 years in terms of the scholarship agreement after completion of her Ph.D degree---Plaintiff/HEC filed constitutional petition being aggrieved of an order passed by the Trial Court whereby abatement of the suit against defendant/guarantor, due to his death, was ordered---Plea of the respondent (defendant/scholar) was that her father (defendant), who stood as a guarantor for her, had passed away before the suit was filed---Contention of the petitioner (plaintiff/HEC) was that the guarantee bound the legal heirs and the suit could continue with guarantor/defendant 's legal heirs impleaded---Petitioner (HEC) referred to the language in the surety bond executed jointly by the two defendants (scholar and guarantor) which contained the language as "we hereby bind ourselves, each of us, and each of our heirs, executors administrators jointly and severally" ('language-in-question')---Whether the language-in-question was effective to bind the legal heirs of the guarantor for them to be impleaded in his stead and for the suit to continue against them?---Held, that pertinently, language-in-question appeared in an instrument titled "surety bond" which, in a strict sense, is not the same thing as an instrument of guarantee---Instrument of guarantee executed by the father of scholar (guarantor/defendant) was expressly titled "Guarantee" in which no language binding his heirs or successors appeared---Instrument in which the language-in-question appeared was titled "surety bond" and, by executing two separate instruments in the same transaction with different titles, it could not be said that both the instruments were guarantee instruments---Expression "bond" is not defined in the Contract Act, 1872, while the expression "guarantee" is---Expression "bond" does appear in other statutes i.e., apart from the Limitation Act, 1908, S. 2(5) of the Stamp Act, 1899, defines "bond"; cumulative effect of which is that the expression "bond" entails a personal liability and in the ordinary course does not apply to the estate of a person---As per S. 514(6) of Criminal Procedure Code, 1898, the death of a surety to a bond dying before the bond's forfeiture leads to his estate being discharged from all liability in respect of the bond---A bond generally is given for the performance by the giver of a personal obligation and not for the performance of a contractual promise of a third person (e.g. bail bond, indemnity bond, bottomry bond etc. through a performance bond or bid bond may be exception to this general rule)---Therefore, a much higher threshold has to be met where the argument for survival of liability beyond death relates to a bond---Resultantly, the impugned order was correct to conclude that the suit to the extent of defendant/guarantor(father of scholar) was to abate on his death---Constitutional petition, filed by Higher Education Commission, was dismissed.

National Bank of Pakistan v. Muhammad Raies Ahmad and others 2020 CLD 784 and Mst. Ameer Begum v. Abid Hussain PLD 2011 Lah. 284 distinguished.

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

----Ss. 129 & 131---Contract---Surety bond---Continuing guarantee---Liability beyond death---Scope---Abatement of the suit against deceased guarantor---Scope---Higher Education Commission (HEC) filed suit for recovery of the scholarship funds extended to a scholar, claiming that breach of the scholarship agreement was occasioned as the defendant/scholar did not serve in Pakistan for 5 years in terms of the scholarship agreement after completion of her Ph.D degree---Plaintiff/HEC filed constitutional petition being aggrieved of an order passed by the Trial Court whereby abatement of the suit against defendant/guarantor, due to his death, was ordered---Argument of the petitioner (plaintiff/HEC), referring to S. 131 of the Contract Act 1872, was that the guarantee was a continuing guarantee in that several installments of scholarship funds were paid and the revocation of a continuing guarantee was expressed subject to a contract to the contrary, and that the language purporting to bind the legal heirs was to be taken to be a contract to the contrary---Validity---Said contention/interpretation did not follow because S. 129 of the Contract Act, 1872 defines a continuing guarantee as one winch extends to a series of transactions, whereas, in the present case, the transaction was only one, namely, the funding of the scholarship---Petitioner's argument would have carried substance if the guarantor spanned various scholarships from time to time, but there was only one scholarship for one course of study and the mere fact that the scholarship funds were released in installments to correlate with the fee payment schedule of the University did not make it a continuing guarantee for such reason alone---Even assuming that the surety bond in question was a continuing guarantee, the language on which HEC relied was ineffective to bind the legal heirs---Resultantly, the impugned order was correct to conclude that the suit to the extent of defendant/guarantor(father of scholar) was to abate on his death---Constitutional petition, filed by Higher Education Commission, was dismissed.

Meezan Bank Limited v. Messrs Focus Apparels (Private) Limited and others 2013 CLD 2138 ref.

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

----S. 100---Contract---Surety bond---Declaration of assets of the guarantor accompanying the surety bond---Charges---Abatement of the suit against deceased guarantor---Scope---Higher Education Commission (HEC) filed suit for recovery of the scholarship funds extended to a scholar, claiming that breach of the scholarship agreement was occasioned as the defendant/scholar did not serve in Pakistan for 5 years in terms of the scholarship agreement after completion of her Ph.D degree---Plaintiff/HEC filed constitutional petition being aggrieved of an order passed by the Trial Court whereby abatement of the suit against defendant/guarantor, due to his death, was ordered---Plea of the respondent (defendant/scholar) was that her father (defendant), who stood as a guarantor for her, had passed away before the suit was filed---Argument of the petitioner (HEC), with reference to the declaration of assets of the guarantor accompanying the surety bond, was that the guarantor's property was subject to a charge and was burdened with the obligation under the guarantee---Validity---Said argument was not supported by the language of the declaration---Applying the settled principle that an instrument of guarantee is to be strictly construed, there should have been express language in the surety bond or in the declaration of assets if such assets were to be charged with the obligation under the surety bond for the liability to travel with the assets irrespective of their ownership by the guarantor or his legal heirs---For a charge to be inferred, some express language to that effect must appear in the instrument itself---On its proper construction in terms of S. 100 of the Transfer of Property Act, 1882, the instrument of declaration of assets was only furnished to demonstrate that the guarantor was a man of means capable of satisfying the obligation under the bond, but a declaration of sufficiency of assets does not per se entail that those assets have been secured for the purposes of discharge of an obligation under an instrument of guarantee or bond---Resultantly, the impugned order was correct to conclude that the suit to the extent of defendant/ guarantor (father of scholar) was to abate on his death---Constitutional petition, filed by Higher Education Commission, was dismissed.

Muslim Commercial Bank v. East and Exports Private Limited and others 2007 CLD 1205 ref.

P L D 2025 Islamabad 48

Before Aamer Farooq, C.J.

Syed MUHAMMAD ALI BOKHARI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and

Justice, Islamabad and 3 others---Respondents

Writ Petition No. 1796 of 2024, decided on 19th September, 2024.

(a) Elections Act (XXXIII of 2017)---

----S. 140---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Election Tribunal presided by sitting Judge of High Court---Effect---Election Tribunal presided by a sitting Judge of High Court is not High Court but is persona designata---Petition under Art. 199 of the Constitution is maintainable, if order passed by such Judge suffers from jurisdictional error or is patently against the law.

Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; PLD 2008 SC 735 and PLD 2008 SC 779 rel.

(b) Constitution of Pakistan---

----Arts. 175, 202, 203 & 225---Courts and Tribunals---Scope---Courts can be constituted by the Parliament, however, Constitution does recognize creation of certain tribunals including Election Tribunal under Art. 225 of the Constitution---Constitution specifically recognizes establishment of Election Tribunals as a "forum" for resolution of election disputes under the law by the Parliament---Harmonious interpretation to the provisions of the Constitution is to be made so that no one provision of the Constitution collides with the other---Election Tribunal is not a "Court" as envisaged in Art. 175(3) of the Constitution and is a "Tribunal" created for deciding election disputes.

State v. Zia ur Rehman PLD 1973 SC 49; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Sami Ullah Baluch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405; Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1; Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez 2009 PLC (C.S.) 650; Messrs Ranyal Textiles through Proprietor/Employer v. Sindh Labour Court No.3, Karachi and 3 others PLD 2010 Kar. 27; Sh. Riaz ul Haq and others v. Federation of Pakistan and others PLD 2013 SC 501; Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542; Reference No.1 of 2020: In the matter of PLD 2021 SC 825; Mahmood Khan Achakzai and others v. Federation of Pakistan and another PLD 1997 SC 426; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Sheikh Abdul Aziz Hamad Al-Gosaibi v. Pakistan International Airlines Corporation PLD 1995 Kar. 566 and District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 rel.

(c) Constitution of Pakistan---

----Arts. 175 (3) & 225---Election Commission of Pakistan and Election Tribunal---Status---Election Commission of Pakistan cannot be regarded as "Executive" but an autonomous constitutional body, which acts as regulator of election matters---Election Commission of Pakistan has been mandated by the Constitution to provide for resolution of election disputes---Election Tribunal is not a "Court" for the purposes of Art. 175(3) of the Constitution, but is a "Tribunal" as has been designated in Art. 225 of the Constitution.

Bneazir Bhutto v. Federation of Pakistan 1991 MLD 2622; Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542 rel.

(d) Elections Act (XXXIII of 2017)---

----S. 151---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Transfer of election petition from one Election Tribunal to another---Principle---If any party is aggrieved of a decision of Election Commission of Pakistan by transfer of election petition from one Tribunal to another, such decision is always subject to challenge by way of judicial review before High Court---If yardsticks for challenging such actions of Election Commission of Pakistan are fulfilled, High Court, in appropriate cases, can strike down the same---It is a must for the Election Commission of Pakistan to give reasons for transfer.

District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 rel.

(e) Elections Act (XXXIII of 2017)---

----Ss. 140 & 151 [as amended by Elections (Amendment) Ordinance, 2024]---Constitution of Pakistan, Arts. 10A & 199---Constitutional petition---Maintainability---Election Tribunal---Appointment of retired Judges of High Courts---Transfer of election petitions---Petitioner was a returned candidate and his election was assailed by respondent in election petition---During pendency of election petition, on application filed by respondent, election petition was transferred from one Tribunal to the other---Petitioner assailed such order of transferas as well as appointment of retired Judges of High Courts as Election Tribunal by the Election Commission of Pakistan---Validity---Proper process was that a request should have been made in such regard to Presiding Officer for recusal from the case and the rest was left to the conscious of Judge, but since Presiding Officer was not Judge of High Court, normal principles was not applicable and "bias" might be a ground---Burden of proof of "bias" was heavy and mere wrong application of law and not granting adjournments or rejection of applications or making certain observations in the Court, was not a ground for "bias"---Election Commission of Pakistan proceeded with transfer application in haste without providing opportunity of filing affidavits and counter-affidavits/replies to allegation of "bias" or misapplication of law---Proper opportunity should have been granted to petitioner and failure on the part of Election Commission of Pakistan to grant such opportunity was in violation of Art. 10A of the Constitution---Election Commission of Pakistan is not a "judicial forum" nor even purely Executive; it is a Constitutional body, which has some quasi-judicial powers to perform while deciding certain issues---Power of transfer is supervisory and administrative in nature and has to be exercised after providing opportunity to everyone concerned---There was nothing on record to show that the same was done and in one of the writ petitions while allowing the transfer application even merits were touched and finding on the same was rendered, which was not the mandate of Election Commission of Pakistan---High Court found it appropriate for Election Commission of Pakistan to revisit the matter as it had authority and mandate to decide transfer application under S. 151 of Elections Act, 2017 and could also transfer petitions suo moto but had to give reasons for the same---High Court set aside transfer order passed by Election Commission of Pakistan as in application filed for transfer, all parties were to be heard but this was not done---High Court remanded transfer application to Election Commission of Pakistan for decision afresh.

Pakistan Fisheries Limited, Karachi and others v. United Bank Limited PLD 1993 SC 109; Messrs Tri-Star Polyester Limited and others v. Citi Bank 2001 SCMR 410; Ehsan Ellahi v. Muhammad Arif 2001 SCMR 416; State and others v. Shereen Shah and others PLD 2023 SC 907; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others PLD 2010 SC 61; Election Commission of Pakistan and others v. Javaid Hashmi and others PLD 1989 SC 396; Workers Party Pakistan and others v. Federation of Pakistan and others PLD 2012 SC 681; Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779; Let. Gen. Salahuddin Tirmizi v. Election Commission of Pakistan and others PLD 2008 SC 735; Ali Asjad Malhi v. Syed Nosheen Iftikhar PLD 2023 SC 1; Aurangzeb Khan v. Election Commission of Pakistan and others PLD 2010 SC 34; Ghulam Mustafa Jatoi v. Additional Sessions Judge 1994 SCMR 1299; Tariq Transport Company v. Sargodha Bhera Bus Service and others PLD 1958 SC 437; Lahore Development Authority Ltd. v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Federation of Pakistan v. Shaukat Ali Rana PLD 1999 SC 1026; Benazir Bhutto v. Federation of Pakistan 1991 MLD 2622; East and West Steamship v. Pakistan PLD 1958 SC 41; Jibendra Kishore Achharyya Chowdhry v. The Province of Pakistan PLD 1957 SC 9; Govindan Sellappah Naar Kodakan Pillai v. Punch Banda Mundanayake and others PLD 1953 Privy Council 51; Mrs. Shaila Joseph v. Chairman, Hazara Hill Tract Improvement Trust, Abbotabad and 3 others 1990 MLD 807; Peoples University of Medical and Health Sciences for Women through Registrar and 4 others v. Pakistan Ministry of Health Services, Regulation and Coordination through Secretary and 13 others PLD 2021 Sindh 256; Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; M.H. Khondkar v. The State PLD 1966 SC 140; Muhammad Azam Khan Swati v. The State and another 2023 PCr.LJ 350 and Liteky v. United States 510 U.S. 540 (1994) ref.

Syed Muhammad Ali Bokhari, Petitioner in person with Syed Ishfaq Hussain Shah, Qamar Inayat Raja, Hassan Sajjad, Zakria Arif, M. Ali Haider and Fida Hussain for Petitioners (in W.P. No.1796 of 2024 and W.P. No.1984 of 2024).

M. Shoaib Shaheen, Petitioner in person with Barrister Hassan Shoaib, M. Umair Baluch, Mirza Waqas Qayyum and Sajeel Sheharyar Swati for Petitioners (in W.P. No.1797 of 2024 and W.P. No.1977 of 2024.

Faisal Fareed Ch. with Bina Shahid along with Petitioner in person for Petitioners (in W.Ps. Nos.1798 and 1981 of 2024).

Waqas Mir, Ali Hassan Gillani, Kamran Haider Ali for Private Respondents.

Saad Hassan for ECP with M. Arshad, D.G. (Law), Khurram Shehzad, ADG (Law) and Falak Sher, Legal Consultant.

P L D 2025 Islamabad 97

Before Babar Sattar, J

SHAFQAT HUSSAIN---Petitioner

Versus

ABDUL HAMEED and 2 others---Respondents

Writ Petition No. 2775-Q of 2023, decided on 22nd January, 2024.

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

----Art. 128--- Specific Relief Act (I of 1877), S. 42---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Arts. 14 & 199---Constitutional petition---Quashing of FIR---Cheating and using forged documents---Paternity of an individual---Locus standi---Negative declaration---Scope---Dignity of individual---Protection of rights of women and children---Respondent/complainant alleged that petitioner/accused facilitated falsification of NADRA record reflecting an adopted child as his son---Plea raised by petitioner/accused was that question of paternity could not be determined by brining criminal charges---Validity---No negative declaration can be sought under S. 42 of Specific Relief Act, 1877 with regard to paternity of an individual---Law only vests a right in an individual to seek a positive declaration regarding his/her paternity---Even a father cannot deny paternity of a child beyond the period prescribed in Art. 128 of Qanun-e-Shahadat, 1984---No third party, including a putative brother or sister or a family member or a relative, has locus standi to challenge paternity of an individual as no evidence can be accepted to negate statutory declaration made by Art. 128 of Qanun-e-Shahadat, 1984---Prohibition against bringing a challenge against paternity of an individual is designed to protect right of such individual to dignity and privacy guaranteed by Art. 14 of the Constitution, as well as the collective interest of society in protecting rights and interests of women and children, including privacy, identity, and reputation of children from being besmirched from allegations of illegitimacy---Complainant sought to abuse process of law to question legitimacy and identity of child for pecuniary gain and in doing so he had used provisions of P.P.C. and Cr.P.C. to put pressure on the petitioner to enter into a settlement after instigating arrest of petitioner in relation to FIR in question---High Court in exercise of extraordinary Constitutional power, quashed FIR. in question that should never have been registered as no cognizable offence was made out in view of the petitioner claiming that he was father of minor as was reflected in various documents which were alleged to have been fabricated by petitioner---High Court imposed costs of Rs. 100,000/- upon respondent/complainant---Constitutional petition was allowed, in circumstances.

Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449; Daw Pone v. Ma Hnin May AIR 1941 Rangoon 220; Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327; Urooj Tabani v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others PLD 2021 Isl. 105; Mohammad Nazir v. Ali Mohammad 2003 SCMR 1183; Suhail Abbasi v. Mst. Khushboo and others 2021 CLC 1904; Mohammad Nawaz v. Additional District and Sessions Judge PLD 2023 SC 461; Meraj Khan v. Gul Ahmed 2000 SCMR 122 and Bashir Ahmed v. Zafar ul Islam PLD 2004 SC 298 rel.

Mohammad Suhail Khursheed for Petitioner.

Raja Shuja-ur-Rehman, Makhdoom Syed Fakhar Imam Ali Shah Bokhari, State Counsel.

Tanveer Shah and Hanif Kamal, ASIs with record for Respondents.

P L D 2025 Islamabad 106

Before Mohsin Akhtar Kayani, J

Dr. FARHAT ULLAH BAKHSH---Appellant

Versus

EX-OFFICIO JUSTICE OF PEACE/ ADDITIONAL SESSIONS JUDGE-III (EAST), ISLAMABAD and 4 others---Respondents

Writ Petition No. 3431 of 2023, decided on 1st July, 2024.

Islamabad Healthcare Regulation Act (XXIII of 2018)---

----Ss.2 (xxiv), 4, 30 & 33---Pakistan Medical and Dental Council Act (IV of 2023), Ss. 44 & 50---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Medical negligence---Healthcare Regulatory Authority---Jurisdiction---Petitioner/proposed accused was aggrieved of order passed by Ex-Officio Justice of Peace directing registration of criminal case against him on the allegation of causing hurt due to medical negligence---Validity---There is an overriding effect available in Islamabad Healthcare Regulation Act, 2018---Offences, which have been provided in Islamabad Healthcare Regulation Act, 2018, which is a special law, are entirely different and for that matter Penal Code, 1860, is a general law with bodily injuries or hurt---In such situations, in which special law versus general law is to be considered in juxtaposition, Penal Code, 1860, does not exclusively cater for medical negligence, rather covers the same---In order to determine the offence, it requires evidence and report of expert, especially when proposed accused persons are professional doctors or healthcare providers or incident took place in a healthcare institution---High Court drew following guidelines to deal with the issue of medical negligence, whenever an aggrieved person instead of filing complaint in IHRA goes to police station or files private complaint under S. 200, Cr.P.C. or Ss. 22-A & 22-B, Cr.P.C. application for lodging of FIR against healthcare service establishment, professional or administration with the allegation of medical negligence:

i. To criminally prosecute a healthcare professional for medical negligence under criminal law it must be shown that the accused did something wrong or failed to do something which in given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. And for that a technical report of subject experts is necessary by IHRA or PMDC.

ii. When an aggrieved person informs police regarding matters of medical negligence against healthcare/medical professional, no FIR should be lodged and SHO is bound to keep record in daily diary and prepare official letters requesting expert inquiry/ investigation report and address them to both IHRA and PMDC. Upon receiving negative report form IHRA or PMDC or both, the FIR may be lodged otherwise no FIR should be lodged.

iii. SHO is bound to cite name of expert as a witness and make report of IHRA or PMDC as part of challan.

iv. Private complaint under section 200, Cr.P.C., may be entertained subject to all legal exceptions, however, complaint should not be proceeded further unless expert report from IHRA or PMDC with its conclusive findings is obtained.

v. When Ex-officio Justice of Peace receives application under sections 22-A and 22-B,Cr.P.C., instead of issuing order for lodging FIR he/she should direct concerned SHO to prepare official letters requesting expert inquiry/investigation report and place it before IHRA or PMDC. After receiving report, based on findings of the report, Ex-officio Justice of Peace may pass an order of lodging the FIR (or as the case may be).

vi. IHRA and PMDC have mutually exclusive jurisdiction to deal with matters of medical negligence in case of a medical professional under section 33 of Islamabad Healthcare Regulation Act, 2018 and section 44 of Pakistan Medical and Dental Council Act, 2023 respectively. And findings of one have persuasive value for the other.

vii. Both the Authority and Council are bound to complete their investigation and submit report to Police Station within a period of ninety days.

viii. Standard minimum requirement to initiate criminal proceedings against medical professional is to receive technical expert report from IHRA or PMDC whereby it is suggested or held that accused has been medically negligent. One negative report from any one of the two departments is sufficient to proceed criminally against the accused.

ix. PMDC is a regulatory body which deals with licensing and registration of medical and dental practitioners in Pakistan, and it hears matters pertaining to cancelation/suspension of license to practice. IHRA after completion of its inquiry forwards the matter to PMDC for cancelation/suspension of license of medical or dental practitioner. However, findings of IHRA are not binding on PMDC and vice versa.

x. On the contrary, if a person is aggrieved from negligent behavior of healthcare establishment or healthcare service, only IHRA has exclusive jurisdiction to entertain matters against them. Under such circumstances concerned Police Station may request the IHRA for expert report. And IHRA may submit report within 90 days.

xi. Consumer Courts have no jurisdiction in matters of medical/professional negligence by any healthcare professional or establishment because consumer protection law is general in nature and only healthcare Commissions and Authorities (as the case may be) are solely responsible to investigate and adjudicate on complaints against healthcare service providers, professionals and establishments.

xii. If complaint regarding medical negligence is filed in IHRA, and the authority comes to the conclusion that there is medical negligence and mens rea of doctor or paramedical staff is reflected, the authority may refer the case to concerned Police Station for criminal prosecution against the delinquent irrespective of the fact that complaint in terms of section 30 of Islamabad Healthcare Regulation Act, 2018, (which deals with only three specialized offences i.e. quackery, obstruction of inspection and running an Establishment without license) has been referred to Sessions Judge or otherwise.

----High Court set aside order passed by Ex-officio Justice of Peace---Constitutional petition was allowed accordingly. [pp. 112, 114] A & B

Syed Mushahid Shah v. Federal Investigation Agency 2017 SCMR 1218; Federal Employees Cooperative Housing Society v. Director General, Federal Investigation Agency, Islamabad 2019 CLC 347; Sui Northern Gas Pipeline Limited, (SNGPL) v. Director (Legal), President Secretariat (Public), Aiwan-e-Sadar Islamabad PLD 2018 Isl. 51 and References by Judge Special Court-II (C.N.S.): In the matter of Criminal Transfer References (C.N.S.) 2006 PCr.LJ 921 ref.

Dr. Riaz Qadeer Khan v. Presiding Officer, District Consumer Court, Sargodha and others PLD 2019 Lah. 429 and Lady Dr. Nafeesa Saleem v. Justice of Peace/ASJ Multan and 2 others PLD 2022 Lah. 18 rel.

Ch. Qaiser Nazir Sipra for Petitioner.

Sardar Salman Ejaz, State Counsel and Syed Mohammad Ali Shah, S.I. for Respondents Nos. 3 and 4.

P L D 2025 Islamabad 116

Before Babar Sattar, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION LIMITED through M.D. PIA, Karachi and another---Appellants

Versus

MUHAMMAD SALEEM SHERWANI---Respondent

Regular First Appeal No. 215 of 2016, decided on 11th September, 2024.

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

----S. 73---Breach of contract---Damages, recovery of---Principles---General and special damages---Distinction---Quantum of damages---Onus to prove damages---

(i) In case of breach of contract, claim can be made for foreseeable damages, which include (a) damages that fairly and reasonably arise naturally from breach of contract, and (b) damages that ought to reasonably have been in contemplation of both parties at the time of making of contract as being the probable result of a breach.

(ii) Claimant injured by breach of contract can bring forth a

claim for general and special damages. General damages that naturally arise for breach of contract including mental suffering need no special proof. Special damages that are peculiar to the circumstances of claimant need to be proven and quantified by claimant in order for them to be granted.

(iii) Contractual damages are of a compensatory nature and are meant to put claimant in the same position that he/she would have been in, had the contract not been breached. They are not conceived as penal measure or to act as deterrent.

(iv) There is no standard arithmetic formula to calculate general damages, which are awarded on the basis of rule of thumb as is deemed adequate compensation by right-thinking members of society in situation where financial loss cannot be calculated with exactitude.

(v) There can be made a global award for general damages in circumstances where it is not possible to itemize each claim and/or put a financial value on such claim. This, however, does not bar a Court from granting specific awards for itemized claims, even when they all fall within the category of general damages, to enable contesting parties to understand how Court has exercised its discretion in applying rule of thumb and to make judgment reasoned.

(vi) Onus to prove special damages is on claimant and such damages cannot ordinarily be granted unless their incurrence and their quantum is proved by claimant on balance of probabilities.

Hadley v. Baxerdale (1854) 9 Ex 341; A. Ismailjee & Sons Ltd. v. Pakistan PLD 1986 SC 499; Miss Irshad Jehan v. P.N.S.C. 1999 CLC 192; Pakistan International Airlines Corporation v. Syed Ali Raza Rizvi 1996 CLC 627; Abdul Qadir v. S. K. Abbas Hussain PLD 1997 Kar. 566; Messrs Emirates Airline v. Daoud Shami PLD 2003 Lah. 358; Mrs. Zahra Zaidi v. M. Anwar Khan Ghauri 2004 CLC 223; Muhammad Sharif v. Nawab Din PLD 1957 (W.P) Lahore 283; Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 PLC (C.S.) 574; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; Gohar Ali v. Messrs Hoechst Pakistan Limited 2009 SCMR 109 = 2009 PLC (C.S.) 464; Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore PLD 1996 SC 737 and Habib Bank Limited v. Mehboob Rabbani 2023 SCMR 1189 rel.

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

----S. 73---Suit for recovery of damages---Breach of contract---General and special damages---Proof---Pain and suffering---Quantification---Respondent/plaintiff was employee of appellant/Company who sought recovery of general and special damages early retirement from service on the plea of being penalized wrongly---Trial Court decreed the suit in favour of respondent/plaintiff---Validity---Respondent/plaintiff need not have led any special evidence to quantify damages in lieu of pain and suffering as they were damages that could not be quantified by reducing them to a financial number---Damages in lieu of pain and suffering fall within the category of general damages---Once respondent/ plaintiff established through evidence wrongful conduct of appellant/ company that would naturally have caused pain and suffering---It was for Court to determine quantum of damages that would be compensatory in nature and satisfy conscience of Court that respondent/plaintiff as claimant had been duly compensated for bearing such pain, suffering and agony inflicted on him---High Court declined to interfere in judgment and decree passed by Trial Court---High Court directed appellant/company to pay interest on decretal amount from the date of judgment until the day when such amount was paid by appellant/ company to respondent/plaintiff---Appeal was dismissed, in circumstances.

PIA v. M. Saleem Sherwani (Civil Revision No. 29 of 2011) ref.

Muhammad Umer Khan Vardag for Appellants.

Muhammad Arshad Khan for Respondent.

Asad Ladha, Usama Khawar Ghuman and Babar Mumtaz, Amici Curiae.

P L D 2025 Islamabad 130

Before Miangul Hassan Aurangzeb, J

CHINA MOBILE PAKISTAN LIMITED (CMPAK LTD./ZONG) through

Chief Regulatory Officer---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Information Technology and Telecommunication and 2 others---Respondents

Writ Petitions Nos. 3626 of 2019, 3458 of 2020 and First Appeal Against Order No.133 of 2020, decided on 21st August, 2024.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---License, grant of---Renewal of license---Powers of juridical review---Principle---In matters regarding grant of licenses or their renewal by statutory bodies or regulators, Courts must exercise their discretionary power of judicial review with circumspection and only in furtherance of public interest.

Muhammad Akbar Khan v. Province of West Pakistan PLD 1961 SC 17 and Government of Pakistan v. Zamir Ahmad PLD 1975 SC 667 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition---Maintainability--- Contractual liability---When a contract is entered into between the State or its instrumentality and a private party, the parties' relationship is no longer governed by Constitutional provisions but by terms of the contract---When State or its instrumentality, purporting to act within the field allotted to it under terms and conditions of a contract, performs an act, the rights and obligations of parties would be ordinarily governed by terms and conditions of the contract---Mere fact that one of the parties to such a contract is the State or its instrumentality does not make a contract amenable to Constitutional jurisdiction.

Jaffar Bros. Ltd. v. Islamic Republic of Pakistan PLD 1978 Kar. 585 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Compensation or damages---Recovery---Petition under Art. 199 of the Constitution, does not lie for payment of compensation or damages under a contract, against the Government.

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

----O. II, R. 2---Whole claim regarding one cause of action---Object, purpose and scope---All disputes must be settled once and for all---No person has to be vexed twice for one and the same cause.

(e) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----Ss. 5(2), 7, 8, 21 (4), 22 (3) & 31---Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2006, Regln. 18(1)---Pakistan Telecommunication Rules, 2000, Appendix-B, Cl. 8.1---Constitution of Pakistan, Art. 199---Constitutional petition---Radio frequency spectrum---Unauthorized use---Liabilities of licensee---Grant and renewal of licenses---Petitioner/Cellular company was aggrieved of decision made by respondents/Pakistan Telecommunication Authority (PTA) and Frequency Allocation Board (FAB) regarding additional compensatory frequency spectrum of 6.6 MHz in 1800 MHz Band ("Additional Spectrum") allocated to it in year 2007 due to cross-border interference in its 900 MHz Band---Validity---There was no authorization from FAB in favourof petitioner/Company to utilize Additional Spectrum beyond 23-10-2019---Additional Spectrum as compensation for cross-border interference in its 900 MHz Band could not be equated with an authorization from FAB---Pakistan Telecommunication Authority rightly held that Radio frequency spectrum was a scarce resource, which could not be used/utilized without authorization---Frequency Allocation Board, in its 46th Board meeting held on 20-03-2020, approved auction of Spectrum in 1800 MHz Band---After litigation with petitioner/Company was over, the 6.6 MHz in the 1800 MHz Band/Additional Spectrum was to be available for auction---By reason of injunctive orders issued by High Court process of auctioning of 6.6 MHz in the 1800 MHz Band was thwarted---As such the same had resulted in a loss to public exchequer---Additional Spectrum of 6.6 MHz in the 1800 MHz Band had not become an integral part of network of petitioner/Company and therefore the same could not be made a part of its license post-renewal without any further charge---At all material times since 11-03-2016 the Additional Spectrum was going to be available to it only until the expiry of its license in October, 2019 and not any further---Pakistan Telecommunication Authority and FAB were not under any obligation to continue status quo regarding petitioner/Company's license, i.e. to renewlicense for initially granted spectrum of 7.6 MHz in the 900 MHz Band and 6 MHz in the 1800 MHz Band as well as the Additional Spectrum---Although the Additional Spectrum was allocated only for the areas affected by cross-border interference in Sindh and Punjab, petitioner/Company had continued to use such spectrum beyond its authorized use---Frequency Allocation Board complained to PTA that petitioner/Company had been utilizing the Additional Spectrum in different areas across Pakistan where no cross-border interference existed---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Pakistan v. Salahuddin PLD 1991 SC 546; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Fecto Belarus Traders Limited v. Pakistan 2001 PTD 1829; Rehmatullah Khan v. Government of Pakistan 2003 SCMR 50; Member (S&R)/Chief Settlement Commissioner, Board of Revenue Punjab, Lahore v. Ashfaque Ali PLD 2003 SC 132; Messrs M.K.B. Industries ((Pvt.) Ltd. v. Chairman, Area Electricity Board, WAPDA 2005 SCMR 699; Federation of Pakistan v. Haji Muhammad Sadiq PLD 2007 SC 133; Pakcom v. Federation of Pakistan PLD 2011 SC 44; Dassani Travels (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; DV Com Data v. Pakistan Telecommunication Authority PLD 2017 Isl. 177; Ministry of Information Technology and Telecommunications, Islamabad v. C.M. Pak (Pvt.) Ltd. PLD 2020 SC 551; Petroleum Exploration (Pvt.) Ltd. v. Federal Government of Pakistan PLD 2020 Isl. 214; Dawakhana Hakim Ajmal Khan (Pvt.) Ltd. v. Federation of Pakistan PLD 2020 Lah. 899 and Ghulam Sarwar v. Federation of Pakistan 2020 PLC (C.S.) 1211 ref.

Shahzada Naeem Bukhari, Kashif Nawaz Siddiqi and Muhammad Imad Khan for Petitioner (in Writ Petition No.3626 of 2019).

Salman Akram Raja, Asad Ladha and Malik Ghulam Sabir, for Petitioner/Appellant (in Writ Petition No.3458 of 2020 and First Appeal Against Order No.133 of 2020).

Barrister Qasim Wadood, Additional Attorney-General and Arshid Mehmood Kiani, Deputy Attorney-General for the Federation.

Barrister Munawar Iqbal Duggal along with Sajjad Latif Awan, Director General (Law), Muhammad Khurram Siddiqui, Director (R&L), Naeem Ashraf, Consultant (Law), Shameer Shahid, MTO (Law) and Ch. Adil Javed, Assistant Director (L&R) for PTA (in Writ Petitions Nos.3626 of 2019, 3458 of 2020 and First Appeal Against Order No.133 of 2020).

Ashtar Ausaf Ali, Barrister Muhammad Usama Rauf, Barrister Asad Rahim Khan and Ahmed Rehan-ur-Rashid along with Ihsanullah Khan, Director (SP&M) for FAB (in Writ Petition No.3458 of 2020 and First Appeal Against Order No.133 of 2020).

Abdul Rahim Bhatti, Yasser Rahim Bhatti and Qaiser Rahim Bhatti along with Ihsanullah Khan, Director (SP&M) and Adnan, Assistant Director (Law), FAB (in Writ Petition No.3626 of 2019).

Assisted by: Umar Farooq, Deputy Registrar.

P L D 2025 Islamabad 168

Before Babar Sattar, J

ANWAR MANSOOR KHAN, SENIOR ADVOCATE SUPREME COURT---Petitioner

Versus

SPECIAL COURT, ISLAMABAD through Registrar, Islamabad---Respondent

Writ Petition No. 4340 of 2022, decided on 30th October, 2024.

(a) Administration of justice---

----Mala fide, plea of---Principle---Allegation of mala fide has to be specifically made and proved.

(b) Bar and Bench---

----Orderly conduct, maintaining of---Scope---As an essential part of administration of judicial proceedings, Courts are required to ensure orderly conduct of parties and counsel who appear before Court.

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

----Ss. 4 & 12---Constitution of Pakistan, Art. 199---Constitutional petition---Expunging of remarks---Misbehaving during Court proceedings---Powers of Court---Non-issuance of show cause notice---Petitioner sought expunging of remarks made against him by Special Court during the proceedings of trial---Validity---Hands of a Court cannot be tied up by requiring that in face of misbehavior by a party or a counsel, prior to recording what transpired in Court, it must issue a notice to misbehaving party or counsel---Where misbehavior acquires a form that the Court is minded to exercise its powers of contempt, the law does require that a notice be issued---High Court in exercise of constitutional jurisdiction declined to expunge the remarks made against petitioner, as order of Special Court did not suffer from any illegality of a nature that rendered the order illegal and without jurisdiction and had to be corrected by High Court in its constitutional jurisdiction---Petitioner alleged that Special Court in its order had misstated facts but there was no factual basis to assume that the petitioner's version of facts constituted actual truth---High Court merely on the basis of affidavit furnished by petitioner, declined to interfere with and expunge remarks and observations made by three serving judges of three High Courts, who at the relevant time comprised Special Court constituted under S. 4 of Criminal Law Amendment (Special Court) Act, 1976---No fundamental rights of petitioner were at peril in the matter---Constitutional petition was dismissed, in circumstances.

Malik Feroz Khan Noon v. The State PLD 1958 SC (Pak) 333; Mian Jamal Shah v. Member Election Commission PLD 1966 SC 1; Mian Jamal Shah, Abrar Hassan v. Government of Pakistan and others PLD 1976 SC 315; Muhammad Ikram Chaudhry v. Federation of Pakistan and others PLD 1998 SC 103; Malik Asad Ali and others v. Federation of Pakistan, through Secretary Law, Justice and Parliamentary Affairs PLD 1998 SC 161; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961; Amjad Ali v. Federal Shariat Court through Registrar and others 2019 PLC (C.S.) N 91; Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others PLD 2021 SC 391; Taufeeq Asif v. General Retired Pervez Musharraf 2024 SCMR 63 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2011 SC 197 rel.

Barrister Umaimah A. Khan and Saqlain Haider for Petitioner, along with Petitioner.

P L D 2025 Islamabad 177

Before Mohsin Akhtar Kayani, J

ARSHAD SHARIF, INVESTIGATIVE JOURNALIST/ANCHOR ARY COMMUNICATIONS (PVT.) LTD., ISLAMABAD 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, President of Pakistan Consitutional Avenue, Islamabad and another---Respondents

Writ Petitions Nos. 1812, 1872, 2005 and Criminal Miscellaneous No.658 of 2022, decided on 26th August, 2024.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.154---Constitutional petition--- Territorial jurisdiction--- Determination---Principle---Question of FIR---If primary relief pertains to actions or proceedings within jurisdiction of one High Court, another High Court cannot assume jurisdiction---One High Court cannot outrightly quash FIRs lodged within territorial limits of other High Courts when dominant object falls within the territorial limits of those High Courts.

Muhammad Mosaddar Haque and another v. The State PLD 1958 SC 131; Noor Khan v. The State PLD 1958 Lah. 1052; State v. Pirak 1997 PCr.LJ 1900; Abdul Qadir v. Special Judge (Customs and Taxation) at Karachi 2 others 2022 YLR Note 170; Akbar Uddin Owaisi v. The Government of AP, W.P. No.824 of 2013 and Taufiq Asif v. General (Retd.) Pervez Musharraf and others PLD 2024 SC 610 rel.

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

----Ss. 131, 153A, 505 & 505---Criminal Procedure Code (V of 1898), S. 185(2)---Constitution of Pakistan, Arts. 184(3), 186A, 187 & 199---Constitutional petition---Quashing of FIRs registered in other Provinces---Derogatory remarks against officials or institutions---Petitioners were journalists and vloggers who were alleged to have made derogatory remarks against officials and government institutions---Multiple FIRs were registered against petitioners in different Provinces, which were sought to be quashed---Validity---If any insulting remarks, words constituting an offence were passed against an institution or its head, it was obligatory upon that institution or that individual person, who had been insulted or targeted in an offensive manner, to register FIR at the place, where headquarter of that department was situated---High Court due to lack of legislative/legal framework, to deal with similar matters, for future, laid drawn following guiding principles/ recommendations/directions:-

(i). In cases of multiple FIRs in different provinces, accused can avail remedy by invoking constitutional jurisdiction of Supreme Court under Article 184(3) read with Article 186A and Article 187 of the Constitution.

(ii) After registration of first FIR, accused can seek quashing of all subsequent FIRs within the jurisdiction of a particular province in view of Sughran Bibi's case reported as PLD 2018 SC 595. However, petitioner has to seek quashing separately in each province where subsequent FIRs were registered.

(iii) Accused can avail remedy provided under Section 185(2), Cr.P.C., before High Court if one of the Courts has taken cognizance in that jurisdiction among the multiple FIRs.

(iv) If accused is granted bail, whether pre-arrest or post arrest in one case from same subject matter of multiple FIRs in one District or Province, he shall not be arrested in any other case/FIRs, rather his one bail order will be considered effective in all multiple FIRs, and Courts must respect the first bail order in other cases of same subject matter/same transaction.

(v) High Court under Article 199 of the Constitution may suspend operation of all FIRs of same subject matter, except one in which investigation is conducted and if the said FIR is registered first in time within its jurisdiction.

(vi) Mere use of information system to carry out an offence defined by P.P.C. would not transform such offence into an offence under Prevention of Electronic Crimes Act, 2016. For an act to qualify as an offence under P.P.C. as well as Prevention of Electronic Crimes Act, 2016, requirements of actus reus and mens rea as provided in relevant provisions of law creating such offence must be satisfied.

(vii) Offence relating to allegation of hate speech, glorification of offence and cyber terrorism rendered in TV program, vlog, social media platform or relating to incitement to public mischief against State or against public tranquility, incitement to any class, community or alarming news intent to create or promote feelings of enmity etc., criminal conspiracy, wantonly giving provision with intent to cause riot, allegation of provocation with intent to create or promote enmity with different groups, intentional insult with intent to provoke breach of peace shall only be dealt under Prevention of Electronic Crimes Act, 2016. However, in case, FIR has been registered under P.P.C. in ordinary manner, the same should be referred to FIA and investigated by J.I.T subject to the condition or other requirements under Prevention of Electronic Crimes Act, 2016.

(viii) On the basis of any vlog, news item, social media platform, clip, statement or content, which is prima facie adverse to State institution or head of the State institution like Judiciary, Pakistan Army, Political Government i.e. Speaker National Assembly, Chairman Senate etc. FIR should only be registered on the instructions of Secretary, Ministry of Interior in Islamabad Capital Territory after seeking report from concerned quarters including but not limited to multiple complaints filed by different individuals anywhere in Pakistan with the condition that no individual would register FIR anywhere in Pakistan, except with the permission of Secretary, Ministry of Interior.

(ix) If any of the news item, expression, statement of any individual broadcasted/published on social platform, newspaper, TV Program etc. is against provincial institutions or the head of the institutions in terms of their official working, FIR should only be registered at provincial headquarter on the complaint of an individual with permission of Home Secretary of the Provincial Government. After registration of FIR, no other FIR would be registered.

(x) If on the same allegation/subject matter, multiple FIRs have been registered, only first FIR, which has been registered earlier in time be proceeded and all subsequent FIRs shall be stayed till the final conclusion of first FIR or cancelled.

(xi) It is duty and responsibility of investigation officer and SHO who are dealing with the case of multiple FIRs on same subject matter, whether under Prevention of Electronic Crimes Act, 2016, or offences under P.P.C., to verify the fact that case under investigation is registered first in time otherwise I.O. shall not further investigate the matter and shall submit report to concerned Magistrate for release of accused forthwith if accused has already gone through the process in first FIR under the law.

(xii) In cases of multiple FIRs on same subject matter, I.O. shall inform concerned quarters including other SHOs, DPOs, CPOs, IGs/police stations of District or Provinces regarding investigation in first FIR to avoid any abuse of process of law, otherwise it should be treated as misconduct on the part of concerned police official who shall be dealt with under the law accordingly.

(xiii) In case of dispute in territorial jurisdiction with reference to offence, question relating to electronic media, social media platform, views expressed on any TV channel, Interior Secretary is the only competent authority to pass direction for registration of FIR at Islamabad Capital Territory as well as Home Secretary in provincial headquarters subject to considering allegations against federal institutions or provincial institutions or in case of both kind of allegations, FIR should be registered at Islamabad Capital Territory.

(xiv) Secretary Interior or Home Secretary, as the case may be, are under duty to immediately verify cases of multiple FIRs on same subject matter and may issue necessary directions to other territories by way of circular, notification or guidelines regarding the mode and manner of arrest, investigation of accused person in order to avoid any abuse of process.

(xv) If accused has been arrested in one case, Magistrate shall not grant remand in other case of same subject matter as his arrest in one case is deemed to be considered as arrest in all other cases.

(xvi) No Police/FIA office/official or law enforcement agencies are allowed to arrest any individual in cases of multiple FIRs of same nature after his arrest in one case, nor the person would be detained or transferred to any other territory for the purpose of investigation unless permission has been granted by the Secretary, Ministry of Interior with reasons.

(xvii) In case of multiple FIRs on same subject matter, Prevention of Electronic Crimes Act, 2016 requires amendment as well as Rules made thereunder. Till such time, SOPs of investigation agencies are to be notified to avoid abuse of process of law by the Provincial and Federal Government.

(xviii) If PECA offences are included in FIR along with offences of P.P.C. in case of multiple FIRs against an accused on same subject matter in different provinces or districts, rules in terms of section 51 of Prevention of Electronic Crimes Act, 2016, may be notified on the analogy of Rules 25.7 and 25.8 of Police Rules, 1934, whereby cases can be transferred to single police station or investigation can be conducted by single JIT.

(xix) Government shall notify the mechanism under the law to regulate digital media platforms and v-loggers after their registration, who shall also be bound by the Code of Ethics duly approved after consultation with PFUJ to promote, protect and effectively ensure the independence, impartiality, safety and freedom of expression of journalists/media professionals.

(xx) Protection of Journalists and Media Professionals Act, 2021, be implemented in letter and spirit and Federal Government shall notify its rules under the Act within three months.

(xxi) In case multiple FIRs have been registered against an individual on same subject matter and he has been exposed to unjust harassment and suffered abuse of process at the hands of State functionaries, every such person is entitled for compensation by the State including Federal Government or Provincial Government as the case may be.

----High Court in exercise of constitutional jurisdiction, read with powers contained in S. 561-A, Cr.P.C., declined to quash FIRs registered in different districts/provinces---High Court further held that in case of clear mala fide, police could proceed only in one/initial FIR and all subsequent FIRs should be stayed and no legal action should be taken unless accused was allowed to approach Court of competent jurisdiction with protection orders, as in such type of cases parameters were settled that all subsequent FIRs should be cancelled by I.Os. respectively---In case of non-observance of such parameters aggrieved persons could resort to the remedy of filing of complaint against officials and could also file suit for damages and compensation,although there is no bar on supervising officers like CPOs, DPOs to take departmental action against delinquent official for abuse of powers---Constitutional petition was disposed of accordingly.

Sughran Bibi's case PLD 2018 SC 595 fol.

Asad Qaiser v. Government of Khyber Pakhtunkhwa (Writ Petition No.5281-P of 2023); Mst. Razia Pervez and another v. The Senior Superintendent of Police Multan and 05 others 1992 PCr.LJ 131; Muhammad Azam Khan Swati v. Inspector General of Police, Balochistan and 2 others PLD 2023 Bal. 85; Azam Shah v. The State 1990 SCMR 1360; Muhammad Bashir's case PLD 2007 SC 539; M. Anawar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493; Raja Khurram Ali Khan and another v. Tayyaba Bibi and another 2019 YLR 98; Umer Bilal v. The State and another 2022 PCr.LJ 1373; Independent Media Corporation (Pvt.) Ltd. through Muhammad Azhar and 4 others v. Government of Balochistan through Chief Secretary and Secretary Law, Quetta and 9 others PLD 2019 Bal. 27; Independent Media Corporation (Pvt.) Ltd. through Attorney and another v. Prosecutor General, Quetta and 7 others PLD 2015 Bal. 54; Sandalbar Enterprises Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others 1998 SCMR 2389; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869; Ch. Abdul Razzaq v. Federation of Pakistan and others PLD 1998 Lah. 394; Arnab Ranjan Goswami v. Union of India and others AIR 2020 SC 2386; Satinder Singh Bhasin v. The State of Uttar Pradesh decided on 12 May, 2022; Sanjay Verma v. The State of Madhya Pradesh decided on 13 July, 2022; Muhammad Ayyaz Bin Tariq v. The State another (Crl. Misc. No. 1184- B-2023); Imran Maqbool v. Federation of Pakistan PLD 2019 Lah. 17 and Sui Southern Gas Limited v. Federation of Pakistan 2018 SCMR 802 ref.

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

----Ss. 185, 527(1) & 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---First Information Reports, consolidating of---Jurisdiction of High Court---Principle---High Court lacks authority under Art. 199 of the Constitution and S. 561-A, Cr.P.C.,to consolidate FIRs registered outside its territorial jurisdiction---Consolidation of FIRs is not permissible within a single High Court if FIRs are lodged in different jurisdictions or different Provinces---Provision of S. 185, Cr.P.C., does not grant High Court the power to transfer or consolidate cases across different High Courts or jurisdictions---Power to transfer cases between different High Courts is vested in Provincial Government under S. 527(1), Cr.P.C. and with the Supreme Court.

(d) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 6, 7, 8, 9, 11 & 30 [as substituted by Criminal Law (Amendment) Act, 2023]---Criminal Procedure Code (V of 1898), S. 235---Trial of more than one offence---Joint trial---Principle---Not all offences under the Prevention of Electronic Crimes Act, 2016, are P.P.C. offences and they have to be seen or tried within the ambit of Prevention of Electronic Crimes Act, 2016, or cybercrimes---Test of S. 235, Cr.P.C., has to be met to be tried jointly and Court has to verify whether they occur from same transaction or not and whether it comes under the ambit of Prevention of Electronic Crimes Act, 2016 or not.

Muhammad Faisal Malik, Barrister Muhammad Shoaib Razzaq, Muhammad Omar Farooq, Malik Muhammad Fiaz Kandwal in their respective petitions along with petitioner Sami Ibrahim for Petitioners.

Usman Rasool Ghumman, A.A.G. Ms. Saadia Shehzadi, State Counsel, Ms. Sumaira Khurshid, State Counsel, Tahir Kazim, Law Officer IG Office and Muhammad Akbar, S.I, P.S. Kohsar, Islamabad for Respondents.

Ms. Khadija Ali, Muhammad Naseem Zia, District Public Prosecutor, Kamran Adil, D.I.G Police and Research Centre, Lahore High Court, Lahore and Nasir Zaidi, Secretary General, PFUJ, Amici Curiae.

Assisted by Research Centre, Lahore High Court, Lahore and Ms. Aymen Azeem, Law Clerk, IHC.

P L D 2025 Islamabad 212

Before Babar Sattar, J

SHAHID HUSSAIN KHAWAJA---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 2217-B of 2024, decided on 23rd December, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), Ss. 2 (37), 11, 33 Table, Column No. 1, Srl. 11, 13 & 37(a)(iv)---Constitution of Pakistan, Art. 10A---Tax fraud---Bail, grant of---Actus reus and mens rea---Bail bond, quantum of---Due process of law---Compoundable offence---Effect---Accused was bank manager who was arrested in present case for sales tax fraud to the amount of approximately Rs.3.2 billion---Role attributed to accused was of aiding and abetting taxpayer company by opening its accounts in his branch---Validity---Actus reus for an offence under S. 33 is failure of a taxpayer to discharge its tax liability found to be due---There exists no actus reus till after the tax due has been determined through assessment process prescribed under Sales Tax Act, 1990---Question of mens rea can therefore not arise till after the guilty act is found to have transpired---Offenses under S. 33 of Sales Tax Act, 1990 are not thought crimes---Where there is no failure to discharge tax liability as duly determined under Sales Tax Act, 1990 no criminal liability can be imagined or founded---Determination of civil liabilities, as required under Art. 10A of the Constitution must be the product of due process---Such process takes time and bestows on citizen the right of appeal which does not entitle the state to ride roughshod over the Constitutionally guaranteed rights of citizens, including their right to liberty and dignity---Offences mentioned in FIR were compoundable in terms of S. 37A(4) of Sales Tax Act, 1990---Accused was not named in FIR, which alleged that taxpayer was liable for tax fraud for seeking tax credits and/or tax benefits on the basis of fake sales tax invoices---No assessment of tax due by taxpayer was undertaken under S. 11 of Sales Tax Act, 1990---It was prior to determination of such tax liability that pre-trial steps of arrest and detention had been taken by tax department in breach of law---High Court found accused entitled to release on bail, subject to furnishing bail bond for a sum of Rs.100/- (One hundred)---Application was allowed, in circumstances.

Taj International (Pvt.) LTD v. Federal Board of Revenue 2014 PTD 1807 and Directorate of Intelligence and Investigation, FBR in Civil Appeals No. 350 to 698 of 2016 rel.

Muhammad Akbar v. The State PLD 1968 SC 281; M. Tufail v. The State 1979 SCMR 437; Talib Hussain v. Angar Gul Khan 1993 SCMR 2177; Seema Fareed v. The State 2008 SCMR 839; State v. Jahangir Akhtar 2018 SCMR 733; Muhammad Akbar v. The State

PLD 1968 SC 281; Muhammad Azam vs. Muhammad Iqbal PLD 1984 SC 95 and Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani 2010 SCMR 1835 ref.

Muhammad Ahmed Masood for Petitioner.

Razi Ul Haq Qureshi, Deputy Director I&I-IR, Islamabad.

P L D 2025 Islamabad 219

Before Miangul Hassan Aurangzeb, J

ZAVER PETROLEUM CORPORATION (PVT.) LIMITED---Applicant

Versus

SAIF ENERGY LIMITED---Respondent

C.S. No.01 of 2019, Enforcement Petitions Nos. 02, 06 of 2021 and 01 of 2022, decided on 24th October, 2024.

(a) Arbitration---

---Forum non conveniens, doctrine of---Applicability---Doctrine of forum non conveniens, has no place where contract between parties specifically provides for disputes to be settled through arbitration seated in a foreign country.

Global Quality Foods (Pvt.) Ltd. v. Hardee's Food Systems, Inc. PLD 2016 Sindh 169; CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528; Eckhartd & Company v. Muhammad Hanif PLD 1993 SC 42; Jes and Ben Groupo (Pvt.) Limited v. Hell Energy 2019 SCC Online Delhi 10225 and Bremem v. Zapata Off. Shore Co. (407 U.S. 1 (1972)) rel.

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

----Ss. 3 & 6---Contract Act (IX of 1872), S.28, Exception-1---Foreign seat of arbitration---Party autonomy, principle of---Scope---Domestic and foreign arbitration---Party autonomy is considered as cornerstone of arbitration---There is no prohibition on two Pakistani parties from opting for a foreign seat of arbitration---Foreign seated arbitration and award rendered in such arbitration attracts provisions of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 which is premised on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention")---Geneva Convention on execution of Foreign Arbitral Awards of 1927 ("the Geneva Convention") was expressly limited to agreements to arbitrate between parties that were nationals of different contracting States but this is not so under the New York Convention---All awards, under New York Convention, which may arise out of arbitrations seated in countries that are signatories to that Convention have to be treated as foreign awards---Once parties consciously agreed to a foreign seated arbitration and for arbitration agreement to be governed by English law, it was no longer open to any of them to contend that agreement was void or that award rendered in such arbitration was unenforceable under the provisions of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Provision of Exception-1 to S. 28 of Contract Act, 1872, does not distinguish between domestic and foreign arbitration---Right of parties to have recourse to legal action is not excluded by agreement---Parties are only required to have their disputes adjudicated by having the same referred to arbitration---Merely because agreement provides for a foreign seated arbitration cannot by itself be enough to nullify arbitration agreement when parties have with their eyes open willingly entered into the agreement---Exception to S. 28 of Contract Act, 1872 does not distinguish between domestic and foreign arbitration---Exception to S. 28 of Contract Act, 1872 expressly excepts arbitration from the clutches of S. 28 of Contract Act, 1872 which is an express approval to party autonomy which in turn is the very basis of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011.

Atlas Export Industries v. Kotak & Company AIR 1999 SC 3286 = 1999 (7) SCC 61; PASL Wind Solutions Private Limited v. GE Power Conversion India (Private) Limited AIR 2021 SC 2517; Centrotrade Minerals and Metal Inc. v. Hindustan Copper Ltd. 2017 (2) SCC 228; Dholi Spintex (Private) Limited v. Louis Dreyfus Company India (Private) Limited 2020 SCC OnLine Del 1476; Sasan Power Limited v. North American Coal Corporation 2015 SCC OnLine MP 7417 and Sasan Power Limited v. North American Coal Corporation AIR 2016 SC 3974 = 2016 (10) SCC 813 rel.

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

----S. 3(2)---Foreign seated arbitration---Duty of Court---Defendant against whom a civil suit is filed with respect to a matter which is to be resolved with plaintiff through a foreign seated arbitration, such defendant has right to apply to the Court where such suit is pending for the proceedings to be stayed so that the disputes which are subject matter of the suit are resolved by the forum to which the parties had agreed---Where such application is filed, the Court is under an obligation to stay proceedings in the suit unless it finds that arbitration agreement is null and void, inoperative or incapable of being performed.

Ovex Technologies (Pvt.) Ltd. v. PCM PK (Pvt.) Ltd. PLD 2020 Isl. 52 rel.

(d) Arbitration---

----Jurisdiction of arbitrator---Principle---While a Court of law derives jurisdiction from statute, the arbitrator derives jurisdiction from the agreement---It is a private procedure established by an agreement between the parties---Parties to such an agreement can vary, amend or waive either expressly or impliedly/by conduct the procedure established by the agreement.

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

----S. 3(2)---Expression "an application to stay legal proceedings … may be filed in the Court, in which the legal proceedings are pending"---Scope---Where legal proceedings have been brought in High Court, it is the High Court where application under S. 3(2) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 to stay legal proceedings can be filed---When legal proceedings have been brought in a Court other than the High Court, it is the Court in which the legal proceedings have been brought where the application to stay legal proceedings has to be filed, otherwise it would amount to attributing redundancy to the expression "an application to stay legal proceedings … may be filed in the Court, in which the legal proceedings are pending".

Muhammad Khan v. Obaidullah Jan Babat PLD 2016 SC 492; Abdul Majid v. Province of Sindh PLD 1974 Kar. 417; Bank of Bahawalpur Ltd. v. Chief Settlement and Rehabilitation Commissioner PLD 1977 SC 164; Pratap Singh and others v. B. Gulzari Lal and others AIR 1942 Allahabad 50 and Orient Power Company (Private) Limited v. Sui Northern Gas Pipelines Limited PLD 2019 Lah. 607 rel.

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

----S. 4---Arbitration Act (X of 1940), S. 34---Civil Procedure Code (V of 1908), O.VII, R.10---Foreign seated arbitration---Information to Court in Pakistan---Procedure---Form or manner in which a party is to inform the Court as to its intention to assert its right to arbitrate is immaterial---Whether an application is captioned as having been filed under S. 34 of Arbitration Act, 1940; or under S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; or even under O. VII, R. 10, C.P.C., is also immaterial---As long as Court seized of an action is made aware of arbitration agreement between parties and intention of party against whom jurisdiction of Court is invoked to insist on having disputes resolved in accordance with arbitration agreement, it is immaterial whether such party files an application captioned as having been filed under S. 34 of Arbitration Act, 1940; under S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; or even under O. VII, R. 10, C.P.C.

Tallahasee Resources Incorporated v. Director General Petroleum Concessions 2021 CLC 423 rel.

(g) Jurisdiction---

----Court lacking jurisdiction---Effect---Order passed by a Court lacking jurisdiction is coram non judice---If Court has no jurisdiction on the subject matter on which it assumes to act, it has no power to proceed at all---Proceedings of a Court without jurisdiction are a nullity and its order or judgment is without legal effect either on the person or property.

Sherin v. Fazal Muhammad 1995 SCMR 584 and Saleem Mehtab v. Refhan Best Food Company Limited 2010 MLD 1015 rel.

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

----Ss. 3(2), 4 & 11---Foreign seated arbitration---Execution of award---Applicant company sought execution of awards announced by London Court of International Arbitration (LCIA) against respondent company---Validity---Where international commercial contract contains agreement to resolve disputes by arbitration, at least three systems of national law are engaged when a dispute occurs---These are the laws governing substance of dispute; law governing the agreement to arbitrate; and law governing the arbitration process---Law governing substance of dispute is generally the law applicable to the contract from which the dispute has arisen---Law governing arbitration process (curial law) is generally law of the seat of arbitration, which is usually the place chosen for arbitration in the agreement---In the present case Letter Agreement provided for arbitration to be "at London" and by virtue of Art. 16.2 of London Court of International Arbitration Rules, 2020, the parties were deemed to have agreed for the seat of arbitration under Clause 4.3 of Farm out Agreement to be London---Curial law governing arbitration was English law and not Pakistani law---High Court recognized the awards and directed it to be executed in the same mode and manner as decrees---High Court directed respondent company to show compliance with the awards---Application was allowed accordingly.

Orient Power Company (Private) Limited v. Sui Northern Gas Pipelines Limited PLD 2019 Lah. 607; M.O. Ghani, Vice Chancellor University of Dacca v. Dr. A.N.M. Mahmood PLD 1966 SC 802; Namoos Zaheer v. Azfar Hasnain PLD 2023 Isl. 220 and M.A. Chowdhury v. Messrs Mitsui OSK Lines Ltd. PLD 1970 SC 373 ref.

Para 69 Article II (3) of the UNCITRAL Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards; Anna Dockeray v. Carnival Corporation 724 F. Supp. 2d 1216; Cornell Company v. Barber Ross 360 F.2d 512; Companhia Nacional de Cemento Portland . CNCP v. CP Cimentio e Participacoes S/A; Pakistan Refinery Limited v. Mst. Shahida Sultan 1988 MLD 1150; Messrs Tradhol International SA Sociedad Unipersonal v. Messrs Shakarganj Limited 2023 CLD 819; Messrs Tradhol International SA Sociedad Unipersonal v. Messrs Shakarganj Limited PLD 2023 Lah. 621; POSCO International Corporation v. Rikans International PLD 2023 Lah. 116; Messrs Hasan Ali Rice Export Co. v. Flame Maritime Ltd. 2004 CLD 334; Enka Insaat Ve Sanayi AS v. OOO Insurance Co. Chubb (2020) EWCA Civ 574; Enka v. Chubb (2020) UKSC 38 and Taisei Corporation v. A.M. Construction Company (Pvt.) Ltd. 2024 SCMR 640 rel.

Salman Aslam Butt, Taimur Tufail, Anique Salman Malik, Waleed Khalid, Zainab Janjua and Salaar Khan for Applicant.

Syed Ahmad Hassan Shah and Badar Iqbal Chaudhary for Respondent.

Barrister Hassan Ali Raza and Barrister M. Usama Rauf Amici Curiae.

P L D 2025 Islamabad 274

Before Mohsin Akhtar Kayani, J

AMAN ULLAH KHAN and others---Petitioners

Versus

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

Writ Petitions Nos. 3480 of 2022, 1175 and 2167 of 2023, decided on 3rd December, 2024.

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

----S. 12---Agreement between the Government of the United Kingdom of Great Britian and Nothern Ireland and the Government of the Islamic Republic of Pakistan on the Transfer of Prisoners, 2007, Arts. 3 & 7---Transfer of prisoners---Object, purpose and scope---Shared goal of encouraging social rehabilitation by enabling prisoners to serve their sentences closer to their communities has been underscored by Bilateral Agreement between the UK and Pakistan on the Transfer Prisoners of 2007---"Post-transfer considerations" as well have been covered under Bilateral Agreement between the UK and Pakistan---Key conditions included in Bilateral Agreement between the UK and Pakistan are mutual consent of both states, finality of sentence, minimum of six months remaining in sentence (with exceptions for special cases), and prisoner's consent unless incapacitated---Offense for which prisoner was convicted must be recognized as a criminal act in both jurisdictions---Transfer process is facilitated through central authorities, namely Ministry of the Interior for Pakistan as mentioned in Art. 3 of Bilateral Agreement between the UK and Pakistan and the relevant prison services for the UK---Under Art. 9 of Bilateral Agreement between the UK and Pakistan, law of receiving state (Pakistan) should govern continued enforcement of sentence after transfer and it equates with S. 12 of Transfer of Offenders Ordinance, 2002 (domestic legislation of Pakistan)---Only transferring state has the power to review the judgment.

(b) International law---

----Foreign judgment---Scope---Foreign judgment is given recognition in International law on the basis of principle of reciprocity and comity that gives rise to rights and obligations.

Muhammad Ramzan (Deceased) v. Nasreen Firdous PLD 2016 SC 174 rel.

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

----S. 12---Agreement between the Government of the United Kingdom of Great Britian and Nothern Ireland and the Government of the Islamic Republic of Pakistan on the Transfer of Prisoners, 2007, Arts. 3 & 7---Transfer of prisoners---Petitioners sought indulgence of High Court for passing of direction in order to transfer to Pakistan, prisoners from United Kingdom under Transfer of Offenders Ordinance, 2002, who were convicted by the Courts in United Kingdom and were serving their sentence in UK prisons---Validity---Authorities had submitted final report that prisoners concerned had been transferred from United Kingdom and were shifted to Pakistan to serve their remaining sentences under the law---High Court directed Secretaries of Ministries of Interior and Foreign Affairs as well as Pakistani High Commission authorities in the UK to arrange a designated telephone number with a notified officer for weekly contact with prisoners whose repatriation cases were pending---High Court also directed that consular access must be given to every prisoner and report be transmitted through Ministry of Foreign Affairs to concerned Court or Ministry of Interior to be placed before competent authority and copy thereof may also be transmitted to family members of the prisoner, who were pursuing for transfer to Pakistan---High Court directed High Commission, Embassy, Foreign Mission of Pakistan in the foreign country to compile data of every prisoner who was a Pakistani citizen and maintain record for the purposes of information to Ministry of Interior comprising of health, legal services, and other psychological conditions of the prisoner including but not limited to protection of human rights---In every case of transfer of offender, date of release must be mentioned as date notified by foreign Court or by the authority, based upon judgment passed by competent Court of foreign jurisdiction as a date of release in the correspondence/reciprocity report---Reciprocity report must be submitted within the time frame fixed in law as well as in the agreement to ensure confidence of transferring State---Judgment of foreign Court should be considered final and its vires could not be challenged before any Court of Pakistan after transfer of prisoner to Pakistan---After transfer, prisoner should be treated as per law of Pakistan---Prisoners who had been transferred under Transfer of Offenders Ordinance, 2002 from any foreign territory must be repatriated to the nearest prison of their permanent abode/place of residence in order to give easy access to family members or on the request of the offender after reaching Pakistan---In case of any transferred prisoner, jail authorities should inform Ministry of Interior about exact date of release and in such regard a report should also be transmitted through Ministry of Foreign Affairs to transferring state who had transferred the prisoner under Transfer of Offenders Ordinance, 2002 or under agreement---Constitutional petition was disposed of accordingly.

Van Zyl Smit, "International imprisonment," International and Comparative Law Quarterly, vol. 54, No. 2 (2005), pp. 357-386); La Vigne et al., "Examining the effect of incarceration and in- prison family contact on prisoners' family relationships," Journal of Contemporary Criminal Justice, vol. 21, No. 4 (November 2005); Dirk Van Zyl Smit, "International imprisonment," p. 364; Plachta, Transfer of Prisoners under International Instruments and Domestic Legislation, pp. 166-167, 206; Black's Law Dictionary, 11th edition, by Bryan A. Garner; Muhammad Ramzan (Deceased) v. Nasreen Firdous PLD 2016 SC 174; Asad Javed v. FOP and others 2017 SCMR 1514 and Federation of Pakistan v. Asad Javed and others PLD 2016 Isl. 53 rel.

Ms. Farah Rana for Petitioners.

Usman Rasool Ghumman, A.A.G., Asad Khan Burki, Legal Advisor, Ministry of Foreign Affairs, Muhammad Taimoor Janjua, State Counsel for Respondents.

Assisted by Ms. Aymen Azeem, Law Clerk, I.H.C.

P L D 2025 Islamabad 293

Before Miangul Hassan Aurangzeb, J

Prof. Dr. QAMAR-UL-WAHAB---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 3374 of 2019, decided on 2nd December, 2024.

(a) Constitution of Pakistan---

----Art. 199---Protection Against Harassment of Women at the Workplace Act (IV of 2010), Ss.2(h) & 8---Federal Ombudsmen Institutional Reforms Act (XIV of 2013), Ss. 13, 14 & 18---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Arts. 10(3) & 29---Harassment---Complaint---Transfer of complaint from Federal Ombudsman to Provincial Ombudsman---Interference by High Court---Scope---Writ of certiorari, issuance of---Alternate remedies of review and representation, non-availing of---Plea of the respondent was that in view of S. 18 of the Federal Ombudsmen Institutional Reforms Act, 2013 (2013-Act) and Art. 29 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (Order-1983), the jurisdiction of all courts and other authorities from interfering in orders passed by the Ombudsmen had been ousted and alternate remedies provided under Ss.13 & 14 of the Act-2013 had not been availed---Validity---After the establishment of the Office of the Provincial Ombudsman pursuant to the provisions of the Khyber Pakhtunkhwa Protection Against Harassment of Women at the Workplace (Amendment) Act (V of 2018) since no provision was inserted in the Act-2010 empowering the Ombudsman to transfer complaints or proceedings to the Provincial Ombudsman, thus, the order of transfer of complaint was without jurisdiction and without lawful authority---If respondent wanted the Provincial Ombudsman to conduct proceedings on her complaint, she could have applied to the Federal Ombudsman for the return of her complaint so that she could file the same before the Provincial Ombudsman---Unlike Art. 10(3) of the Order-1983, which provides for a limitation period of three months for filing the complaint, there is no limitation period provided either in the Act-2010 or the Act-2018 for filing the complaint---Sub-constitution legislation could not oust the jurisdiction of High Court conferred by Art. 199 of the Constitution, especially where the order of the Ombudsman, which was sought to be quashed by the issuance of a writ of certiorari, was without lawful authority---Constitutional petition was allowed, in the circumstances and the matter was remanded to the Federal Ombudsman who may consider returning the complaint to the respondent enabling her to file the same before the Provincial Ombudsman.

Bushra v. Muhammad Naeem 2003 SCMR 115; Adnan Afzal v. Sher Afzal PLD 1969 SC 187; Muhammad v. State 1976 PCr.LJ 1037; State Life Insurance Corporation of Pakistan v. Wafaqi Mohtasib 2000 CLC 1593 and Pakistan International Airlines Corporation v. Wafaqi Mohtasib 1998 SCMR 841 rel.

(b) Interpretation of statutes---

----Transfer of proceedings---Where the legislature intends for pending proceedings before one forum to be transferred to another, it makes an express provision for such transfer in the statute.

(c) Interpretation of statutes---

----Where the statute provides for the power to transfer a case from one Court/Tribunal to another, the same has to be strictly construed.

Syed Qamar Hussain Sabzwari and Zia-ul-Haq Kiyani for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General for the Federation.

Owais Awan for Respondent No.4.

P L D 2025 Islamabad 303

Before Khadim Hussain Soomro and Inaam Ameen Minhas, JJ

NATIONAL COMMISSION FOR HUMAN RIGHTS OF PAKISTAN through Secretary---Petitioner

Versus

UNITED BANK LIMITED---Respondent

I.C.A. No. 301 of 2022, decided on 11th February, 2025.

National Commission of Human Rights Act (XVI of 2012)--

----S. 9 (a) (i) & (ii)---Enforcement of service/pensionary rights---Jurisdiction of National Commission of Human Rights (NCHR)---Scope---Human, constitutional and service rights---Distinction stated---Filing of complaint by a retired employee of United Bank Limited (UBL) for enhancement of his pension---National Commission for Human Rights in exercise of its jurisdiction passed an order of enhancement of pension, however, that order was set aside by the Single Judge of High Court---Validity---Dispute arose between the NCHR and UBL over an issue of pension of an employee of UBL, who was neither a civil servant nor a public servant, rather an employee of a private sector commercial bank, whose rights, duties and remedies in case of disputes were governed by private sector labour laws and their employment contract, but not by the laws applicable to civil or public servants---National Commission for Human Rights was a statutory body established to promote and protect human rights under the National Commission for Human Rights Act, 2012 and its mandate included investigating complaints of human rights violations, abetment thereof, or negligence in preventing such violations by public servants, however, pension-related disputes, such as the enhancement of pension amounts, were governed by employment contracts, banking regulations and other laws to which UBL and its employees were subject and such matters were within the jurisdiction of specialised forums provided by the laws, thus, NCHR's directive to enhance the pension amount was beyond its statutory authority and constituted an overreach of its jurisdiction---Intra-Court Appeal was dismissed in limine, in circumstances.

2018 SCMR 736 ref.

P L D 2025 Islamabad 306

Before Muhammad Azam Khan, J

BASIT SHUJA---Petitioner

Versus

RAUF KLASRA---Respondents

Civil Revision No. 32 of 2025, decided on 29th April, 2025.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4 & 9---Civil Procedure Code (V of 1908), O. XVI, R. 6---Income Tax Ordinance (XLIX of 2001), Ss. 216(1), 216 (2), 216(3) & 216(4)---Suit for recovery of damages on account of defamation instituted against the petitioner/defendant by respondent/plaintiff---Application by petitioner/defendant for summoning tax record from FBR on account of same being pleaded as a crucial part of his defense---Non-applicability of income tax record in civil defamation suit---Scope---Confidentiality of tax records under S. 216 of Income Tax Ordinance, 2001---Admissibility of third-party tax records in civil proceedings---Brief facts of the case were that the petitioner/defendant instituted a revision petition challenging the order passed by the Additional District Judge---The impugned order dismissed the petitioner's application under O. XVI, R. 6 read with S. 151, C.P.C., through which he had sought summoning of the 2019 tax record of the late journalist, Arshad Sharif, from the Federal Board of Revenue (FBR) in a defamation suit filed by the respondent/plaintiff---The defamation suit pertained to a tweet posted on 05.12.2022 by the petitioner, alleging that the respondent had obtained PKR 2 million from late journalist for medical treatment of his wife but did not attend the journalist's funeral, coupled with other derogatory remarks---Trial Court dismissed the application on the ground that tax records were confidential and irrelevant to the matter---The petitioner argued that the documents were necessary for cross-examination and critical to his defense---Trial Court rejected this plea, citing Section 216 of the Income Tax Ordinance, 2001, which restricted disclosure of tax data unless specific statutory exceptions were met---Against the order of Trial Court the present revision petition was instituted by respondent/ plaintiff---Held: In civil litigation the burden of proof lies upon the party asserting a claim---In view of Section 216 of the Income Tax Ordinance, 2001, requisitioning the income tax records of an individual was prohibited except where proceedings involved the Federal Government or an Income Tax Authority or certain other specified cases, but in the present case, no such circumstances existed necessitating summoning the tax records of late journalist---In terms of subsection (2) of S. 216, a bar is imposed upon the powers of the Court or other authority to require any public servant to produce before it any return, accounts, or documents contained in, or forming a part of the records relating to any proceedings under the "Ordinance" or declarations made under the Voluntary Declaration of Domestic Assets Act, 2018, the Foreign Assets (Declaration and Repatriation) Act, 2018 or the Assets Declaration Act, 2019 or any records of the Income Tax Department generally, or any part thereof, or to give evidence before it in respect thereof except in the manner provided in the "Ordinance"---Subsection (3) of S. 216 of the Ordinance, however, ordains that nothing contained in subsection (1) shall preclude the disclosure of any such particulars to a civil court in any suit or proceedings to which the Federal Government or any Income Tax Authority is a party which relates to any matter arising out of any proceedings under the "Ordinance"---Though in terms of subsection (4), it is stated that nothing in S. 216 shall apply to the production by public servant before a Court of any document, declaration, or affidavit filed or the giving of evidence by a public servant in respect thereof but said provision cannot be read in isolation to subsection (3)---Though subsection (4) is still part of the statute but no other interpretation is possible in circumstances, in wake of the decision of the High Court, reported as Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2009 PTD 1694 whereby, subsection (4) of S. 216 of the Ordinance was ordered to be considered for appropriate amendments---No illegality, irregularity or jurisdictional error was found warranting interference by the High Court---Petition was dismissed, in circumstances.

Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2009 PTD 1694 ref.

(b) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4 & 9---Privacy as a fundamental right, discussed---Constitutional protection against intrusion into personal and financial data of a deceased---Scope---Deceased not a party to proceedings---Summoning tax documents of deceased immaterial to controversy---Summoning tax records of non-parties not in fitness of law---Ethical and legal principle against using private data of non-litigants---The right to privacy involves the protection of individuals from unwarranted intrusions into their personal lives---It safeguards an individual's personal information, communications, family life, and other aspects of their private sphere from unjustified interference by the government, organizations, or other individuals---In the present case, deceased journalist was not party in the present suit, nor his income tax returns were in question before the Trial Court in any manner, thus, summoning the income tax record of a deceased person would not be in fitness of things---No illegality, irregularity or jurisdictional error was found warranting interference by the High Court---Petition was dismissed, in circumstances.

Muhammad Nawaz v. Additional District Sessions Judge and others PLD 2023 SC 461 rel.

Barrister Abdul Ahad Khokhar for Petitioner.

Ms. Shazia Hanif for Respondent.

P L D 2025 Islamabad 315

Before Mohsin Akhtar Kayani, J

IZA NOWAK through Authorised Representative ANZ---Petitioner

Versus

FEDERAL INVESTIGATION AGENCY (FIA) through Director General (DG), FIA, Islamabad and 6 others---Respondents

Writ Petition No. 3181 of 2022, decided on 28th December, 2022.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Habitual place of residence---Custody of minors, removing of---Plea of religious faith---Respondent was father of two minors, one son and one daughter, born from two different mothers who were residents of Poland---Respondent illegally removed the minors from their habitual place of residence and brought them to Pakistan---Held, that the High Court under S. 491, Cr.P.C. is empowered to issue any direction within its territorial jurisdiction to recover any minor, who has illegally been removed from custody of mother---High Court may exercise its parental jurisdiction by considering welfare of minors so as to ensure that no harm or damage is caused to them physically or emotionally by reason of their removal from habitual place of residence---Best interest and welfare of minors laid with mothers---No one was allowed to abduct minors even if he was a father---Respondent/father cheated real mothers and deprived the minors from love and affection of their real mothers, who were holding lawful custody in Poland---Minors were illegally removed from foreign jurisdiction and should be returned to their habitual place of residence---High Court directed the parties to approach Guardian Court Poland which would decide the matter in accordance with law---Respondent/father abducted minors in breach of legal obligation and commitment under the law of Poland and also violated right to life envisaged in Art. 9 of the Constitution---Respondent/father did not return minors to Poland by using religion as a tool---This was not a permissible ground to be considered in any jurisdiction, as the primary question was related to welfare of minors---Courts in Pakistan duly regard foreign judgments and discourage such parents, who abduct minors from foreign jurisdiction and come to Pakistan for their ill-motives---High Court handed over custody of both the minors to their real mothers in presence of an official from Embassy of Poland in Pakistan---Constitutional petition was allowed, in circumstances.

Jahan Ara v. Province of Sindh through Secretary, Home Department, Karachi and others 2019 MLD 1722; Roshni Desai v. Jahanzeb Niazi and others PLD 2011 Lah. 423; Ms. Shazia Akbar Ghalzai v. Khurram Mehboob and others 2019 SCMR 116; Abdul Farooq and another v. Mst. Maryam Farooq and others PLD 2022 Isl. 120; PEGGY Collin v. Muhanimad Ishfaque Malik and 6 others PLD 2010 Lah. 48; Abid Hussain v. Rukhsana Munir and others 2020 YLR 1533 and Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others 2018 SCMR 427 rel.

Barrister Aqeel Malik assisted by Ms. Mahnoor Shakeel and Wajid Ullah along with minors with their respective mothers for Petitioner.

Raja Muhammad Farooq for Respondent No.7.

Barrister Munawar Iqbal Duggal, Additional Attorney General.

Usman Rasool Ghumman and Shahbaz Ahmed Khan Yousafzai, A.A.G.

Muhammad Masood Naseem, Additional Director (Law), F.I.A.

Asad Khan Burki, Legal Advisor, Ministry of Foreign Affairs.

Falak Sher Virk, Deputy Secretary, Ministry of Interior.

Hadi Paristan, S.H.O./S.I. AHTC/FIA.

Rafal Bartochowski, Consul/Head of Consular Section, Embassy of the Republic of Poland in Is1amabad.

P L D 2025 Islamabad 326

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

ABDUL QADEER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 278 of 2023, decided on 17th February, 2025.

Penal Code (XLV of 1860)---

----Ss. 376(iii) & 377-B---Juvenile Justice System Act (XXII of 2018), S. 9---Anti-Rape (Investigation and Trial) Act (XXX of 2021), Sched. II---Rape, unnatural offence---Appreciation of evidence---Juvenility of the accused---Jurisdiction of Juvenile Court---Scope---Accused was charged that he sexually abused the minor son of complainant---Allegedly, accused was Juvenile at the time of committing the offence, thus his trial should be conducted by the Juvenile Court---Criminal case against a juvenile for the offences mentioned in Schedule II to the Anti-Rape (Investigation and Trial) Act, 2021 could competently be tried by a Juvenile Court---However, the same was not the situation if a Special Court established under the Anti-Rape Act tried a Juvenile Offender for an offence mentioned in the Schedules to the Anti-Rape Act, unless specifically designated under the provisions of Juvenile Justice System Act, 2018---Question whether at the time of commission of offence, the appellant was able to perform the alleged criminal act to satisfy his lust remained unresolved as no effort was made by the prosecution to medically examine the appellant and place such material in evidence before the Trial Court---Sitting in appeal at this moment, the clock cannot be reversed to examine maturity of the appellant for the reason that determining 'maturity' of a person required consideration of multiple factors in real time during trial, which if not done promptly, coupled with negative report of the Chemical Examiner, created a presumption in favour of the appellant---If a juvenile was not tried within the Juvenile Court framework, the core purpose and intent of the Juvenile Justice System Act, 2018, would be rendered ineffective---Such a decision would strip the juvenile of the protections and rights explicitly provided under the Act---Moreover, Juvenile Offenders adjudicated in the adult criminal system were more likely to re-enter in the society as potential career criminals rather than rehabilitated members of the community---Special Court (GBV Court) established exclusively under the Anti-Rape Act did not have "the jurisdiction to try a Juvenile Offender, unless the said Court was specifically designated as Juvenile Court under the Juvenile Act---Proceedings conducted by the Special Court (GBV Court) in the instant case being coram non judice were liable to be quashed and the impugned judgment being void was liable to be set-aside---However, the quashing of proceedings or setting-aside of the impugned judgment would not absolve the appellant from the criminal liability unless the matter was disposed of in accordance with the provisions of Juvenile Act---In such circumstances, the instant appeal was partially allowed and the proceedings conducted during trial and impugned judgment were quashed---Matter was remanded with the direction that it shall be entrusted to a competent Juvenile Court for further proceedings.

Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Dr. Abdul Nabi v. Executive Officer, Cantonment Board, Quetta 2023 SCMR 1267; Mehran v. Ubaid Ullah and others PLD 2024 SC 843; Khawar Kayani v. The State PLD 2022 SC 551; Om Prakash @ Israel @ Raju @ Raju Das v. Union of India 2025 INSC 43; Jitendra Singh and others v. State of U.P. 2013 (128) AIC 106; Khawar Kayani v. State PLD 2022 SC 551 and Rehana Nazir v. DPO Gujrat and others 2025 PCr.LJ 1 rel.

Syed Muhammad Tayyab for Appellant.

Malik Sardar Khan, State Counsel, Irfan Khattak, S.I./I.O. for Respondents.

Assisted by: Sajjad Ali, Law Clerk.

P L D 2025 Islamabad 343

Before Tariq Mehmood Jahangiri, J

MUHAMMAD MALIK---Applicant

Versus

O.G.D.C.L., through Managing Director, Islamabad and another---Respondents

C.M. No. 981 of 2022 in Writ Petition No. 4615 of 2021, decided on 16th April, 2025.

Civil Procedure Code (V of 1908)---

----O. IX, R. 9---Constitution of Pakistan, Art. 199---Constitutional petition--- Dismissal for non-prosecution--- Restoration--- Scope---Disinterest of applicant/petitioner in the proceedings of constitutional petition and application for restoration---Dissatisfaction of the court as to reasoning put forth by the applicant---Factors constituting "sufficient cause" for restoration---Determination---Conduct of the applicant/ petitioner and his counsel showed their disinterest in pursuing the case and delaying/lingering on the matter without any plausible justification---Order of dismissal can be set aside by the court if the applicant satisfies the court as to sufficient cause for his non-appearance when the suit was called for hearing and if the court has come to the conclusion that there is sufficient cause for non-appearance of the party, it may pass an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit---Although the term sufficient cause has not been defined in CPC nor can a specific yardstick be put in place for determining what constitutes sufficient cause and what does not, it always depends upon the facts and circumstances of each case and it has to be left to the judicial conscience of the court to make and form assessment as to whether the cause disclosed by the applicant is a reason good enough to satisfy the court that it was beyond the reasonable control of the party concerned to appear before the court on the date fixed for hearing---In the present case reasons mentioned in the application were based on unspecific, vague and generalized assertions, which could not by any stretch of the language be termed as sufficient cause---No sufficient cause or reason of non-appearance of the applicant or his counsel was mentioned in the application---Application for restoration was dismissed, in circumstances.

Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others PLD 2021 SC 761 and Syed Junaid Akhtar and others v. Managing Director/Chairman and others PLD 2008 SC 130 rel.

Hafiz Bakhtiar Ahmad for Applicant/Petitioner.

P L D 2025 Islamabad 347

Before Muhammad Azam Khan, J

Brig. (R) IMTIAZ AHMED---Petitioner

Versus

DEPUTY COMMISSIONER INLAND REVENUE, BENAMI ZONE-I, ISLAMABAD and another ---Respondents

Writ Petition No. 901 of 2023, decided on 17th March, 2025.

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

----Ss. 2(8) & 22(2)---Constitution of Pakistan, Arts. 13(a) & 199---Constitutional petition---Maintainability---Issuance of notice and attachment of property involved in benami transaction---Alternate remedy, non-availing of---Effect---Acquittal in National Accountability Bureau (NAB) reference---Distinct nature of offences---Contention of the petitioner was that he could not be vexed twice for the same offence, as it would amount to double jeopardy---Validity---Petitioner was acquitted in the NAB reference from the charges of having moveable and immovable properties beyond his known sources of income, while the notice was served under the Benami Transactions (Prohibition) Act, 2017 (Act), for holding a house as "Beneficial Owner"---Both the offences were different in nature and under different statutes, as the offence under the NAB Ordinance was pertaining to the property beyond his known source of income, while under the Act, the offence was distinct by being beneficiary for the benami transaction, thus, as the offences were distinct, the petitioner's accusation in both cases did not constitute double jeopardy---Petitioner should have contested the notice by submitting a reply before the relevant authority under the Act i.e. the Adjudicating Authority/ Adjudication Committee, however, instead of doing so, he filed the writ petition before High Court---Petitioner had an alternative and effective remedy available under the Act and as such, the writ petition was not maintainable---Constitutional petition was dismissed, in circumstances.

Muhammad Nawaz v. Shahida Perveen PLD 2017 Isl. 375; Manzoor Ali Chaudhry v. Government of the Punjab 2000 SCMR 689; Shah Mawaz v. Lahore Development Authority 1999 PLC (C.S.) 1320; Government of Pakistan through Director General, Ministry of Interior, Islamabad v. Farheen Rashid 2011 SCMR 1; Aleem Jaffar v. WAPDA 1995 SCMR 778; Kadir Bux v. Province of Sindh 1982 SCMR 582; Abdul Aziz v. Abdul Hameed (Deceased) through L.Rs. 2022 SCMR 842; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Limited 2008 SCMR 308; Al Ahram Builders (Pvt.) Limited v. Income Tax Appellate Tribunal 1993 SCMR 29 and Saad Sumair v. National Accountability Bureau PLD 2022 Isl. 371 ref.

Raja Tanweer Safdar v. Mrs. Tehmina Yasmeen PLD 2024 SC 795 and Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan through Director NBFC's Department, Islamabad 2014 SCMR 1376 rel.

Moazzam Habib for Petitioner.

Hafiz Ahsaan Ahmad Khokhar for Respondent No.1.

Malik Talat Hussain for Respondent No.2.

P L D 2025 Islamabad 357

Before Babar Sattar and Tariq Mehmood Jahangiri, JJ

SHAHZAD AHMED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 294 of 2022 and Jail Appeal No. 302 of 2022, decided on 3rd March, 2025.

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

----S. 376---Rape---Sole testimony of victim---Delay in reporting cases of sexual abuse---Actus reus and mens rea for rape---Consent of victim---Use of force not a necessary ingredient for offence of rape---Principles relating to the offence of rape stated.

(i) The sole testimony of a victim in a case of sexual abuse, where such testimony is independent, unbiased, straightforward and reliable, is sufficient to support conviction, as it is understood that offences of sexual assault transpire in private, for which reason they are mostly not witnessed by others.

(ii) The exception to the rule, that the sole testimony of the victim of an offence of sexual abuse needs no corroboration, are cases where there exists evidence of enmity or a prior grudge between the complainant and the accused. In such cases a court must be cautious in relying on the sole testimony of the complainant, where such testimony is not corroborated by other evidence establishing a link between the accused and the offence he/she has been charged with.

(iii) Where corroboration is required, the focus of such corroboration is to determine whether the accused is linked to the offence he/she has been charged with and/or can be placed at the place of occurrence, to ensure that the complainant does not falsely allege that an occurrence took place involving the accused, which never did.

(iv) In view of prevalent social realities that inform individual reactions, there can be no presumption that a rape victim would falsely identify an innocent person for the criminal and violent act of a third person who actually committed the offence.

(v) Any delay in reporting of an offence of sexual abuse, if not accompanied by facts and circumstances that create reasonable doubt about the occurrence itself, will not create a presumption that the complaint was false in view of a natural inclination of victims of sexual abuse to never report the offence at all.

(vi) The evidentiary and probative burden of establishing the actus reus of rape and that intercourse took place without the consent of the victim is on the prosecution. And where the actus reus has been proven beyond doubt, the sole testimony of the victim, when found truthful and reliable by the Court in face of cross-examination, may be sufficient to discharge the onus of proving the mens rea of rape.

(vii) Where the fact that intercourse took place is established, and the complainant testifies that the intercourse was against her will and without her consent, the defendant not pleading that intercourse was a consequence of consent granted by the complainant is at his own peril. While the evidentiary burden of proving mens rea remains on the prosecution, the threshold for discharging probative burden is low and can be discharged on the basis of the testimony of the complainant, unless the accused can establish on a balance of probabilities that the complainant granted consent, after which the burden would shift back to the prosecution to prove beyond reasonable doubt that the complainant had not granted consent for intercourse as claimed by the accused.

(viii) Use of force is not a necessary ingredient of the offence of rape and intercourse against the will of the victim or in the absence of her consent is in itself sufficient to constitute rape.

(ix) While consent may involve submission, submission does not necessarily imply consent and therefore passive submission by a victim, out of fear, without putting up physical resistance, cannot be mistaken for grant of consent.

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

----S. 376---Rape---Appreciation of evidence---Solitary statement of victim---Scope---Accused was charged for committing rape with the complainant---Victim appeared before the Court and narrated the occurrence involving the appellant---Victim's account remained consistent despite facing lengthy cross-examination---Trial Court found her testimony credible and reliable and also noted that there was no previous enmity between the complainant and the accused and consequently no motive for the victim to falsely implicate the appellant---Appellant lived in the victim's neighborhood and there was thus no question of the victim being unable to identify the accused---When the complainant reported the crime, she admitted that almost eight months back at the time of registration of the FIR, the victim was pregnant as a consequence of being raped---Victim subsequently delivered a baby girl---Prosecution took samples of the blood of the baby girl as well as the blood of the appellant and the forensic report issued by Forensic Science Agency confirmed that there was 99.99% probability that the appellant was the biological father of the baby girl---DNA report was the corroborative evidence that supported the testimony of the victim---While the Trial Court found that the testimony of the victim inspired confidence, the DNA report confirmed beyond reasonable doubt that the appellant had intercourse with the victim and a baby girl was born as a consequence of such intercourse---Appeal against conviction was dismissed, in circumstances.

Ashraf v. The Crown PLD 1956 FC 86; Ramzan Ali v.

State PLD 1967 FC 545; Shahzad alias Shaddu v. The State 2002

SCMR 1009; Ibrar Hussain v. State 2007 SCMR 605; Shakeel v. State PLD 2010 SC 47; Habib Ullah v. The State 2011 SCMR 1665;

State v. Abdul Khaliq PLD 2011 SC 554; Atif Zareef v. The State PLD 2021 SC 550; Atta ul Mustafa v. The State 2023 SCMR 1698; State of Punjab v. Gurmit Singh 1996 (2) SCC 384; State of Uterperdaish v. Choteylal 2011 (2) SCC 550 and Regg v. Morgan 1976 AC 182 rel.

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

----S. 376---Rape---Appreciation of evidence---Medical evidence---DNA report---Scope---Accused was charged for committing rape with the complainant---Prosecution produced the Medical Officers that administered and oversaw the drawing of samples of blood of the baby girl born to the victim as well as the accused---Prosecution also produced witnesses who testified how the blood samples were handed over by the hospital to the police authorities, how they were kept in the Malkhana and how they were dispatched to Forensic Science Agency for DNA analysis---DNA report had been exhibited in evidence---In this view of the matter, no case had been built up by the defence to establish that the DNA report or its content ought not be read into evidence or that the conclusion drawn from such a report that the appellant was the biological father of the baby born to the victim was erroneous---Appeal against conviction was dismissed, in circumstances.

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

----S. 376---Rape---Appreciation of evidence---Delay of eight months in lodging the FIR---Inconsequential---Accused was charged for committing rape with the complainant---Trial Court had dealt with the question of eight-month delay in registering the FIR while highlighting conceptions of honor and shame that prevent the reporting of crimes involving sexual abuse---Victim was a twenty-year-old unmarried girl at the time of the occurrence, belonging to a family of laborers and all her siblings were younger than her---Victim not reporting the occurrence to her family was understandable as according to her testimony she was not only fearful of the appellant inflicting harm on her, but was equally fearful of the stigma she and her family would face if the occurrence became a matter of public knowledge---Victim might never have reported the occurrence had she not been impregnated---Victim only revealed her ordeal when her state of pregnancy became physically apparent close to the time of delivery---No presumption could be drawn that the victim falsified the story that the appellant had intercourse with her---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 376 & 90---Rape---Appreciation of evidence---Consent of victim---Scope---Actus reus and mens rea for the offence of rape established---Accused was charged for committing rape with the complainant---Victim testified that the appellant entered her home under the pretext of asking for water and raped her after instilling fear in her---Victim stated that he was carrying a weapon at that time and raped her in an empty room that was 20 feet away from another room in the house in which her younger siblings were asleep---Rape happened at a time when the victim's parents were away from the house and had taken her younger brother to the hospital---During cross-examination, no inconsistencies in the victim's story could be effectively made out by the defence---In the statement recorded by the appellant in terms of S. 342 of Cr.P.C., he claimed that the victim was blaming him for the act of another person, which act was one of consensual intercourse between the victim and a third person---Said contention stood negated by the DNA report which confirmed the victim's statement that the appellant had intercourse with her---Appellant never took the plea that he did have intercourse with the complainant and that such intercourse was consensual, despite being aware of the DNA report that established that he was the biological father of the baby girl born to the victim---In the event that the appellant had taken the defence that the intercourse was consensual and had proved so through evidence on a balance of probabilities, the onus would then have reverted back to the prosecution, which would need to prove beyond reasonable doubt that such consent had not been given---Appellant, however, made out no such case---Even otherwise, it did not appeal to a prudent mind that an unmarried girl would name an innocent unconnected person to take the fall for a rapist or even for another person where the intercourse was consensual---Victim's testimony sufficiently established mensrea on part of the appellant by making a confidence inspiring testimony that she had not consented to the intercourse which was forced upon her by the appellant---Defence failed to create reasonable doubt either in relation to the actus reus or the mens rea for the crime of rape---Thus, the prosecution proved beyond reasonable doubt that the appellant was guilty of the offence of rape---Section 90 of P.P.C holds in any event that a consent given in consequence of fear falls outside the definition of consent---Section 375 of P.P.C defined rape as a man having sexual intercourse with a woman including inter-alia against her will or without her consent or with her consent when it had been obtained by putting her in fear of death or hurt---Prosecution successfully established that the appellant was guilty of an offense in terms of S. 376 of P.P.C---Thus, the findings of the Trial Court with regard to the conviction of the appellant was confirmed---Appeal against conviction was dismissed, in circumstances.

South Australia in Question of Law (No.1 of 1993; (1993) 59 SASR 214; Hazel v. State 221 Md. 464, 157 A.2d 922 (1960); State v. Rusk (289 Md. 230 (1981) 424 A. 2d 720); People v. Evans (85 Misc.2d 1088, alternate citation: 379 N.Y.S.2d 912; State of Uttar Pradesh v. Chhotey Lal (2011) (2) SCC 550; Rao Harnain Singh v. State AIR 1958 P&H 123; State of UP v. Naushad (2013 (16) SCC 651); Yedla Srinivas Rao v. State of A.P. (2006) (11) SCC 615; Sujith v. State of Kerala (Crl. M.C. No. 9538 of 2023); Nawab v. The State PLD 1959 (W.P.) Lah. 38 and Imran v. The State 2016 PCr.LJ 1888 rel.

Muhammad Kamran Alam Satti for Appellants.

Ch. Ehsan Majeed Gujjar, State Counsel.

Ms. Imaan Zainab Mazari-Hazir for Respondent No.2

Muhammad Nawaz, Inspector and Mukhtar Ahmed, ASI.

P L D 2025 Islamabad 382

Before Arbab Muhammad Tahir, J

FARHAN KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice Division, Islamabad and 7 others---Respondents

Writ Petition No. 1324 of 2023, decided on 23rd April, 2025.

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

----S.17---Office of Federal Ombudsman for Protection Against Harassment of Women at the Workplace (Employees' Service) Rules, 2014, Sched., Table-III, Clause II---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Scope---Conduct of petitioner---Concealing of facts---Petitioner assailed selection of respondents on the posts in question on the plea that the same were illegal and made against the Office of Federal Ombudsman for Protection Against Harassment of Women at the Workplace (Employees' Service) Rules, 2014---Validity---Writ of quo warranto is not to be issued as a matter of course---It is in the discretion of Court to refuse or grant it according to facts and circumstances of the case---Foremost obligation of Court while hearing a quo warranto petition is to inquire into the conduct and motive of the relater and may, in its discretion, decline to issue a writ where it would be vexatious to allow the same---Court must be satisfied that petitioner is a bona fide and not motivated by any malice against the person whose appointment is under challenge---Writ of quo warranto should be refused where it is an outcome of malice and mala fide---Court has to see whether attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object---At the first instance it has to be determined whether conduct of petitioner went to such an extent that High Court should, in view of such conduct consider him to be worthy of being entrusted with a writ in the form of quo warranto---Petitioner after his non-selection by authorities filed successive petitions, and concealed facts regarding filing of earlier petitions and dismissal of one of them---Petitioner also challenged appointments of some of the respondents in earlier petition and did not realize that the order of dismissal of earlier petition had attained finality---Petitioner relied upon unauthentic documents to question appointments of respondents---Conduct of petitioner held him disentitled for the relief sought and instead deserved imposition of cost as he had filed successive petitions---High Court declined to interfere in appointments of respondents and imposed costs upon the petitioner---Constitutional petition was dismissed in circumstances.

PLD-2024 SC 235; 2023 SCMR 162; 2008-SCMR 960; 2008 SCMR 1200; 2023 PLC (C.S.) 140; 2021 PLC (C.S.) 1394 and 2011 SCMR 374 ref.

Yahya Ahmed Minhas for Petitioner.

Ms. Alyia Zareen Abbasi for Respondents.

Jawad Khursheed and Muhammad Imran Hassan, Dy: Director for FOSPAH.

P L D 2025 Sindh 1

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

AMIR BALOCH---Petitioner

Versus

SINDH INFORMATION COMMISSION and others---Respondents

Constitution Petition No. D-5159 of 2023, decided on 11th March, 2024.

Sindh Transparency and Right to Information Act, 2016 (XV of 2017)---

----S. 11---Constitution of Pakistan, Arts. 19-A & 199---Constitutional petition---Right to information---Spreading of information---Pre-conditions---Petitioner was aggrieved of non-issuance of directions to Registrar High Court to provide the required information---Validity---Petitioner failed to point out the matter of public importance in seeking such information, while invoking Art. l9-A of the Constitution---Petitioner could not justify invoking of jurisdiction of High Court under Art. 199 of the Constitution---Exercise of such right to information was subject to regulation and reasonable restrictions imposed by law---Goal of Sindh Transparency and Right to Information Act, 2016 was to spread information in public interest but at the same time transparency in spreading information should be observed and system of a functionary should not be hampered---For seeking access to such information a person should bear in mind the fact that he has to mention the significance of such information by showing public interest---Transparency is absolutely necessary---Response given by Information Commission through order in question was appropriate and according to its domain to safeguard the functions and working of an organization---High Court declined to interfere in order passed by Information Commissioner in exercising its powers under Constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Mukhar Ahmed Ali v. The Registrar, Supreme Court of Pakistan and another Civil Petition No.2532 of 2023 fol.

Petitioner in person.

P L D 2025 Sindh 5

Before Adnan Iqbal Chaudhry, J

MUHAMMAD FARHAN WAZIR and others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and others---Defendants

Suit No. 2316 of 2021, decided on 23rd April, 2024.

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

----O. II, R.3---Causes of action, joinder of---Principle---Provision of O. II, R. 3, C.P.C. does not permit joinder of several causes of action where plaintiffs and defendants are not jointly interested, or where some causes of action are against one set of defendants and some against another set of defendants.

Abdus Samad Badini v. Political Agent and Returning Officer, District Chaghi 1984 CLC 564 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.II, Rr.3, 6 & O.VII, Rr.11 (d) & 13---Suit for declaration and injunction---Rejection of plaint---Causes of actions, joinder of---Multifarious suits---Scope---Defendants sought rejection of plaint as there were misjoinder of causes of action accrued to each plaintiff---Validity---Provision of O. II, R. 6, C.P.C. is available only when joinder of causes of action is within the limitations imposed by O. II, R. 3, C.P.C. and Court then feels that one or more of the causes of action cannot be conveniently tried or disposed of together---Provision of O. II, R 6, C.P.C. is not intended to say that even if joinder of causes of action is beyond limitations imposed by O. II, R. 3, C.P.C., the Court can nonetheless order separate trials or step into the shoes of plaintiff to remedy the defect by other means, for that would make O. II, R. 3, C.P.C. redundant---High Court rejected the plaint under O. VII, R. 11(d), C.P.C., as joinder of causes of action had gone beyond the provision of O. II, R. 3, C.P.C.---Plaintiffs by virtue of O. VII, R. 13, C.P.C. were free to explore separate suits---Application was allowed accordingly.

Umeed Ali v. Government of Sindh PLD 2007 Kar. 224; Mumtaz Khan v. Nawab Khan 2000 SCMR 53; Chandi Prasad Sikaria v. Premlata Nahata 2005 SCC OnLine Cal 281; Premlata Nahata v. Chandi Prasad Sikaria 2004 SCC OnLine Cal 818; Aroma Travels Services v. Faisal Al Abdullah Al Faisal Al Saud 2017 YLR 1579; Ghazanfar Ally Effendi v. Arif Effendi 1988 CLC 1425 and Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf 2021 SCMR 1509 rel.

Khawaja Shams-ul-Islam, Shehzad Mehmood and Imran Taj for Plaintiffs.

Makhdoom Ali Khan, Ayan Mustafa Memon, Ahmed Ali Hussain, Ali T. Ebrahim, Muhammad Shahzeb Siddiqui, Aga Zafar Ahmed, Jazib Ali Shaikh, Kashif Hanif, Muhammad Shahnawaz, Khwaja Aizaz Ahsan, Minahil Malik, Nazia Hanjrah, Darakhshan Jahan, Muhammad Shahbaz, Saif Sohail Younus, Khurram Rashid, Asad Ali Zaidi, Aman Aftab, Ashraf Ali Butt, Rehmat-un-Nisa, Naseema Mangrio, Fahad Khan, Muhammad Imran, Syed Zaeem Hyder and Liaquat Hussain for Defendants.

Muhammad Ali Lakhani, Syed Ali Ahmed Zaidi and Choudhry Muhammad Iqbal for Applicants.

Khursheed Javed, Deputy Attorney General for Federation of Pakistan.

Aley Maqbool Siddiqui, Additional Advocate General, Naushaba Haq Solangi and Imran Khan, Assistant Advocate General for Province of Sindh.

P L D 2025 Sindh 12

Before Muhammad Iqbal Kalhoro, J

KHADIM HUSSAIN---Applicant

Versus

The STATE and 12 others---Respondents

Criminal Miscellaneous Application No. S-647 of 2013, decided on 26th February, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A---Penal Code (XLV of 1860), S. 324---Report of police officer---Addition or deletion of legal provision---Scope---Applicant was aggrieved of an order passed by Magistrate whereby charge under S. 324, P.P.C., was deleted---In a positive report of Investigating Officer referring the accused to a trial, the Magistrate has no jurisdiction to disagree with him by disposing of the case or deleting a particular Section---Conclusion drawn by the Investigating Officer that there is sufficient material to show that a particular offence or the case as reported has been made out for the Court to hold a trial thereon is always based on some material collected by him during investigation---Magistrate was not competent to discard such report on taking a summary tour of material before him, which required examination of witnesses---Therefore, it will be for the Court, be it Magistrate's trial or the Sessions' trial, to apply its mind, in the trial and decide whether the case is made out; or there is sufficient material to attract applicability of a particular Section and then follow the procedure accordingly---Magistrate's power to disagree with the opinion of Investigating Officer is limited to only reports disposing of the case or deleting a particular Section---In such cases, the Magistrate by going through the material can form his own opinion disagreeing with the opinion of Investigating Officer and take cognizance of offence against the accused by accepting the Challan or restoring the deleted provision---In the present case, Magistrate without applying his mind had passed the order---Therefore, with consent, of the parties the impugned order was set aside and the case was remanded for passing a fresh order---Application along with pending application was disposed of accordingly.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Amanat Ali v. Ist Civil Judge and J.M Daharki and others 2015 YLR 2312 and Rab Nawaz v. The State and others 2017 PCr.LJ Note 195 ref.

1972 SCMR 516; 1983 SCMR 370; 2010 YLR 470 and 2015 YLR 2312 rel.

Syed Tanveer Abbas Shah and Badaruddin Memon along with Applicants for Applicants.

Anwar Ali Lohar files power on behalf of Respondents Nos.3 to 13.

Shafi Muhammad Mahar, Deputy P.G for the State.

P L D 2025 Sindh 15

Before Jawad Akbar Sarwana, J

DUR MUHAMMAD MALIK---Applicant

Versus

ZAFARULLAH MALIK and 3 others---Respondents

Civil Revision Application No. S-78 of 2023, decided on 26th January, 2024.

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

----Art.128---Specific Relief Act (I of 1877), S.42---Suit for declaration---Parentage, determination of---Permission of Deoxyribonucleic Acid Test ('DNA test') by a court in its revisional jurisdiction---Scope---Paternity claim of respondent (son) denied by appellant (father)---Contention of the appellant was that he had divorced mother of respondent two years prior to birth of respondent, therefore, respondent could not be his son and in order to resolve the controversy courts below should have ordered for DNA test---Validity---Appellant did not deny respondent's paternity and he claimed that "he did not know", therefore, the court correctly drew an adverse presumption from his response---Respondent was born prior to divorce of appellant and his mother---Appellant had declined to acknowledge respondent as his child after more than 18 years---Paternity of a child born in lawful wedlock carries the presumption of truth, and it cannot be refuted by simple denial---Law inclines towards the presumption of paternity rather than illegitimacy---Child born during wedlock has the parentage of the husband---There is no need for an express acknowledgement or an affirmation---Legitimacy of a child cannot be questioned merely because of the father's claim without any evidence to substantiate the same---Appellant produced no evidence to controvert the evidence produced and relied upon by the respondent in support of his contention that he was the son of appellant---There was nothing available on record to suggest that appellant had moved either the trial or appellate courts to conduct DNA test---Resort to DNA testing may be made depending upon the facts and circumstances of the case where the evidence produced by both parties is evenly balanced that no conclusion can be drawn or where the party upon whom the onus lies has not produced any evidence---In the present case respondent had relied on documentary evidence, such as the school and educational records disclosing appellant as his father, whereas appellant could not question the paternity of respondent by asking for a DNA test, notwithstanding appellant put up such plea after more than 18 years of birth of respondent and that too before the court exercising revisional jurisdiction---Revision petition was dismissed accordingly.

Cantonment Board Clifton v. Nadim Ahmed Ansari High Court Appeal No.145 of 2018; Loung v. Allah Ditto 2002 CLC 1307; Muhammad Arshat v. Sughran Bibi PLD 2008 Lah 302; Muhammad Nazir v. Ali Muhammad 2003 SCMR 1183; Abdul Rashid v. Safia Bibi PLD 1986 FSC 10 and Sharafat Ali Ashraf v. Additional District Judge, Bahawalpur 2008 SCMR 1707 rel.

(b) Islamic law---

----Marriage---Absence of proof of divorce---Presumption---There is a presumption of marriage based on continued and prolonged cohabitation unless the same is dislodged by cogent reason.

Abdul Majid Khan v. Anwar Begum PLD 1989 SC 362 rel.

Abdul Rehman Bhutto for Applicant.

Nemo for Respondents Nos.1 to 4.

P L D 2025 Sindh 19

Before Shamsuddin Abbasi and Agha Faisal, JJ

ABDUL MAJEED TALANI---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Sindh Prisons Department and 6 others---Respondents

Constitutional Petition No. D-176 of 2024, decided on 15th May, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Arts. 199, 9, 10, 14 & 175(2)---Specific Relief Act (I of 1877), Ss.56(d), 56(e), 56(i) & 56(j)---Constitutional jurisdiction exercised by the High Court in passing restraining/injunctive orders in a bail matter involving factual controversy including medical grounds---Legality---Contention of the respondent (accused in a criminal case) was that passing of restraining order by High Court in his bail application sought on serious medical grounds amounted to depriving him of his fundamental rights guaranteed under Arts. 9, 10 & 14 of the Constitution and no injunctive order could be passed by High Court in criminal cases---Validity---High Court in the exercise of its writ jurisdiction does not delve into factual controversies requiring inquiry, evidence etc.---While the admissibility and weightage of a medical opinion might be considered by a trial/appellate court, however, no case was apparent before the High Court as to how the same merited interference via direct recourse to writ jurisdiction---Art.199 of the Constitution contemplates discretionary relief, however, such discretion may only be exercised if permissible under the law---Such discretion can never be unfettered, and it has to be exercised per settled judicial principles and cannot be employed to defeat the manifest legislative intent---Any restraint placed upon proceeding with a bail application would judicially presume that a person/respondent was disentitled to bail, which determination was for the court of competent criminal jurisdiction, and the court concluding appropriate proceedings, and under no circumstances within the remit of High Court---Ordinary course of criminal proceedings could not be allowed to be deflected by resort to writ jurisdiction---Statutory fora were competent to determine the viability of the relevant criminal proceedings and regulate the custody of any accused and no case had been set forth before High Court to merit the invocation of the discretionary writ jurisdiction of High Court in such regard---Constitutional petition was dismissed with costs accordingly.

2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 SC 415; Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522; Abdul Aleem v. Special Judge (Customs) Lahore and others 1982 SCMR 522; A Habib Ahmed v. MKG Scott Christian and others PLD 1992 SC 353; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Syed Iqbal Hussain Shah Gillani v. PBC and others 2021 SCMR 425 and Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 rel.

Muhammad Afzal Jagirani and Muhammad Ibrahim Lashari for Petitioner.

Abdul Rehman Mughal for Respondent No.6.

Abdul Hamid Bhurgri, Additional Advocate General and Aitbar Ali Bullo, Deputy Prosecutor General for Official Respondents.

P L D 2025 Sindh 25

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

MUHAMMAD MALOOK DHAREJO and another---Petitioners

Versus

Mst. MEHNAZ GUL alias ARBAB KHATOON and others---Respondents

Constitution Petition No. D-973 of 2022, decided on 26th October, 2023.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1---Conditional withdrawal of suit---Scope---Petitioners/ plaintiffs filed a suit for declaration etc.---When the case was posted for recording evidence due to one excuse or the other the evidence could not be recorded---After about two years plaintiffs filed a statement seeking withdrawal of the suit subject to condition of filing of fresh suit on account of technical defects in the pending suit---However, Civil Court declined permission to the plaintiffs to file fresh suit but allowed the withdrawal and disposed of the suit---Revision filed thereagainst by the petitioners/plaintiffs was also dismissed---Validity---Petitioners/plaintiffs, had sought conditional withdrawal of the suit subject to filing a fresh suit---Court was required to either allow the petitioners to withdraw the suit and accept the condition, or if the Court was not satisfied with the condition, it was required to dismiss the application and proceed with the matter---Trial Court had no jurisdiction to allow the withdrawal of suit but at the same time decline permission to the petitioners to file a fresh suit--- The way the Civil Court exercised jurisdiction was paradoxical/self-conflicting---Petitioners had sought withdrawal of the suit but only upon acceptance of the condition--- If the Court was not satisfied with the condition, it had no jurisdiction to dispose of the suit as withdrawn--- Moreover, the reasoning in support of findings of the Courts below were not satisfactory---High Court set-aside the orders passed by both the Courts below and remanded the case to the Civil Court with directions to either allow the statement of the withdrawal filed by the plaintiffs in toto as sought or proceed with the matter in accordance with law, however, if petitioners wished to add any new ground for seeking withdrawal of the suit, they would be permitted to do so and their additional grounds would also be considered and decided in accordance with law---Constitutional petition was disposed of accordingly.

Saeed Ahmed Bhatt for Petitioners.

Ahmed Ali Shahani, Assistant Advocate General for Respondents.

P L D 2025 Sindh 28

Before Agha Faisal, J

SALEEM BUTT and another---Plaintiffs

Versus

Dr. AFNAN ULLAH KHAN and another---Defendants

Suit No. 1557 of 2021, decided on 27th June, 2022.

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

----S. 42--- Constitution of Pakistan, Arts. 66 & 69--- Suit for declaration---Proceedings of Parliament, challenging of---High Court, jurisdiction of---Scope---Plaintiff challenged/impugned a Letter issued by Standing Committee of the Senate of Pakistan---Constitutionality---Articles 66 & 69 of the Constitution, make it clear that Courts ought not to inquire into proceedings of Parliament and Parliamentary Privilege is accorded to Inter Parliamentary Communications; even the proceedings of a formally constituted Committee of either House falls within the ambit of internal proceedings of the Parliament, hence, outside the jurisdiction of the Court in terms of Art. 69 of the Constitution---Impugned Letter was prima facie Inter Parliamentary Communication---Plaintiff remained unable to demonstrate that High Court had any jurisdiction to entertain the pertinent relief claimed---Plaint merited rejection forthwith---Suit was dismissed accordingly.

Pakistan v. Ahmed Saeed Kirmani and others PLD 1958 SC 397; Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98; PLD 2012 SC 774; BNP (Pvt.) Ltd. v. CDA and others 2016 CLC 1169 and Riaz Hanif Rahi v. Pakistan PLD 2015 Isl. 7 ref.

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

----S. 42---Constitution of Pakistan, Arts. 66 & 69---Suit for declaration---Proceedings of Parliament, challenging of---Negative declaration---Scope---Plaintiff challenged/impugned a Letter issued by Standing Committee of the Senate of Pakistan---Question was whether a negative declaration can be granted in exercise of S. 42 of the Specific Relief Act, 1877---Held, that precepts of declaratory relief are governed by S. 42 of the Specific Relief Act, 1877, and the sine qua non of seeking such a declaration is to demonstrate entitlement to a legal right---Suits seeking negative declarations are not appreciated by the Courts---No plaintiff can be permitted to seek relief in a suit which would frustrate the defendant(s) from initiating a remedy for redressal of its grievance; and a plaintiff cannot be permitted to seek an injunction against the defendant, restraining the defendant from seeking a remedy in law against the plaintiff and the plaint in such circumstances ought to be rejected---Relief under S. 42 of the Specific Relief Act, 1877 cannot be sought without demonstration of any legal entitlement, within the meaning thereof---Plaintiff had been unable to demonstrate any right to seek relief within the meaning of the statutory provision and no case had been made out to seek the negative declaration sought---Plaint merited rejection forthwith---Suit was dismissed accordingly.

PLD 2019 SC 449; 2016 CLC Note 10; PLD 1978 Lah. 113; Frost International Limited v. Milan Developers and others MANU/ SC/0404/2022 and Mobeen Raza's case 2016 CLC Note 10 ref.

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

----O. VII, R. 11---Rejection of plaint---Scope---Rejection of the plaint is merited when the suit appears to be barred by law and the import of the word 'appear' is deciphered to mean that if prima facie the Court considers that it appears from the statements in the plaint that the suit is barred, then it should be terminated forthwith.

Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247 ref.

Abdul Ahad for Plaintiffs.

Junaid Ahmed for Defendants.

P L D 2025 Sindh 36

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

CANTONMENT BOARD CLIFTON through duly Authorized Officer---Appellant

Versus

NADIM AHMED ANSARI---Respondent

High Court Appeal No. 145 of 2018, decided on 6th December, 2023.

(a) Cantonments Act (II of 1924)---

----S. 273---Contract Act (IX of 1872), S. 70---Recovery of money---Statutory notice, non-issuance of---Plea not raised---Obligation of person enjoying benefit of non-gratuitous act---Scope---Appellant/ Cantonment Board assailed judgment and decree passed in favour of respondents/plaintiffs to pay money for the services rendered---Plea raised by appellant/Board was that no notice under S.273 of Cantonments Act, 1924, was issued by respondents/plaintiffs prior to filing of suit---Validity---When appellant/Cantonment Board remained silent in its written statement about S. 273 of Cantonments Act, 1924, it had implicitly waived the protection under S. 273 of Cantonments Act, 1924---Appellant/Board was estopped from raising such plea subsequently which was a curable defect---Provision of S. 70 Contract Act, 1872, provides three requirements: (i) party claiming compensation must do something for another or deliver something to the party from whom he is claiming compensation; (ii) claimant must not intend to do the act or deliver goods gratuitously; and (iii) party from whom he is claiming must enjoy benefit of the act or goods---Respondents/plaintiffs satisfied all three ingredients of S. 70 of Contract Act, 1872---Even if there was neither any contract nor contractual term fixing compensation of service rendered, respondents/plaintiffs were even then entitled to compensation "quantum meruit" from appellant/Board---Division Bench of High Court declined to interfere in judgment and decree passed by Trial Court as the same had been passed on proper appreciation of facts and law and did not suffer from any illegality---Intra Court Appeal was dismissed, in circumstances.

Muhammad Yusuf v. Kharian Bibi 1995 SCMR 784; Faqir Muhammad v. Muhammad Bibi PLD 1991 SC 590; Haji Abdul Aziz v. Karachi Port Trust and another 2010 MLD 1916; Vallayan Chettiar v. Government of the Province of Madras AIR 1947 PC 197; Agricultural Workers Union v. The Registrar of Trade Unions 1997 SCMR 66; Ismail v. Razia Begum 1981 SCMR 687; Riffat Masood v. Cantonment Board of Sialkot 2004 SCMR 113; Defence Housing Authority, Lahore v. Builders and Developers (Pvt.) Ltd. 2015 SCMR 1799; Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi PLD 1976 SC 785; B. Ram Chander Sahai v. Cantonment Board of Meerut AIR (34) 1947 Allahabad 42/ MANU / UP / 0403 / 1945 and Messrs Coca-Cola Beverages v. Cantonment Board Chaklala, Rawalpindi and others 2011 MLD 1987 rel.

(b) Cantonments Act (II of 1924)---

----S. 273---Statutory notice---Requirement---If act done by Cantonment Board is bereft of statutory sanction, then such act is beyond Cantonments Act, 1924---Suit seeking compensation against such act is not hit by the provision of S. 273 of Cantonments Act, 1924.

Sabir Hussain v. Board of Trustees of the Port of Karachi and 5 others 2010 YLR 3313 and United Marine Agencies (Pvt.) Ltd. v. Trustees of the Port of Karachi and others 2007 CLD 1092 rel.

Syed Zaeem Hyder for Appellant.

Shahenshah Hussain for Respondent.

P L D 2025 Sindh 53

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

MUMTAZ HUSSAIN SIDDIQUI---Appellant

Versus

MUHAMMAD TAHIR---Respondent

First Appeal No.38 of 2020, decided on 15th May, 2024.

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

----First Sched., Art. 159---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 2 & 3---Suit for recovery---Summary trial---Application for leave to defend, filing of---Limitation---Specified time of 10 days, commencement of---Scope---Service upon the defendant---Trial Court, responsibility of---On failure of the defendant to file leave to defend application, the Trial Court passed ex-parte judgment and decree; later, Trial Court dismissed the defendant's application under O. IX, R. 13, C.P.C. read with S. 12(2), C.P.C., seeking to set aside the original judgment and decree---Validity---Article 159 of the Limitation Act, 1908 mandates a period of ten (10) days for submitting a leave to defend application in a suit governed by the summary procedure outlined in O. XXXVII of Civil Procedure Code, 1908---Said period commences from the date of service of the summons---Order XXXVII, R. 2, C.P.C., explicitly outlines the procedure for summons, requiring it to be served in Form No.4 of Appendix B, which coincides with the 10-day period stipulated in Art. 159 of Limitation Act, 1908; significance of both the contents and language of Form No.4 necessitates that the party served with the summons has 10 days from the date of service to submit its Leave to Defend Application---In the present case, according to the relevant Diary (Order) Sheet, the service upon the appellant/defendant was held good based on the report of bailiff---However, said report revealed that Appellant was served on such date that the ninth (9th) day (from date of service by bailiff) was next date of hearing i.e. before the full 10-day period as provided by law would have elapsed---When a statute grants a defendant a statutory right to seek leave of the Court within a specified time frame (in the present case 10 days from the receipt of the summons), it establishes a clear procedural safeguard---Trial Court is expected to respect and uphold this statutory provision---By waiting for the expiration of the stipulated period before taking any action, the court ensures that the defendant has a reasonable opportunity to exercise his legal rights and present his defence---In the absence of such a waiting period, a defendant's ability to avail himself of the statutory right is compromised---Striking off the defence of a defendant before the expiration of the specified time frame undermines the fundamental principles of fairness and due process inherent in legal proceedings---In the present case, the Trial Court unfairly and prematurely deprived the appellant of his statutory entitlement to seek leave within the prescribed period, by curtailing it by just one day, thereby impeding his ability to mount an adequate defence---Under Rr. 2 & 3 of O. XXXVII, C.P.C., proceedings are summary; failure of the defendant to apply for defence within 10 days of service leads to a deemed admission of allegations in plaint, which may in turn result in a decree---Court must ensure the defendant is served and comprehends the proceedings; hence, the Legislature mandated specific forms for the plaint and summons---Therefore, it is imperative for a court to exercise caution and patience in such matters, refraining from striking down the defence of a defendant ahead of time---By allowing the statutory period to run its course, a Court ensures that the defendant's rights are fully respected and that the legal process proceeds in a manner consistent with the principles of justice and equity---High/Appellate Court set-aside the ex-parte impugned judgment and decree and the dismissal order of the Appellant's application (seeking setting aside of the original impugned judgment and decree) with the direction that the appellant shall file his leave to defend application in the suit within ten (10) days from today---Appeal, filed by defendant, was allowed accordingly.

Meer Javed Asghar v. Citibank 2007 CLD 304 and Muhammad Shafique v. National Bank of Pakistan PLD 1992 Lah. 60 ref.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery---Summary trial---Application for leave to defend, filing of---Limitation---Specified time of 10 days---Scope---Service upon the defendant---Trial Court, responsibility of---On failure of the defendant to file leave to defend application, the Trial Court passed ex-parte judgment and decree; later, Trial Court dismissed the defendant's application under O. IX, R. 13, C.P.C. read with S. 12(2), C.P.C. seeking setting aside of the original judgment and decree---Validity---In the present case, according to the relevant diary (order) sheet, the service upon the appellant/defendant, based on the report of bailiff, was held good by the Trial Court---However, simultaneously and paradoxically, in the same order (date on which service was held good) as well as on the following date (which was also the date on which the appellant was barred from filing Leave to Defend application and his defence was struck off), the Trial Court directed the respondent/plaintiff to file courier receipts and acknowledgment of delivery ("AD")---Thus, it was apparent that the Trial Court considered the service as valid despite the absence of essential documents (like courier receipts and AD)---Said anomaly raised significant concerns and called into question the thoroughness and reliability of the Trial Court's evaluation of service validity---High Court set-aside the ex-parte impugned judgment and decree and the dismissal order of the appellant's application (seeking setting aside of the original impugned judgment and decree) with the direction that the appellant shall file his leave to defend application in the suit within ten (10) days from today---Appeal, filed by defendant, was allowed accordingly.

Hyder Raza Arain for Appellant.

Nemo for Respondent.

P L D 2025 Sindh 59

Before Muhammad Shafi Siddiqui, C.J. and Jawad Akbar Sarwana, J

B.R.R. GUARDIAN MODARABA and 8 others---Petitioners

Versus

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

C.P. No. D-3523 of 2020, decided on 23rd September, 2024.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 20(4)(o)---Modarba Companies and Modarba Rules, 1981, R. 8(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Inquiry, initiation of---Issuance of show cause notice---Petitioners were aggrieved of show cause notice issued by SECP in order to safeguard interests of Modarba Certificate holders---Validity---Securities and Exchange Commission of Pakistan, in terms of S. 20(4)(o) of Securities and Exchange Commission of Pakistan Act, 1997 is empowered to perform such functions and exercise such powers of the Authority, including any powers of Federal Government delegated to the Authority and under any other law for the time being in force under which any function or power has been conferred on the Authority including, but not limited to, the functions and powers set out in Securities and Exchange Commission of Pakistan Act, 1997---SECP after hearing petitioners and/or their representatives passed order in question---Payments to different individuals on different heads were made without codal formalities and/or providing legitimacy of such payments---There were some incidents of fire which resulted in loss to company in view of absence of insurance coverage/Takafal---Huge payments needed to be scrutinized, and if the Regulator would keep a blind eye on it, then entire scheme set out in relevant laws to maintain a system of check and balance on companies would become redundant---High Court declined to exercise jurisdiction under Art. 199 of the Constitution as the petitioners failed to point out the fundamental right which had been infringed, as High Court was not sitting in appeal over order in question---Petitioners raised controversies factual in nature and the same were not warranted while exercising jurisdiction under Art. 199 of the Constitution---It was primary duty of regulatory authorities to safeguard interests of certificate holders and order in question was an attempt to achieve such goal---Constitutional petition was dismissed, in circumstances.

Sameer Tayebally for Petitioner.

Khaleeq Ahmed, Deputy Attorney General for Respondent No.1.

Furqan Ali for Respondents Nos.2 and 3.

P L D 2025 Sindh 63

Before Khadim Hussain Soomro, J

Col. (R) MUKARRAM ALI SHAH---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. S-109 of 2022, decided on 3rd October, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 561-A---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), Ss. 6 & 84(1)---Stale (out of date) cheque---Presentation of the cheque for encashment---Reasonable time---Scope---Petitioner moved an application under S. 249-A, Cr.P.C., before the Trial Court for his acquittal claiming that the charge against him was groundless and there was no probability of him being convicted of any offence---Said application was dismissed---Validity---Contents of the FIR indicated that the cheque was issued as guarantee; however, the specific transaction for which it was issued was not explicitly identified within the FIR---Plain reading of the S. 489-F, P.P.C., made it abundantly clear that it did not apply to every instance of cheque dishonoured---Cheque in question was issued on 15-03-2018, and the same was presented in the bank on 14-09-2021, after a lapse of three years---Cheque in question was not dishonoured for insufficient funds or any other reason, but it was returned as a stale or outdated cheque---Admittedly, a cheque is a negotiable Instrument as per S. 6 of the Negotiable Instruments Act, 1881---According to S. 84(1) of the Negotiable Instruments Act, 1881, it is stipulated that a cheque must be presented for encashment within a reasonable timeframe---In general terms, a cheque presented for payment beyond six months from its apparent date of issuance is classified as stale---In such facts and circumstances of the case, the present application for acquittal was allowed.

Griffiths v. Dalton 1940-2-KB 264; Sajid Irtaza v. Additional Sessions Judge/Justice of Peace, Lahore 2021 PCr.LJ 1071; Shafquat Hussain Hashmi v. The State 2012 MLD 1551 and Habib Bank Ltd. v. Jamilur Rehman 1994 MLD 271 rel.

Abdul Wahab Baloch for Applicant.

Aitbar Ali Bullo, Deputy Prosecutor General, Sindh for Respondent No.1.

Naushad Ali Tagar for Respondent No.2.

P L D 2025 Sindh 69

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

SOUTHERN NETWORK LIMITED through Chief Executive---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Information Islamabad and 3 others---Respondents

Constitutional Petition No. D-482 of 2007, decided on 14th December, 2023.

Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 42---Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 6---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---Right of business and trade---License in perpetuity---Proof---Locus poenitentia, principle of---Applicability---Frequency Allocation Board---Petitioner company was aggrieved of non-renewal of its license of Cable Television Network under MMDS System---Validity---License issued under previous regime was made subject to further renewal and conditions under new law---Claim of petitioner to have a license in perpetuity was falsified---License having expiry could not be termed as license in perpetuity unless there were specific conditions outlined in license agreement or under prevailing law---New Frequency Board under section 42 of Pakistan Telecommunication (Re-organization) Act, 1996, was established, which had undertaken the work of Pakistan Wireless Board established in consonance with Telegraph Act, 1885---License is merely privilege, and it does not mean that licensee acquired any vested right in the subject matter---No one can claim vested rights on ground of locus poenitentia as such legislature/authority which can pass an order, is entitled to vary, amend, add to or to rescind that order---License issued by Government is not in perpetuity, neither licenses can be deemed as license coupled with interest---In enactments revocation grounds are always available---Right to license for any trade or business is always subject to restrictions and qualification, if any, governed by law---Petitioner could approach Pakistan Electronic Media Regulatory Authority under R. 6 of Pakistan Electronic Media Regulatory Authority Rules, 2009 by filing application, for grant of MMDS license to operate broadcast media or distribution service as the case may be, and also approach the Frequency Allocation Board (FAB) for allocation of frequency---High Court directed Pakistan Electronic Media Regulatory Authority that if such applications were filed the same were to be decided in accordance with law at an early date, however, not later than 100 days as provided under R. 9 of Pakistan Electronic Media Regulatory Authority Rules, 2009---High Court restrained the Authority from taking any adverse action till decision on such application if filed by petitioner---Constitutional petition was dismissed accordingly.

Pak Telecom Mobile Limited v. Pakistan Telecommunication Authority, Islamabad PLD 2014 SC 478; Pakistan and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208; Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652; Danish Kaneria v. Pakistan and others 2012 CLC 389; M.A. Kareem Iqbal v. Presiding Officer, Banking Court No.III and others 2003 CLD 1447; MY Electronics v. Government of Pakistan and others 1998 SCMR 1404; Abdul Rasheed v. Federation of Pakistan PLD 1962 SC 42; Nabi Ahmed and another v. Home Secretary and others PLD 1969 SC 599; Mian Rafiuddin v. Chief Settlement Commissioner and others PLD 1971 SC 252; Federation of Pakistan v. Mirza M. Irfan Baig and others 1992 SCMR 2430; Landirenzo Pakisan (Pvt.) Ltd. v. Federation of Pakistan and others 2013 MLD

601; Coated by Lord Woolf MR in R v. North and East Devon (200) 3 ALL. ER 850. 877; Pakistan Electronic Media Regulatory Authority (PEMRA) and others v. Southern Networks Limited, Karachi 2023 SCMR 1348; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161 and Mag Entertainment (Pvt.) Ltd v. Independent Newspapers Corporation (Pvt.) Ltd. 2018 SCMR 1807

ref.

Pakistan v. Salahuddin and others PLD 1991 SC 546 rel.

Abbas Leghari and Nadeem Ahmed for the Petitioner.

Badar Alam for Respondent No.2.

Kashif Hanif, Sarmad Ali, Zafar Iqbal Arain and Ms. Shaista Perveen for Respondent No.3 (PEMRA).

Salar Khan for Respondent No.4 (Frequency Allocation Board)

Ali Akbar Sehto, Deputy Director Law PTA.

Khaleeq Ahmed, D.A.G.

P L D 2025 Sindh 90

Before Adnan-ul-Karim Memon, J

M. SHAHERYAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1270 of 2024, decided on 24th July, 2024.

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonoring of cheques---Pre-arrest bail, confirmation of---Concurrent jurisdiction of High Court and Sessions Court to entertain pre-arrest bail directly---Scope---Applicant had approached High Court directly for the reason that police in connivance with the complainant had cordoned off the Sessions Court---By not availing one remedy, applicant had lost one opportunity without causing any prejudice to the complainant party---Superior court can entertain the application for pre-arrest bail and grant relief to the accused in appropriate cases where the accused could inter alia establish that he was prevented from approaching the lower Court in the first instance---If the accused was entitled to bail under the law on merit, consequences could not be taken into consideration while entertaining the bail plea of the accused, if he had directly approached High Court under S.498, Cr.P.C.---Applicant had succeeded in making out the case for the confirmation of the pre-arrest bail---Bail was allowed, in circumstances.

Muhammad Kashif Iqbal v. The State 2022 SCMR 821; Naeem Qadir Shaikh v. The State 2022 SCMR 2068; The State v. Zubair 2002 SCMR 177; Muhammad Riaz v. The State 2002 SCMR 184; Imtiaz v. Azam Khan 2021 SCMR 111 and The State v. Zubair PLD 1986 SC 173 ref.

Raees Wazir Ahmad v. The State 2004 SCMR 1167; Abdul Majeed Afridi v. The State 2022 SCMR 676; Khair Muhammad, and another v. The State through P.G Punjab and another 2021 SCMR 130; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785; Shamrez Khan v. The State 1999 PCr.LJ 74 and Meeran Bakhsh v. The State and another PLD 1989 SC 347 rel.

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

----S. 498---Pre-arrest bail---Concurrent jurisdiction of High Court and Sessions Court---Scope---Accused normally can approach in the first instance the Court of Sessions for bail before arrest as propriety so demands but depending on the compelling circumstances, an accused can approach the High Court directly by invoking its concurrent jurisdiction.

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

----S.498---Pre-arrest bail---Meaning and pre-requisites---Considerations for pre-arrest bail are different from that of post-arrest bail---Pre-arrest bail is an extraordinary relief, whereas post-arrest bail is an ordinary relief---While seeking pre-arrest bail it is the duty of the accused to establish and prove mala fide on the part of the Investigating Agency or the complainant---Bail before arrest is meant to protect innocent citizens who have been involved in heinous offences with mala fide and ulterior motives---Grant of pre-arrest bail essentially requires considerations of mala fide, an ulterior motive, or abuse of the process of law.

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

----S. 498---Pre-arrest bail---Proof of mala fide---It is not possible in every case to prove the mala fide but the same can be gathered from the facts and circumstances of the case---If an accused person has a good case for post-arrest bail then merely at the wish of the complainant, he cannot be sent behind bars for a few days by dismissing his application for pre-arrest bail.

Khalil Ahmed Soomro v. The State PLD 2047 SC 730 and Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 rel.

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

----S. 498---Pre-arrest bail---Merits of case, consideration of---Scope---While granting pre-arrest bail, the court can consider the merits of the case in addition to the element of mala fide/ulterior motives---Courts of law are under the bounded duty to entertain a broader interpretation of the "law of bail" while interpreting material placed before it arrive at a conclusion.

Ms. Raana Khan for Applicant along with Applicant.

Ms. Rubina Qadir, Deputy Prosecutor General along with I.O./S.I. Rasool Khan P.S. Shahrah-e-Faisal, Karachi.

Syed Zulfiqar Ali Shah for the Complainant along with Complainant.

P L D 2025 Sindh 96

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Dr. MASUMA HASAN---Appellant

Versus

IMTIAZ ALI KHAN and 6 others---Respondents

High Court Appeal No. 162 of 2022, decided on 6th November, 2023.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Administration suit---Stranger to proceedings---Benami transaction, claim of---Proof---Appellant filed application for Administration of suit property and respondent/objector joined proceedings and claimed the property to be Benami and that actual owner was his father---Trial Court converted administration petition into a civil suit and objection filed by respondent/objector as written statement---Validity---Contentions of respondent/objector could not be addressed within the framework of an administration petition---Even if there were allegations of Benami ownership, allowing respondent/ objector to file a written statement allowed him to "side-step" the procedure and "frog-leap" the vested rights of legal heirs of deceased owner in their administration proceedings---Essential goal of administration proceedings was to ascertain the extent of deceased individual's estate and ratio within which it was devolved amongst the legal heirs---Simply agitating that there was a Benamdar, did not translate automatically into impleading a stranger in administration matter---Such challenges could not be deemed sufficient to dismiss an administration petition or challenge an administration suit's validity---Respondent/objector could prove his claim before proper forum subject to all just exceptions---Respondent/objector had no right to participate any further in administration proceedings filed by legal heirs of deceased owner---Respondent/objector was at liberty to agitate his right in separate proceedings---Contents of judgment of High Court in Administration petition were confined to that judgment alone and could not be taken as decided/settled case---Appeal was allowed accordingly.

Muhammad Zahid v. Mst. Ghazala Zakir and others PLD 2011 Kar. 83 rel.

Saifullah Khan and others v. Mst. Afshan and others PLD 2017 Sindh 324; Muhammad Suleman and others v. Muhammad Ahsan and others 2017 MLD 1867; Khair Muhammad Khaitan and 5 others v. Liaquat Ali G. Kazi and 9 others 2017 CLC Note 172; Shaukat Zaib and 8 others v. Khuram Zaib and 3 others 2018 CLC 970; Suit No.712 of 2001, Order dated 27.03.2017; Noor Muhammad v. Zafar Ali, Suit No.321 of 2007, Order dated 03.12.2019; Muhammad Khalid v. Mst. Mehmooda Khanum and others, Suit No.267 of 1997, Order dated 03.09.2018 and Mst. Shaista Nafees v. Haji Muhammad Zaki and others Suit No.128 of 2017, Order dated 12.02.2019 ref.

Asad Ali Khan for Appellant.

Wiqas Ahmed Khan for Respondent.

P L D 2025 Sindh 108

Before Mohammad Abdur Rahman, J

ABDUL MATEEN---Applicant

Versus

Syed ASIM NISAR through Attorney---Respondent

Civil Revision Application No. 34 of 2022, decided on 25th July, 2023.

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

----O. VI, Rr. 5, 12 & O. VII, R. 11--- Limitation Act (IX of 1908), First Sched., Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Rejection of plaint---Pleadings, contents of---Oral agreement---Limitation---Petitioner/ plaintiff was aggrieved of concurrent findings of facts by two Courts below rejecting suit filed by him---Validity---Where pleading as to existence of agreement was pleaded from conversations, it was not necessary for petitioner/ plaintiff to spell out entire contract in detail---It was proper to make general claim as to the contract which petitioner/plaintiff was attempting to enforce---If plaint was ambiguous, the Court could ask for further and better particulars to be filed by petitioner/plaintiff under the provisions of O. VI, R. 5 C.P.C.---Just because the terms of agreement were not spelt out, such agreement could not be treated as unenforceable and could not be automatically rejected under O. VII, R. 11, C.P.C.---Once agreement to sell was admitted by respondent/defendant and various terms of oral agreement were unilaterally modified by respondent/ defendant, the same amounted to respondent/defendant refusing to perform his obligations on such oral agreement of sale and such admission had given petitioner/plaintiff a right to maintain a lis for specific performance---Date of legal notice was 12-05-2018, time period for institution of lis was to be determined from that date and having been presented on 6-05-2019, suit was within time period specified under Art. 113 of First Sched. of Limitation Act, 1908, and which, subject to evidence to the contrary of any other issue of limitation was maintainable before the Trial Court---There was a material irregularity in judgments passed by two Courts below and both failed to apply the law in respect of application of O. VII, R. 11, C.P.C., properly---High Court revised judgments by two Courts below which were set-aside and application under O. VII, R. 11, C.P.C. was dismissed---High Court remanded the matter to Trial Court for decision on merits---Revision was allowed accordingly.

Abdul Waheed v. Mst. Ramzanu 2006 SCMR 489; Zahid Jamil v. Mst. Saeeda Bano 2011 MLD 693; Jaiwanti Bai v. Messrs Amir Corporation PLD 2021 SC 434; Managing Director Sui Southern Gas Company Limited Karachi v. Ghulam Abbas PLD 2003 SC 724; Irshad Ali v. Sajjad Ali PLD 1995 SC 629; Shoukat Ullah v. Adil Tiwana 2018 SCMR 769; Maulana Nur-Ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Ghulam Muhammad and 8 others v. Town Committee Piplan Through Assistant Commissioner/Administrator District Mianwali and 7 others 2003 MLD 1222; Haji Abdul Karim v. Messrs Florida Builders (Private) Limited PLD 2012 SC 247; Mubashir Ahmed v. Syed Muhammad Shah 2011 SCMR 1109; Muhammad Nawaz through LR v. Haji Muhammad Baran Khan 2013 SCMR 1300; Mst Kubra Ahmed v. Yasmeen Tariq PLD 2019 SC 677; Sadruddin v. Sultan Khan 2021 SCMR 642 and Muhammad Ghaffar (Deceased) v. Arif Muhammad 2023 SCMR 344 rel.

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

----S. 12---Limitation Act (IX of 1908), First Sched., Art. 113---Suit for specific performance of agreement to sell---Limitation---Computation---Limitation is to commence from either a specified date that has been mentioned in oral agreement of sale for performance, and in the event that no date is specified then limitation is to be calculated from the date when a party refuses to perform his obligations under the oral agreement of sale.

Mazhar Ali Dehraj for Petitioner.

Muhammad Sohail Hasan for Respondents.

P L D 2025 Sindh 125

Before Muhammad Shafi Siddiqui and Omar Sial, JJ

JAVED IQBAL through Attorney---Appellant

Versus

ABDUL RASHEED TAGR and 5 others---Respondents

High Court Appeal No. 107 of 2021, decided on 16th March, 2024.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Suit for declaration, specific performance and permanent injunction---Compromise agreement---Property yet to be identified, specific performance of---Scope of the suit and frame of decree---During the pendency of suit before the Trial Court (Single Judge of the High Court), an application was filed praying to decree the suit on basis of compromise (compromise application); the Court, however, disposed of said compromise application considering it appropriate to have decreed the suit only in terms of one paragraph of the compromise application whereas rest of the paragraphs of compromise application were not considered as they were found beyond scope of the suit---Appellant/plaintiff filed appeal on the ground that rest of the contents of the compromise application ought to have been considered and a cumulative decree by allowing entire/all terms of application should have been passed---Validity---Scope of the suit was limited to the extent of one property described in the prayer clause (a)---There was nothing in the prayer clauses which could have described and/or pointed out any other property and/or any contingent event of any proposed allotment---Specific performance agreement itself may have been contingent upon events that related to the happening of an event when the defendant/respondent may have been allotted another piece of land from Government of Sindh/Board of Revenue in lieu of suit land or otherwise but that was not the precise relief claimed in the suit in the prayer clauses---Suit was for specific property and not for performance of entire agreement---Prayer clauses, insofar as the events described in paragraphs Nos. 3 and 4 of the compromise application were concerned, were totally silent---These paragraphs talked about some alternate land in lieu of the suit land, which alternate land/ property till date was non-existent---Decree could have either been passed in respect of a property mentioned in the prayer clause (a) or the relief could have been declined but in no way a property, which was yet to be identified, could also form part of the decree---Agreement/ compromise application may have been contingent upon some future events but the decree to be passed in this regard would be a futile attempt and/or would not be fruitful for either of the parties which entered into a compromise---Contingent agreement may form a valid contract but the specific performance is sought only in respect of an identified property---Execution of such agreement may be lawful and may have been entered into and/or taken place between the parties but its lawfulness and the performance was to be determined on the touchstone of facts and law applicable thereon, hence, it could not be preconceived (as was not even prayed in the prayer) that on the happening of such events, the appellant/plaintiff would automatically seek fruits of such agreement by virtue of the purported decree which they (parties) claimed by virtue of a compromise application---Precisely the scope of the suit and frame of decree which could have been passed, was a land mentioned in prayer clause (a) and nothing else could have been done insofar as the future events and/or a property which was still not in existence---Thus, the impugned order was found to be lawful and the discretion as exercised by the Single Judge of High Court could not be interfered or replaced by another discretion by the Appellate/High Court---Appeal was dismissed.

Raj Ali Wahid Kunwar for Appellant.

None present for Respondents Nos. 1 and 2.

Abdul Jaleel Zubedi, Assistant Advocate General for Respondents Nos. 3 to 6.

P L D 2025 Sindh 128

Before Zulfiqar Ali Sangi, J

ALLAH DINO and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-147 and S-151 of 2015, decided on 11th October, 2024.

Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 34---Criminal Procedure Code (V of 1898), S. 353---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Evidence in one case used in another case for awarding conviction---Legality---Right to fair trial and due process---Scope---Accused were charged for committing murder of the deceased by firing and concealing his body---Record showed that appellant along with acquitted accused were tried independently, whereas other appellant being juvenile was tried separately---In both the cases, evidence from the prosecution witnesses was recorded separately and they were also cross-examined separately---In both the cases, single judgment was passed and only evidence of one case was appreciated/discussed in the judgment and the evidence recorded in the case of juvenile was not discussed and the appellant/juvenile was convicted on the basis of evidence which was not recorded in the case---Evidence recorded in one case could not be used in another case for awarding conviction---Practice adopted by the Trial Court in the case was illegal and against the law---Appellant/juvenile was convicted and sentenced to imprisonment for life based on evidence which was not recorded in his case and the practice so adopted by the Trial Court was in violation of S. 353, Cr.P.C.---Evidence used for convicting the appellant/juvenile was not recorded in his presence as he was tried in another case and the evidence recorded in other case was used against him while convicting him---Thus based on the said facts and circumstances, the impugned judgment was not sustainable in law and same was set-aside---Case was remanded to the Trial Court only for re-writing the judgment and to decide both the cases separately by discussing the evidence of each case separately---Appeals were disposed of accordingly.

Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148 rel.

Inam Ali Malik and Shahid Ali Sahito for Appellants.

Khuda Bux, the Complainant present in person.

Ms. Rameshan Oad, A.P.G. for the State.

P L D 2025 Sindh 134

Before Muhammad Iqbal Kalhoro, J

YASIR KALWAR---Petitioner

Versus

Mst. FARZEEN and others---Respondents

Constitutional Petition No. S-280 of 2002, decided on 24th September, 2024.

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

----S. 25---Custody of daughters---Welfare of child---Paramount consideration---Second marriage of mother---Effect---Right of Hizanat, loss of---Existence of exceptional circumstance for retaining the custody by mother---Burden of proof---Father filed application for custody of his daughters on the ground that their welfare was with him as the mother had contracted second marriage with a person, who was not related to the minors within the prohibited degree---Petitioner-husband's application for custody of daughters was dismissed by both the Guardian Court and the Appellate Court---Validity---Mother's second marriage to someone unrelated to her children within the prohibited degree (a stranger) does not automatically disqualify her from custody---While paragraphs-352 and 354 of Principles of Muhammad Law suggest that mother loses such right of Hizanat upon remarriage, the child's welfare remains the paramount consideration---Even though the mother loses the automatic right to Hizanat, especially after daughters reach puberty, the court must still determine their best interests, which includes considering the children's physical and emotional needs, medical care, the parents' ability to provide a safe home, and the quality of parent-child relationship---Court must ascertain if exceptional circumstances exist to justify the mother retaining custody, the burden of proving which falls on her---Nothing was produced by mother to show that the petitioner/husband, who himself was a well-placed person, could not sustain maintenance of the minors at his house or there were some special and exceptional circumstances to justify minors living with a stranger and not with their real father---Daughters living with a stranger, who might be husband of their mother but not related to them within prohibited degree, was not even sanctioned by Islam---In absence of any exceptional circumstances, which the mother had not pointed out through tangible evidence and which might disentitle the petitioner from custody of his daughters, the living of daughters with a stranger could not be perpetuated judicially at the alter of convenience of the minors, which they were used to by the dint of living with their mother for a considerable time---Petitioner was the real father of the minors, hence, was natural guardian, who was living in a joint family house, where apart from him, his parents were also residing, thus, minor daughters would be more comfortable in living with their father and grandparents than living with a stranger---Application was allowed, in circumstances, by handing over custody of daughters to father and establishing visitation rights of mother.

2014 SCMR 343; 1981 SCMR 200; 2018 YLR 1771 and 2022 SCMR 2123 ref.

Amel Khan Kasi and Khuram Ashfaq for Petitioner.

Zohaib Sarki for Respondents No. 1.

P L D 2025 Sindh 138

Before Mohammad Karim Khan Agha and Omar Sial, JJ

SALAHUDDIN---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 15 others---Respondents

C.P. No. D-129 of 2023, decided on 30th May, 2024.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Locus standi---Aggrieved person---Private person---Petitioner in public interest assailed establishing of a residential scheme by a private company allegedly in the vicinity of Cantonment and an Airbase---Validity---Petitioner had no interest at all in the housing scheme in question and its development had no effect on him---Petitioner was not an aggrieved person under Art. 199 of the Constitution and his Constitutional petition was not maintainable---Petitioner sought relief of declarations/directions against private individuals and as such his petition was not maintainable under Art. 199(1)(a), (b) and (c) of the Constitution, as the respondents/ private persons were not performing functions in connection with the affairs of Federation, Province or a local authority---Even no fundamental right of petitioner had been infringed---Constitutional petition was dismissed, in circumstances.

Pakistan Tabacco Board and another v. Tahir Raza and others 2007 SCMR 97; Fida Hussain through attorney v. Executive Engineer Irrigation/Drainage Larkana and 4 others 2013 PLC (C.S.) 106 Sindh; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Malik Allah Ditta and others v. Member Board of Revenue/(Judicial-V)/Chief Settlement Commissioner/Notified Officer Punjab Lahore and another 2022 CLC 414; Human Rights Case No. 18877 of 2018 (PLD 2019 SC 645); C.P. No. D-730 of 2017; State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tabacco Company Ltd. PLD 1983 SC 280; Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others 1999 SCMR 2883; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Democratic Workers Union C.B.A v. State Bank of Pakistan and others 2002 PLC (C.S.) 614; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Muhammad Yousaf Khan Bugti and another v. Province of Sindh through Senior Member Board of Revenue and 5 others 2013 CLC 1155; Balochistan Medical Association through President v. Government of Balochistan through Secretary Health and others 2017 CLC 1195 and Fazal Din's case PLD 1969 SC 223 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public interest litigation---Principles---High Court should entertain public interest litigation under Art. 199 of the Constitution in extremely worthy cases which genuinely affect the public and their fundamental rights (but not as a routine)---In so doing, all legal requirements must be met by petitioner under Art. 199 of the Constitution---High Court must use extraordinary care and caution before entertaining such petitions.

Barrister Fayaz Ali Metlo for Petitioner along with Petitioner.

Farooq H. Naik for Respondent No. 13.

Ayaz Hussain Tunio for Respondent No. 14.

Allah Bachayo Soomro and Muhammad Ismail Bhutto, Additional Advocate Generals of Sindh along with ADC-I Jamshoro [Nooruddin Hingorjo] and Mukhtiarkar Thana Bula Khan [Iqtidar Rasool].

Muzzamil Khan Bughio for SBCA.

Ghulam Abbas Sangi, Assistant Attorney General along with Director Survey of Pakistan Karachi [Asad Ali].

P L D 2025 Sindh 151

Before Muhammad Shafi Siddiqui, C.J. and Jawad Akbar Sarwana, J

TRADE SMART SECURITIES (PRIVATE) LTD. through Chief Executive---Petitioner

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Chairman and 6 others---Respondents

Constitutional Petition No. D-5732 of 2024, decided on 13th December, 2024.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Alternate efficacious remedy---Grievance of a securities broking company against Pakistan Stock Exchange---Arbitration proceedings---Petitioner assailed initiation of arbitral proceedings before arbitral tribunal by respondent/ Pakistan Stock Exchange---Validity---When alternative and equally efficacious remedy is open to a litigant, he should pursue that remedy---In presence of arbitration agreement between parties there was no other option left but for the aggrieved party to proceed with agreed alternative dispute resolution mechanism i.e. arbitration---There was no reason to invoke Constitutional jurisdiction of High Court for issuance of writ in an ongoing arbitration matter unless some exceptional ground could be made out for such intervention in the facts and circumstances of the case or in law---Respondent/Pakistan Stock Exchange was not a person performing functions in connection with the affairs of the Federation---Institutional arbitration was currently under process between parties---Petitioner could not renege from the same and even otherwise, arbitral forum had provided adequate remedy to petitioner, which had not been exhausted---High Court declined to interfere in the matter as an arbitration was underway---Constitutional petition was dismissed, in circumstances.

Attock Cement Pakistan Ltd. and others v. Federation of Pakistan and others C. P. No. D-1590 of 2023; Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84, 192; Pakistan Stock Exchange Limited through Duly Authorized Officer v. Province of Sindh through Secretary, Ministry of Finance and 3 others 2024 CLD 580; Pakistan Stock Brokers Association v. Pakistan Stock Exchange Limited and another C.P. No.D-4449 of 2021 and Competition Commission of Pakistan's case 2023 CLD 475 ref.

Haider Waheed for Petitioner.

Nemo for Respondent No. 1.

Nemo for Respondent No. 2.

Nemo for Respondent No.3.

Nemo for Respondent No.4

Nemo for Respondent No.5.

Nemo for Respondent No.6.

Nemo for Respondent No.7.

P L D 2025 Sindh 166

Before Sana Akram Minhas, J

Messrs PRIME BUILDERS through Partner---Plaintiff

Versus

PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION (PVT.) LTD. through Company Secretary and another---Respondents

Suit No. 1587 of 2013, decided on 15th August, 2024.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1, 2 & S.151---Specific Relief Act (I of 1877), Ss. 12, 39, 42 & 55---Contract Act (IX of 1872), Ss. 2(h) & 10---Transfer of Property Act (IV of 1882), S.54---Suit for declaration, direction, cancellation, mandatory/prohibitory injunction and damages---Rejection of offer of highest bidder creating a third party interest in the garb of benefit to public exchequer---Legality---Invitation to treat and binding offer---Difference---Creation of contractual right---Scope---Public auction for sale of plots---Authority reserving right to accept or reject the bid/offer without assigning any reason---Scope---Plaintiff being highest bidder deposited earnest money agreeing to twicely increased bid money and was issued letter of acceptance by the Pakistan Industrial Development Corporation (PIDC)---PIDC while rejecting the twicely increased offer of the plaintiff returned his earnest money for creating a third party interest----Plaintiff sought injunction restraining the PIDC from creating third party interest on the ground that the transaction of sale had been completed, which could not be changed by PIDC unilaterally by inclusion of a new competitor, who did not participate in the bidding proceedings---Validity---Advertisement of inviting bids for the sale of suit plots/land was an announcement made by PIDC being owner of the suit plots to the public, indicating that it was seeking offers from potential buyers to purchase the suit plots---Such an advertisement was usually an invitation to treat rather than a binding offer, which outlined the process by which interested parties could submit their bids and provide relevant details about the land and the bidding procedure---Subsequent communication of PIDC offering the sale of the suit plots to both the plaintiff and the defendant at a reserved price within a specified time frame, which was accepted by the plaintiff, who communicated its acceptance to PIDC, significantly altered the situation and the complexion of the case, thus, it could not be conclusively determined that letter was merely an invitation to treat---Disposal of government-owned assets needed to maximize public benefit and PIDC was obligated by law to make policy decision rooted in these commercial considerations---Such reservation of authority to accept or reject any or all offers without assigning any reason, did not endow the public functionary with a brazen, unchecked and arbitrary power to reject an offer solely because they possessed or reserved such authority---Such reason would effectively grant government-controlled entities the authority to cancel bids at their own will, leading to potential abuse of power, which could allow arbitrary bid rejections without transparency or accountability, undermining the principles of fairness and openness essential to a competitive bidding process---If bidders believed their offers could be disregarded on a whim, they might be discouraged from participating, leading to an erosion of trust in the system, making it harder to attract serious and reputable entitles/bidders in future transactions---An authority might reserve the right to accept or reject any bid or offer, provided this discretion was exercised with caution, due diligence, and utmost responsibility---Plaintiff sought enforcement of letter, thus, High Court while treating the suit for declaration as suit for specific performance of contract created between the parties directed the plaintiff to deposit the entire sum of bid money in cash with the Nazir of the court along with the accrued mark-up at the tentative rate of 18% per annum on the remaining sale consideration---Plaintiff had made out prima facie arguable case, balance of convenience also laid in his favour and he would suffer irreparable loss in case the corpus of this lis (an immovable property) was not preserved, thus, the application was allowed subject to the condition that if plaintiff failed to deposit the specified amount with the Nazir within the allotted time, the interlocutory application shall stand dismissed.

Chairman Regional Transport v. Pakistan Mutual Insurance PLD 1991 SC 14; Commissioner Income Tax v. Siemen AG PLD 1991 SC 368; Lahore Development Authority v. Muhammad Tariq Niaz 2020 SCMR 1957 and Ahmar Iqbal v. Ministry of Energy 2020 MLD 1849 ref.

Cemtech-Jiangsu JV v. Government of Khyber Pakhtunkhwa 2023 CLC 363; Asif Shah v. Mazhar Javed 2022 CLC 1985; Muhammad Jawed v. First Women Bank Ltd. 2020 SCMR 2134; Muhammad Jawed v. First Women Bank Limited 2020 CLD 254; Bio-Labs v. Province of Punjab PLD 2020 Lah. 565; Sinotec Co. v. Province of Sindh PLD 2018 Kar. 303; Pakistan Gas Port v. Sui Southern Gas PLD 2016 Sindh 207; Muhammad Hayat v. Director General 2016 MLD 1287; Nisar v. Muhammad Saeed Safdar 2010 CLC 794; Petrosin Corporation v. Oil and Gas Development Company 2010 SCMR 306; Tariq Mehmood Memon v. Province of Sindh 2007 CLD 1336; Noor Muhammad v. Chief Engineer 2007 SCMR 1572; Mumtaz Ahmad Chadhar v. Nasir Ali 2005 SCMR 263; Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner 1975 SCMR 406 and Parvez Qureshi v. Settlement Commissioner, Multan 1974 SCMR 337 distinguished.

Fateh Muhammad Agha v. City District Government 2009 CLD 1336; Reliance Consultancy v. Federation of Pakistan 2010 CLC 1046; Lahore Development Authority v. Muhammad Tariq Niaz 2020 SCMR 1957; Safia Bibi v. Aisha Bibi 1982 SCMR 494; Pakistan Fisheries Ltd v. United Bank Ltd. PLD 1993 SC 109; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; Asif Kudia v. KASB Bank Limited 2014 CLD 1548 = 2015 CLC 1734; Al-Khair Gadoon Ltd. v. The Appellate Tribunal 2019 SCMR 2018; DW Pakistan v. Anisa Fazl-i-Mahmood 2023 SCMR 555; Muhammad Asif Awan v. Dawood Khan 2021 SCMR 1270; Kuwait National Real Estate v. Educational Excellence Ltd. 2020 SCMR 171 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 rel.

Khawaja Shamsul Islam and Imtiaz Ali Shah for Plaintiff.

Asim Iqbal, Farmanullah, Ms. Syeda Khizra Fatima Chishti and Syeda Maryam Mastoor for Defendant No.1.

Imran Ahmed Abro, A.A.G. for Defendant No.2.

P L D 2025 Sindh 177

Before Amjad Ali Bohio, J

MUHAMMAD YASEEN---Appellant

Versus

SHAMSHAD ALI and 5 others---Respondents

Second Appeal No. S-8 of 2023, decided on 11th December, 2024.

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

----Ss. 12 & 54---Suit for specific performance of an agreement to sell with permanent injunction---Pardanashin lady---Illiterate lady---Execution of an agreement to sell qua agricultural land---Burden of proof---Failure of the attesting witnesses to identify the Pardanashin/ illiterate ladies at the time of execution of the agreement---Absence of the attesting witnesses at the time of signing and thumb impressing the agreement to sell---Effect---Suit instituted by the appellant was partially decreed against the respondent excluding the Pardanashin/ illiterate ladies---Appellant preferred an appeal, in which partial decree was set aside and the suit was dismissed as a whole---Validity---In case of illiterate and Pardanashin women the burden of proof rested heavily on the appellant, who sought to benefit from the transaction involving those women, however, the appellant failed to meet this burden, as the evidence presented lacked corroboration regarding the identification of the illiterate/Pardahnashin women---Additionally, the document, purportedly signed by male (respondent) and the thumb impressions affixed by the illiterate/Pardahnashin women, were not put in the sight of the witnesses as required---Witnesses failed to state such material facts during their evidence and the absence of independent legal advice further undermined the appellant's claim---Appellate Court rightly concluded that the appellant failed to prove its case, thus, the impugned judgment required no interference---Second appeal was dismissed, in circumstances.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Ghulam Akbar v. Jahangir Ali and 3 others 2011 MLD 803; Muhammad Ibrahim and others v. Muhammad Ismail and others 2005 SCMR 1335; Mst. Baswar Sultan v. Mst. Adeeba Alvi 2001 SCMR 1236; Ali Ahmed v. Mukamil Shah and others 2012 MLD 1227 and Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and Sir Valluri Ramanamma v. Marina Virana AIR 1931 PC 100 rel.

(b) Pardanishin lady---

----Illiterate lady---Agricultural land---Execution of agreement to sell by Pardanashin/illiterate ladies---Mandatory conditions/ parameters for a transaction regarding property with a pardanashin/illiterate lady which should be complied with---Said conditions are:- (i) Proper identification; (ii) Reading and explanation of the document; (iii) Presence of independent witnesses; (iv) Free and voluntary consent; (v) Independent legal advice: and (vi) Witnesses for thumb impression or signatures---Said conditions were designed to protect the interests of vulnerable individuals and ensure that transactions were conducted with fairness and transparency---Failure to meet these requirements could render the transaction suspect and may lead to its invalidation.

(c) Pardanashin lady---

----Illiterate lady---Agricultural land---Transactions involving elderly, pardanashin, illiterate and rural ladies---Burden of proof---Burden is on the claimant to establish affirmatively that the woman substantially understood the document and that the execution of the document was indeed her free and intelligent act---If the woman is illiterate, it is required that the contents of the document be read over to her.

Valluri Ramanamma v. Marina Virana AIR 1931 PC 100 rel.

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

----Art.79---Execution of a document---Proof---Attesting witnesses---In order to prove the execution of a document through attesting witnesses, the witnesses must state that the signatures or thumb impressions of executants were made in their presence and within their view.

Mst. Kalssom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

Yaseen Khaskheli for Appellant.

Niaz Hussain Laghari for Respondents Nos.1 to 3.

Ayaz Ali Rajpar, A.A.G. Sindh.

P L D 2025 Sindh 187

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Messrs MILLENNIUM MALL MANAGEMENT CO. through Authorized Managing Partner---Petitioner

Versus

PAKISTAN through Secretary, Ministry of Defence and 3 others---Respondents

Constitution Petition No. D-132 of 2019 and 126 other connected petitions as per Annexure "A", decided on 6th January, 2024.

(a) Constitution of Pakistan---

----Art. 70(6) & Fourth Schedule, Part I, Entry No. 50---Federal Legislative List---"Taxes on land and buildings" and "taxes on capital value of assets"---Scope---Both type of taxes are separate subjects/entries---Prior one primarily belongs to Provincial Legislature and the later subject belongs to Federal Legislature.

(b) Constitution of Pakistan---

----Art. 270A---Interpretation of Constitution---Vires of laws---Principle---Supremacy of the Constitution has to be safeguarded---Laws which cannot withstand legislative competence must yield their way to Parliamentary and Constitutional supremacy, and laws after such scrutiny, if found transgressing such mandate, must be seen to have melted down to the frame of the Constitution---Laws made during the period mentioned in Art. 270A of the Constitution, if found violative, must be eclipsed by the supreme law, i.e. the Constitution and it cannot be vice versa---Laws in derogation of such principle are ultra vires.

(c) Cantonments Act (II of 1924)---

----Ss. 60, 80, 106 & 109---Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order (P.O. No. 13 of 1979), Art. 3---Income Tax Ordinance (XLIX of 2001), S. 15A---Constitution of Pakistan, Fourth Sched., Part I, Entry No. 50 [as amended by Eighteenth Amendment to the Constitution]---Federal Legislative List---Property tax, recovery of---Jurisdiction of Cantonment Boards---Tax, utilization of---Petitioners/owners of properties assailed tax demand based on annual rental value of property by respondents/Cantonment Boards---Validity---Taxes on immovable properties had been excluded from the domain of the Federation, the Federal Legislature and consequently respondents/Cantonment Boards could not levy, impose, charge and/or recover such taxes as levied by it on immovable properties from the date of restoration of the Constitution and more particularly after Eighteenth Amendment to the Constitution, either under Cantonments Act, 1924 or under Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979---Such levy by respondents/Cantonment Boards had been initiated in terms of Cantonments Act, 1924---Laws on the basis of which respondents/ Cantonment Boards were recovering taxes opposed the Constitutional/ Legislative competence and was beyond their legal powers and capacity, which was ultra vires under existing frame of the Constitution on legislative competence---There is no special provision for a tax on annual rental value of immovable property to be utilized as an "expenditure" under Cantonments Act, 1924, thus general provisions of Income Tax Ordinance, 2001 cannot be applied---"Tax" per se on immovable property, under S. 15A of Income Tax Ordinance, 2001 can be utilized or adjusted as "expenditure"---This is a general provision for all levies on property and is not specific to any particular fee or tax and a direct nexus of subject tax can be a misapplication---Power to levy, charge, impose and recover any or all taxes separately on immovable property is an alien object under Cantonment laws in existing frame of the Constitution---Tax on annual rental value of immovable property was a tax and not a fee or any other genre of levy---Respondents/Cantonment Boards had no power to levy tax on immovable property including tax on annual rental value of immovable property---After revival of the Constitution, and Eighteenth Amendment to the Constitution, provisions of Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 had no effect on the subject---Subject law to the extent of provision of S. 3 of Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 was no longer protected---High Court declared that after Eighteenth Amendment to the Constitution, Entry 50 in Fourth Schedule to the Constitution was amended, consequently Federation and all Cantonment Boards lacked competence, power and jurisdiction to levy, charge, impose and recover any or all taxes on any immovable property, including but not limited to tax on annual rental value of immovable property---High Court further declared that Eighteenth Amendment to the Constitution consequently restored competence and jurisdiction of Province to levy, charge, recover and legislate on subject so identified and to pursue it accordingly---High Court directed that amounts so recovered by Cantonment Boards under subject of tax in question, since Eighteenth Amendment to the Constitution also called for an account---Constitutional petition was allowed accordingly.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Haider Mukhtar and others v. Government of Punjab and others PLD 2014 Lah. 214; Khalid Mahmood and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 74 others PLD 2003 Lah. 629; Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 152; Mehmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; Sargodha Textile Mills v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 3 others PLD 2004 SC 743; Pakistan through Ministry of Defence v. Province of Punjab PLD 1975 SC 37; Messrs Gulzar Cinema v. Government of Pakistan PLD 1978 Kar. 500; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Sajjad Hussain v. The State PLD 1989 FST 50; State v. Sajjad Hussain 1993 SCMR 1523; C.P. No.D-4942 of 2022; Zaka Ud Din Malik v. Federation of Pakistan 2023 PTD 268; State Bank of Pakistan v. Federation of Pakistan PLD 2022 Pesh. 46; Ghulam Musfafa Khan's case PLD 1989 SC 26; Mustafa Impex v. Government of Pakistan 2016 PTD 2269; Mst. Nargis Moeen v. Government of Pakistan PLD 2003 Lah. 730; Mst. Sultan Jahan v. Cantonment Board Lahore Cantt. 2007 YLR 1681; Lahore Station Commander v. Col. (R) Muhammad Abbas Malik 2006 CLC 1674; Continental Biscuits Ltd. v. Federation of Pakistan 2011 MLD 1006; Pakistan International Freight of Forwarders Association v. Province of Sindh 2017 PTD 1; Pakistan Mobile Communications Ltd. v. Federation of Pakistan 2022 PTD 266; Cantonment Board's case Civil Appeal No.1363 of 2018; Nirmaljit Singh Hoon v. The State of West Bengal 95 1 SCC 707; Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment Corporation AIR 2021 SC 5316; Workers' Welfare Funds, Ministry of Human Resources Development, Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Ltd. and others PLD 2017 SC 28; Messrs Cherat Cement Co. Ltd., Nowshera and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others PLD 2021 SC 327; Exide Pakistan Limited v. Cantonment Board Clifton 2012 CLC 1124; The Bank of Khyber v. Municipal Corporation Gujrat PLD 2021 Lah. 108; Raj Kumar v. Hyderabad Cantonment Board 2006 MLD 549; Civil Appeal No.1363 of 2018; Cyrus Cowasjee v. KMC PLD 2022 Sindh 106; Commissioner Inland Revenue v. Messrs Wi-Tribe Pakistan Ltd. 2020 SCMR 420; Muhammad Ayaz Khan v. Federation of Pakistan 2020 PTD 2200; Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630; Azgard Nine v. Government of Pakistan 2013 PTD 1030; Khurshid Soap and Chemical Industries (Pvt.) Ltd. v. Federation of Pakistan PLD 2020 SC 641; Southern Pharmaceuticals and Chemicals v. State of Kerala (1981) 4 SCC 391 and Sreenivasa General Traders v. State of Andhra Pradesh (1983)4 SCC 353) rel.

Ghulam Musfafa Khan's case PLD 1989 SC 26 distinguished.

(d) Constitution of Pakistan---

----Fourth Sched., Part I, Entry No. 50---Levy of tax---Classification of properties according to their value---Principle---If classification is dependent upon improved facilities, it counts good but purpose could be achieved by one master/regulator i.e. the Province---If classification does not rest on good tests, then it is bound to collapse which creates discrimination and there should be one parameter/yardstick to evaluate---Different properties in an area/common area may have different values notwithstanding the area itself is classified as a category but within that category the value of property/building may vary, depending upon its characteristics to evaluate and measure rental value it may fetch, hence the fact that property situated in a particular local body/ municipality, itself should not form basis of classification---There should be one regulator to deal with evaluation with common tools of evaluations.

(e) Interpretation of statutes---

----Constitutionality of law---Principle---Constitutionality of any law, on the touchstone of any provision of the Constitution, being opposed, could always be challenged and only because such challenge had not been thrown earlier does not amount to an acquiescence and would not be immune from a challenge in future---In enforcing Constitutional frame work, the concept of acquiescence is an alien object.

(f) Cantonments Act (II of 1924)---

----Ss. 60 & 80---Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order (P.O. No. 13 of 1979), Art. 3---Sindh Local Government Act (XLII of 2013), S. 14---Constitution of Pakistan, Fourth Sched., Part I, Entry No. 50 [as amended by Eighteenth Amendment to the Constitution]---Federal Legislative List---Property tax, recovery of---Jurisdiction of Cantonment Boards---Petitioners/owners of properties assailed tax demand based on annual rental value of their properties by respondents/Cantonment Boards---Plea raised by respondent/Cantonment Boards was that annual rental value on immovable properties had devolved upon local Government hence Cantonment Boards as Local Government were also empowered for the same---Validity---Cantonment Boards were excluded under S. 14 of Sindh Local Government Act, 2013, therefore, no power to levy such tax could be derived by respondents/Cantonment Boards from such law, and no powers could be drawn from any Federal law as it was a provincial subject---Constitutional petition was allowed, in circumstances.

(g) Cantonments Act (II of 1924)---

----S. 80---Tax on annual rental value of immovable property---Non-payment---Effect---Tax imposed on immovable property, under S. 80 of Cantonments Act, 1924 runs on the property itself and not on the owner or occupier---As such it is a tax on immovable property and not a tax on a person's income.

Nirmaljit Singh Hoon v. The State of West Bengal 95 1 SCC 707 and Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment Corporation AIR 2021 SC 5316 rel.

(h) Cantonments Act (II of 1924)---

----Ss. 60, 80 & 200---Constitution of Pakistan, Fourth Sched., Part I, Entry 50 [as amended by Eighteenth Amendment to the Constitution]---Federal Legislative List---Tax and fee---Distinction---Principle of quid pro quo---Applicability---Petitioners/owners of properties assailed tax demand based on annual rental value of their properties by respondents/ Cantonment Boards---Plea raised by respondent/Cantonment Boards was that they were charging fee under S. 200 of Cantonments Act, 1924---Validity---For imposition of any fee, services under the principle of quid pro quo must be specified in the exhaustive list provided under S. 200 of Cantonments Act, 1924---If a particular fee claimed for a service under the principle of quid pro quo is not provided for under S. 200 of Cantonments Act, 1924, such fee cannot be imposed---Provision of S. 200 of Cantonments Act, 1924 is meant for levying fee, and an exhaustive list of all those levies against which, by applying principle of quid pro quo, a fee could be levied---If any nature of service to claim fee was not mentioned therein then it could not be imposed by respondents/Cantonment Boards at all---Constitutional petition was allowed, in circumstances.

Nirmaljit Singh Hoon v. The State of West Bengal 95 1 SCC 707; Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment Corporation AIR 2021 SC 5316; Workers' Welfare Funds, Ministry of Human Resources Development, Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Ltd. and others PLD 2017 SC 28; Messrs Cherat Cement Co. Ltd., Nowshera and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others PLD 2021 SC 327; Exide Pakistan Limited v. Cantonment Board Clifton 2012 CLC 1124; The Bank of Khyber v. Municipal Corporation Gujrat PLD 2021 Lah. 108 and Raj Kumar v. Hyderabad Cantonment Board 2006 MLD 549 rel.

(i) Cantonments Act (II of 1924)---

----Ss. 106 & 109---Property tax---Cantonment Funds---Principle of quid pro quo---Applicability---Details provided under S. 109 of Cantonments Act, 1924 are neither specific nor exhaustive but rather general in nature---Principle of quid pro quo is applied when specific provision/facility as against such recovery of fee is made---Cantonment Boards have several other services which they are rendering and are also recovering amount which could have a specific purpose---Amount of tax on property recovered as a tax on annual rental value, cannot be equated to be meant for such a purpose---Purpose must be specific and must relate to a levy itself---There may not be a requirement of arithmetic precision but there must be a direct co-relation between them for applying quid pro quo.

Ayan Mustafa Memon assisted by Ali Zuberi, Habibullah Masood, Amna Khalil, Nawaz Khan and Shahreen Chugtai, Khwaja Shamsul Islam along with Imran Taj, Imtiaz Ali Shah and Khalil Awan (in C.P. No. D-2603/2023), Ms. Naheed A. Shahid and Daniyal Ellahi (in C.Ps. Nos. D-71 /2022 and 848/2023), Ali John, Altamash Arab, (in C.P. No. D-6819/2022), Abdul Wajid Wyne, M. Rafi Kamboh (in C.Ps. Nos. D-6396 and 6397 of 2020), Arif Khan, M. Saad Siddiqui and Sahibzada Mubeen (in C.P. No. D-840/2022), 5861/2021, 3246/2021, 2970/2020, 1494/2019), Farhan Zia Abrar, Zain A. Jatoi, Muhammad Mustafa Mumdani (in C.P. No. D-2521/2022), Ghulam Haider Shaikh (in C.P. No. D-1251/2021), (Abid Hussain and Zahid Mehmood (in C.Ps. Nos. D-3170 and 3171 of 2021), Fahad Arif Khilji (in C.Ps. Nos. D-3763 and 3764/2021), Ahmed Mujtaba (in C.P. No. D-3803/ 2022), Naeem Suleman, Arshad Hussain Shehzad, Waseem Farooq, Tauqir Randhawa, Kashan Ahmed, Mian Mushtaq Ahmed (in C.Ps. Nos. D-4306 to 4327 of 2017 and 3532/2018), Hanif Faisal Alam, Hassan Khursheed Hashmi (in C.P. No. D-5521/2022), Salman Mirza and Ahmed Magsi (in C. Ps. Nos. D-132/2019, 3135/2021 and 3359/ 2021), Abdul Qayoom Abbasi, Raja Muhammad Safeer, Syed Maqbool Hussain Shah (in C.P. No. D-2797/2021), Syed Noman Zahid Ali, Arsal Rahat Ali, Mehmood Ali for IBA and Behzad Haider (in C.P. No. D-5459/2022), Ahmed Madni and Peer Ali, in C.P. No. D-446 of 2023), Ms.Sadia Sumera (in C.P. No. D-4184/2022), Ahmed Nizamani (in C.P. No. D-3246/2021), Dr. Rana Khan, Rajesh Kumar (in C.P. No. D-5673/2021), Malik Khushhal Khan in C.Ps. Nos. D-3987/2018 and 946/2022), Muhammad Naved, Fazal Mehmood Sherwani (in C.P. No. D-4159/2020) and Masood Ali for Petitioners.

Abdullah Munshi, Shajeeuddin Siddiqui and Imdad Ali Bhatti for Clifton Cantonment Board (in C.P. No. D-4985/2018, 5391/2018, 3426/ 2018, 5166/2018, 5167/2018, 6506/2020 and 1251/2021), Farooq Hamid Naek assisted by Syed Qaim A. Shah, G.Murtaza Bhanbhro and Saad H. Ammar (in C.P. No. D-132/2019 and 1220/2023) for Respondent No.2), Dr. Farogh Naseem, Ahmed Ali Hussain, S. Zaeem Hyder, Aman Aftab, M. Aizaz Ahmed, Syed Shohrat Hussain Rizvi for

Karachi Cantonment Board, Aqib Hussain, Afnan Saiduzzaman

Siddiqui, Iftikhar Hussain, Zohra Ahmed for CBC (in C.P. No. D-1228/ 2019, 1949/2019 and 946/2022), Dr. Shahab Imam and Syeda Abida Bukhari for CBC (in C.Ps. Nos.D-1220 and 2603/2023), Ashraf Ali Butt, Rehmatunnisa, Sohail H.K. Rana, Ms.Huma F. Bhutto, Fahim Haider Moosvi, Zain A. Soomro for Respondent No.2 (in C.Ps. Nos. D-1661 and 249 of 2021), Akhtar Hussain Shaikh, Syed M. Ghazen, Shahid Ahmed for KW and SC, K, A. Jahangir

(in C.P. No. D-3100/2023) for CBC, Muhammad Aqeel Qureshi

(in C.P. No. D-4606/2020), Shahid Hussain Korejo (in C.P.

No. D-6803/2022) for Respondent No.2, Saqib Soomro and Ahmed Mujtaba (in C.P. No. D-6806/2022) for Respondent No.2, Ameer Ali Soomro (in C.P. No. D-6805/2022) for Respondent No.2, Asif Amin for Respondent No.2 (in C.P. No. D-1333/2021), Fozia M.Murad for Respondent (in C.Ps. Nos. D-132/2019, 3023, 3669, 7318, 7460 of 2015), Talha Abbasi for DHA (in C.P. No. D-4985/2018) for Respondents.

Zeeshan Adhi, Addl. AG, Saifullah and Sandeep Molani, Asst. A.G., Qazi Abdul Hameed Siddiqui, D.A.G., Khaleeq Ahmed, D.A.G., Malik Sadaqat Khan Addl., Attorney General and Qazi Ayazuddin, Asst. Attorney General

P L D 2025 Sindh 234

Before Jawad Akbar Sarwana, J

Syed MUZAFFAR AHMED ASHRAF and 8 others---Applicants

Versus

ANWAR ALI JANWRI and 3 others---Respondents

Civil Revision Application No.S-108 of 2019, decided on 12th February, 2024.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XIV, Rr. 1, 5---Specific Relief Act (I of 1877), Ss.42 & 54---Issues, framing of---Suit dismissed without addressing all the issues framed---Legality---Suit for declaration with permanent injunction---No declaration as to ownership was sought by the petitioners---Issues were framed in the suit---Suit was dismissed solely on the basis of issue of maintainability---Contention of the petitioners was that remaining issues framed by the Trial Court had not been addressed at the time of dismissing the suit---Validity---High Court held that both the courts below had rightly dismissed the suit on the ground that the same was not maintainable, as it sought a negative declaration---Main issue in the revision was the maintainability of the suit, thus, on that score too the revision was liable to be dismissed---High Court while concluding that the suit was not maintainable went on to examine the contents of the plaint and the written statement and found that there was no reason for the Trial Court to have even framed Issues Nos. 2, 4 and 5---Respondents had not denied anything in the written statement that contravened plaintiff's assertion that could culminate in framing Issues Nos. 2 & 4---Issue No.3 regarding the predecessor of petitioners being allegedly harassed by the respondents stood abated on the death of the predecessor of the petitioners---Plaint further contained no assertion, which could lead the Trial Court to frame Issue No.5, therefore, the Trial Court correctly concluded not to decide any other issue except the issue of maintainability as all the remaining issues were misconceived and did not arise from the pleadings---Trial Court cannot frame an issue, which does not arise from the plaint and written statement---High Court has the power to strike down an issue which has been wrongly framed and modify the settlement of issues while exercising its civil jurisdiction under S. 115, C.P.C., yet there might be no need to do so at this stage as the two courts below had rightly dismissed the suit on the ground of maintainability---Revision petition was dismissed accordingly.

1982 SCMR 815; PLD 2009 Kar. 38; 2002 CLC 1262; 1992 CLC 1022; 1987 CLC 229; 2021 YLR 2944 and 1999 CLC 62 ref.

Zahid Hussain Awan v. United Bank Limited 2018 MLD 1369 rel.

Imdad Ali Mashori for Applicant No.1.

Respondent No. 1 in person.

Abdul Waris Bhutto, Assistant Advocate General, Sindh for Respondents Nos. 2, 3 and 4.

P L D 2025 Sindh 242

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Rana MUNIR AHMED KHAN and another---Appellants

Versus

JAWAID SARWAR---Respondent

H. C. As. Nos. 215 and 235 of 2023, decided on 29th October, 2024.

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

----Ss. 2(3), 2(10), 38 & O.XXI---Specific Relief Act (I of 1877), Ss. 8, 12 & 54---Compromise decree, scope of---Execution, scope of---Suit for specific performance, recovery of possession, permanent injunction and compensation---Decree holder cannot seek possession on behalf of non-parties---Suit was decreed on the basis of compromise wherein the judgment debtors acknowledged the decree holder's financial assistance in resolving their disputes with their creditor and undertook to pay a sum of Rs.14,100,000/- to the decree holder by 01.03.2016---In the event of default, judgment debtor No. 2 agreed to subdivide her property and transfer four plots to the decree holder's daughters in partial satisfaction of the debt amounting to Rs.11,600,000/-, and an additional plot to adjust the remaining Rs.2,500,000/- and non-compliance with these terms would entitle the decree holder to seek enforcement through intervention of the Court---When respondent No.1 defaulted, execution proceedings were filed by decree holder to enforce the compromise decree---Legal question before the Court was whether a decree-holder, in whose favour a compromise decree has been passed based on acknowledgment of debt and conditional transfer of property to third parties (his children), possesses the locus standi to seek execution for possession on behalf of those third parties, particularly when registered sale deeds have already been executed in their favour?--- Held: Single Judge had meticulously observed that judgment debtor No.2 executed sale deeds in favour of two daughters and two sons of the decree holder, thereby establishing privity of contract directly with them---Should the children of the decree holder be aggrieved by the non-delivery of possession despite the sale deeds, it was incumbent upon them to initiate legal proceedings to claim possession---The decree holder lacked locus standi to seek possession on their behalf through an execution application---Admittedly, in the present case, both the daughters and sons of the decree holder were not parties to the suit, the compromise application, or the execution proceedings---Consequently, as majors, they must have sued for possession if they were aggrieved under S. 8 of the Specific Relief Act, 1877---Therefore, the children of the decree holder, not being parties to the original proceedings, were not directly entitled to the benefits of the compromise decree---They must have independently established their claims through appropriate legal channels---A compromise decree is executable only if it explicitly encompasses the relief sought by the parties involved---This necessitates that the decree clearly address and provide for the specific relief agreed upon in the compromise---In the absence of such explicit coverage, the compromise decree cannot be executed as it stands---In such scenarios, the parties must institute a fresh suit to enforce the compromise agreement---This fresh suit is imperative to obtain a new decree that accurately reflects the terms of the compromise and the relief sought---Appeals were dismissed.

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

----Ss. 2(3), 2(10), 38 & O.XXI---Execution of decrees---Scope---Compromise decree---Scope and enforceability---Terms "decree-holder" and "judgment debtor"---Definitions---Decree holder cannot seek possession on behalf of non-parties---Section 38 and O. XXI of the C.P.C. govern the execution of decrees---Under S. 38, C.P.C., a decree may be executed either by the court which passed it or by a court to which it is transferred for execution---This provision grants the decree-holder the discretion to seek execution from either the original court that issued the decree or a transferee court---Order XXI, C.P.C. sets out the procedures, modalities, and processes related to execution proceedings---In terms of definitions, S. 2(3), C.P.C. defines a "decree-holder" as any person in whose favour a decree or an executable order has been passed---Conversely, S. 2(10), C.P.C. defines a "judgment-debtor" as any person against whom a decree or an executable order has been passed---The children of the decree holder in the instant case, in whose favour the sale deeds were executed, did not come under the definition of "decree-holder" since no decree was passed in their favour---Thus, the decree holder lacked the locus standi under the execution framework of S. 38 and O. XXI, C.P.C. to seek possession on behalf of third parties (his children), who were not parties to the original proceedings who must independently seek redress for possession---Appeals were dismissed.

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

----S.12---Specific performance, relief of---Nature and Scope---Implied right to possession in decree for specific performance---Decree holder entitled to possession---Fulfillment of contractual obligations in specific performance cases---Whether a decree for specific performance entitles the decree holder to possession of the property even when the relief of possession was not expressly mentioned in the plaint or compromise agreement?---Held: Insofar as the contention that suit filed by the decree holder was for the specific performance of a mutual agreement and no relief of possession was sought in the said suit is concerned it is settled law that a suit for specific performance is always a suit for possession---This principle is grounded in the understanding that the specific performance of a contract inherently involves the transfer of possession of the property in question---When a court decrees specific performance, it essentially orders the fulfilment of the contractual obligations which includes delivery of possession to the party entitled under the agreement---Even if the suit or terms and conditions of compromise do not explicitly seek possession, the compromise decree for specific performance implicitly incudes the right to possession---This legal interpretation ensures that the decree holder receives the full benefit of the contract as intended, including the possession of the property---Appeals along with pending applications were dismissed with no order as to costs.

Nabeel Ahmed Kolachi for Appellant (in H.C.A. No. 215 of 2023) and for Respondents (in H.C.A. No. 235 of 2023).

Naveed Ahmed Khan and Salman Hamid for Appellants (in H.C.A. No. 235 of 2023) and for Respondents (in H.C.A. No. 215 of 2023) and Imran Rind.

P L D 2025 Sindh 251

Before Khadim Hussain Soomro, J

Ptrof. Dr. ANEELA ATTA-U-RAHMAN through Attorney---Appellant

Versus

MASHOOQUE ALI---Respondent

Civil Appeal No. S-04 of 2022, decided on 29th February, 2024.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 8 &15---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for recovery of damages on account of defamation---Rejecting of plaint---Principle---Misjoinder and non-joinder of necessary parties---Filing of suit---Locus standi---Appellant/plaintiff was Vice-Chancellor of university who had filed suit in her name on the basis of news item published in a newspaper wherein it was alleged that university officials filled foreign reserved seats with candidates under local self-finance scheme---Appellant/plaintiff filed suit only against reporter of the newspaper in question and not against owner or chief editor of newspaper in question---Trial Court rejected the plaint under O. VII, R. 11, C.P.C.---Validity---Sole prerequisite is that Court before making a decision or forming an opinion, must analyze averments made in plaint---Contents of written statement are not to be examined and put in juxtaposition with plaint to ascertain veracity or fallacy of averments in plaint---Court is not tasked with adjudicating correctness of plaint or written statement---Initiation of filing suit was not in accordance with law under which appellant/plaintiff was subjected---In the suit neither owner of newspaper nor chief editor was made party---Suit was hit by misjoinder and non-joinder of necessary party and was barred by law---High Court declined to interfere in the order passed by Trial Court---Appeal was dismissed, in circumstances.

Anees Haider and others v. S. Amir Haider and others 2008 SCMR 236; Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Jewan and 7 others v. Federation of Pakistan 1994 SCMR 826; Muhammad Saleemullah and others v. Additional District Judge, Gujranwala PLD 2006 SC 511; Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650; S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others PLD 2008 SC 371; Salamat Ali v. Khairuddin 2007 YLR 2453 and Arif Majeed Malik and others v. Board of Governors Karachi Grammar School 2004 CLC 1029 rel.

(b) Constitution of Pakistan---

----Art. 19---Freedom of expression---Scope---Fundamental rights of any civilized society is to communicate and learn about its shared interest in freedom of expression---This is always a path to truth finding and self-actualization---It offers a way to strike a fair balance between societal development andstability and increase populace's improved ability to participate in decision-making---Such idea of free people's government rests on bedrock of free expression---Achieving a reasonable balance between societal change and stability was made more accessible and ability of individuals to engage in decision making was further enhanced---Idea of free government by free people rests on bedrock of such unrestricted communication---Right to free expression is safeguarded in a democratic society by a combination of responsibilities and limitations.

Sarfraz Ali M. Abbasi for Appellant.

Ajmair Ali Bhutto for Respondent.

P L D 2025 Sindh 264

Before Muhammad Junaid Ghaffar and Zulfiqar Ahmad Khan, JJ

Mrs. SEEMA TARIQ KHAN and another---Appellants

Versus

NAJAMUL SEHR SOOMRO and 6 others---Respondents

High Court Appeal No. 378 of 2022, decided on 8th November, 2023.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), S.14---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Review---Doctrine of election---Applicability---Plea of wrong forum---Extending of period of limitation---Scope---Appellants were aggrieved of dismissal of their application filed under O. XLVII, R. 1, C.P.C. seeking review of basic order---Appellants assailed the order passed in review and also the basic order to be reviewed---Held, that principles of doctrine of election denote that election to commence and follow available course, from concurrent avenues, vests with suitor---Once an option is exercised then the suitor is precluded from re-agitating the same lis in other realms of competent jurisdiction---Appeal, to the extent of order against which review was sought was time barred and could not be maintained---Period spent in pursuing review was not liable to be excluded while reckoning period of limitation for assailing basic or original order as in essence the intent was to call in question the correctness and validity of initial order of which the review was sought which had attained finality creating valuable rights in favor of the other party which could not be disturbed so lightly---Appeal against order refusing a review was in fact seeking vacation of previous order which by efflux of time had become final, whereas, refusal to review could not give a fresh period of limitation---Not availing remedy of appeal as provided under law against a basic order and instead prosecuting a review before same Court, did not allow appellants to benefit from S. 14 of Limitation Act, 1908 as the time spent could not be excluded in computing period of limitation---Appellant only intended to drag the matter; whereas, offer of respondent already stood accepted way back in year, 2021 and appellant intended to avail benefit of increase in price---High Court declined to interfere in basic order as well as order dismissing review---Intra Court Appeal was dismissed, in circumstances.

Trading Corporation of Pakistan v. Dewan Sugar Mills Limited PLD 2018 SC 828; Collector of Sales Tax v. Customs Appellate Tribunal 2008 SCMR 435; Ghulam Hussain v. Kanwar Ashiq Ali Khan PLD 1980 SC 198; Mumtaz Baig v. Jamal Din 2009 SCMR 1364; Ghulam Nabi v Rashid PLD 2000 SC 63; Mahadeolal Jalan v. Messrs Hardeodas Iswardas AIR 1992 Gauhati 78; Madan Mohanji Maharaj v. Sunder Lal AIR 1953 All. 554; Ram Lal v. Ratan Lal ILR 26 Allahabad 572; Shanker Motiram v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753; Lahore Development Authority v. Fahmeeda Khatoon 1986 SCMR 1478; The Military Estate Officer v. Ardeshir Cowasjee 2017 MLD 22; Ahmed Ali v. Noor Muhammad 1987 CLC 1575 and Muhammad Din v. Ilahi Noor PLD 1975 Lah. 1393 rel.

Muhammad Zubair Hashmi for Appellant No. 1.

Adeel Mahmood Shah for Appellant No. 2.

Mansoor-ul-Arfin for Respondent No. 1.

P L D 2025 Sindh 279

Before Nadeem Akhtar, J

SAREM MUHAMMAD MUKHTAR---Petitioner

Versus

SADIA AQUIL AHMED---Respondent

C. Ps. Nos. S-2568 of 2017 and S 2589 of 2018, decided on 12th February, 2024.

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

----Ss. 8 & 19---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of proceedings---Custody of minor---Ordinary place of residence of minor outside Pakistan---Jurisdiction of Court in Pakistan---Scope---Petitioner/father of minor assailed guardian proceedings before Guardian Court on the plea that ordinary place of residence of minor was abroad and not in Pakistan---Trial Court declined to reject the proceedings---Validity---At the time when dispute relating to custody of minor arose and guardian application was filed at Karachi by respondent/mother of minor, the home state/ordinary residence of minor was State of Washington, USA and not Karachi---Minor was not illegally or improperly removed or taken away from the custody of respondent at Karachi nor were the minor or parties residing or last resided at Karachi---Cause of action alleged by respondent/mother of minor had not arisen at Karachi---Guardian Court at Karachi did not have territorial jurisdiction to entertain application of respondent/ mother of minor seeking orders relating to custody of minor---High Court set aside order passed by Guardian Judge and application under O. VII, R. 11, C.P.C., filed by petitioner/father of minor was allowed---Minor could not be deprived of love, affection, care, presence and company of her father under any circumstances; and the respondent/ mother could not be the sole judge to decide when the minor should see or meet her father and grandparents and for how long or how frequently---Such right of petitioner/father and the minor, under Shariah and law in Pakistan, could not be denied or even curtailed---High Court settled schedule of meeting of petitioner/father with his daughter---Constitutional petition was allowed accordingly.

Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 and Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 rel.

Abid Hussain v. Rukhsana Munir and others 2020 YLR 1533; Peggy Collin v. Muhammad Ishfaque Malik PLD 2010 Lah. 48; Surya Vadanan v. State of Tamil Nadu and others (2015) 5 Supreme Court cases 450; All England Law Reports (1966) 1 All E.R. page 889; Shilpa Aghgarwal (Ms) v. Aviral Mittal and another (2010) 1 Supreme Court Cases 591; Muhammad Khalil-ur-Rehan v. Shabana Rehan and another PLD 1996 SC 633; Nisar Muhammad v. Sultan Zarin PLD 1997 SC 852; Mirjam Aberras Lehdeaho v. SHO Police Station Ghung, Lahore and others 2018 SCMR 427; Roshni Desai v. Jahanzeb Niazi PLD 2011 Lah. 423; Josip Stimac and others v. Melitta Syed Shah and others PLD 2009 Lah. 393; Mariam Khan v. Mehryar Salim and another 2008 YLR 2647; Surinder Kaur v. Harbax Singh AIR 1984 SC 1224; Elizabeth Dinshaw v. Arvand M. Dinshaw AIR 1987 SC 3; McKEE v. McKEE (1951) 1 All. E.R. 942; V. Ravi Chandran (Dr.)(2) v. Union of India and others (2010) 1 SCC 174; Faraz Alamgir v. Additional District and Sessions Judge VIII and 2 others 2017 YLR 994; Malik Gul Raiz Awan v. Mst. Asma Gul Raiz and others 2009 MLD 1274; Ejaz Naseem v. Fareeha Ahmad and others 2009 SCMR 484; Mst. Nasreen and another v. Raja Muhammad Shahid Bashir and others 2019 CLC 1213; Rafiq Ahmad v. Judge Family Court, Khanewal and another 1996 CLC 1820; Mst. Aneeta Tanveer v. Muhammad Younus and others 2010 YLR 513 and Malik Khizar Hayat Khan Tiwana and Malik Ghulam Muhammad Khan v. Mst. Zainab Begum, Ch. Aziz Ahmad Waraich, District Judge, Lahore and Qazi Muhammad Dastgir, Guardian Judge, Lahore PLD 1967 SC 402 ref.

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

----Ss. 8 & 19---Custody of minor---Determining factor---Welfare of minor---Parental jurisdiction of Court---Paramount consideration in cases of custody and guardianship of minors is their welfare---Welfare of minors is the sole consideration as they are not in a position to decide about their welfare and as such their welfare is decided by their parents and in their absence or in case of any dispute between them, it becomes duty of Court to make a decision regarding their welfare by exercising parental jurisdiction.

Faisal Siddiqui for Petitioner.

Farooq H. Naek for Respondent.

P L D 2025 Sindh 298

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Mrs. ANJUM ARA and another---Appellants

Versus

SHABBIR A. HALAI and another---Respondents

H.C.As. Nos. 158 and 185 of 2020, decided on 18th December, 2024.

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

----S. 54---Specific Relief Act (I of 1877), Ss. 8, 12 & 39---Balance sale consideration---Deposit in court---Scope---Agreement to sell, performance of---Vendor/appellant instituted a suit for cancellation of agreement to sell and restoration of possession---Vendee/respondent instituted a suit for specific performance---Single Judge decided the suit directing the vendee to deposit the balance sale consideration along with 10% per annum simple markup from the date of filing the case and Rs.50,000/- per month being monthly rent for utilizing the suit property and vendor was also directed to execute a conveyance deed in favour of the vendee handing over all original documents of the suit property---Validity---Single Judge rightfully dismissed the vendor's suit due to her failure to fulfil her obligations---Vendee after payment of earnest money remained in possession of the suit property after completion of construction work and continued to benefit from its use---Significant economic changes, such as currency devaluation and an appreciation in the property's value further exacerbated the vendor's position---There is no statutory mandate under the Specific Relief Act, 1877, compelling the plaintiff (vendee) to tender the outstanding sale consideration in court at the time of filing or presenting the plaint, nor at the admission of the suit before the issuance of summons to the defendant---Deposit of the sale consideration or balance thereof in court is not an automatic or statutory precondition---Instead, such deposit necessitates a specific court order, accompanied by a stipulated timeline and repercussions for non-compliance---Vendee's initial failure to deposit the remaining balance had not inherently disqualified him from seeking specific performance, as long as the court's directive to deposit the balance consideration---Adjudications of the Single Judge were predicated upon a meticulous and exhaustive evaluation of the evidentiary material adduced---Vendor's dereliction in procuring the indispensable property documents and the vendee's partial performance were determinative factors that decisively influenced the judgment of Single Judge---Decision to dismiss the vendor's suit while concurrently mandating the vendee to discharge his financial obligations epitomized an equitable and jurisprudentially sound resolution of the dispute---High Court Appeals filed by both the parties were dismissed, in circumstances.

Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 and Meer Gul v. Raja Zafar Mehmood 2024 SCMR 1496 rel.

Badar Alam and Kashif Badar, for Appellant (in H.C.A. No.158 of 2020) and for Respondent (in HCA No.185 of 2020).

Abdul Qadir Khan for Respondent (in H.C.A. No.158 of 2020 and for Appellant (in H.C.A. No. 185 of 2020).

P L D 2025 Sindh 307

Before Zulfiqar Ahmad Khan, J

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) through Registrar General, Islamabad Administration and 4 others---Petitioner

Versus

AMAR PARKASH and 12 others---Respondents

Civil Revision Application No. 86 of 2021, decided on 21st November, 2023.

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

----S.18---Blocking of Computerized National Identity Card (CNIC)---Principle---Even though S. 18 of National Database and Registration Authority Ordinance, 2000 explicates the power to cancel, impound or confiscate the CNIC as an eventual punitive action but no powers are integrated or ensuite to block CNIC of any person unless it is finally determined or adjudicated that the card issued to any such person should be cancelled, impounded or confiscated.

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

----Ss. 42 & 54---National Database and Registration Authority Ordinance (VIII of 2000), S. 47---Suit for declaration and injunction---Adopted child---Computerized National Identity Card (CNIC), issuance of---Applicant/National Database and Registration Authority was aggrieved of concurrent findings of facts by two Courts below whereby suit and appeal were decided in favour of respondent/plaintiff---Respondent/plaintiff was an adopted child and applicant/Authority had denied issuance of CNIC to him---Validity---There is no provision under National Database and Registration Authority Ordinance, 2000, under which applicant/Authority is authorized or vested with any powers to not register an adoptee---Applicant/Authority can take help from S. 47 of National Database and Registration Authority Ordinance, 2000 which deals with removal of difficulties---Applicant/ Authority had shown its willingness to issue CNIC to respondent/ plaintiff by mentioning name of his adopting father and name of mother as blank/Not applicable---Revision was disposed of accordingly.

Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Naheed Nusrat Hashmi v. Secretary Education (Elementary) Punjab PLD 2006 SC 1124; Naseer Ahmed Siddiqui v. Aftab Alam PLD 2013 SC 323; Mehmood ul Hassan Khan v. DOW University of Health Sciences PLD 2008 Kar. 49; Joan Marg Carter v. Albert William Carter PLD 1961 SC 616; Mehr-un-Nisa Baloch v. Appellate Committee PLD 1978 Kar. 214; Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent Loralai 1980 SCMR 456 and Ziaullah v. District Magistrate Nawabshah 2000 CLC 406 ref.

Mukesh Kumar G. Karara, Ghulam Hussain and Safdar Kamal, Alqamah Bin Mehmood for Applicant.

Sarfaraz Ahmed Akhund, Ashfaque Hussain Abro, Assistant Attorney General and Ali Raza Balosh, A.A.G. for Respondents.

P L D 2025 Sindh 323

Before Shamsuddin Abbasi, J

Master IQBAL and others---Petitioners

Versus

ANJUMAN JAMA MASJID through General Secretary---Respondent

Constitution Petitions Nos. S-860 to S-866 of 2022, decided on 24th October, 2024.

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

----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 115---Fair rent, fixation of---Denial of relationship of landlord and tenants---Plea of Pagri/ goodwill---Applications filed by the landlord/respondent for fixation of fair rent were challenged by the tenants/petitioners on the grounds of maintainability of rent applications being filed by unauthorized person without having a resolution passed by the General Body---Validity---Landlord had produced in evidence a resolution passed in the meeting of General Body authorizing landlord to sue any legal or administrative proceedings before a Court of law or Administrative Authority---Parties entered into a tenancy agreement, which was signed by the respondent, thus, the contention that rent applications were filed by an unauthorized person was irrelevant and could not be relied upon---Petitioners during trial neither disclosed the name of the person (landlord) who let out the rented premises to them nor produced any evidence or material to rebut the claim of respondent as to landlord of the rented shops and had admitted in cross-examination that they were depositing rent in the name of landlord, which proved that there existed relationship of landlord and tenant between the parties---Ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties and in normal circumstances, in the absence of any evidence to the contrary, the owner of the property by virtue of his/her title is presumed to be the landlord and the person in possession of the premises is considered as a tenant---Under Art. 115 of the Qanun-e-Shahadat, 1984 when there is continuance of tenancy, the tenant cannot deny the title of landlord in respect of an immovable property which the landlord had at the beginning of tenancy---When a person is inducted in the premises as tenant, he has no locus standi to challenge tenancy merely on the ground that the person who inducted him as tenant is not the actual owner---Thus, rent applications were filed by a competent person and were maintainable---Term "goodwill" is not recognized by Sindh Rented Premises Ordinance, 1979, however, the superior courts have equalized it with the term "Pagri"---Plea of petitioners that they had paid goodwill for premises in no manner could succeed as a ground of defence and if it is presumed that goodwill amount was paid it would not debar the respondent from seeking fixation of fair rent---Constitutional petitions were dismissed, in circumstances.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72; Hyderabad Development Authority v. Abdul Majeed and others PLD 2022 SC 84; Messrs Abdul Majeed Chawla & Sons v. Anwar Yahya 1990 MLD 1711; Abdul Rehman and another v. Zia ul Haque Makhdoom and others 2012 SCMR 954 and Messrs Olympa Shipping and Weaving Mills Ltd and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 distinguished.

Messrs Noori Trading Corporation (Pvt.) Ltd. v. Abdul Ghafoor 1997 CLC 205; Muhammad Anwar v. Mir Rafique Ahmed Talpur and 2 others 2014 MLD 23; Lt. Col. (R) Muhammad Zubair v. Mst. Sughran Begum and another 2023 CLC 1411; Syed Tazeeb and others v. Bashir Ahmed 2024 YLR 926 and Mst. Amina Bai and others v. Mirza Subhan Baig and others Constitution Petition No.S-251 of 2009 ref.

Alay Javed Zaidi v. Habibullah and others 2024 SCMR 781; Ittehad Chemicals Limited v. VIIth Additional District Judge, Karachi (South) and 2 others 2010 SCMR 1582 and Akhtar Kamran (deceased) through legal heirs v. Parvez Ahmed and others 2023 SCMR 1147 rel.

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

----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 79---Fair rent, fixation of---Factors/conditions to be considered for determination of fair rent---Non-fulfillment of all the conditions for fixation of fair rent---Effect---Power of Rent Controller to fix the fair rent---Scope---Tenants raised objections as to admissibility and production of two rent agreements of the adjacent properties by the respondent in evidence without examining the tenants or attesting its witnesses---Validity---Requirement of Art. 79 of Qanun-e-Shahadat, 1984 comes into play only with a registered document and not to a document or instrument of understanding or acknowledgement---It is not necessary for the landlord to satisfy or fulfill all four conditions while making an order under S.8 of the Sindh Rented Premises Ordinance, 1979, for fixation of fair rent---Upon fulfillment of even one of the conditions Rent Controller is competent to fix the fair rent of a premises since cumulative effect of all four conditions mentioned in the above section is to be kept in mind while fixing the fair rent---It is the exclusive domain of the Rent Controller to fix the fair rent keeping in mind the conditions which include rent paid in similar situation in respect of the properties located in adjoining area apart from rise in cost of construction, repair charges, imposition of new taxes etc., and if the landlord is able to bring home his case with regard to the fixation of fair rent being paid by other tenants in respect of similarly placed properties, the rent paid by those tenants in the adjoining locality would be considered to be the fair rent, which is the essence of S. 8 of the Ordinance.

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

----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 79---Fair rent, fixation of---Proceedings before Rent Controller, nature of---Application of Civil Procedure Code and Qanun-e-Shahadat, 1984, in rent matters---Scope---Proceedings before Rent Controller qua fixation of fair rent of premises, being quasi judicial in nature, all principles of Civil Procedure Code, 1908, and Evidence Act (Qanun-e-Shahadat) could not be invoked because Rent Controller and Appellate Authority would have powers of a Civil Court under Civil Procedure Code in respect of matters relating to Ss. 19, 20 & 21 of Sindh Rented Premises Ordinance, 1979, and said Ordinance had also not placed any bar on application of Qanun-e-Shahadat, 1984, in appreciating evidence adduced by parties in rent matters---Rent Controller though is not a Court and limited provisions of Civil Procedure Code had been made applicable in the proceedings, but there was nothing in Sindh Rented Premises Ordinance, 1979, whereby application of provisions of Qanun-e-Shahadat could be restricted or limited as the Rent Controller was not a Court.

Fateh Ali v. Trustees of Haji Sir Abdullah Haroon Wakf No.2, Karachi PLD 1996 Kar. 225 rel.

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

----Art. 72---Document produced and exhibited in evidence without objection---Objection as to its proof at appellate or revisional stage---If a document has been produced and exhibited before a court without any objection, the party cannot object to its proof required under the Qanun-e-Shahadat, 1984 at appellate or revisional stage.

(e) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S. 8---Fixation of fair rent---Concurrent findings of facts by Rent Controller and appellate court---Interference by the High Court---Scope---Finding of facts given by the Rent Controller on the point of fixation of fair rent were concurred by the Appellate Court, thus, in exercise of the Constitutional jurisdiction High Court would not reappraise the evidence unless the same were proved to be perverse, based on misreading or non-reading of evidence---Powers in rent matters under constitutional jurisdiction of High Court are limited and confined only to ascertain whether the Courts below have flouted the statute or failed to follow the law relating thereto.

Alay Javed Zaidi v. Habibullah and others 2024 SCMR 781 rel.

Iftikhar Javaid Qazi for Petitioners.

Ansar Mukhtar for Respondent.

Suresh Kumar, A.A.G.

P L D 2025 Sindh 335

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Messrs TRANSFAR LOS ANGELES PTE LTD. through authorized representative---Appellant

Versus

M. V. "TSS AMBER" through Master/Chief Officer and 2 others---Respondents

Admiralty Appeal No. 2 of 2024, decided on 4th October, 2024.

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

----Ss. 3(2)(a) & 7---Civil Procedure Code (V of 1908), O. I, R. 10 & S. 107---Admiralty Appeal---Dispute over violation of charter agreement of vessel for voyage hire charges causing loss to the appellant-company---Arrest of vessel---Application by the intervener to be impleaded as party in the proceedings---Appellant denied claim of the intervener to be owner of vessel---Validity---Order I, Rule 10, C.P.C., in conjunction with S.107, C.P.C., extends to appeals, bestowing the appellate court with the prerogative to substitute or add any entity as appellant or respondent, provided they are indispensable and proper parties to the proceedings---Despite the plaintiffs being dominus litis (masters of the suit) with a vested interest in the case's resolution, the court may compel the inclusion of a party if their presence is pivotal for a comprehensive and effective adjudication of the matter---General jurisprudential tenet for impleading parties posits that the plaintiff, as the master of the suit, may elect the individuals against whom they wish to litigate and cannot be coerced into litigating against an entity from whom no relief is sought, however, a proper party is one whose presence would enable the court to thoroughly, efficaciously and adequately adjudicate upon all matters in dispute in the suit, notwithstanding their status as a party in favour or against whom the decree is to be rendered---Intervener's claim of ownership was buttressed by documentary evidence, and was consonant with the principles governing the inclusion of indispensable and proper parties, thus, the intervener was impleaded as a respondent in the appeal to ensure an equitable and comprehensive resolution of the matter---Application was allowed and appeal was disposed of, in circumstances.

Engro Foods Ltd. v. Province of Sindh and others 2018 MLD 866; Mst. Farasa Aijaz v. Messrs Qamran Construction (Pvt.) Ltd. 2012 CLC 1477; Aroma Travel Services (Pvt.) Ltd. v. Faisal Al Abdullah Al Faisal 2017 YLR 1579; Jiand Rai v. Abid Esbhani 2010 YLR 1666 and Shams Mohiuddin Ansari v. Messrs International Builders 2010 CLC 1622 rel.

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

----Ss. 3(2)(a) & 7---Sindh Chief Court Rules (Original Side), R. 743, Chapter XXXII---Admiralty Appeal---Arrest of vessel---Doctrine of action in rem and action in personam---Scope---Applications by the intervener and respondent for release of vessel---Appellant denied the claim of the intervener and respondent for release of vessel---Validity---Considering the doctrines of action in rem and action in personam, the documentary evidence of ownership presented by the intervener and the insufficiency of contrary evidence from the appellant, it was incumbent upon the court to reassess the arrest order's validity---Intervener's ownership claim and the nature of the primary dispute indicated that maintaining the arrest might not be equitable---Maritime lien or privileged claim must be substantiated by unequivocal evidence and in the absence of such evidence from the appellant, the claim that respondent No.2 owned the vessel could not be sustained, thus, the arrest order was rescinded and the vessel was released.

Messrs Abdoun Oil Company S.A. Incorporated Under Laws of the Republic of Panama, in Greece, with their office at 43-45 portman square, London v. M/T Abdoun Discovery A Ship Flying Panama Flag Presently At The Port Of Port Qasim Authority, Karachi, Pakistan and another 2004 CLD 286 rel.

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

----Ss. 3(2)(a), 4(4) & 7---Admiralty Appeal---Arrest of vessel---Action in rem and in personam---Scope and object---Action in rem is a legal proceeding instituted against a specific item of property, primarily within admiralty law, where the principal object of the action is the property itself rather than the individual in possession of it---Such actions resolve disputes pertinent to the ownership, possession, or claims against the property---Adjudication in an action in rem is erga omnes, which means "towards all" or "towards everyone", binding the entirety of the world to the status of the property---Action in personam is a judicial proceeding instituted against a specific individual, wherein the objective is to ascertain the liability of the defendant---Such type of action resolves personal claims or obligations enforceable against a particular individual---Judgment in an action in personam is binding solely on the parties engaged in the litigation.

Mazhar Imtiaz Lari and Syed Zeeshan for Appellant.

Taha Alizai, Fawad Syed and Syed Raza Mamnoon for Respondents (as well as for Intervener).

P L D 2025 Sindh 342

Before Muhammad Iqbal Kalhoro and Muhammad Osman Ali Hadi, JJ

Messrs SIDDIQUI CONSTRUCTION COMPANY through Managing Director and others---Appellants

Versus

SHANKER LAL OCHANI and another---Respondents

High Court Appeal No. 515 of 2024, decided on 2nd May, 2025.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 84---Transfer of Property Act (IV of 1882), S.53-A---Suit for specific performance---Agreement to sell---Execution---Proof---Possession of suit property delivered to the vendee---Effect---The respondents (vendees) entered into a sale agreement with the appellants (vendors) for sale of immoveable property---Respondent (vendee) paid earnest money and possession was handed over to him, with the remaining sale consideration to be paid in instalments---Despite full payment, the title was never transferred, constraining the respondents (vendees) to institute a suit for specific performance---The appellants (vendors) contested the suit, claiming that the respondents (vendee) were tenants and that the suit was barred by limitation---Suit was decreed by the Single Judge against which present appeal was instituted---Held: In evidence the respondents (vendees) submitted relevant receipts of payments of sale consideration to the appellants (vendors) and all such receipts were on the letter head of the company being run by appellants (vendors) and were signed by its late proprietor and he was the same person who had signed the agreement to sell---Regarding the signature of the late proprietor/signatory, the respondents (vendees) had got the same examined from the handwriting expert in terms of Art. 84 of Qanun-e-Shahadat, 1984---Said expert deposed positively that the receipts contained signatures of late proprietor who had also signed the agreement to sell---Such receipts were in bulk amount and could not be considered mere payments of rent by respondents (vendees)---Only ground taken by appellants (vendors) to defeat validity of such receipts was that they did not bear any date---Mere non-mention of date on the receipts did not invalidate the same or made them redundant in the eyes of law when otherwise contents thereof were established and the payments made through them were not specifically rebutted or refuted by the appellants (vendors) except the plea that they were made in respect of rent regarding which no evidence was put forth---The benefit of S. 53-A of the Transfer of Property Act, 1882 was also available to the respondents (vendees) as they were put in possession at the time of sale agreement---Single Judge while decreeing the suit took into consideration all pieces of evidence adduced by parties, implication of relevant laws such as Art. 113 of Limitation Act, 1908 and S. 53-A of Transfer of Property Act, 1882 and concluded, duly supported by reasons, in favor of the respondents (vendees) and there was no justification to reverse the same---Appeal being without merit, was dismissed, in circumstances.

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

----S.12---Limitation Act (IX of 1908), First Sched., Art.113---Suit for specific performance of agreement to sell---Limitation---Scope---Article 113 of Limitation Act, 1908 stipulates that a suit for specific performance of an agreement to sell should be filed within three years from the performance date or if no such date is specified, then when the plaintiff notices that the performance has been refused.

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

----S.53-A---Specific Relief Act (I of 1877), S.12---Agreement to sell---Pre-requisites for taking benefit of S.53-A of Transfer of Property Act, 1882 stated---Benefit of the S. 53-A of the ibid Act becomes due in favor of the vendee when he is put in possession of the suit property at the time of the sale agreement---Four conditions/pre-requisites for seeking benefit of the S. 53-A ibid are that: (i) The contract must be in writing, signed by or on behalf of the transferor; (ii) The transferee should be in possession of the immoveable property covered by the contract; (iii) The transferee had done some act in furtherance of the contract; (iv) The transferee had either performed his part of the contract or was willing to perform his part of the contract.

Muhammad Salman Noor for Appellants.

P L D 2025 Sindh 347

Before Zafar Ahmed Rajput and Adnan Iqbal Chaudhry, JJ

Mst. FATIMA RASHEED---Petitioner

Versus

ABDUL QADIR and 2 others---Respondents

Constitution Petition No. D-6074 of 2024, decided on 4th December, 2024.

Civil Procedure Code (V of 1908)---

----S. 151, O. VI, R.17 & O.VIII, R.1---Specific Relief Act (I of 1877), Ss. 39, 42, 8, 54 & 55---Suit for cancellation, declaration, possession, mesne profit, damages, mandatory and permanent injunction---Inherent power of court in existence of specific provision of law---Scope---Substitution of already filed written statement as a whole with a new written statement---Legality---Application by the petitioner/ defendant under S. 151, C.P.C., for filing fresh written statement after framing issues, was concurrently dismissed---Validity---Court may adopt any procedure and may pass any order to secure the ends of justice, however, where specific provisions exist, general or residuary powers cannot be resorted to---Inherent power of the court exists only where there is no express provision of law applicable to the case---Where there are express provisions of law applicable to a case or to meet any unforeseen eventuality, there is no inherent power in the court to override them---Written statement had already been filed by the defendant under O. VIII, R. 1, C.P.C., who could not apply for the substitution of a fresh written statement in place of the one filed already---There was no provision in C.P.C. to enable the court to permit the substitution as a whole of one written statement for another already filed---Under O. VI, R. 17, C.P.C., the court is empowered to allow either party to alter or amend pleadings in such manner or in such terms as may be just, for the purpose of determining real questions in controversy between the parties, which being a specific and express provision of law existed in the Code, which was applicable to the case of the petitioner, and could not be overridden under inherent power of the court under S. 151, C.P.C.---However, the said provision had not been resorted to by the petitioner---Constitutional petition was dismissed in limine, in circumstances.

Javed Anwar for Petitioner.

Nemo for Respondents Nos. 1 to 3.

P L D 2025 Sindh 351

Before Nisar Ahmed Bhanbhro, J

MUHAMMAD ALIM SHAR---Petitioner

Versus

SHAHNAWAZ and others---Respondents

Constitutional Petition No. S-162 of 2022, decided on 7th May, 2025.

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

----O.XXIII, R.1---Withdrawal of suit with permission to file a fresh one---Pre-requisites---Formal defects, lack of---Order of Trial Court passed summarily and without legal reasoning---Effect---Petitioner filed suit seeking declaration, mandatory and permanent injunction, possession, and cancellation of documents against the respondents, wherein, during its pendency, he moved an application for conditional withdrawal of the suit on the ground of bona fide mistakes and formal defects in the plaint, expressing his intention to file a fresh suit---Trial Court, without issuing notice to the respondents or recording any reasons, allowed the application and granted permission for filing a fresh suit on the same day---Aggrieved by this order, respondent Nos. 1 to 3 filed civil revision petition before the District Court, which was allowed---Revisional court set aside the Trial Court's order for being arbitrary and passed without judicial application of mind or affording the respondents an opportunity of hearing, in violation of O. XXIII, R. 1(2)(b), C.P.C.---Meanwhile, the petitioner had already filed a fresh suit in pursuance of the earlier permission granted by the Trial Court---Petitioner, therefore, filed the present Constitutional petition under Article 199 of the Constitution, seeking setting aside of the revisional court's order in order to continue with his fresh suit---Legal point for determination by the High Court was as to "Whether the Trial Court's order permitting withdrawal of the suit with liberty to file a fresh one, without recording reasons or affording notice and hearing to the respondents, was legally sustainable under O. XXIII, R. 1(2)(b) of C.P.C.?---Held: Careful examination of the application filed by the petitioner/plaintiff reflected that withdrawal of the suit was sought conditionally to bring a new suit on the pretext that there were certain formal defects in the plaint---Such formal defects were not disclosed in the application but the Trial Court granted application as prayed, without hearing the other side, or getting satisfied that the application fulfilled the conditions set forth in O. XXIII, R. 1(2), C.P.C., which from face if it offended the fundamental rights of the respondents as to fair trial under Art. 10-A of the Constitution---Trial Court did not even require the petitioner/plaintiff to reveal such formal defects in the plaint so as to examine that whether such defects were curable and could be rectified by invoking O. VI, R. 17, C.P.C. through amendments in the plaint---Petitioner/plaintiff sought cancellation of registered documents which was a time related cause and limited the filing of suit within specified time---But the Trial Court did not apply its judicial mind and allowed the application in a very casual manner, without assigning reasons or examining the plaint to ascertain the nature of defects necessitating filing of fresh suit, thus the order passed by Trial Court lacked application of judicious mind, thus was untenable under the law---Moreover, perusal of plaint of the fresh suit revealed that it was not a case of filing a fresh suit, but it was a case for seeking amendment in the pleadings under O. VI, R. 17 of C.P.C. which could be sought at any stage of the proceedings---The order of revisional court resulted in revival of the original suit filed by the petitioner/plaintiff at the stage where it was dismissed as withdrawn---Trial Court exercised its discretion without applying judicial mind and allowed the application in an arbitrary manner thus order of Trial Court was not within the premise of law and was rightly set aside by the revisional court, thus no case was made out for interference in order passed by the revisional court---Certain directions were made by the High Court while disposing of the present Constitutional petition---Petition was disposed of, in circumstances.

Muhammad Anwar (decd) through L.Rs. and otherS v. Essa and others PLD 2022 SC 716 rel.

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

----O.XXIII, R.1---Withdrawal of suit, permission for---'Conditional withdrawal' and 'un-conditional withdrawal', effect of---Duty of courts to examine nature of withdrawal sought by applying its judicial mind---Scope---The provisions of law codified through Sub-Rule (1) of R. 1 of O. XXIII, C.P.C. are substantive as well as procedural---These provisions recognize the absolute right of plaintiff to file and to withdraw his suit "at any time"---On exercise of this unqualified right, when a plaintiff requests the court to dismiss the suit as withdrawn, this provision of law casts a duty upon Court to satisfy that the withdrawal of suit should be conditional or unconditional and whether the plaintiff has exercised this right properly or improperly---On being satisfied the Court may pass an order granting permission to withdraw the suit---If the suit is dismissed as withdrawn unconditionally, the plaintiff would be precluded from bringing a fresh suit on the same cause and subject, and if withdrawal is conditional subject to filing a fresh suit, the plaintiff may bring a fresh suit subject to the law of limitation---The procedural law envisages that the plaintiff may withdraw his suit to his discretion but such withdrawal in any manner may not injure the rights of other parties, therefore, this withdrawal has been subjected to the satisfaction of the Court---Withdrawal of suit, conditional or unconditional, shall be followed by certain limitations imposed in itself by this provision of law (Order XXIII, C.P.C.)---This vested right of withdrawal of suit or part of claim is free from conditions, as codified in Rule 1 of O. XXIII, C.P.C. wherein the withdrawal of the suit or claim has been left purely at the discretion of plaintiff.

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

----O. XXIII, R.1---Withdrawal of suit, permission for---Duty of courts to apply judicial application of mind---Court cannot allow withdrawal casually without proper reasoning---Plaintiff can withdraw the suit or abandon part of his claim at any stage of the suit but permission to withdraw is always at the satisfaction of the court, meaning thereby that the plaintiff may withdraw the suit after bringing a rationale reasoning to get the court satisfied---Whereas, the court cannot grant the permission of withdrawal of suit or abandonment of the claim in a casual manner, the withdrawal has to be granted after applying judicious mind, and keeping in view that withdrawal in any manner would not defeat the cause of justice.

Ghulam Muhammad Barejo and Mushtaq Ali Langah for Petitioner.

Ghulam Dastagir A. Shahani for Respondents Nos. 1 to 3.

Abdul Waris Bhutto, Assistant Advocate General, Sindh for Respondents Nos.6 to 12.

P L D 2025 Sindh 360

Before Shamsuddin Abbasi and Jan Ali Junejo, JJ

ALI HASSAN BROHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-12 and Criminal Confirmation Case No. D-12 of 2020, decided on 8th April, 2025.

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 10-A---Criminal Procedure Code (V of 1898), S. 537---Qatl-i-amd---Appreciation of evidence---Procedural lapses---Fair trial---Scope---Right to a competent and adequately prepared counsel---Accused was charged for committing murder of his wife by strangulating her---Record showed that the matter was transferred to the Trial Court on 23-01-2020---On the same day, the Trial Court recorded the depositions of the complainant and an eye-witness, however, their cross-examinations were deferred due to the absence of the appellant's original defence counsel, who had cited health concerns---Case was then adjourned to 01-02-2020, but on that date, defence counsel remained absent---Instead, an advocate assigned to represent the pauper accused appeared before the Court---Record did not confirm whether said advocate was appointed or provided with the case documents or granted sufficient time to prepare for the defense---Despite that, the Trial Court proceeded to conduct cross-examinations of complainant and an eye-witness, and record the depositions of the remaining five prosecution witnesses---All the said witnesses were cross-examined by the said advocate on the same day---Notably, the case diary indicated that original defence counsel later submitted a statement withdrawing his Vakalatnama---Sudden assumption of defense responsibilities by an advocate without documented access to the case files or adequate preparation time, rendered the cross-examinations ineffective and merely perfunctory---Said failure directly compromised the appellant's right to effective legal representation, particularly in a capital punishment case---Withdrawal of Vakalatnama of original defence counsel and the subsequent appointment of an advocate were executed without judicial scrutiny or the appellant's explicit consent, thereby violating the right to counsel of choice under Article 10-A of the Constitution---Right to a fair trial entailed not only access to legal representation but also the right to competent and adequately prepared counsel---Procedural lapses in the case reduced the trial to a mere formality, depriving the appellant of a meaningful defence---Absence of proper preparation in cross-examinations resulted in miscarriage of justice---It was a fundamental right of every accused to be represented by legal counsel of their own choice---In cases involving capital punishment, the law mandated that the accused must be provided with legal representation and in situations where the accused could not afford a lawyer, the State bore the responsibility of covering the legal expenses---Accordingly, the Sessions Court or Special Court was duty-bound to appoint a legal practitioner at the State's expense to defend the accused---Procedure adopted by the Trial Court was irregular and unlawful and such defects could not be cured under S. 537, Cr.P.C.---No evidence was on record to indicate that the cross- examinations of the prosecution witnesses were conducted by a duly authorized counsel representing the appellant---Instead, the record merely reflected that an advocate, whose formal appointment was not documented anywhere in the case files, undertook the cross-examinations---Such fact raised a strong presumption that the cross-examinations were either not conducted properly or not conducted at all, especially given the fact that on 01-02-2020, the court recorded the testimonies of prosecution witnesses and also conducted the cross-examinations of seven prosecution witnesses on the same day---Furthermore, there was no mention in the record of whether the subsequent appearance of appointed advocate was properly appointment or was provided with the necessary case documents or given adequate time to prepare---Such concern was particularly critical since his appointment coincided with the same day on which the prosecution evidence was recorded---Defense counsel played a pivotal role in safeguarding an accused's rights, including raising objections to improper questions, challenging the admissibility of evidence and ensuring that the accused received a fair trial---When an accused is deprived of competent legal representation or when a defence counsel is appointed without proper preparation, it severely undermines the fairness of the trial---Said issue becomes even more critical in cases where capital punishment is at stake, as the right to effective legal representation is a fundamental constitutional and legal safeguard---In the light of said deficiencies, the appellant's conviction and sentence could not be sustained, which was set aside and case was remanded for de novo trial and decision afresh---Appeal was partly allowed.

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

Akbar Ali Dahar for Appellant.

Aitbar Ali Bullo, D.P.G. for the State.

P L D 2025 Sindh 368

Before Muhammad Saleem Jessar, J

ASSAD NAEEM---Applicant

Versus

STATE---Respondent

Criminal Revision Applications Nos. 25 and 229 of 2024, decided on 26th March, 2025.

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

----Ss. 3 & 7---Criminal Procedure Code (V of 1898), S. 549---Pakistan Army Act (VI of 1953), S. 123---Illegal dispossession---Concurrent jurisdiction of Criminal Court and Court Martial---Delivery to military authorities of persons liable to be tried by Court-martial---Scope---Application was filed by the Pakistan Air Force (PAF) contending that the respondent/proposed accused was an officer in PAF, therefore, he be handed over to PAF as he was to be tried by the Military Courts instead of Courts of ordinary jurisdiction---Such application was dismissed by the Trial Court---Validity---It was evident that Illegal Dispossession Act, 2005,was a special law and S. 4 thereof contained non-obstante clause---Relevant provisions of PAF Act, 1953, envisaged that S. 123 of the said Act is not applicable to the special laws---In that context, reference could be made to the provision of Ss. 71, 4(xi), 4(xvi) & 123 of PAF Act, 1953---In view of this legal position, the provisions of Ss. 3 & 4 of the Illegal Dispossession Act, 2005, shall prevail over the provision of S. 123 of PAF Act, 1953---Applicant had mainly stressed their prayer on the basis of decision of Cabinet Division as reflected in the Letter No. 556/ Rule-19/2024/926 dated 07-11-2024---Prior to such decision of Cabinet Division, applications had been moved by the PAF for transferring the trial to Military/Court Martial which were dismissed and the dismissal orders were not challenged before the higher forum---When the trial was in progress and the complainant and one witness had been examined before the Trial Court, the applicant/PAF came with such plea that in view of the decision of the Cabinet Division, the Trial Court had no jurisdiction and that the trial of the accused was to be conducted by the Military/Martial Court---In fact, Federal Cabinet decision's letter No.556/ Rule-19/2024/926 dated 07-11-2024 was based on the provisions of S. 124 (2) of PAF Act 1953, and R. 6(2) of Criminal Procedure (Military Offender) Rules, 1970, which were not attracted in the present case as this case was governed under the provision of S. 123 of PAF Act, 1953, read with Rr. 2 & 3 of Criminal Procedure (Military Offender) Rules,1970---Moreover, in the said letter no reference had been made to the judicial order passed by the Trial Court on 01-11-2021 in which the question of jurisdiction had already been decided and the said order was not challenged before high forum, as such the same attained finality---Moreover, said letter regarding decision of Cabinet Division was quite silent with regard to judicial orders, as such the same had no value in the eye of law--- In the circumstances, the prayer sought by PAF for handing over the case/trial of accused to Military/Martial-Court would be violative of the principle "nemo debet esse judex in propria sua causa" (no one should be judge of his own cause)---Petition filed by PAF was dismissed, in circumstances.

Shah Zaman and another v. Federal Government and another 1995 SCMR 464; Muhammad Azam v. The Sessions Judge, Jhelum and 7 others 1980 PCr.LJ 999; Brigade Commander Headquarters Field Command NLC, Karachi v. The State 1996 MLD 69; Khalil Ahmed v. District and Sessions Judge, Rawalpindi and another 1990 PCr.LJ 1744 and Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72 ref.

Government of Sindh and others v. Messrs Saif Textile Mills Ltd. and 6 others 2003 SCMR 265; Federation of Pakistan through Secretary Ministry of Communication Islamabad and another v. Shuja Sharif and others 2023 SCMR 129; Government of Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan PLD 1993 SC 375; Muhammad Ishaq and others v. Zeal Pak Cement Factory Ltd. 2024 SCMR 628; Mst. Yasmeen Akhtar and others v. The Government of Sindh through Chief Secretary and 3 others 2020 PLC (C.S.) 1249 and Imran Ahmad Khan Niazi v. Federation of Pakistan and others PLD 2024 Islamabad 155 rel.

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

----Ss. 3 & 7---Illegal dispossession---Interim possession of the property---Scope---Trial Court allowed application for handing over the interim possession under S. 7 of the Illegal Dispossession Act, 2005 to the complainant---Validity---From perusal of S. 7 of the Illegal Dispossession Act, 2005, it appeared that the Court dealing with the application under S. 7 of Illegal Dispossession Act, 2005, was authorized and had ample power to grant 'interim relief' under the said provision of law during the pendency of main application in favour of owner/occupier if during trial the Court was satisfied that the accused was prima facie not in 'lawful possession'---While dealing the matter, the conduct of the applicant/accused was also to be taken into consideration---Complaint under the Illegal Dispossession Act, 2005, was filed by complainant/respondent in the year 2018---Vide order dated 14.07.2018, inquiry report was called and after hearing the parties and in view of the inquiry report, Trial Court took cognizance and issued bailable warrants against the proposed accused to appear before the Court and furnish solvent surety of Rs.1 lac.---Letter was also sent by the Court on 28.08.2018 to J.A.G. branch of Pakistan Air Force Headquarter, in respect of the subject case, but the same was not responded to by the J.A.G. branch P.A.F. Headquarter---However, despite that applicant/accused never put his appearance before the Court, nor was represented by any counsel---Instead of appearing before the Trial Court and proceeding with the trial, the applicant/accused moved an application under S. 265-K, Cr.P.C., for his premature acquittal through his advocate which was dismissed and the said order was assailed before the High Court by means of filing a Cr. Misc. Application, which was also dismissed---In the said judgment too the High Court highlighted the conduct of the applicant/accused---Trial Court had also highlighted the unwarranted conduct of the applicant/accused in pursuing the case---In fact, the complaint under S. 3 of Illegal Dispossession Act, 2005, was filed in the year 2018 and about 06 years had passed, however, the matter could not be disposed of on account of unwarranted conduct and attitude of the proposed accused---Record showed that after taking cognizance, Trial Court repeatedly issued summons to the accused but he deliberately failed to appear---When the proceedings under Ss. 87 & 88, Cr.P.C., were initiated against the accused then he appeared and surrendered before the Trial Court---Charge was framed on 30.11.2022 and the evidence of complainant and one witness had been recorded---From perusal of the record it also appeared that all the registered documents relating to the subject property had been verified in favour of the complainant---Verification reports depicted that all such documents produced by the complainant were genuine and had been issued from the concerned office/department---Provisions of S. 7 of Illegal Dispossession Act, 2005, could be pressed, if during the Trial Court was satisfied that the accused/respondents were in unlawful possession---Petition filed by accused was dismissed, in circumstances.

Atta Rasool and 3 others v. Haji Muhammad Rafique and 2 others 2019 PCr.LJ 1023 and Noorullah v. Muhammad Farrukh and 4 others 2023 YLR Note 9 rel.

Kashif Hanif for Applicant (in Criminal Revision Application No. 25 of 2024) and for Respondent No.1 Criminal Revision Application No. 229 of 2024.

Khaleeq Ahmed, Deputy Attorney General for Pakistan, Rafique Ahmed Rajori, Additional Advocate General, Sindh and Zahoor Shah, Addl. P.G. Sindh for the State.

Amjad Hussain Qureshi for Pakistan Air Force JAG for the Applicant (in Criminal Revision Application No. 229 of 2024).

Umar Farooq for Respondent (in Criminal Revision Application No. 25 of 2024) and for Respondent No. 2, (in Criminal Revision Application No. 229 of 2024).

P L D 2025 Sindh 386

Before Khalid Hussain Shahani, J

ABDUL KHALIQUE RIND---Applicant

Versus

RAEES ALI AKBAR through L.Rs. and others---Respondents

Civil Revision Application No. S-49 of 2019, decided on 21st March, 2025.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.17, 75, 76 & 79---Suit for specific performance of agreement to sell---Execution of agreement to sell, denial of---Proof---Producing two attesting witnesses of the agreement, requirement of---Producing original copies of the documents relied upon, requirement of---Primary and secondary evidence---Principle---The petitioner (vendee) filed a suit for specific performance of agreement to sell claiming to have made part payments and that the respondent No.1 (vendor) failed to execute the final transfer of the property---The respondent (vendor) acknowledged the existence of the first sale agreement, but disputed the date, place of execution, agents, and some terms---A second agreement was executed extending the final payment deadline---Only a photocopy of the first page was submitted, whereas, pages 2 to 4 lacked signatures of parties---Trial Court dismissed the suit for lack of original documentary evidence and failure to examine attesting witnesses---The appellate court upheld this dismissal of Trial Court---Points for consideration before the High Court in the present revision petition were as to "whether the petitioner/vendee, having failed to produce the original sale agreement and examine attesting witnesses in accordance with the mandate of Qanun-e-Shahadat, 1984, could validly seek specific performance of the alleged agreements, particularly where the existence of a second agreement and compliance with contractual obligations remained unproven"---Held: Petitioner did not examine the two attesting witnesses of the agreements of sale, instead, he opted to examine his son, who was not an attesting witness, therefore, the petitioner failed to meet the evidentiary requirements stipulated under Arts. 17 & 79 of the Qanun-e-Shahadat, 1984---Petitioner neither pleaded nor provided any substantiating evidence regarding the loss or destruction of the original documents annexed with the plaint---Furthermore, no effort was made to invoke the provisions of Arts. 75 & 76 of the Qanun-e-Shahadat, 1984, which prescribed the conditions for the admissibility of secondary evidence---In the absence of adherence to these legal prerequisites, and in view of the well-established jurisprudence, the suit lacked legal sustainability on this ground alone---It is settled law that documentary evidence must be presented in its original form unless exceptional circumstances justify the reliance on secondary evidence---The petitioner's reliance on photocopies, without fulfilling the necessary legal requirements for admissibility under the Qanun-e-Shahadat, 1984, lacked evidentiary weight---Additionally, significant discrepancies in witness testimonies and inconsistencies in the documentary evidence cast serious doubt on the authenticity and enforceability of the purported agreement---Civil revision was dismissed, in circumstances.

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

----Arts. 117 & 120---Burden of proof---Scope---The burden of proof lies upon the party asserting a claim, and such a party must substantiate its case through credible and admissible evidence---Party cannot merely rely on highlighting deficiencies in the opponent's case, rather, it must independently establish its own claim through cogent and legally admissible evidence.

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

----Arts. 75 & 76(a) & 76(c)---Document---Proof---Admissibility of documentary evidence---Legal framework---Admissibility of documentary evidence necessitates the submission of primary evidence unless the exceptions outlined under Arts. 76(a) & 76(c) of the Qanun-e-Shahadat, 1984, are met---Secondary evidence is admissible only in instances where the original document is demonstrably unavailable---However, in cases where the execution and subsequent loss of the original document remain unverified, secondary evidence lacks evidentiary weight.

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

----Arts. 75 & 76---Document---Proof---Authenticity of a document, dispute over---Relying on a photocopy instead of original---Effect and scope---When the authenticity of a document is contested and the original is not produced, a certified copy cannot be relied upon as evidence---Mere presentation of a document does not automatically confer evidentiary value unless its contents are established in accordance with the requirements for primary or secondary evidence under Arts. 75 & 76 of the Qanun-e-Shahadat, 1984.

Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84 rel.

Nazir Hussain v. Amjad Hussain 2014 MLD 1100 and Syed Adnan Ashraf v. Syed Azhar-ud-Din 2014 MLD 342 ref.

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

----Arts. 75 & 76---Document---Proof---Admissibility and authenticity of a document---Principle---The submission of a photocopy, without proper verification through primary or legally recognized secondary evidence, holds no probative value---Furthermore, if a document is placed on record subject to its admissibility, yet no effort is made to establish its authenticity per Arts. 75 & 76 of Qanun-e-Shahadat, 1984, such a document cannot be deemed admissible in evidence---Documentary evidence must adhere to legal standards, and unless a document's authenticity is conclusively proven, its mere presentation before the court does not suffice to establish its evidentiary worth.

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

---Arts.75, 76, 117 & 120---Specific Relief Act (I of 1877), S.12---Photocopied version of agreement to sell, reliance on---Scope---Mere production of photocopied copies of a sale agreement, without substantiating the existence and execution of the original document, lacks evidentiary weight and cannot be relied upon as conclusive proof.

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

----S.115---Revisional jurisdiction of the High Court---Scope---Jurisdictional defect or procedural irregularity has to be identified for interference under the revisional jurisdiction---The scope of S. 115 of C.P.C. is confined to addressing jurisdictional errors and misapplications of law.

Applicant in person.

Respondents (called absent).

Abdul Waris Bhutto, Assistant Advocate General for Official Respondents.

P L D 2025 Sindh 395

Before Sana Akram Minhas, J

MENA ENERGY DMCC---Decree-Holder

Versus

HASCOL PETROLEUM LIMITED---Judgment-Debtor

Foreign Execution Application No.51 of 2019 and C.M.As. Nos. 2363, 2939 and 2940 of 2022, decided on 27th February, 2025.

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

----Ss. 44A, 47 & O. XXI, Rr. 11, 58---Foreign decree---Execution proceedings---Passing of order of attachment of assets of judgment-debtor for satisfaction of foreign decree subject to any charge or encumbrance already existing on such assets---Secured objectors/banks filed their separate objections against the order of attachment---One of the secured creditor/bank took the plea that instead of attachment of assets of judgment-debtor let it be operational in view of its precarious financial position for clearing the debts---Validity---Attachment order explicitly stated action being taken was conditional upon and subordinate to any existing legal claims, charges or mortgages on them---If there were prior claims by other parties, such claims would take precedence---Such condition was a legal safeguard ensuring that the order of attachment of assets did not interfere with pre-existing rights of other parties and that the High Court acknowledged and respected any legal claims or financial burdens that were already in place before issuing the attachment order---Enforcement of a judgment is a legal process aimed at protecting creditor's right and if the judgment debtor's financial situation was as precarious as claimed, it was unclear how continued operations would safeguard public interest better---Precarious financial position of a debtor (judgment-debtor) alone was not a ground to deny a creditor (decree-holder) its right to enforce a judgment---If such a plea was to be accepted, that would set a dangerous precedent where financially distressed entitles could indefinitely delay enforcement by merely citing their poor financial health---Secured creditors might have mutually agreed to accord a "standstill" to the judgment debtor, but such an arrangement cannot be imposed on the decree-holder, which was not a part to such an informal agreement---Objections applications were dismissed, in circumstances.

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

----S. 44A---Foreign judgment/decree---Execution---Legal entitlement of decree-holder to recover legitimate debt and impact on other creditors---Scope---Enforcement of a judgment is based on the legal right of a creditor to recover outstanding amounts---Financial impact on other creditors or depositors does not override the legal entitlement of the decree-holder to seek enforcement---Judgment debtor's financial distress cannot serve as a justification to deny the legitimate enforcement of the debt.

Ijaz Ahmed for Decree Holder.

Abdul Ahad and Khurram Ashfaq for Judgment Debtor.

Abdallah Azzaam Naqvi for Objector/Applicant (in C.M.A. No.2940 of 2022).

Rashid Anwar and Muhammad Adil Saeed for Objector/ Applicant (in C.M.A. No.2939 of 2022).

Afaq Ahmed for Objector/Applicant (in C.M.A. No.2363 of 2022).

P L D 2025 Lahore 1

Before Shahid Karim, J

AZKA WAHID---Petitioner

Versus

PROVINCE OF PUNJAB through Law and Parliamentary Affairs Department, Lahore and 3 others---Respondents

Writ Petition No. 32798 of 2023, decided on 9th April, 2024.

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

----Ss. 2(a) & 2(b) [as amended/substituted by the Punjab Child Marriage Restraint (Amendment) Act, 2015]---Constitution of Pakistan, Art. 25---Child marriage---'Child', definition of---Distinction drawn on the basis of gender while providing different ages for males and females---Constitutionality---Definition of 'child' given in Ss. 2(a) & 2(b) of the Act 1929 means a person who if a male is under 18 years of age and if a female is under 16 years of age and the punishments have been accordingly given in S. 4 of the Act 1929---Sections 2(a) & 2(b) of the Child Marriage Restraint Act, 1929 (' the 1929 Act') have been sought to be declared unconstitutional on the ground that they offend the equality clause in the Constitution of Pakistan---Held, that there is no prohibition in the Constitution on prescribing a minimum threshold for marriage and, therefore, to criminalize child marriage---Theme of the Act 1929 is to "restrain the solemnization of child marriage"; which purpose has been muddled by providing different ages for males and females for which there is no intelligible criteria---There may be a myriad of factors considered by the legislature while enacting the law---In a nub, the purpose of law is anchored primarily in socio-economic and educational factors rather than religious ones---We, as a nation, woefully lag behind in all major indicators and half of our population cannot be lost to child-bearing at an early age while its potential remains untapped---Equal opportunities for females means equal restraint on marriage as males---Thus, it is a fallacy to assume that the discourse is coloured by some underlying notions unrelated to the real purpose that permeates the law of child marriage---The difference in ages in the definition of 'child' was left unchanged in the 2015 amendments, which does not comport with the mandate of Art. 25 of the Constitution---Article 25 of the Constitution states, without equivocation, that "there shall no discrimination on the basis of sex", and the State is only permitted to make special provision for the protection of women and children---The definition of 'child' in the 1929 Act while making a distinction on the basis of age is not based on an intelligible criteria having nexus with the object of the law---Said definition is indeed a special provision for the protection of women but in the process it tends to afford greater protection to males by keeping their age of marriage higher than females---Clause (3) of Art. 25 is an instance of affirmative action, a concept of American constitutional law and introduced in our Constitution through this provision---Thus, the definition of child, in its present form, in the 1929 Act, is discriminatory---In sum, the words in S. 2(a) of 1929 Act "if a male …. and if a female is under sixteen years of age" being unconstitutional were held to be without lawful authority and of no legal effect; and were struck down---High Court directed the Govt. of Punjab (its relevant department) to issue the revised version of the 1929 Act within the next fifteen days and also upload that version on its website for information---Constitutional petition was allowed accordingly.

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

----Ss. 2(a) & 2(b) [as amended/substituted by the Punjab Child Marriage Restraint (Amendment) Act, 2015]---Constitution of Pakistan, Art. 35---Child marriage---Principle of policy---State to protect marriage, the family, the mother and the child---'Child', definition of---Distinction drawn on the basis of gender while providing different ages for males and females---Constitutionality definition of 'child' given in S. 2(a) and (b) of the Act 1929 means a person who if a male is under 18 years of age and if a female is under 16 years of age and the punishments have been accordingly given in S. 4 of the Act 1929---Child Marriage Restraint Act, 1929, (and its amendments) is a step towards fulfilment of duty by the State under Art. 35 of Constitution which provides that "The State shall protect the marriage, the family, the mother and the child"; it specifically mentions the mother and not the father---It is of crucial importance to protect marriage, the family, the mother and the child to put a restraint on child marriage yet the centre of the family, the mother, has been grossly discriminated which undermines the cogency of the constitutional scheme---It is essential for the protection of family (with the mother and the child as its more important elements) to protect a female from being subjected to child marriage---The mandate of Art. 35 was not lost on the legislature while enacting the Act 1929---But, for some reason which cannot be discerned, unmistakable partisan slant has muddled the clear stream of policy objectives animating the 2015 amendments---The difference in ages in the definition of 'child' was left unchanged in the 2015 amendments, which does not comport with the mandate of Art. 25 of Constitution---Thus, the definition of child, in its present form, in the 1929 Act is discriminatory---Words in S. 2(a) of 1929 Act that "if a male ….and if a female is under sixteen years of age" being unconstitutional were held to be without lawful authority and of no legal effect; and were struck down---High Court directed the Govt. of Punjab (its relevant department) to issue the revised version of the 1929 Act within the next fifteen days and also upload that version on its website for information---Constitutional petition was allowed accordingly.

Barrister Hamza Shahid Buttar, Barrister Daraab Wali Furqan, Abuzar Salman Khan Niazi, Osama Zafar, Tanveer Ahmad, Hannan Masood, Muhammad Naumman Sarwar and Malik Muhammad Zarif for Petitioners.

Muhammad Wazir Ali Khan, Zain Sheikh, Waqas Hafeez and Rana Muhammad Afzal Razzaq Khan for Respondent No.4.

Asad Ali Bajwa, D.A.G. and Hassan Ijaz Cheema, A.A.G. for Respondent.

P L D 2025 Lahore 7

Before Asim Hafeez, J

HUMAN RIGHTS COMMISSION OF PAKISTAN---Petitioner

Versus

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

Writ Petitions Nos.15453, 29024 and 34713 of 2024, decided on 6th September, 2024.

(a) Legislation---

----Policy---Applicability---Policy, in absence of sanction of law or legislative authorization, cannot be acknowledged as a vehicle to restrict exercise and enjoyment of qualified fundamental rights---Executive authority cannot be allowed to expropriate the rights through policy-making mechanism, unless policy is hedged by law---Rules do not extend policy making authority without sanction of law/legislative authorization.

Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 rel.

(b) Constitution of Pakistan---

----Arts. 18 & 199---Policy for Local NGOs/NPOs Receiving Foreign Contributions-2022---Constitutional petition---Policy---Sanction of law, absence of---Effect---Regulation of trade and profession---Petitioners assailed Policy for Local NGOs/NPOs Receiving Foreign Contributions 2022 on the ground that it failed to meet requirements of Art. 18 of the Constitution and Federal Government/Federal Cabinet lacked requisite legislative authorization for the purposes of framing the Policy---Validity---Constitutional scheme does not envisage exercise of legislative powers by Federal Cabinet, unless such power/authority is exercised under authority of Legislature---Act of policy making, in absence of legislative authorization, manifests encroachment in legislative domain vis-a-vis the requirements prescribed under qualifying provision of Art. 18(a) of the Constitution---No prerogative/ authority can be extended to Federal Cabinet to curtail fundamental rights through executive action, upon framing of policy, unless such action is backed by law---Assumption and exercise of powers, without legislative authorization, for regulation of trade through licensing system in the garb of Art. 18(a) of the Constitution, constitutes patent abuse of executive authority and violation of constitutional scheme of trichotomy of powers---Policy under reference could not be elevated to the status of law and Federal Cabinet could not claim concurrent powers with the legislature for the purposes of Art. 18(a) of the Constitution---Policy in question failed to meet the conditions prescribed for encumbering qualified rights, extended in terms of Art. 18(a) of the Constitution---High Court declared Policy for Local NGOs/NPOs Receiving Foreign Contributions-2022 as unlawful, invalid and of no legal effect---Constitutional petition was allowed, in circumstances.

Marie Stopes Society v. Federation of Pakistan through Federal Secretary and 4 others 2022 CLC 880; Messrs Mustafa Impex Karachi and others v. Government of Pakistan, through Secretary Finance, Islamabad and others PLD 2016 SC 808; Province of Punjab through its Home Secretary, and 3 others v. Gulzar Hassan, Advocate and 8 others PLD 1978 Lah. 1298; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692; Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 and Shoukat Ali v. Government of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 2 others PLD 2024 Isl. 135 rel.

Hina Jillani, Muhammad Saqib Jillani and Rai Asad Ahmad for Petitioners.

Ch. Imtiaz Ellahi, Deputy Attorney General for Pakistan and Aftab Ahmad Khan, Deputy Secretary Ministry of Economic Affairs for Respondents.

P L D 2025 Lahore 18

Before Mirza Viqas Rauf, J

Syed SHOUZAB IMRAN KAZMI---Petitioner

Versus

Syeda IFFAT BUKHARI and 2 others---Respondents

Writ Petition No.2521 of 2022, decided on 31st October, 2024.

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

----S. 7 [as amended by Muslim Family Laws (Second Amendment) Act (XXIX of 2021)]---Fiqah-e-Jafria---Applicability---Amendment in S. 7 was introduced through Muslim Family Laws (Second Amendment) Act, 2021, which is restricted only to Federally administered areas and it is not extended to Province of Punjab.

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

----S. 7---Family Courts Act (XXXV of 1964), S. 10(5)---Constitution of Pakistan, Art. 199---Constitutional petition---Khula---Fiqah-e Jafria---Procedure---Petitioner/husband was aggrieved of divorce on the basis of Khula pronounced by Family Court---Plea raised by petitioner/husband was that marriage between spouses relating to "Fiqah-e Jafria" could only be dissolved after recitation of "Seeghas" by husband without any influence or coercion---Validity---Wife can seek dissolution of marriage by way of Khula from Court even if her husband does not give consent for the same, and even if spouses belong to "Shia" sect---In suit for dissolution of marriage on failure of reconciliation proceedings, Family Court under section 10 (5) of Family Courts Act, 1964 immediately passes decree for dissolution of marriage and in case of dissolution of marriage through Khula, may direct wife to surrender upto fifty percent of her deferred dower or upto twenty five percent of her admitted prompt dower to husband---No clog can be imposed upon power of Family Court to dissolve marriage on the basis of Khula, when reconciliation is not possible---High Court declined to interfere in judgment and decree passed by Family Court, which while dissolving marriage through Khula in exercise of powers conferred under section 10(5) of Family Courts Act, 1964 did not commit any illegality---Constitutional petition was dismissed, in circumstances.

PLD 2022 FSC 25; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Mst. Maryam Bano v. Hussain Ali and another 1984 CLC 1961; Syed Azharul Hassan Naqvi v. Hamida Bibi alias Eshrat Jahan and 3 others 1987 CLC 1041; The State v. Syedda Salma Begum and another PLD 1965 (W.P.) Kar. 185 and Syed Asad Raza Naqvi v. Mst. Saima Fatima and another 2014 MLD 254 distinguished.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lahore 566; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Haji Saif-ur-Rahman Shaheen v. Islamic Republic of Pakistan through Attorney General of Pakistan, Islamabad and 4 others PLD 2024 FSC 9; Khurram Shehzad v. Federation of Pakistan through Ministry of Law and Justice Commission of Pakistan Islamabad and another PLD 2023 FSC 286; Surah-Al-Baqarah verse 229; Abul Ala Maududi, Tafhim-al-Qur'an; Muhammad Asad, The Message of The Qur'an; Muhammad Taqi Usmani, The Noble Quran; Sayyid Mohammad Hossein Tabataba'i, Tafsir-al-Mizan; Mt. Umar Bibi v. Mohammad Din AIR (32) 1945 Lahore 51; Mst. Sayeeda Khanam v. Muhammad Sami PLD 1952 Lah. 113; Mst. Balqis Fatima v. Najam-ul-Ikram Qureshi PLD 1959 (W.P.) Lahore 566 and Syed Sajid Hussain Abidi v. Iram Shehzadi Abidi and others PLD 2023 Lah. 38 rel.

Syed Muddasir Abbas Kazmi for Petitioner.

Syeda Nida Zahra for Respondent No.1.

Khalid Ishaque, Advocate General Punjab for Respondents Nos.5 and 7.

Ch. Imran Hassan Ali, Amicus Curiae.

P L D 2025 Lahore 40

Before Ahmad Nadeem Arshad, J

Mst. RAZIA BEGUM---Petitioner

Versus

PUBLIC AT LARGE and others---Respondents

Civil Revision No. 44347 of 2023, decided on 1st October, 2024.

(a) Words and phrases---

----Nominee---Meaning and scope---A "nominee" is typically defined as a person or entity designated to act on behalf of another, particularly in legal or financial matters---Nominee may hold assets for the benefit of the actual owner, indicating a fiduciary relationship---Nominee is "a party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others"; "nominee" is "a person who has been formally suggested for a job, a prize etc.

(b) Insurance Ordinance (XXXIX of 2000)---

----S.72---Life Insurance Policy---Nominee, status of---Nomination merely confers a right to collect the money or to "receive the money"; it does not operate either as a gift or as a will and, therefore, cannot deprive the other heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased---Thus, the nominee collects as a trustee for the benefit of all persons entitled to inherit from the deceased employee---Nomination merely confers a right to collect the money or to receive the money and it does not operate as a gift or as a will and, therefore, cannot deprive the legal heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased propositus---Thus, the nominee collects as a trustee for the benefit of all persons entitled to inherit from the deceased propositus.

Mst. Amtal Habib and others v. Mst. Musarat Parveen and others PLD 1974 SC 185; Malik Safdar Ali Khan and another v. Public At Large and others 2004 SCMR 1219; Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Postal Life Insurance (PLI) and others v. Muhammad Ishaque Butt 2022 CLD 309 ref.

(c) Insurance Ordinance (XXXIX of 2000)---

----S. 72---Life Insurance Policy, proceeds of---Tarka---Scope---Nominee assigned by the deceased---Scope and effect---Deceased in his lifetime purchased an insurance policy wherein he nominated his wife as his nominee---Mother of the deceased filed an application for issuance of succession certificate, which was concurrently declined---Claim of the petitioner (being mother of the deceased) was that she was entitled to inherit 1/6th share of the insurance policy amount, whereas, respondent (wife/widow) denied her right on the ground that being nominee she was solely entitled to receive the whole insurance policy amount---Deceased left behind mother (petitioner), widow (respondent/ nominee), a daughter and two sons (respondents)---Courts below non-suited the petitioner on the ground that the amount of the Insurance Policy did not fall within the ambit of "Tarka", which was not liable to be inherited by the legal heirs and only the nominee was entitled to receive the amount of said Life Insurance Policy---Whether the amount of Life Insurance Policy falls within the ambit of "Tarka" and is liable to be distributed amongst the legal heirs of the deceased propositus or not?---Held, that the status of the amount of Life Insurance Policy was not described in the insurance documents---However, S. 72 of the Insurance Ordinance, 2000, provides that the policy holder, when effecting the policy or at any time before the policy matures for payment, may nominate a person or persons as nominee to whom the money secured by the policy shall be paid in the event of the death of the insured person---Section 72 of the Ordinance, 2000, authorizes and empowers the policy holder to nominate a person or persons to whom the money secured by the policy shall be paid in the event of his death, but this provision of law does not exclude the legal heirs to inherit the assets, including the policy proceeds of the deceased according to the principle of Muhammadan Law, because there is a Constitutional guarantee enunciated in the Constitution of Pakistan that no law can be made which is contrary to the Injunctions of Quran and Sunnah---It is a Quranic injunction that the legal heirs of a Muslim deceased will inherit their assets according to the principle of Muhammadan Law, therefore, the nominee is only supposed to collect the policy proceeds and to disburse the same among the legal heirs, and further the nominee in any case shall not exclude or deprive the legal heirs of the fruits of the policy---Thus, the Insurance Policy proceeds fall within the definition of "Tarka" of the policy holder after his death---Both the Courts below had erred in law while dismissing the succession petition of the petitioner and had failed to properly appreciate the question involved in the lis as the present case related to Life Insurance Policy and the nominee was appointed by the nominator just to fulfill the legal requirement of S. 72 of the Insurance Ordinance, 2000---High Court set-aside the impugned judgments of the Courts below, and the petitioner, being mother of the deceased, was held entitled to receive her due share out of the policy proceeds---Revision petition, filed by mother of deceased was allowed accordingly.

Muhammad Umar v. IGI and others 2023 CLD 420 ref.

Mst. Rabia Qavi and others v. Mst. Hina Qavi Khan and

others PLD 2020 Sindh 263; Mirza Muhammad Ameen and others v. Government of Pakistan PLD 1982 FSC 143 and Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 distinguished.

(d) Insurance Ordinance (XXXIX of 2000)---

----S. 72---Life Insurance Policy, proceeds of---Tarka---Nominee assigned by the deceased---Scope and effect---Deceased in his lifetime purchased an insurance policy wherein he nominated his wife as his nominee---Mother of the deceased filed an application for issuance of succession certificate, which was concurrently declined---Claim of the petitioner(being mother of the deceased) was that she was entitled to inherit 1/6th share of the insurance policy amount, whereas, respondent (wife/widow) denied her right on the ground that being nominee she was solely entitled to receive the whole insurance policy amount---Deceased left behind mother (petitioner), widow (respondent/ nominee), a daughter and two sons (respondents)---Courts below non-suited the petitioner on the ground that the amount of the Insurance Policy did not fall within the ambit of "Tarka", and was not liable to be inherited by the legal heirs and only the nominee is entitled to receive the amount of said Life Insurance Policy---Legality---Admittedly, when a person secures Insurance Policy he makes certain payments from time to time as per the schedule from his pocket and on the maturity of Policy in his lifetime, he is entitled to receive the same---Moreover, as per subsection (2) of S. 72 of Insurance Ordinance, 2000, the Policy holder can change the nominee or cancel the nomination at any time before maturity of the policy---It is further provided in the subsection (5) of S. 72 of the Ordinance 2000 that in the event of death of the nominee or the nominees before the policy matures the amounts secured by the policy shall be payable to the legal heirs of the deceased policy holder or legal representatives, or the holder of a succession certificate, as the case may be---It is nowhere mentioned that after the death of nominee the amount would be disbursed amongst the legal heirs or legal representatives of the nominee---Hence, it clarifies that the nomination shall not operate as a gift or will because had the nomination been a gift or will, then after the death of the nominee the amount would devolve on the heirs of nominee rather than the heirs of policy holder---Both the Courts below had erred in law while dismissing the succession petition of the petitioner and had failed to properly appreciate the question involved in the lis as the present case related to Life Insurance Policy and the nominee was appointed by the nominator just to fulfill the legal requirement of S. 72 of the Insurance Ordinance, 2000---High Court set-aside the impugned judgments of the Courts below, and the petitioner, being mother of the deceased, was held entitled to receive her due share out of the policy proceeds---Revision petition, filed by mother of deceased was allowed accordingly.

(e) Insurance Ordinance (XXXIX of 2000)---

----S. 72---Life Insurance Policy, proceeds of---Tarka---Nominee assigned by the deceased---Scope and effect---Deceased in his lifetime purchased an insurance policy wherein he nominated his wife as his nominee---Mother of the deceased filed an application for issuance of succession certificate, which was concurrently declined---Claim of the petitioner (being mother of the deceased) was that she was entitled to inherit 1/6th share of the insurance policy amount, whereas, respondent (wife/widow) denied her right on the ground that being nominee she was solely entitled to receive the whole insurance policy amount---Deceased left behind mother (petitioner), widow (respondent/ nominee), a daughter and two sons (respondents)---Courts below non-suited the petitioner on the ground that the amount of the Insurance Policy did not fall within the ambit of "Tarka", and was not liable to be inherited by the legal heirs and only the nominee was entitled to receive the amount of said Life Insurance Policy---Legality---Concept of nominee is alien to Muslim Law, according to which the legal heirs are the only persons entitled to receive the property left by their predecessor and no Muslim heir can exclude the other heir on the ground that he is a nominee---A nominee, if appointed, does not become the sole owner of the assets left by the deceased but he/she is only authorized to collect the amount or to hold the property of the deceased as an administrator and then to distribute the same amongst all the legal heirs---The nomination does not make the nominee as donee nor the nomination amounts to a gift, in the absence of delivery of possession of the property gifted---The nominee cannot claim as exclusive owner the amount of the insurance policy---In the light of Muslim Law of Inheritance, all the legal heirs of the deceased are entitled to receive the property ("Tarka") left by the deceased, according to their shares---Both the Courts below had erred in law while dismissing the succession petition of the petitioner and had failed to properly appreciate the question involved in the lis as the present case relates to Life Insurance Policy and the nominee was appointed by the nominator just to fulfill the legal requirement of S. 72 of the Insurance Ordinance, 2000---High Court set-aside the impugned judgments of the Courts below, and the petitioner, being mother of the deceased, was held entitled to receive her due share out of the policy proceeds---Revision petition, filed by mother of deceased was allowed accordingly.

Muhammad Alamgir Khan for Petitioner.

Akhtar Saeed Bhatti for Respondents Nos. 2-5.

Barrister Humayun Faiz for Respondent No.6.

P L D 2025 Lahore 51

Before Shahid Karim, J

IKHLAQ HAIDER CHATTHA---Petitioner

Versus

CARETAKER CHIEF MINISTER PUNJAB and others---Respondents

Writ Petitions Nos. 10992 of 2023 (and other connected Petitions), decided on 7th June, 2023.

(a) Elections Act (XXXIII of 2017)---

----S.230(2)(a)---Punjab Land Revenue Act (XVII of 1967), S.6---Constitution of Pakistan, Art. 224---Caretaker Government/Cabinet---Functions, mandate and primary role---Interference by the Caretaker Cabinet in major policy decisions taken by the elected Government---Effect---Notification issued by elected Government qua creation of new district Wazirabad in Gujrat Division was suspended through subsequent notification issued by the Governor pursuant to decision taken by the Caretaker Cabinet after dissolution of Provincial Assembly of Punjab---Validity---Notification issued by an elected government creating a new district of Wazirabad could not have been suspended by the Caretaker Government as it was tantamount to taking a major policy decision on an issue which was not an urgent matter within the contemplation of S.230(2)(a) of the Elections Act, 2017 (Act, 2017) and it also had the unpalatable effect to influence the elections and adversely affect the free and fair elections---Notification issued by Caretaker Government was liable to generate controversy and was certainly not an activity of a routine nature to be within the competence of the Caretaker Government and it did not spell out any reasonable objective which prompted the Caretaker Cabinet to take such decision which was clearly beyond the scope of the armoury of powers of the Caretaker Cabinet and cast doubt on the purpose for which the decision was taken---Constitutional petition was allowed, in circumstances.

2013 SCMR 1205 rel.

(b) Elections Act (XXXIII of 2017)---

----S. 230---Label "Caretaker"---Denotation---Powers of "Elected Cabinet" and "Caretaker Cabinet"---Scope and extent---Label "Care-taker" merely denotes a cabinet for a short duration constituted under peculiar circumstances and to fulfil a constitutional mandate---Distinction between the Elected Cabinet and a Caretaker Cabinet does not lie in the use of powers under the Constitution or the laws but in making decisions while using those powers and which must be limited to the purpose underlying their establishment, thus, although Caretaker Cabinets exercise the same range of powers, their actions and decisions must comport with and not detract from their primary role as tenants of a regime infused with the exalted and core ingredients of neutrality and impartiality---Every power has legal limits and the powers of a Caretaker Cabinet are more limited than an elected cabinet---Section 230 of the Elections Act, 2017, is an expression of the need to fence the decision-making powers of a Caretaker Cabinet and this concept is wedded to the notion of a Caretaker Cabinet which is obliged to act compatibly with the role assigned to it and to remain within the confines of its statutory powers.

(c) Constitution of Pakistan---

----Arts. 218, 219 & 220---Elections Act (XXXIII of 2017), S.230---Election Commission of Pakistan (ECP)---Decision making process undertaken by the Caretaker Cabinet---Role of ECP---Scope---It is the duty of ECP to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly and fairly---Cumulative reading of Arts.218, 219 & 220 of the Constitution read with S.230 of the Act-2017 shows that ECP exercises an overarching power over a Caretaker Cabinet during the time it is in place and whose sole object is to assist ECP to hold elections in accordance with law---No other role has been envisaged either by the Constitution or the law to inhere in a Caretaker Cabinet---ECP has to engage proactively with a Caretaker Cabinet to supervise and oversee the decision-making process by a Caretaker Cabinet on its own volition and without instigation by the superior courts---Constitution vests enormous powers in ECP to do so and under Art.220 of the Constitution it is the duty of all executive parties in the Federation and in the Provinces to assist ECP in the discharge of its functions, thus, ECP has to keep a close eye on all decisions being taken by a Caretaker Cabinet and to correct them if the Caretaker Cabinet falls outside its jurisdiction in any manner or takes decisions which infringe the mandate of S.230 of the Act, 2017---Transgression of powers by the Caretake Cabinet is impermissible---Election Commission of Pakistan must come alive to its duty to rein in on the Caretaker Cabinet if it is found to be disloyal to its mandate and primary role.

Tipu Salman Makhdoom, Mubeen ud Din Qazi, M. Akbar Baba, Moeen Ahmed, Muhammad Arshad Kundi, Mirza Saleem Baig, Mian Najam us Saqib, Ali Raza Warraich, Muhammad Ayub Khan, Saeed Ahmad Cheema, Arslan Nawaz Cheema, Muhammad Yasir Ibrahim, Ahmad Raza Khalid, Rana Muhammad Afzal Razzaq Khan, Ch. Tahir Mahmood, Ahmad Sardar Khan Niazi, Rohail Rahman Qazi, Zubair Ali Butt, Ch. Sabir Ali, Dr. Zia Ullah Ranjha, Muhammad Usman Gondal, Waseem Abbas, Umar Sameed, Bilal Rasheed and Muhammad Naeem Chaudhry for Petitioners.

Ms. Sheeba Qaiser, A.A.G. with Ch. Muhammad Umer, Director Legal, ECP, Muhammad Haroon Kasi, Director Law, ECP and Saif Ahmad Bhatti, Law Officer, BoR for Respondents.

P L D 2025 Lahore 57

Before Jawad Hassan, J

Messrs SADIQ POULTRY (PRIVATE) LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos.498 of 2022 and 1633 of 2024, heard on 9th September, 2024.

(a) Competition Act (XIX of 2010)---

----Ss. 30 & 37---Punjab Environmental Protection Act (XXXIV of 1997), S. 16---Issuance of Show Cause Notice---Competition Commission of Pakistan---Powers and functions---Petitioners (engaged in running businesses) invoked constitutional jurisdiction of the High Court assailing Show Cause Notices ("impugned notices") issued by the Competition Commission of Pakistan (CCP) to protect the regime of antitrust law---Section 30 (1) and (2) of Competition Act, 2010 ('the Act 2010'), is perimetria to S.16 of the Punjab Environmental Protection Act, 1997 wherein the Authority, Commission or Agency has to be satisfied of contravention of provision of the Punjab Environmental Protection Act, 1997, before making any proceedings in the case but such satisfaction cannot be done unless subsection 30(2) of the Act 2010 is invoked and thus it has to be read first as the Competition Commission of Pakistan (CCP) has to give notice of intention to make order and to give the undertaking an opportunity to be heard in detail---Section 30(2) of the Act 2010 then comes into play with the notice issued by the CCP with its intention to make orders stating reasons to the undertaking of contravention with some material which the CCP based it on; it then has to sit with the respondents and clarify whether there is any contravention of the provision of the Act 2010 and such notice issued under this section has to be read with S. 37(4) of the Act 2010 as per enquiry initiated under S. 37 of the Act 2010, which had already been done by the CCP in the present case---Language of S. 30(2) of the Act 2010 is very clear which states that the CCP first shall serve notice of its intention stating reasons to the undertaking and by giving an opportunity of being heard with supportive material whereas as per proviso to S. 30(2), the CCP can decide the case ex-parte in case the undertaking does not avail the opportunity of being heard---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

(b) Competition Act (XIX of 2010)---

----Ss. 28, 30 & 37---Competition Commission of Pakistan initiating enquiries on its own---Powers of---Section 28 of the Competition Act, 2010 ('the Act 2010') while delineating the functions and powers to the Competition Commission of Pakistan ('CCP'), empowers it (CCP) to initiate 'proceedings' in accordance with the procedures of the Act 2010---Section 28 of the Act 2010 explicitly states that the CCP may conduct enquiries into the affairs of any undertaking as may be necessary for the purposes of the Act 2010---Said broad mandate underscores the CCP's role as a proactive regulator, capable of initiating investigations to promote competition and prevent anticompetitive behavior---Section 30(1) of the Act 2010 empowers the CCP to make orders in cases of contravention of the provisions of Chapter II; it mandates that the CCP must adopt due process by providing notice of its intention to make such an order, thereby ensuring that the undertaking has an opportunity to be heard---This procedural safeguard is essential for maintaining fairness and transparency in the regulatory process---However, it is crucial to note that the initiation of an enquiry under S. 37 of the Act 2010 does not equate to a formal proceeding under S. 30 of the Act 2010, as the latter involves potential penal consequences---Section 37 of the Act 2010 is particularly pertinent to the CCP's authority to conduct enquiries---Subsection (1) of S. 37 of the Act 2010 empowers the CCP to initiate enquiries on its own or upon a reference from the Federal Government; this provision is significant as it allows the CCP to act independently, without waiting for a complaint or external prompting---Under S. 37 of the Act 2010, enquiries and studies are independent tools employed by the CCP to collect and assess information on market trends---Importantly, such enquiries do not constitute an adverse action or a formal proceeding under S. 30 of the Act 2010---CCP can initiate inquiries on its own accord under S. 37(1) of the Act 2010, which allows it to address potential violations proactively---CCP has authority to initiate enquiries based on its own assessment of market conditions, thereby enhancing its regulatory effectiveness---Thus, the Act 2010 does not pose any embargo upon CCP rather it empowers the commission to initiate enquiries on its own against any undertaking to serve the purposes of the Act 2010---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

Dalda Foods Limited v. Competition Commission of Pakistan 2023 SCMR 1991 and A. Rahim Foods (Pvt.) Limited Competition Commission of Pakistan v. K&N'S Foods (Pvt.) Limited and others PLD 2023 SC 516 ref.

(c) Competition Act (XIX of 2010)---

----S. 30---Constitution of Pakistan, Art. 199---Constitutional petition---Issuance of Show Cause Notice, assailing of---Jurisdiction of Competition Commission of Pakistan, non-challenging of---Effect----Jurisdiction of Competition Commission of Pakistan (CCP) to issue the "impugned notices" had not been agitated by the petitioners---Petitioners has not controverted or challenged the authority of the CCP to issue 'notice' so no question of issuance of show cause notice without valid jurisdiction arises in any manner for maintainability of instant petition---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

(d) Competition Act (XIX of 2010)---

----Ss. 28, 30 & 37---Constitution of Pakistan, Art. 199---Issuance of Show Cause Notice by Competition Commission of Pakistan, assailing of---Constitutional petition---Maintainability---Whether extraordinary jurisdiction of the High Court can be determinatively applied where the 'injury' is not actual rather perceived in the form of mere issuance of show cause notice---Held, that contents of impugned notices issued by the Competition Commission of Pakistan (CCP) revealed that the petitioners (businessmen) had only been called upon to show cause in writing and to appear and place before the CCP, facts and material in support of their contentions and to avail the opportunity of hearing---Show Cause Notice is delivered to a person by an authority in order to get the reply back with a reasonable cause as to why a particular action should not be taken against him with regard to the defaulting act---By and large, it is a well-defined and well-structured process to provide the alleged defaulter with a fair chance to respond to the allegation and explain his position within reasonable timeframe"---Therefore, a show cause notice is not a testament of an adverse proceeding against a party rather it is an intimation of initiation of a process, which requires certain answers and clarifications from the party addressed---As such a show cause notice is not and ought not to be a culmination of unfavorable determination against the party but it is, and it must be adopted as a mode of opportunity to enable the party to provide explanation of certain facts or missing information as required by the relevant law in a case where shortcomings or omissions thereof surface or are noted either through the enquiry, tentative or otherwise, or by information received by the department in any other manner---Petitioners should have responded to the show-cause notice before seeking intervention, as this practice undermines the department's ability to proceed with cases effectively---Thus, mere issuance of a show cause notice is not an adverse order---Since through the "impugned notices" a chance was given to the "petitioners" to appear and produce evidence/material in response to the allegations levelled in the "enquiry report" therefore, the petitioners' grievance was not actual rather it was perceived---Present constitutional petition was filed against the "impugned notices" by the petitioners, which was not an adverse order and they had agitated an injury which was neither actual nor immediate rather was perceived and suppositious---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

Commissioner Inland Revenue and others v. Jahangir Khan Tareen and others 2022 SCMR 92; Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Ltd. 2008 SCMR 308 and Abdul Razzaq v. Lahore Development Authority through Director General and another 2017 PLC (C.S.) Note 2 ref.

(e) Words and phrases---

----'Show cause' notice---Definition.

(f) Words and phrases---

----Show cause notice---Meaning and scope---Term Show Cause Notice is a formal communication that informs the recipient of alleged legal violations and provides them an opportunity to respond, embodying the principles of natural justice and due process, which ensures a fair hearing and protection of rights before any adverse action is taken.

Commissioner Inland Revenue, Lahore v. Messrs Millat Tractors Limited, Lahore and others 2024 SCMR 700 ref.

(g) Constitution of Pakistan---

----Art. 199---Issuance of a Show Cause Notice, assailing of---Constitutional petition---Maintainability---Mere issuance of a show cause notice does not amount to an adverse action; and a constitutional petition against a show-cause notice is not maintainable unless such a notice has been issued without lawful authority, is wholly without jurisdiction, coram non judice or is based on mala fides.

Saeed Ahmad and others v. Chairman O.G.D.C.L. and others 2020 PLC 27 ref.

(h) Constitution of Pakistan---

----Art. 199---Issuance of show cause notice, assailing of---Constitutional petition--- Maintainability--- Principles regarding maintainability of constitutional petition against mere issuance of show cause notice are: (i) Show Cause Notice is not an adverse order unless it could be clearly shown to the satisfaction of the Court that it has been issued by an authority not vested with jurisdiction or it was issued for mala fide reasons; (ii) The exception relating to want of jurisdiction does not include every jurisdictional error; a wrong exercise of jurisdiction or interpretation of the law cannot be treated as want of jurisdiction;(iii) Constitutional jurisdiction is exercised if the Court is satisfied that the person is an 'aggrieved party' within the context of Art. 199 of the Constitution and no adequate remedy is provided by law; if adequate statutory remedies are provided under the relevant statute, it is to be taken into consideration while exercising discretion under Art. 199 of the Constitution; (iv) By passing or circumventing statutory forums is to be discouraged; (v) The approach should be to advance the object and purpose of a statute and every effort should be made to uphold the sanctity of the legislative intent rather defeating it.

Strategic Plans Division and another v. Punjab Revenue Authority and others PLD 2024 Lah. 545 ref.

(i) Competition Act (XIX of 2010)---

----Ss. 30 & 37---Constitution of Pakistan, Art.199--- Issuance of Show Cause Notice by Competition Commission of Pakistan, assailing of---Constitutional petition---Maintainability---Doctrine of ripeness---Petitioners (engaged in running businesses) invoked constitutional jurisdiction of the High Court assailing Show Cause Notices ("impugned notices") issued by the Competition Commission of Pakistan (CCP) to protect the regime of antitrust law---Validity---Approach of the petitioners was contradictory to the doctrine of ripeness; this doctrine is also a determinative parameter for maintainability and merit adjudication of a constitutional petition within the bound of Art. 199 of the Constitution---Term 'ripeness' has been defined in Blacks' Law Dictionary, 11th Edition, as 'The state of a dispute that has reached, but has not passed the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made'---Principle of ripeness is grounded in the notion that judicial resources must be preserved, ensuring that Courts engage only with disputes that are actual and immediate; it reflects the view that Courts should concern themselves with tangible, present, or imminent issues, avoiding the exhaustion of their efforts on abstract or perceived questions layered in probabilities and apprehensions; as such, judicial intervention is discouraged in matters that, at least for the time being, do not bear a direct or substantial impact on the parties involved---Therefore, present constitutional petitions, in the instant point of time, are contradictory to the doctrine of ripeness and prematurity---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

(j) Jurisdiction---

----Doctrine of ripeness---Applicability and significance---Doctrine of ripeness ensures that Courts avoid premature adjudication by requiring disputes to be concrete and focused, preventing abstract disagreements over policies---This principle protects agencies from judicial interference until their decisions are formalized and felt by the challenging parties, allowing Courts to benefit from agency expertise and a developed record.

(k) Interpretation of statutes---

----Preamble---Preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens before the Court the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law---Preamble of a statute, therefore, holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447; Dilsons (Private) Limited and others v. Security and Exchange Commission of Pakistan and another 2021 CLD 1317; A. Rahim Foods (Pvt.) Limited and another v. K&N'S Foods (Pvt.) Limited and others 2023 CLD 1001; Competition Commission of Pakistan and others v. Dalda Foods Limited, Karachi 2023 SCMR 1991 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others 2021 CLD 214 ref.

(l) Competition Act (XIX of 2010)---

----Ss. 28, 30 & 37---Constitution of Pakistan, Art. 199---Issuance of Show Cause Notice by Competition Commission of Pakistan, assailing of---Constitutional petition---Maintainability---Issuance of the "impugned notices" is an initial yet primary step of the process to ensure fair opportunity, which is also akin to probability of mediation---Therefore, the constitutional petitions, in the instant point of time, were contradictory to the doctrine of probability of mediation---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

Commissioner Inland Revenue v. Messrs RYK Mills 2023 SCMR 1856 ref.

(m) Competition Act (XIX of 2010)---

----Ss. 30, 37, 41, 42 & 44---Constitution of Pakistan, Art. 199---Issuance of Show Cause Notice by Competition Commission of Pakistan, assailing of---Constitutional petition---Maintainability---Alternate and efficacious remedy not availed---It was an opportunity for the petitioners to explain their position and if they did so, the impugned notices were and ought to be deemed satisfied without any further adverse action---As the matter had not ripened under Chapter IV of the Competition Act, 2010, under which certain powers had been given to the Regulator to decide the matter and once it was decided by the CCP, the petitioners had the remedies under S. 41 of the Act 2010 by way of an appeal before the Appellant Bench of the Commission and an appeal to the Competition Appellate Tribunal under S. 42 of the Act 2010, and further appeal to the Supreme Court under S. 44 of the Act 2010, and such remedies had not been exhausted by the petitioners---If a Regulator is barred from exercising any of such functions, the purpose of law will not only be compromised but the intent behind making of such law will also be jeopardized---Moreover, if the Court starts interfering at initial steps of the Regulator for not initiating inquiry, then it will create hurdle for the Regulator to proceed in the matter to protect the very purpose and object of law---In presence of availability of an alternate efficacious remedy, jurisdiction of the High Court under Art. 199 of the Constitution cannot be invoked---High Court directed the petitioners to file their replies by agitating all points raised in these petitions before the CCP who shall proceed ahead with an objective approach to the matter strictly as per law---Constitutional petitions were disposed of accordingly.

Chenab Flour and General Mills v. Federation of Pakistan and others PLD 2021 Lah. 343 ref.

(n) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate and efficacious remedy---High Court, before granting relief to a Petitioner by exercising its extraordinary jurisdiction under Art. 199 of the "Constitution", must satisfy itself regarding the non-availability of any alternate remedy, or in case Court is inclined to grant relief even in presence of alternate remedy, Court should be satisfied that circumstances of the case make the other remedy inadequate---In presence of availability of an alternate efficacious remedy, jurisdiction of the High Court under Art. 199 of the Constitution cannot be invoked.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. Station House Officer Bhara Kahu and 7 others PLD 2010 SC 969 ref.

Sardar Taimoor Aslam Khan, Advocate Supreme Court with Uzair Shafie, Barrister Jahanzeb Awan and Arshad Mahmood, Muhammad Imran Malik, Advocate Supreme Court with Aakif Majeed Butt, Hassan Ismail and Asim Tufail Farooqi for the Petitioner (in connected W.P. No. 1633 of 2024).

Sajid Ilyas Bhatti, Additional Attorney General with Arshad Mahmood Malik, Assistant Attorney General, Barrister Asadullah Chattha and Barrister Ambreen Abbasi for Respondents/ Competition Commission of Pakistan with Hafiz Nasim, Senior Legal Advisor along with Musa Hayat Tarar, Adeel Peter and Hassan Raza, Legal Advisor for Competition Commission of Pakistan.

P L D 2025 Lahore 79

Before Asim Hafeez, J

NIAGARA MILLS (PVT.) LIMITED and others---Petitioners

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION (PCBL) and others---Respondents

Cooperative Petitions Nos. 1993, 1997 of 2022, 69526 and 62924 of 2021, decided on 20th September, 2024.

(a) Punjab Undesireable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 7(s)---Judicial Officer---Powers---Scope---Powers extended to Judicial Officer, to act as delegatee of Cooperatives Board, are not in the category of delegation of legislative powers---Notwithstanding conferment of quasi-judicial powers, Judicial Officer cannot claim attributes and features of Court---Performance of quasi-judicial functions by itself does not convert Authority or Tribunal into a Court---Status of Judicial Officer is that of an agent, albeit an officer authorized by Cooperatives Board to act as its delegatee, to exercise power of determination regarding rights claimed and statutory obligations ought to be enforced.

Government of the Punjab through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25; Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others 2005 SCMR 126 and Commissioner of Income Tax, East Pakistan, DACCA v. Wahiduzzaman PLD 1965 SC 171 rel.

(b) Punjab Undesireable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 7 & 11---Judicial Officer and Cooperatives Board---Functions---Distinction---Judicial Officer and Cooperatives Board are not mutually exclusive entity(ies) in the context of division of powers, though former isalter ego of the latter, but upon distribution, powers available with Cooperatives Board and those delegated may be termed mutually exclusive, for the purposes of achieving objectives and purpose of the law---Status of delegatee, in the context of exercise of delegated power has been acknowledged under S.11 of Punjab Undesireable Cooperative Societies (Dissolution) Act, 1993---This is the power of determination of rights claimed against Cooperatives Board.

(c) Jurisprudence---

----Law, to survive, has to be logical.

(d) Words and phrases---

----Functus officio---Applicability---Doctrine of functus officio is attracted once the matter/task has been finalized and accomplished and not otherwise.

Kh. Muhammad Fazil v. Mumtaz Munawar Khan Niazi (deceased) through L.Rs and another 2024 SCMR 1059 rel.

(e) Punjab Undesireable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 7 & 11---Civil Procedure Code (V of 1908), S.11---Punjab Cooperative Board for Liquidation (PCBL)---Annulment of sale transaction---Principle of res judicata---Applicability---Judicial Officer, powers of---Principle of finality---Fraud---Effect---Petitioners were aggrieved of order passed by Judicial Officer annulling transaction of disposal/sale of land in question and cancelling sale deeds executed in their favour---Validity---Restrictions in terms of S. 11, C.P.C. have to be read and interpreted with reference to the Court---Cooperatives Board was competent to seek reconsideration of approval to sale---Cooperatives Board was not a Court, hence not obligated to adhere to provisions of Evidence Act (Qanun-e-Shahadat, 1984) and Civil Procedure Code, 1908 or subject to constraints provided therein---Re-opening of transaction of sale required substantive and convincing information regarding fraud---To create exception to principle of finality, fraud must be established---In the present case facts adequately proved fraud, and Judicial Officer had rightly exercised jurisdiction to annul the sale---Facts establishing fraud need to be amplified and focused for the purposes of confirming decision of Judicial Officer, in terms of section 11 of Punjab Undesireable Cooperative Societies (Dissolution) Act, 1993---Once bid lower than base price was rejected there was no justification to accommodate first petitioner, after 10 months, by entertaining offered price lower than the valuation of property discussed in the meeting held earlier---Absence of time-limit for deposit of 75% of bid price was fatal and there was no explanation that why ex-management proceeded to extend approval without settling of terms and conditions of sale---Change of heart from decision of selling through public auction to alleged sale by way of negotiation/private treaty remained a mystery---No explanation was provided to justify any exception---Such gross illegalities could not be swept under the carpet---Management at relevant time erred while granting approval previously, in wake of blatant illegalities and irregularities, allowing execution of sale deeds hastily without adhering to any schedule for payment of 75% of the bid price---Grant of previous approval suffered from wrongful exercise of authority---High Court declined to interfere in the order passed by Judicial Officer annulling the sale in question---Petition was dismissed, in circumstances.

Telecard Limited through Authorized Representative v. Pakistan Telecommunication Authority through Chairman 2014 CLD 415; Muhammad Ashraf Khan and 2 others v. Muhammad Khan and 9 others 2004 CLC 1133; Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others 2013 SCMR 338; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; PCBL v. Zeenat Bibi and others 2020 YLR 2421; Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others 2006 SCMR 129 Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Mrs. Sultana Ahmed v. Sindh Industrial Trading Estate Ltd through Managing Director and 2 others 2003 YLR 1760; Punjab Cooperative Board of Liquidation through Chairman v. Muhammad Ilyas PLD 2014 SC 471; Muhammad Hayat and 6 others v. Muhammad Nawaz 1971 SCMR 414; Malik Muhammad Ashraf v. Director Excise and Taxation, Motor Vehicle Registration Authority, Islamabad 2017 YLR 1136; Ch. Latif Akbar, Former Finance Minister, Azad Government of The State of Jammu And Kashmir Muzaffarabad and 8 others v. Azad Government of The State Jammu and Kashmir through Chief Secretary and 10 others PLD 2017 HC (AJ&K) 32) and Bhag Mal v. Muhammad Sharif and 2 others 1991 SCMR 2118 ref.

Fazli Hakeem and another v. Secretary State and Frontier Regions Division Islamabad and others 2015 SCMR 795; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331 rel.

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

-----S. 11---Res judicata, doctrine of---Exception---Fraud is an exception to doctrine of res-judicata---Right of review of any order/decision of Court or quasi-judicial tribunal is not available in absence of statutory provision but cases of fraud, mala fide and defect of jurisdiction stand on different footing.

Muhammad Sharif through legal heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221 and Muhammad Raqeeb v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others 2023 SCMR 992 rel.

Taffazal Haider Rizvi, Haider Ali Rizvi and Benish Sikandar for Petitioners.

Ashtar Ausaf Ali and Asad Rahim for Petitioners (in C.P. No. 62924 of 2021).

Barrister Muhammad Ahmad Pansota for Petitioners (in C.P. No. 69526 of 2021).

Sohaib Ahmad Rumi for PCBL for Respondents.

P L D 2025 Lahore 98

Before Aalia Neelum, C.J., Syed Shahbaz Ali Rizvi, Asjad Javaid Ghural, Farooq Haider and Ali Zia Bajwa, JJ

Mian ZAHEER ABBAS RABBANI---Applicant

Versus

The STATE and others ---Respondents

Transfer Application No. 10572-T of 2024, heard on 13th November, 2024.

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

----S. 17---High Court (Lahore) Rules and Orders, Vol. IV, Ch. 1, Part-1, General, Part-G---Position of Additional Sessions Judges---Subordination of Magistrates and Benches to Sessions Judge---Scope---Words "Court of Sessions," "Sessions Judge," "Additional Sessions Judge," and "Assistant Sessions Judge" have been used in Criminal Procedure Code, 1898 with the difference in their meanings---Court presided over by an Additional Sessions Judge is also a Court of Sessions---Powers of an Additional Sessions Judge are similar to those of Sessions Judge---Difference is that Sessions Judge presides over Sessions Court and is the person who can receive cases, appeals, revisions, and all other petitions under law whereas an Additional Sessions Judge cannot receive directly---Additional Sessions Judge can only hear cases entrusted to him by Sessions Judge---Additional Sessions Judge has no power under law to entrust cases to other Courts---Provision of S. 17(4), Cr.P.C. provides for an emergency in which whenever Sessions Judge is unavoidably absent or incapable of acting, he may make provision for disposal of any urgent application by an Additional or Assistant Sessions Judge, or if there be no Additional or Assistant Sessions Judge, by such Judge or Magistrate who has jurisdiction to deal with any such application---Except for such provision of law in Criminal Procedure Code, 1898, no provision makes Additional Sessions Judge subordinate to Sessions Judge.

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

----S. 528 (1-A)---Words "case" and "trial"---Distinction---Word "case" comprises various stages, i.e., the case at investigation stage, the case at inquiry stage, and the case at trial stage---Word "case" is not only trial but also other proceedings as well, e.g., physical as well as judicial remand of accused, order on application of Superdari

(سپرداری) of case property, application for bail and other allied matters.

Iqbal Hussain v. The State PLD 1985 Lah. 65; Abdul Rafiq alias Oassu v. The State 1994 PCr.LJ 2507 and Mehboob Hassan v. Akhtar Islam and others 2024 SCMR 757 rel.

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

----Ss. 17 (4), 193, 498, 526 & 528 (1-A)---Penal Code (XLV of 1860), S. 489-F---Transfer of pre-arrest bail application---Sessions Judge, powers of---Question was with regard to exercise of power by Sessions Judge under S. 193 read with S. 17(4), Cr.P.C. with respect to transfer of bail petition from one Additional Sessions Judge to another in the same Sessions Division---Held, that, exercise of power by Sessions Judge under S. 193 read with S. 17(4), Cr.P.C. is administrative in nature---Such power is simple distribution of work---Provision of S. 528, Cr.P.C. appears under Chap. XLIV, Cr.P.C. dealing with transfer of criminal cases and itself is captioned as power of Sessions Judge to transfer cases and appeals from one criminal Court to another criminal Court at any time before trial of case or hearing of appeal has commenced before Additional Sessions Judge---Power under S. 528, Cr.P.C. is to be exercised only if it is expedient for ends of justice and not for any other reasons---Thus, there is a statutory but administrative subordination in making over, recalling, withdrawing, and transferring cases, as far as Additional Sessions Judge is concerned, to the Sessions Judge---Power of transfer does not always depend on superior jurisdiction---It can also confer power, as seen in S. 24 of Civil Procedure Code, 1908---Given the scheme provided under Criminal Procedure Code, 1898 conferring power on Sessions Judge to transfer a case/appeal pending before Additional Sessions Judge, the decision in the case titled "Naveed Hussain v. The State and others" reported as PLD 2020 Lahore 382, was overruled by the High Court---Petitioner was free to move Sessions Judge under S.528, Cr.P.C. for withdrawing and transferring bail petition to another Additional Sessions Court so that it could be heard and decided---Transfer application was disposed of accordingly.

Naveed Hussain v. The State and others PLD 2020 Lah. 382 overruled.

Abdul Rafiq alias Oassu v. The State 1994 PCr.LJ 2507 and Mehboob Hassan v. Akhtar Islam and others 2024 SCMR 757 rel.

Ch. Zulfiqar Ali Hargan for Applicant.

Rana Ahsan Aziz, Additional Prosecutor General, Ms. Maida Sobia, Deputy Prosecutor General, Rafaqat Ali Dogar, Deputy Attorney General and Waqas Umar, Assistant Advocate General for the State.

Nemo for Respondents.

Date of hearing: 13th November, 2024.

JUDGMEN

AALIA NEELUM, C.J.---The applicant filed an application under Section 526 Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C.") for transfer of pre-arrest bail No.851-4/19-12-2023, titled "Mian Zaheer Abbas Rabani v. The State" whereby the petitioner has sought withdrawal of the pre-arrest bail No.851-4/19-12-2023 in case FIR. No.1386/2023, dated 16.12.2023, offences under Section 489-F, P.P.C., registered at the Police Station, City Tandlianwala, District Faisalabad from the court of Mr. Muhammad Sajjad Hussain Khan, learned Additional Sessions Judge, Tandlianwala, District Faisalabad and its transfer to any other court of competent jurisdiction at Faisalabad or any other Districts/Tehsil Courts.

1. It was elicited from the arguments of the learned counsel for the applicant and the learned Additional Prosecutor General (herein-after referred to as "APG") to have clarification whether, under section 528(1A)(1B), Cr.P.C., the learned Sessions Judge has the power to recall bail applications pending in the court of any learned Additional Sessions Judge to another court in the same District or Tehsil. It was noticed that earlier, the Full Bench of this court (Comprising of three members) dealt with an identical matter, which was reported as PLD 2020 Lahore 382 titled "Naveed Hussain v. The State and others" Then, the Honorable Chief Justice constituted a larger bench (Comprising four members), and after that, the case was heard at length. This is how the instant case comes up before a larger bench. The question before this larger bench is referred for the decision of whether a Sessions Judge has no power under section 528 of Cr.P.C. to transfer bail petitions from the court of an Additional Sessions Judge to some other competent court within his Sessions division under Section 528, Cr.P.C. We are required to answer this question.

2. The applicant has approached this court under Section 526, Cr.P.C. for the transfer of an anticipatory bail petition pending adjudication before the court of Mr. Muhammad Sajjad Hussain Khan, learned Additional Sessions Judge, Tandlianwala, District Faisalabad. Section 526, Cr.P.C. confers power on the High Court to transfer a case or appeal from one subordinate Criminal Court to any other Criminal Court of equal jurisdiction if it appears that it is expedient for the end of justice. The party is interested in transferring a case from one criminal court to another criminal court from one district to another and even in the same district. Section 526, Cr.P.C. is reproduced hereunder for ready reference: -

526. High Court may transfer case or itself try it:

(1) Whenever it is made to appear to the High Court:--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that a view of the, place in or near which any offence has been committed may be required for the satisfactory inquiry into a trial of the same, or

(d) that an order under this section will tend to the general convenience of the parties or witnesses, or

(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order----

(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive) but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal; or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case or appeal be transferred to and tried before itself; or

(iv) that an accused person be sent for trial to itself or to a Court of Session.

(2) When the High Court withdraws for trial before itself any case from any Court, it shall, observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.

(3) The High Court may act either on the report of the Lower Court, or on the application of a party interested, or on its own initiative.

(4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall except when the applicant is the Advocate-General, be supported by affidavit or affirmation.

(5) When an accused person makes an application, under this section, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this Section award by way of compensation to the person Opposing the application.

Notice to Public Prosecutor of application under this section. (6) Every accused person making any such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6-A) Where any application for the exercise of the power conferred by this section is dismissed, the High Court may if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding five hundred rupees as it may consider proper in the circumstances of the case.

(7) Nothing in this section shall be deemed to affect any order made under Section 197.

(8) Adjournment on application under this section: If in any inquiry under Chapter VIII or any trial, the fact that any party intimates to the Court at any stage that he intends to make an application under this section shall not require the Court to adjourn the case, but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court and, if the application is accepted by the High Court, the proceedings taken by the Court subsequent to the intimation made to it shall, at the option of the accused be held afresh.

(9) If, before the argument (if any), for the admission of an appeal begins, or, in the case of an appeal admitted, before the argument for the appellant begins, any party interested intimates to the Court that he intends to make an application under this section, the Court, shall, upon such party executing, if so required, a bond without sureties of an amount not exceeding five hundred rupees that he will make such application within a reasonable time to be fixed by the Court, postpone the appeal of such a period as will afford sufficient time for application to be made and an order to be obtained thereon.

It may be mentioned here that section 526 of Cr.P.C. is similar to the provision of section 528(1-A), Cr.P.C. Learned counsel for the applicant has submitted that the Sessions Judge is empowered under section 528 of Cr.P.C. to transfer the bail petitions from the court of Additional Sessions Judge to another competent court within his sessions division, if it is expedient in the interest of justice and the limitations imposed under section 528(1-A) Cr.P.C. Section 528, Cr.P.C. is reproduced hereunder for ready reference: -

528. Sessions Judge may withdraw cases from Assistant Sessions Judge.

(1) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Sessions Judge subordinate to him.

(1A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.

(1 B) Where a Sessions Judge withdraws or recalls a case under subsection (1) or recalls a case or appeal under subsection (1A), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.

(1 C) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. [Inst. by Law Reforms Ordinance, 1972 Para. 173.]

Explanation. All Magistrates shall be deemed to be subordinate to the Sessions Judge for the purposes of this subsection.

(2) & (3) ---------[Omitted by Law Reforms Ordinance, 1972].

(4) Any Magistrate may recall any case made over by him under section 192, subsection (2), to any other Magistrate and may inquire into or try such case himself.

(5) A Magistrate making an order under preceding subsection shall record in writing his reasons for making the same.

(underline and bold by us for emphasis)

A thorough examination of the Code of Criminal Procedure, 1898, reveals that Section 9 empowers the Provincial Government to establish courts of session, appoint judges, and direct where such courts shall hold their sitting. Section 9 Cr.P.C. is reproduced hereunder for ready reference: -

9. Court of Session.--

(1) The [Provincial Government] shall establish a Court of Session for every sessions division, and appoint a judge of such Court.

(2) The [Provincial Government] may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting. but, until such order is made, the Courts of Session shall hold their sittings as heretofore.

(3) The [Provincial Government] may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.

(4) A Sessions Judge of one sessions division may be appointed by the [Provincial Government] to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the [Provincial Government] may direct.

(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act.

(underline and bold by us for emphasis)

From a close reading of the above-said provisions of the Code, it becomes abundantly clear that the Code uses the words "court of sessions," "Sessions Judge," "Additional Session Judge," and "Assistant Sessions Judge" with the difference in their meanings. It is also clear that a court presided over by an Additional Sessions Judge is also a court of Sessions. The "Additional Session Judge" powers are similar to those of the Sessions Judge. The difference is that the Sessions Judge presides over the Sessions Court and is the person who can receive the cases, appeals, revisions, and all other petitions under the law that the Additional Sessions Judge could not receive directly. The Additional Sessions Judge can only hear the cases entrusted to him by the Sessions Judge. The Additional Sessions Judge has no power under the law to entrust cases to the other courts. Subsection (4) of Section 17 of the code provides for an emergency in which whenever the Sessions Judge is unavoidably absent or incapable of acting, he may make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, or if there be no Additional or Assistant Session Judge, by such Judge or Magistrate shall have jurisdiction to deal with any such application. Except for this provision of law in the Code, no provision makes the Additional Sessions Judge subordinate to the Session Judge. Subsection (4) of Section 17 of the Code is reproduced hereunder for ready reference: -

17. Sub-Ordination of Magistrate and Benches to Sessions Judge:-

(1).

(3)

(4). The Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Session Judge or if there be no Additional or Assistant Judge, by such Judge or Magistrate shall have jurisdiction to deal with any such application.

Section 193 of the Code deals with the procedure regarding making over the cases to the Additional and Assistant Sessions Judges in the sessions division. The said section reads as follows: --

1. Cognizance of offences by Courts of Session.---(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the case has been sent to it under section 190, subsection (2).

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the [Provincial Government] by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.

(underline and bold by us for emphasis)

The provisions quoted above would give a picture of the making over, recalling, and transferring of cases within a Sessions Division. Section 193 of the Code states that an Additional Sessions Judge is to handle only those cases made over to him by the Sessions Judge. VOLUME IV, CHAPTER I SUPERINTENDENCE AND CONTROL, PART I - GENERAL, PART G --- POSITION OF ADDITIONAL DISTRICT AND SESSIONS JUDGES of the High Court Rules provided that:

2. Additional Judge is subordinate to the District Judge in administrative matters.--In administrative matters, the position of the District Judge is defined in Section 33 of the Punjab Courts Act, 1918. Subject to the general superintendence and control of the High Court, the District Judge is to have control over all Civil Courts under that part of the Act and within the local limits of his jurisdiction; the Court of an Additional Judge is included among such Courts by the earlier Section 18. It follows that for purposes of administrative control such as the grant of casual or other leave, appointment of ministerial staff and general discipline, the Additional Judge is subordinate to the District Judge; and that all correspondence with the High Court should ordinarily be addressed through the District Judge.

The Code does not define the words "Case" and trial used in Subsection (1-A) Section 528, Cr.P.C. Above said various provisions of the Code indicate that the Code is not confined to the cases in which offences only are tried, but includes many other type of proceedings that, may not be strictly called as trials of offences, for example, security proceedings or maintenance proceedings or bail applications, which can by no stretch of imagination be construed as cases wherein offences are tried; nevertheless they are essential part of the cases which the Criminal Courts try. It goes without saying that 'case' comprises various stages, i.e., the case at the investigation stage, the case at the inquiry stage, and the case at the trial stage; so, the case is not only trial but also other proceedings as well, e.g., physical as well as judicial remand of the accused, order on application of superdari (سپرداری) of case property, application for bail and other allied matters. It is relevant to mention here that at the time of deciding the application for bail, the court applies its judicial mind to determine whether reasonable grounds are available on the record to connect the accused with the commission of an offence and passes a speaking order of judicial nature which is termed as "case decided". in this regard, case of "Iqbal Hussain v. The State" (PLD 1985 Lahore 65) can be advantageously referred; the relevant portion from the same is hereby reproduced:-

"It is by now well settled that the term 'case' does not necessarily mean the "whole case" and this term is wide enough to include decision on any substantial question even though the same is of interlocutory nature as distinguished from purely formal and incidental order."

Similarly, reference can also be had to the case of "Abdul Rafiq alias Oassu v. The State" (1994 PCr.LJ 2507); the relevant portion from the same is hereby reproduced:-

"The order passed on a bail application is a judicial order.

The word "Case" is a very wide term which would include all the miscellaneous applications moved in a case on which a judicial order is to be passed. In the case of Haji Karamat Ali Pandat v. Saadat Ali alias Shahadat Ali and others (1955) 7 DLR 351 it was held that word "case" as used in section 192, Cr.P.C. is wide enough to include a case under section 193, Cr.P.C."

Article 37(d) of the Constitution of the Islamic Republic of Pakistan, 1973 requires inexpensive and expeditious justice to the litigants at their doorstep in accordance with law; in this regard, guidance has been sought from the case of "Mehboob Hassan v. Akhtar Islam and others" (2024 SCMR 757). Even the Legislature, in furtherance of said spirit, introduced Section: 439-A Cr.P.C. for providing the remedy of revision to the litigants at their doorstep, i.e., at Sessions Court level; similarly, Section: 491(1-A) Cr.P.C. was also introduced for providing the remedy of getting the order in habeas corpus petitions at Sessions Court level; needless to add that Section: 22-A, B Cr.P.C. was also introduced for providing remedy to the public at their door step for having issuance of direction regarding registration of case, etc.; similarly, Section: 528 (1-A and 1-B) was brought on the statute for empowering Sessions Judge to recall any case or appeal which he has made over to any Additional Sessions Judge before the commencement of trial of the case or hearing of the appeal and may try the case in his own court or hear the appeal himself, or make it over to another court for trial or hearing.

1. It appears from a plain reading of Subsection (1-A) Section 528, Cr.P.C. that at any time before the trial of the case or hearing of the appeal has commenced before an Additional Sessions Judge, the Sessions Judge may recall any case or appeal which he has made over to him. It, therefore, follows that the Sessions Judge is not empowered to withdraw or recall any case or appeal that he has made over to an Additional Sessions Judge after the trial of the case or hearing of the appeal has commenced. It is noteworthy that given Section 193 Cr.P.C., an Additional Sessions Judge is empowered to try only such cases as the Sessions Judge of the division by general or special order makes over to him for trial, and in view of Section 409 Cr.P.C., an Additional Sessions Judge is empowered to hear only such appeals as the Sessions Judge of the division may by general or special order make over to him. The making over of a case for trial or an appeal for hearing to an Additional Sessions Judge by the Sessions Judge relates to the distribution of business, which is purely administrative. Section 409 of the Code is reproduced hereunder for ready reference: -

Sec 409. Appeals to Court of Session how heard: Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Judge:

Provided that an Additional Sessions Judge shall hear only such appeal as the Provincial Government may, by general or special order, direct or as the Sessions Judge of the Division may make over to him:

Provided further that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person convicted on a trial held by any Magistrate of the Second Class or Third Class.

(underline and bold by us for emphasis)

The scheme of the Code clearly shows that the exercise of power by the Sessions Judge under Sections 193 read with 17(4) of the Code is administrative in nature; it is the simple distribution of work. The question is how to invoke the power under Section 528(1-A) of the Code. Is it open to a litigant to move the Sessions Court for such withdrawal or recall? Once there is the source of power as conferred under the Code, one does not need to labor much as to how to exercise that power. The Additional Sessions Judge could reference it, which could be on motion made by a litigant. However, the scope of the motion is only for administrative convenience. HIGH COURT RULES AND ORDERS, (Volume III), CHAPTER 26, TRANSFER OF CRIMINAL CASES, PART A. - Transfer of Criminal Cases.

2. Sessions Judges' power to transfer. Under section 528 of the Code, Sessions Judges also have the general power to withdraw any case from any Judicial Magistrate and to refer it for enquiry or trial to any other Judicial Magistrate competent to inquire into or try the same.

The Sessions Judge may also, at any time before the trial of a case or the hearing of an appeal has commenced before an Additional Sessions Judge, recall the case or appeal and may try the case or hear the appeal himself or may make it over to another Court for trial or hearing, as the case may be.

Sessions Judge may empower any Judicial Magistrate who has taken cognizance of any case to transfer such case for trial to any other Judicial Magistrate in his District any such magistrate may dispose of the case accordingly.

As noted above, one course is under Section 528 (1-A), Cr.P.C. for withdrawing, recalling, and making over. However, under Section 528(1-A), Cr.P.C., once the trial of the case has commenced or the hearing of the appeal has started, the exercise of that power under Section 528 (1-A) Cr.P.C. is barred. Should it mean that in such a situation, the only resort is the High Court? If so, what is the logical meaning and purpose of Section 528 (1-A) Cr.P.C.?

Section 528 (1-A) Cr.P.C. is related to the power of the Sessions Judge to withdraw cases and appeals. This power is conferred on the Sessions Judge presiding over the Court of Session. Section 528 (1-A), Cr.P.C. provides that the power of transferring a criminal case from one criminal court to another in the Sessions division is to be exercised only if it is expedient for the end of justice. It does not require an elaborate discussion to hold that it is a judicial exercise of power. The Additional Sessions Judge is not subordinate to the Sessions Judge. But it has to be noted that the Additional Sessions Judge gets jurisdiction to deal with a case only if such a case or appeal is made over to him by the Sessions Judge. Any time before the trial or hearing of the case or appeal, the Sessions Judge is also empowered to withdraw such cases. That power conferred on the Sessions Judge is meant in the interests of the litigant public and also to lessen the burden of the High Court, lest, for every transfer of a criminal case or appeal in a sessions division, the litigant public will always have to approach the High Court. Since the power under Section 528 (1-A), Cr.P.C. is judicially exercised, therefore, reasons are to be recorded, any party aggrieved can always take recourse to the remedy under Section 526, Cr.P.C. Similarly, under Section 528(1-C), Cr.P.C. Sessions Judge may withdraw any case from or recall any case which he has made over to any Magistrate subordinate to him and may refer it for inquiry or trial to any other Magistrate competent to inquire into or try the same. Since the application for bail in a case is part of the case, therefore, before the commencement of the trial, the application for bail pending before any Additional Sessions Judge can be recalled by the Sessions Judge from the cause list of learned Additional Sessions Judge, and he can hear the same himself or make it over to any other Additional Sessions Judge for hearing; similarly, before the commencement of trial, Sessions Judge may withdraw the case from cause list of learned Additional Sessions Judge and he can hear the same himself or make it over to any other Additional Sessions Judge for hearing; before hearing of the appeal, Sessions Judge may withdraw the appeal from cause list of learned Additional Sessions Judge and he can hear the same himself or make it over to any other Additional Sessions Judge for hearing. Even in cases triable by a Magistrate, the application for bail pending before any learned Additional Sessions Judge can be withdrawn from said court and heard by Sessions Judge himself or made over to any learned Additional Sessions Judge for hearing. However, if the trial has commenced, then the case cannot be withdrawn from the Additional Sessions Judge by the Sessions Judge, and, at that stage the application for bail pending before the Additional Sessions Judge can also not be withdrawn, and for that purpose, the relevant forum would be the High Court.

1. It will also be profitable to draw an analogy regarding the exercise of power by the District Court under Section 24 of the Code of Civil Procedure, 1908. The said section reads as follows: --

Section 24 General power of transfer and withdrawal:

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage---

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceeded from the point at which it was transferred or withdrawn.

(3) For the purposes of this Section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

P L D 2025 Lahore 112

Before Ch. Muhammad Iqbal, J

TAHIR MEHDI IMTIAZ AHMAD WARRAICH---Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary, Home Department and another---Respondents

Press Appeal No. 225 of 2012, heard on 30th April, 2024.

Press, Newspapers, News Agencies and Books Registration Ordinance (XCVIII of 2002)---

----Ss. 19 & 20---Penal Code (XLV of 1860), Ss. 99-A & 298-C---Constitution of Pakistan, Art. 10-A---Cancellation of declaration of magazine---Due process of law---Preaching of faith by Qadiani group---Appellant was aggrieved of cancellation of declaration of magazine in question for publishing objectionable material---Plea raised by appellant was that declaration of magazine was cancelled on recommendations of Muttehida Ulema Board which had no authority in such regard---Validity---On receipt of material record/information the authorities after application of judicious mind issued show cause notice to appellant to appear and explain his position on the allegation regarding preaching of Qadianiat through magazine in question---Appellant appeared before authorities, filed reply and was also heard by authorities before passing order in question as envisaged in Art.10-A of the Constitution as well as mandated by S. 19 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002---Recommendations made by Muttehida Ulema Board as well as notification issued by Home Department were not questioned before any competent forum---Recommendations were in active knowledge of appellant, which had attained finality---Appellant through publishing objectionable material in magazine in question committed violation of law and authorities had rightly cancelled declaration of the magazine in question---High Court in exercise of appellate jurisdiction declined to interfere in order passed by authorities as it was well-reasoned---Appellant failed to point out any illegality, material irregularity or jurisdictional defect in the order---Appeal was dismissed, in circumstances.

Fahad Malik for Appellant.

Raja Muhammad Arif, Additional Advocate General for Respondents.

P L D 2025 Lahore 124

Before Sultan Tanvir Ahmad, J

Mst. AFIA AMBRINE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and 14 others ---Respondents

Writ Petitions Nos. 10608, 10609 and 10611 of 2024, decided on 13th August, 2024.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 12(2)---Documentary evidence---Objection to admissibility---Petitioner/defendant filed application under S. 12(2), C.P.C., seeking to set aside ex-parte decree passed against him---Respondents/plaintiffs sought de-exhibition of certain documents which were produced by petitioner/defendant in his evidence during proceedings under S. 12(2), C.P.C.---Trial Court allowed application of respondents/plaintiffs and de-exhibited the documents, which order was maintained by Lower Appellate Court---Validity---Objections with respect to admissibility of documents can be of two kinds: (i) document is inadmissible in evidence being irrelevant or not capable for being considered in evidence ("inadmissibility in evidence"); and (ii) objections directed towards mode of proof due to irregularity or insufficiency ("mode of proof")---If no objection is raised as to inadmissibility in evidence but just mode of proof, after the document has been marked as an exhibit, the principle of waiver for failing to raise objection as to formal validity can be attracted---Proper time for raising such objection as to formal validity or mode of proof is prior to marking a document as an exhibit or at the time when it is sought to be marked as an exhibit---Such objections should be taken at the earliest and once document has been tendered and marked as an exhibit, belated objection as to mode of proof is discouraged by Courts---High Court set aside orders of Trial Court marking the documents as exhibits without oath statement of advocate and the order to de-exhibit them and also set aside judgment of Lower Appellate Court---High Court noted that the petitioner/defendant could file suitable application to produce further evidence/documents or re-examination of any witness---High Court directed Trial Court to give chance to respondents/plaintiffs to cross-examine as to additional evidence, if produced---Constitutional petition was allowed accordingly.

Malik Riazullah v. Mst. Dilnasheen and others 2018 CLC 1569; Muhammad Arif and others v. Aziz-ur-Rehman and others 2023 CLC 713; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 301; Gopal Das and another v. Sri Thakurji and others AIR (30) 1943 Privy Council 83; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822; Jodhpur Gums and Chemicals (Pvt.) Ltd. v. Punjab National Bank and others AIR 1999 Rajasthan 38 and N.M.S. Sadasivier Krishnier and others v. T.S. Meenakshi Iyer and others AIR 1933 Madras 781 ref.

(b) Administration of justice---

----Act of Court---Effect---Prejudice must not be caused to litigants because of any mistake of Courts, though the litigants and their counsel are also required to be vigilant.

Muhammad Akhtar Rana for Petitioner.

Mian Umar Farooq for Respondents Nos. 2 to 5 and 11 to 13.

For Respondents Nos. 6 to 10 and 14: Ex-parte.

P L D 2025 Lahore 137

Before Muhammad Sajid Mehmood Sethi, J

DILSHAD AKBAR---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No. 18153 of 2022, heard on 7th September, 2022.

(a) Police Order (22 of 2002)---

----Art. 18-A---Penal Code (XLV of 1860), Ss. 430, 468 & 471---Criminal Procedure Code (V of 1898), S. 200---Transfer of investigation---Private complaint, pendency of---Effect---Accused was facing trial in private complaint for committing offences of cheating and forgery---During pendency of trial of private complaint, police authorities transferred investigation for re-investigation of FIR registered against accused---Validity---There are three police hierarchies bestowed with power to transfer investigation i.e. the Head of District Police; the Regional Police Officer; and the Provincial Police Officer---Transfer of investigation is not a matter of routine or simple compliance of Art. 18-A of Police Order, 2002, instead it is ordered if some further material relevant to the case is required and to find out the truth for advancement of the cause of justice, and not to oblige one party to the detriment of the other for some ulterior motive---Before making such order, troubles of parties in producing their witnesses/evidence time and again should also be kept in mind---Such power is not unfettered rather qualified by certain contingencies and pre-requisites, inter-alia, discovery of some new event or evidence; previous investigation being unilateral, or based on mala fide, or excess of jurisdiction, or having serious flaw(s) or being unsatisfactory for some reasons etc.---High Court is also under legal obligation to see legality and validity of repeated transfers of investigation in the light of peculiar facts and circumstances of each case---High Court directed the authorities that re-investigation or further investigation within the contemplation of Art. 18-A of Police Order, 2002 could be conducted after conclusion of proceedings in private complaint depending upon fate of trial, pursuant to order in question---Constitutional petition was allowed accordingly.

Nur-Elahi v. The State and others PLD 1966 SC 708; Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others 2014 SCMR 1499; Muhammad Naveed v. Inspector-General of Police, Punjab and others 2019 PCr.LJ Note 130; Muhammad Akbar v. The State and another 1972 SCMR 335; Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474; Abid Hussain v. The State through SHO, Police Station Nawab Town and others 2022 PCr.LJ 83; PLD 2022 Lah. 721; Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others PLD 1997 Lah. 24; Muhammad Ashfaq v. Additional Inspector-General of Police (Investigation) Punjab, Lahore and 3 others 2013 PCr.LJ 920; Zeeshan Mustafa Lashari and another v. Province of Sindh through Chief Secretary and 5 others 2016 YLR Note 37 and Wali Muhammad v. P.O. Sindh through Secretary Home Department and 8 others 2018 PCr.LJ Note 105 ref.

Nur-Elahi v. The State PLD 1966 SC 708; Muhammad Rafique v. Muhammad Rafique and another PLD 1983 SC 426 and Niaz Ahmed v. Hasrat Mahmood and others PLD 2016 SC 70 rel.

(b) Police Order (22 of 2002)---

----Art. 18-A---Re-investigation---Stage---Filing of investigation report in Court---Effect---There is no encumbrance for police to conduct re-investigation or further investigation of a case even if an earlier report under S. 173 Cr.P.C. has been submitted before Court and the Court has taken cognizance of the matter---Police is competent to re-investigate and to submit fresh challan on the basis of subsequent investigation---Transfer of investigation is regulated by Art. 18-A of Police Order, 2002---Only impediment in such regard is that re-investigation or further investigation is not permissible after conclusion of trial of criminal case.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others PLD 2010 Lah. 224; Munir Ahmad v. Additional Inspector General of Police, Punjab and 6 others 2016 MLD 2039; Zafar Ali v. Regional Police Officer and 3 others 2017 YLR 1703; Muhammad Idrees v. Regional Police Office, Sheikhupura and others 2019 PCr.LJ Note 105; Muhammad Yousaf v. The State and others 2000 SCMR 453; Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Muhammad Hafeez v. District Police Officer Narowal and 4 others 2010 YLR 3142; Muhammad Mazhar v. Additional I.G. Police Investigation Branch Punjab Lahore and 3 others 2011 YLR 2463; Muhammad Gulfan v. Regional Police Officer, Sheikhhupura Range, Lahore and 7 others 2012 PCr.LJ 1493; Abdul Hakeem v. Shaban and 9 others 2017 YLR 1488 and Abid Hussain v. The State through SHO, Police Station Nawab Town and others 2022 P Cr. L J 83 rel.

Hafeez-ur-Rehman for Petitioner.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General along with Nasir Mahmood Malik, DSP (PIB), Qadeer Hussain, DSP (Legal), Altaf Hussain, SI and Abdul Sattar, SI for Official Private Respondents.

Rai Tariq Saeed for Respondents.

P L D 2025 Lahore 146

Before Shahid Karim, J

MUHAMMAD ATIF---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No. 23249 of 2024, heard on 15th May, 2024.

Elections Act (XXXIII of 2017)---

----S. 95(5), (6), (7) & (8)---Constitution of Pakistan, Art.199---Consolidation of results---Recounting of ballot papers---Jurisdiction of Election Commission of Pakistan (ECP)---Scope---Interference by ECP after completion of process of consolidation of results by Returning Officer (R.O.)---Legality---Long investigation of ECP in resolving the controversy as to consolidation of results---Effect---Plea of haste on part of R.O. in completing the consolidation results---Validity---Recount of ballot papers and the power to be exercised by ECP has to be done before conclusion of the consolidation proceedings and if the exercise of power is not completed as contemplated by S.95(6), of Elections Act, 2017 ECP cannot thereafter proceed to exercise such power on the misplaced notion that it can do so by invoking the provisions of S.8 of the Elections Act, 2017, (Act) or any other provision in law or the Constitution---ECP delayed the matter and initiated inquiries into the entire process of election,which was not the mandate of S.95(6) of the Act as when an application was made to ECP it merely had to see whether the R.O. had proceeded in accordance with law while refusing recount of votes under the powers conferred by S.95(5) and no more---In any case, it could only have done so prior to completion of the consolidation proceedings by the Returning Officer---Returning Officer could have awaited the period prescribed for consolidation proceedings to be completed and given in proviso to S.95(7)of the Act but that was for ECP to instruct the R.Os. and indeed some time must be given to ECP to exercise its powers in terms of S.95(6) of the Act---Provision for further time in that regard could only be done by an amendment in the law regarding which High Court was not empowered to issue a direction and it was for the legislature to look into the same---Constitutional petition was dismissed, in circumstances.

Ch. Bilal Ejaz v. Election Commission of Pakistan and others (W.P. No.16416 of 2024) rel.

Abid Hussain Khichi for Petitioner.

Muhammad Shan Gul for Respondent No.3.

Asad Ali Bajwa and Ch. Imtiaz Elahi, D.A.Gs.

Hassan Ijaz Cheema, A.A.G.

Imran Arif Ranjha, Legal Advisor for E.C.P with Haroon Kasi, Director (Law) and Bushra Rasheed Chaudhry, Deputy Director Law ECP.

P L D 2025 Lahore 152

Before Ahmad Nadeem Arshad, J

MUHAMMAD IMRAN---Petitioner

Versus

SAMINA KOUSAR and others---Respondents

Writ Petition No. 62571 of 2024, decided on 11th October, 2024.

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

----S. 2(d)---Civil Procedure Code (V of 1908), O. I, R.10--- Constitution of Pakistan, Art. 199--- Determination of necessary and proper parties---Court may strike out or add parties---Dispute between a father and his adult sons regarding maintenance---Father filed an application to strike out the names of his sons from the suit on the ground that his sons being adults were no longer entitled to maintenance---Trial Court accepted the application, but the Appellate Court reversed the decision---Validity---Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out---Party who has no connection with the relief sought may be struck out from the record as a party---Court can also strike out a party over whom it has no jurisdiction and whether a party is to be struck out or not is to be determined on the basis of plaint as framed---High Court in view of S.2(d) of the Family Courts Act, 1964, held that adult sons were proper and necessary party and their presence was necessary for the proper decision of the controversy involved in the suit and the impugned order was held to be well-reasoned and was passed after due appreciation of the record as well as merits of the case, which was not open to any exception or interference by High Court while exercising its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Mst. Aila Nawaz v. Judge Family Court, Khanewal and 2 others 2018 CLC 241 and Muhammad Riaz Ahmad v. Mst. Shaheen Akhtar and 3 others PLD 2023 Lah. 317 distinguished.

Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591 rel.

(b) Islamic law---

----Maintenance, definition of---Scope---Obligation of father to pay maintenance to his adult son---Scope---Right of maintenance is not limited only to food, clothing and lodging, but also entails all other necessary expenses for the mental and physical wellbeing of the recipient.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

(c) Islamic law---

----Maintenance of children---Obligation of father to pay maintenance to his adult son---General rule and exception---Scope---Obligation of the father to maintain his adult son who has not yet accomplished basic education, enabling him to earn his livelihood, may be considered by the court in an appropriate case, a factor falling within the exception to the general rule---Education is the necessary qualification which is required by a person to enable him to earn bread and butter, however, it does not include higher studies and studies abroad.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

P L D 2025 Lahore 161

Before Jawad Hassan, J

Messrs SADIQ POULTRY FARMS (PVT.) LIMITED through Authorized Director and 2 others---Plaintiffs

Versus

FIRST HABIB MODARABA, A SUBSIDIARY OF HABIB METRO BANK through Authorized Representative---Defendant

Civil Original Suit No. 6 of 2023, decided on 30th September, 2024.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 10---Civil Procedure Code (V of 1908) ,O. VII, R. 10 & O. XIII R. 1---Suit for recovery, filing of---Territorial jurisdiction, determination of---Scope---Documents admitted/acknowledged by parties---Effect---Suit filed at Rawalpindi ('R')---Held, that in the present case, the admitted documents/agreements (Diminishing Musharakah Financing Agreement etc.) clearly depicted that the parties had mutually agreed to resolve their issues at Courts of Karachi ('K') having exclusive jurisdiction for the determination of their disputes---Based on the agreements between the parties, which had been acknowledged by the parties and the documents filed and relied by the plaintiffs under S. 9 of Financial Institution (Recovery of Finances) Ordinance, 2001 ('the Ordinance 2001') along with list of documents under O. XIII, R. 1 of the "C.P.C." and under S. 10 of the Ordinance 2001 by the defendant, High Court lacked jurisdiction to entertain the matter due to specific and exclusive jurisdiction clauses in all the agreements---High Court lacked territorial jurisdiction to pass any judgment and decree against the defendant; therefore, the plaint was returned under O. VII, R. 10 of the Civil Procedure Code, 1908, for presenting it before a Court of competent jurisdiction---Suit was disposed of accordingly.

Faysal Bank Limited v. Messrs Usman Enterprises and another 2023 CLD 1563; Eden Builders (Pvt.) Limited, Lahore v. Muhammad Aslam and others 2022 SCMR 2044; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 and Messrs Kadir Motors (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174 ref.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Civil Procedure Code (V of 1908), O. VII, R. 10---Suit for recovery, filing of---Territorial jurisdiction, determination of---Scope---Exclusive jurisdiction incorporated in agreement regarding a place other than where the suit was filed---Effect---Suit was filed at Rawalpindi ('R')---Held, that in the present case, documents/ agreements (Diminishing Musharakah Financing Agreement etc.) clearly depicted that the parties had mutually agreed to include/incorporate jurisdiction clauses in a clear and unambiguously manner, which showed that the parties had given exclusive jurisdiction to the Courts at Karachi ('K')---Thus, the parties were bound by their terms and conditions for resolution of their disputes---All the agreements were executed on different dates at the registered office of the defendant at Karachi and were not disputed by the parties---Lahore High Court lacked territorial jurisdiction to pass any judgment and decree against the defendant; the plaint was returned under O. VII, R. 10 of the Civil Procedure Code, 1908, for presenting it before a Court of competent jurisdiction---Suit was disposed of accordingly.

Eden Builders (Pvt.) Limited, Lahore v. Muhammad Aslam and others 2022 SCMR 2044; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; Saleem Mehtab v. Messrs Refhan Best Food Ltd, Compnay through Chief Executive and 9 others 2010 MLD 1015; Chaudhry Mehtab Ahmad and another v. Mir. Shakeel-ur-Rehman and 4 others 2004 MLD 662; Tahir Tariq Textile Mills (Pvt.) Ltd. through Chief Executive and 2 others v. N.D.F. C. through Chairman 2001 YLR 846; Tradesmen International (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Ministry of Food, Agriculture and Livestock and another 2008 CLD 1217; Bankers Equity Ltd. v. Iqas Weaving Mills (Pvt.) Ltd. 2001 CLD 169 and MCB Bank Limited v. Adeel Shahbaz Steel Mills and others 2023 CLD 655 ref.

(c) Jurisdiction---

----Principle---When parties were at controversy regarding point of jurisdiction of Court, it was incumbent upon the Court either to decide question of jurisdiction after giving an opportunity of hearing to parties and then to proceed with the other issues regarding merits of case.

American Express Travel Related Services Company Inc. and others v. Muhammad Nasrullah Beg, Advocate 2000 MLD 1155 ref.

(d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Civil Procedure Code (V of 1908), O. VII, R. 10---Suit for recovery, filing of---Territorial jurisdiction, determination of---Scope---'Boilerplate clauses'---Scope---All commercial and banking contracts/ agreements contain a number of "boilerplate clauses", which are often seen as standard add-ons to the main terms and conditions of the contract---One such "boilerplate clause" relates to jurisdiction and choice of law, and although these can be relatively straightforward when both parties are based in the same jurisdiction, they deserve proper consideration, particularly when the parties to the contract are based in different jurisdictions---In drafting dispute resolution clauses in commercial contracts and banking agreements, parties contemplate, inter alia, the most convenient and affordable forums to resolve their disputes through the "boilerplate clauses"---In the present case, all the agreements were executed on different dates at the registered office of the defendant at Karachi and this was not disputed by the parties---Lahore High Court lacked territorial jurisdiction to pass any judgment and decree against the defendant; the plaint was returned under O. VII, R.10 of the Civil Procedure Code, 1908 for presenting it before a Court of Competent Jurisdiction---Suit was disposed of accordingly.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 and Messrs Kadir Motors (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174 ref.

(e) Contract---

----'Boilerplate clause'---Scope---A boilerplate clause is a legal English term that is used in conjunction with contract law---When forming contracts, parties to the contract often use templates or forms with boilerplate clauses (boilerplate language, used as standard language)---Such clauses refers to the standardized clauses in contracts, and they are to be found towards the end of the agreement---Including boilerplate clauses is the process by which parties to the contract may better define their relationship and the will to provide certainty if terms in the contract are ever disputed---Boilerplate clauses are standard contractual terms that are routinely included in many contracts---In the present case, all the agreements were executed on different dates at the registered office of the defendant at Karachi and this was not disputed by the parties---Lahore High Court lacks territorial jurisdiction to pass any judgment and decree against the defendant; the plaint was returned under O. VII, R. 10 of the Civil Procedure Code, 1908, for presenting it before a Court of competent jurisdiction---Suit was disposed of accordingly.

(f) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Civil Procedure Code (V of 1908), O. VII, R. 10---Suit for recovery, filing of---Territorial jurisdiction, determination of---Scope---Exclusive jurisdiction clause---'Boilerplate clause'---Scope---Boilerplate clauses---Validity---Question that parties to a contract are faced with is the extent of autonomy they can exercise in choosing an appropriate forum in a "boilerplate clauses"---Henceforth, to avoid the hassle of litigating in a forum, which is inconvenient or time-consuming, parties often mutually agree to litigate their disputes before a specific Court---Such clauses are drafted taking into account the common economic and geographic convenience of the parties---Exclusive jurisdiction clauses enunciate a choice by parties to limit the place of institution of the suit to one forum---Jurisdiction clauses, therefore, relate as to which Courts would hear a dispute---Nevertheless, an exclusive jurisdiction specifies that only the Courts of a particular jurisdiction, such as those of 'K' (Karachi), in the present case, should deal with any disputes arising out of a contract between the parties---In the present case, all the agreements were executed on different dates at the registered office of the defendant at Karachi and this was not disputed by the parties---Lahore High Court lacked territorial jurisdiction to pass any judgment and decree against the defendant; the plaint was returned under O. VII, R. 10 of the Civil Procedure Code, 1908 for presenting it before a Court of Competent Jurisdiction---Suit was disposed of accordingly.

Muhammad Imran Malik, Advocate Supreme Court, Aakif Majeed and Asim Tufail Farooqi for Plaintiffs.

Ms. Samia Faiz Durrani, Advocate Supreme Court, Faiz Durani, Advocate Supreme Court with Salman Khan Baryalay and Arshad Mehmood for Defendants.

P L D 2025 Lahore 171

Before Shujaat Ali Khan, J

NASIR MAHMOOD---Petitioner

Versus

ZAFAR IQBAL and another---Respondents

Civil Revision No. 49002 of 2021, heard on 18th May, 2022.

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

----Ss. 12, 39, 42 & 54---Civil Procedure Code (V of 1908), S. 148 & O. XVII, R.3---Suit for specific performance of agreement to sell, cancellation of document, declaration and injunction---Balance sale consideration, payment of---Non-compliance of Court order---Penal provision, invoking of---Extension of time---Principle---Previous conduct of party---Petitioner/plaintiff was aggrieved of order passed by Trial Court declining to extend time for deposit of balance consideration amount, resultantly suit was dismissed for not depositing complete balance consideration amount---Validity---When Trial Court invoked penal provisions of O. XVII, R. 3, C.P.C. due to non-compliance of order, no reference could be made to any previous omission or commission, if any, on the part of petitioner/plaintiff---In the event of non-compliance of Court's order, Court could invoke penal provisions of O. XVII R. 3, C.P.C. but prior to resorting to such penal action Trial Court should have satisfied itself that the party concerned had failed to comply with its order despite availing reasonable time---As per S. 148, C.P.C., Court enjoys power to extend period fixed by it for performance of an act by a party to the lis upon showing sufficient cause for non-compliance of its order within the stipulated period---Trial Court failed to exercise such powers despite the fact that petitioner/plaintiff filed application for extension of time to comply with order in question prior to expiration of period fixed by Trial Court---Such act of Court amounted to failure on its part to exercise power vested in it, which called for interference by High Court in exercise of its revisional jurisdiction vested under S. 115, C.P.C.---High Court set aside order in question and remanded the matter to Trial Court for decision afresh---Revision was allowed accordingly.

Irfan Rasheed v. Muhammad Muazim and others PLD 2022 Lah. 372; Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005; Malik Hadayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69; Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105; Muhammad Asghar v. Mian Muhammad Hussain 2010 CLC 22; Ghulam Rabani v. Muhammad Fiaz and another 2016 CLC 1547; Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCMR 105; Jind Wadda and others v. Abdul Hameed and another PLD 1990 SC 1192; Haji Shamsur Rehman and another v. Nadar Khan and 6 others 2005 CLC 215; United Bank Ltd. v. Haji Muhammad Rahim Khan 1994 MLD 2312; Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361; Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942; Government of N.-W.F.P. and others v. Fazal Maula and others PLD 1993 Pesh. 192; Service Industries Limited through Chief Financial Officer v. Government of Pakistan through Secretary and others 2020 CLD 562; Shaikh Aijazur Rehman v. The State (NAB) through Director General (NAB) and another PLD 2006 Kar. 629; M.Z. Khan v. Aziz-Ud-Din Ahmad Khan and others 2004 YLR 84 and Ahmad Yar and 6 others v. Ghulam Rasool and 5 others 2016 CLC Note 42 ref.

(b) Administration of justice---

----Consolidation of proceedings---Scope---When different proceedings are consolidated by Court of competent jurisdiction, such proceedings are to be decided jointly until and unless they are unconsolidated by the same forum with tangible reasons.

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

----O. XVII, R. 3---Non-compliance of direction of Court---Deciding of case---Principle---It is not mandatory to decide the lis on same day when a party fails to comply with the order of a court---Court should adjourn proceedings to decide the same on merits or having regard to the peculiar facts and circumstances of the case should extend the period for compliance of its own order suo motu or on the application of the party concerned.

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

----S. 12---Specific performance of agreement to sell---Condition to deposit balance consideration amount---Object, purpose and scope---There exists no provision in Specific Relief Act, 1877 compelling plaintiff in a suit for specific performance of agreement to sell to deposit balance amount of consideration---But, Courts order so, to adjudge readiness of plaintiff to perform his part of the contract.

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

Sh. Usman Karim-ud-Din for Petitioner.

Imran Raza Chadhar for Respondent No.1.

Imran Ahmad Malik for Respondent No.2.

P L D 2025 Lahore 191

Before Jawad Hassan, J

PERVAIZ ABBASI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 75 of 2022, decided on 11th October, 2022.

Constitution of Pakistan---

----Arts. 26 & 199---Constitutional petition---Environment protection---Necessary legislation--- Continuing mandamus, doctrine of---Applicability---Petitioner was aggrieved of destroying of National Park Area through anti-environmentalism activities---Authorities contended that to control all affairs regarding preservation, conservation, sustainable development and protection of Kohsar Eco-System, necessary legislation was in process---Held, that purpose of filing Constitutional petition was only to protect Eco-System of Murree, which was a place of public resort and entertainment for citizens of Pakistan, therefore, High Court directed concerned authorities to make a specific legislation in such regard---Provision of Art. 26 of the Constitution grants fundamental right to every citizen of the country to have access to all places of public entertainment or resort---High Court succeeded to conclude the case in shape of a Draft Act, therefore, under the doctrine of continuing mandamus, all State functionaries were directed to strictly follow awaited law/legislation after its approval by Standing Committee of the Cabinet on Legislative Business---Constitutional petition was disposed accordingly.

Subay Khan v. Secretary, Labour, Government of the Punjab PLD 2019 Lah. 253; Sheikh Asim Farooq v. Federation of Pakistan and others PLD 2019 Lah. 664; Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others PLD 2020 Lah. 407; Muhammad Ahmad Pansota and others v. Federation of Pakistan and others PLD 2020 Lah. 229; Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836; 2012 CLD Journal at page 79; Suo Motu case No. 10 of 2005; 2010 SCMR 361; 2005-2006, SC of Pakistan, Golden Jubilee Edition, 106; Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Muhammad Umais v. Cantonment Board, Rawalpindi and others PLD 2022 Lah. 148; Muhammad Yousaf v. Secretary Finance and others PLD 2021 Lah. 156 = 2021 PLC (C.S.) 195; Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others PLD 2022 Lah. 346 and Sheikh Asim Farooq v. Federation of Pakistan and others PLD 2019 Lah. 664 rel.

Sardar Taimoor Aslam Khan, Barrister Owais Aziz, Barrister Khalique Zaman and Uzair Bin Shafie for Petitioner.

Barrister Raja Hamza Anwar Abbasi for Petitioner (in W.P. No.2937 of 2019).

Mirza Asif Abbas and Waheed Asad Raja, Assistant Advocates-General with Akhtar Javaid, Secretary Law and Parliamentary Affairs Department, Government of the Punjab, Nawaz Manik, Director Legal, EPA Punjab, Muhammad Rafique, Deputy Director, ENUH, Rawalpindi, Waqas Sikandari, Assistant Commissioner, Murree and Yasir Ashraf, Assistant Commissioner, Kahuta.

Muhammad Sajid Khan Tanoli, Deputy Attorney General and Asif Ikram, Assistant Attorney General along with Aamir Shehzad, SDFO Murree, Raza Anwar Sh. DFO, M. Jamshed Iqbal Chaudhary, Senior Manager, Research and Conservation, World Wide Fund for Nature (WWF), Pakistan, Islamabad and Muhammad Asif Sahibzada, Director (Enr. Policy), Ministry of Climate Change, Islamabad.

Ali Tauqeer Sheikh, Independent Expert on Climate Change and Development [ex-Chief Executive Officer (CEO), LEAD Pakistan, Director, Asia Climate and Development Knowledge (CDKN)] along with Hassan Adnan Ahmed, Advocate.

Masood Ahmad Abbasi for Respondent No.4 (in W.P. No.2937 of 2019).

Malik Abdul Rashid Awan for the Respondents Nos.6 to 8 (in W.P. No.2937 of 2019).

Rashid Mehmood, Civil Judge/Research Officer, Lahore High Court, Rawalpindi Bench.

SHORT ORDER

JAWAD HASSAN, J.---For detailed reasons to be recorded later on and subject to what is outset therein by way of amplification, today's short order is aimed at disposing this writ petition as well as the connected W.P. No.2937 of 2019, in the terms elaborated herein below.

(I) STATEMENT OF SECRETARY LAW AND PARLIA-MENTARY AFFAIRS DEPARTMENT.

1. Pursuant to the order dated 27.09.2022, Mr. Akhtar Javaid, Secretary Law and Parliamentary Affairs Department, Government of the Punjab appeared along with draft of "Kohsar Development Authority Act, 2021" (the "Draft Act") and stated that after detailed meetings with Law and Parliamentary Affairs Department, Government of the Punjab, Lahore almost all identified discrepancies were rectified and now the same is submitted to the Standing Committee of the Cabinet on Legislative Business for consideration and approval. He drawn attention to the Preamble of the Draft Act, which is as follows:

"Whereas it is in the public interest to provide for high

quality, aesthetically pleasing and ecofriendly urban and

tourism infrastructure in the Kohsar area of Rawalpindi

District.

And whereas the development and maintenance of such an infrastructure requires the establishment of a new authority."

He further submitted that to control all affairs regarding preservation, conservation, sustainable development and protection of the Kohsar Eco-System, an authority i.e. Kohsar Development Authority (the "KDA") will be established under Chapter-II, Section 4 of the Draft Act with its head office at Murree as per Section 4(3) ibid. Also submitted that as per Section 4(4)(i) of the Draft Act, the Chief Minister will be the Chairman of KDA along with other members. He further stated that now the Draft Act has been submitted to the Standing Committee of the Cabinet on Legislative Business for consideration and approval, therefore, this Petition be disposed of.

(II) CONCEPT OF CURATE'S EGG

1. Before disposing of these cases, I recall that in 1895 the London satirical magazine Punch published a famous cartoon in which a bishop says to a curate at breakfast, 'I'm afraid you've got a bad egg, Mr. Jones'. The curate replies, 'Oh no, my lord, I assure you that parts of it are excellent'. The good part is that this Court confirms the prayer of Petitioner to promulgate appropriate legislation for protection of trees and mountain Murree hills from being destroyed and to regulate all those affairs by an authority, KDA. And the bad part in one aspect, at least for Petitioner is that his counsel's proposed legislation i.e. "The Murree, Kahuta and Kotli Sattian Eco-System (Preservation, Conservation and Protection) Act, 2022") (the "Petitioner's Proposed Draft Act") cannot be approved because the Draft Act has already been sent to the Standing Committee of the Cabinet on Legislative Business for consideration and approval. This one aspect aside, it is a thoroughly good egg because the Draft Act covers all the issues raised in this Petition. The concept of "curate's egg" has been developed by the English Courts to show some of the good and the bad parts in the judgment.

(III) CONTEXT

1. Brief background of this Petition as submitted by Sardar Taimoor Aslam Khan, Advocate is that this is a public interest litigation and in light of the law laid down by this Court in the cases of Subay Khan v. Secretary, Labour, Government of the Punjab (PLD 2019 Lahore 253), Sheikh Asim Farooq v. Federation of Pakistan and others (PLD 2019 Lahore 664), Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others (PLD 2020 Lahore 407) and Muhammad Ahmad Pansota and others v. Federation of Pakistan and others (PLD 2020 Lahore 229) the Petitioner, being citizen of this country, has knocked the door of this Court to expand the protection of fundamental rights about welfare of the public at large. He has specifically referred to the principles settled by this Court in Sheikh Asim Farooq Case (supra) in which it has been held that the public interest litigation is a powerful tool for individuals and groups for combating illegalities, injustice and social ills, which promoted and protected the larger public interest in case of violation of any fundamental right. He submitted that the areas mentioned in this petition, i.e. Kahuta, Murree and Kotli Sattian, have been declared as National Park Area but these areas are being destroyed through some anti-environmentalism activities, pictorial evidence of which has been annexed with this petition. He maintained that in similar situations, this Court has already passed various judgments in which directions were issued to the concerned authorities to make proper legislation relating to the issues involved in those cases. He asserted that pursuant to the directions of this Court, laws were made by the legislature and subsequently, also implemented by the executive. He further submitted that in this case, the National Climate Change Policy, 2012 covers most part of the prayer clause and the Respondents are bound to adhere to the policy and the investment incentives given therein under the Doctrine of Sovereignty developed by this Court in the judgment reported as Mst. Fatima Faryad and others v. Government of Punjab and others (2020 CLC 836) wherein it has been held that under the Doctrine of Sovereignty every governmental authority or department is bound to adhere to the commitments, made by them, in letter and spirit.

2. Barrister Owais Aziz, Advocate submitted that important question of protecting the Murree hills is involved in the matter and the Superior Courts of the country have passed various judgments on protection of mountains. He has drawn attention of the Court towards Article on "Bhurban Declaration and the Environmental Laws of Pakistan" (the "Article") written by me [(Jawad Hassan) when I was the Additional Advocate-General Punjab at Supreme Court, Islamabad], which was published in 2012 CLD Journal at page 79 [PLD Publishers]. The Article mentions the excellent efforts of the Hon'ble Supreme Court of Pakistan in convening the South Asian Conference on Environmental Justice, in Bhurban, Pakistan on 24th and 25th of March, 2012 [ten (10) years ago], brought together Chief Justices and their designees from the highest Courts of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka, Malaysia, and Indonesia, which was supported by the Asian Development Bank (ADB), United Nation's Environment Program (UNEP) and the International Union for Conservation of Nature (IUCN). At the end of the Conference, the South East Asian Judiciaries adopted the Vision Statement by declaring the Bhurban Declaration (the "BD") after developing an Action Plan for Environmental Justice, Governance, the Rule of Law and Sustainable Development in SAARC countries. The outcome of the Conference, which is the "BD", is to strengthen specialized environmental tribunals and establish green benches, where they exist and consider establishing them where they do not exist. Therefore, the Hon'ble Chief Justices established the green benches in the Supreme Court and the High Courts under the respective Supreme Court and High Court Rules to hear the environmental cases similar to the other South Asian countries.

3. Barrister Raja Hamza Anwar Abbasi, Advocate contended that the Article further explains the role of the Hon'ble Supreme Court of Pakistan in protecting the mountains of Islamabad Margalla hills by taking suo motu action in "New Murree Project" (Suo Motu Case No.10 of 2005, reported as 2010 SCMR 361). The august Supreme Court of Pakistan also took suo motu action in "Islamabad Chalets and Pir Sohawa Valley Villas" (Suo Motu Case No.13 of 2005, reported as 2005-2006, SC of Pakistan, Golden Jubilee Edition, 106) restraining the construction of chalets and villas situated at a distance of two kilometres of the Margalla Hills, where the housing scheme was launched. The housing scheme in question would have had a direct bearing on the Eco-System of the Margalla Hills, and the overall environment of Islamabad, because of increased traffic congestion, noise pollution, diminishing greenery, annihilation of wildlife, unhygienic due to sewerage, and frequent landslides because of loosening of soil and removal of rocks. He states that no hectic efforts are being made by the government for protection of the Mountain Eco-System and only a notification was issued in the year 2009, which does not serve the purpose.

(IV) RESPONDENTS' STANCE

1. All the Respondents have filed their report and parawise comments and unanimously stated that this Petition be disposed of because the entire issues raised in both the writ Petitions will be covered by the Draft Act.

2. Heard and record perused.

(V) DISPOSAL BY THIS COURT

1. This Petition was Admitted for regular hearing on 24.01.2022 and Notices were issued to the Respondents to file report and

parawise comments to explain what steps have been taken by them to stop hill razing and trees cutting in the areas mentioned above and whether any efforts are being made to introduce a mountain specific legislation.

1. Since the purpose of filing this petition was only to protect the Eco-System of Murree, which is a place of public resort and entertainment for the citizens of Pakistan, therefore, this Court directed the concerned authorities to make a specific legislation in this regard. Because Article 26 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") grants fundamental right to every citizen of this country to have access to all places of public entertainment or resort, as enunciated by the Hon'ble Supreme Court of Pakistan in Moulvi Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394), which view was subsequently followed by this Court in the case of Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others (PLD 2020 Lahore 407). In Paragraph 27 of the said judgment, this Court has observed that:-

"……..failure on the part of the State and Authorities acting on behalf of the State including local administration to provide the same is not only violative of Article 14, which provides right to dignity as well as pose obstruction in exercise of fundamental right of movement provided and guaranteed under Article 15 of the Constitution and of Article 26 of the Constitution, which provides that every citizen has a fundamental right to access to public place for entertaining and resort…."

The mandate of Article 26 of the Constitution has recently been strengthened by this Court in another case reported as Muhammad Umais v. Cantonment Board, Rawalpindi and others (PLD 2022 Lahore 148) in line with the provisions contained in Articles 9, 14, 15 of the Constitution and it has been held that there must not be any discrimination to access the places of public entertainment or resort. Moreover, the powers and functions of the Federal as well as the Provincial Government have been discussed in detail by this Court in the case of Muhammad Yousaf v. Secretary Finance and others (PLD 2021 Lahore 156) = [2021 PLC (C.S.) 195]. Relevant Paragraphs Nos. 9 and 10 of the said judgment are given as under:-

"9. Article 7 of the Constitution defines that 'the State' means the Federal Government, [Majlis-e-Shoora (Parliament)], a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess. Primarily the governments in Pakistan are divided into "Federal Government" and "Provincial Govern-ment". The Federal Government functions under Articles 90 and 97 read with Article 99 under which Federal Rules of Business, 1973 are made whereas the Provincial Government functions under Article 129 read with Article 137, and under Article 139 conduct of business is made along with Punjab Government Rules of Business, 2011. The law made by either Federal Government or Provincial Government originates through legis-lative procedure provided under Article 70 of the Constitution. After the 18th Amendment made to the Constitution in the year 2010, the concept of Provincial Autonomy stands heightened and accentuated in the context of the Federation of Pakistan and what was previously not within the domain of the federating units and was not do-able for the Provinces now falls I.C.A. No.530 of 2014 5 within the ambit and purview of their executive authority and legislative competence.

1. The concept of decentralization of power and functions has gained currency throughout the world and political philosophers have advocated merits of sharing responsibilities with all the component units of the state instead of concentration and centralization of all the powers within the Federal Government in order to empower the Provinces to legislate laws and execute policies in accordance with the requirements and needs of their respective areas and to secure effective and efficient delivery of services for the citizens residing therein in accordance with their particular ground realities."

In Muhammad Yousaf Case (supra), this Court, after discussing the role of the Federal and Provincial Government in light of various/relevant Constitutional provisions, has concluded that "after omission of Concurrent List from the Fourth Schedule of the Constitution post Eighteenth Amendment, now Provinces have exclusive domain and legislative competence to legislate and regulate upon all those matters, which were earlier part of that list. It is therefore within the exclusive domain of Provincial Government to adopt a policy/Notification of the Federal Government, which falls within its legislative competence and make its applicability within the Province from that date, which it finds appropriate and mere adopting such Notification of the Federal Government does not make the same ipso facto applicable in entirety unless directed so by the Provincial Government as it is within its competence to limit or extend such applicability and it is not obligated upon it to adopt a policy on the same date as made applicable by the Federal Government." In the present case, the relevant Respondent is the Ministry of Climate Change (the "Ministry"), which under Schedule-I [Rule 3(1)] of the Federal Rules of Business, 1973 (the "Federal Rules") has the Climate Change Division (the "Division") with the mandate to make National policy, plans strategies and programmes with regard to disaster management, including environmental protection, preservation, pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification. As per Schedule-III to the Federal Rules, Pakistan Environmental Protection Agency (the "Agency") is the attached department of the Ministry, hence, both the Division and the Agency are empowered under the Federal Rules to make a specific legislation for protection of the Murree hills. Similarly, in the First Schedule (Rules 2 and 3) [List of Departments] to the Punjab Government Rules of Business, 2011 (the "Provincial Rules"), there exists the Environmental Protection Department (the "EPD") and the Disaster Management Department (the "DMD"), which is controlled by the Director General, Provincial Disaster Management Authority (the "Authority") while Sr. No.39A, Column-II of this Schedule also mentions the Tourism Department (the "Department"), which is headed by (i) Director General, Archaeology, Punjab and (ii) Deputy Collector, Department of Tourism Services as per Column-III. Therefore, the DMD, the Authority and the Department may also make law/legislation and policy under the Provincial Rules.

1. It is to be noted that on intervention/directions of this Court in different cases, in the last four years, various laws (Acts, Ordinances and Policies) have been made by the legislator, after forming committees of experts from lawyers and other relevant fields, and subsequently, the said laws were also implemented by the executive. Details of which is mentioned in paragraph No.28 of the judgment reported as "Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others" (PLD 2022 Lahore 346) in the following manner:--

| | | | | --- | --- | --- | | Sr. No. | Law/Legislation | Cases | | 1 | The Punjab Domestic Workers Act, 2019 | Subay Khan v. Sohail Shahzad Secretary Labour Govt of Punjab, etc. (PLD 2019 Lahore 253) | | 2 | Punjab Food Authority (Disposal of Excess Food), Regulation, 2019 | Barrister Muhammad Ahmed Pansota v. Federation of Pakistan, etc. (PLD 2020 Lahore 229) | | 3 | Commercial Courts Ordinance, 2021 | M.C.R. (Pvt) Ltd, Franchisee of Pizza Hut v. Multan Development Authority, etc. (2021 CLD 639) | | 4 | The Punjab High Security Zones (Establishment) Act, 2020 | Mian Ali Asghar v. Government of the Punjab, etc. (CLC 2020 Lahore 157 = 2021 MLD 370) | | 5 | Draft Bill of "the Punjab Empowerment of Persons with Disabilities Act, 2021" | In W.P. No.30364 of 2021, titled as "Mst. Sana Khursheed v. Government of the Punjab, etc." | | 6 | Urban Forest Policy | Sheikh Asim Farooq v. Federation of Pakistan, etc. (PLD 2019 Lahore 664) | | 7. | The Punjab Empowerment of Persons with Different Abilities Act, 2021 | Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others (PLD 20 Lahore 346) |

1. In view of above, this Court on 31.01.2022, directed the Commissioner, Rawalpindi to constitute a Committee, under his chairmanship, on immediate basis, by including all the members, experts from the relevant field and representatives of the Secretaries of the relevant Departments mentioned above. On 10.02.2022, Waqas Sikandari, Assistant Commissioner, Murree while placing on record Notifications dated 01.02.2022 and 09.02.2022, submitted that in compliance of order dated 31.01.2022, the First Meeting was convened under the chairmanship of Commissioner, Rawalpindi Division, Mr. Noor-ul-Amin Mengal and co-chaired by Ali Touqeer Sheikh (Independent expert on Climate Change) and Hammad Naqi Khan, D.G. WWF, on 08.02.2022 and after due consultation with all the experts a Committee with the name and style "Murree Kohsar Bachao Committee" (the "Committee") has been constituted through Notification dated 09.02.2022 for the purpose i.e. Mountain Conservation, Eco-Tourism and Sustainable Development. He adds that it has also been mentioned in the aforesaid Notification that a Sub-Committee (Legal) (the "Sub-Committee") will also be constituted through Notification under the Chairmanship of Additional Commissioner (Coordination), Rawalpindi Division, to draft the law on preservation, conservation and protection of the Murree hills.

2. On 28.02.2022, Mr. Mujeeb-ur-Rehman Kiayani, Additional Advocate-General submitted the report with documents, wherein it has been reported that the 2nd meeting of the Committee was held on 21.02.2022 duly chaired by Malik Amin Aslam, the then Special Assistant to the Prime Minster on Climate Change. In the meeting, Sardar Taimoor Aslam Khan Advocate submitted a proposed legislation/ law.

3. Messrs Owais Aziz and Uzair Bin Shafie, Advocates organized a workshop to seek comments/input/reviews on the Draft Act inviting stakeholders/people of Murree specifically the former Judges of this Court, who belong to Murree, the Senior Advocates (including Raja Muhammad Shafqat Khan Abbasi, ASC and Raja Habib-ur-Rehman Advocate etc.), former Members National Assembly/ Provincial Assembly.

4. The efforts made by Malik Amin Aslam, the then Special Assistant to Prime Minister on Climate Change, Mr. Akhtar Javaid Secretary, Law and Parliamentary Affairs Department, Government of the Punjab, Mr. Noor-ul-Amin Mengal, Commissioner Rawalpindi Division, Rawalpindi, Mr. Hammad Naqi Khan, D.G. WWF, Sardar Taimoor Aslam Khan, Advocate, Barrister Owais Aziz, Advocate, Mr. Uzair Bin Shafie, Advocate, Miss. Qurat-ul-Ain Kaleem and Miss. Laman Ahmed Advocates, Muhammad Asif Sahibzada, Director (Enr. Policy), Ministry of Climate Change, Islamabad, Mr. Ali Tauqeer Sheikh, Independent Expert; and all other relevant State functionaries as well as the learned Counsel are commendable and highly appreciated.

P L D 2025 Lahore 200

Before Abid Aziz Sheikh, J

Messrs Z. A. CORPORATION through Proprietor---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Commerce, Islamabad

and 2 others---Respondents

Writ Petition No. 57829 of 2024, decided on 1st October, 2024.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Territorial jurisdiction of High Court---Scope---Writ of quo warranto---Maintainability---Appointment of respondent as a Member and then Chairman of National Tariff Commission (NTC) on the same day was challenged through a constitutional petition in the Lahore High Court---Validity---Words "within the territorial jurisdiction of the Court holding or purporting to hold public office" would lead to the ineluctable conclusion that for the purpose of writ of quo warranto, a person against whom, constitutional petition had been filed, must be holding or purporting to hold public office within the territorial jurisdiction of that Court---Respondent was holding the post of Member and Chairman NTC at Islamabad and was not holding or purporting to hold a public office within the territorial jurisdiction of High Court in Province of Punjab---Court had to see what was the dominant object of filing of writ petition---Neither impugned notifications were issued by Punjab Government nor respondent was holding a public office in the Province of Punjab, thus, the dominant object of filing the writ petition being at Islamabad and not Lahore, constitutional petition was not maintainable at Lahore on such score---Constitutional petition was dismissed, in circumstances.

Messrs Madni Paper Mart, through its Proprietor Irshad Ahmad and another v. Federation of Pakistan and others Writ Petition No. 3965 of 2023 ref.

Sandalbar Enterprises (Pvt.) Ltd v. Central Board of Revenue and others PLD 1997 SC 334 and Mirza Luqman Masud v. Government of Pakistan and others 2015 PLC (C.S.) 526 rel.

Shahid Mehmood Khan v. Federation of Pakistan Writ Petition No.18698 of 2016 and Musa Raza v. Federation of Pakistan and others Writ Petition No.1091-P of 2017 distinguished.

(b) Constitution of Pakistan---

----Arts. 199(1)(a)(i), (ii), 199(1)(b)(ii) & 199(1)(c)---Territorial jurisdiction of High Court---Scope---Terms "performing functions within the territorial jurisdiction of the Court" and "holding or purporting to hold public office within territorial jurisdiction"---Scope---Term "performing functions within the territorial jurisdiction of the Court" used in Arts. 199(1)(a)(i), (ii) & 199(1)(c) of the Constitution, is much wider term then words "holding or purporting to hold public office within territorial jurisdiction" used in Art. 199(1)(b)(ii) of the Constitution---Person may perform functions within the territorial jurisdiction of the Court even if he is not holding public office within the territorial jurisdiction of said Court, thus, constitutional petition may be maintainable in said Court considering the dominant object for filing of writ petition---However, in case of writ of quo-warranto under Art. 199(1)(b)(ii) of the Constitution, a person must hold or purport to hold public office within territorial jurisdiction of Court, where constitutional petition has been filed---Constitutional petition was dismissed being not maintainable.

Shafqat Mehmood Chohan for Petitioner.

P L D 2025 Lahore 207

Before Tariq Saleem Sheikh, J

Syed HASSAN MURTAZA through Special Attorney---Petitioner

Versus

Mst. MARIYA BANO KHAN and others---Respondents

Writ Petition No. 78185 of 2023, decided on 24th May, 2024.

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

----Ss. 7 & 12---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Custody of minor---Determining factors---Pendency of matter before Family Court---Petitioner was father of minor children who sought their custody on the plea that respondent-mother had illegally removed them from habitual residence in Canada to Pakistan---Validity---In custody disputes, concept of child's best interest prioritizes the child's welfare and well-being above parents' interests---It requires a thorough assessment of various factors, including their physical, emotional and psychological welfare and their cultural, social and educational needs---It emphasizes that subject to their age and maturity, child's opinions and preferences should be given due consideration when determining custody arrangements, ensuring their active participation in decision-making---Decisions must not discriminate against the child based on factors such as gender, race or disability---Instead, children should be provided a safe growth and long-term happiness---Respondent-mother applied to Family Court in Lahore under S. 7 of Guardians and Wards Act, 1890 for appointment as guardian of children and her application was accepted by Family Court---Petitioner-father alleged fraud and misrepresentation by respondent-mother and had challenged that order under S. 12(2), C.P.C.---Family Court suspended its order to inquire into such allegations and matter was pending, where evidence was needed to be recorded to resolve such controversy between the parties---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter and petitioner-father was to seek remedy before Family Court---Constitutional petition was disposed of accordingly.

J v. C (an infant) [1970] AC 668, at pp.710-711; Re L (minors), [1974] 1 All ER 913, at pp.925-926; Abu Saeed A. Islahi v. Talat Mir and others 1994 MLD 1370; Muhammad Ajmal Khan v. Lt.-Col. Muhammad Shafaat and others PLD 1976 Lah. 396; Qurat-ul-Ain v. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others 2024 SCMR 486; Nadia Perveen v. Alimas Noreen and others PLD 2012 SC 758; R v. Barnardo (1891) 1 QB 194; Muhammad Javed Umrao v. Uzma Vahid 1988 SCMR 1891; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Naziha Ghazali v. The State and another 2001 SCMR 1782; Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Mirjam Aberras Lehdeaho v. SHO 2018 SCMR 427; Ahmed Sami and others v. Saadia Ahmed and another 1996 SCMR 268; Ghulam Fatima v. The State 1998 SCMR 289; Jahan Ara v. Province of Sindh and others 2019 MLD 1722; Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Iza Nowak v. Federal Investigation Agency and others (W.P. No. 3181/2022 decided by the Islamabad High Court by order dated 28.12.2022); Muhammad Faraaz Shaikh v. Javeria Shahani and others 2024 YLR 1330; Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828; J v. C (an infant) [1970] AC 668 and Shaista Habib v. Muhammad Arif Habib and others (Civil Petition No. 3801 of 2022) ref.

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

----S. 12---Hague Convention on the Civil Aspects of International Child Abduction, 1980, Art. 1---Child rights---Transborder abduction---Scope---Hague Convention seeks to prevent unlawful removal or retention of children across international borders by their parents, thus shielding them from harmful consequences of abduction---It aims to (i) secure prompt return of children wrongfully removed to or retained in any Contracting State and (ii) to ensure rights of custody and access under law of one Contracting State are effectively respected in other Contracting States---Convention aims to prevent forum shopping by establishing uniform procedures for resolving abduction cases and addressing human rights concerns related to rights of children and parents---Hague Convention adopts proactive and remedial approach and its focus is not to adjudicate merits of custody disputes but rather to address breach of rights of custody established by law in child's habitual residence---Underlying principle is that the most appropriate jurisdiction for custody disputes is typically the child's habitual residence before abduction---This ensures that long-term decisions regarding their upbringing are made in the environment most familiar to them and by a Court having access to the most relevant information.

Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398; re J (a child) (FC), [2005] UKHL 40; The proceedings brought by A (Case C-523/07)[2010] Fam 42; Mercredi v. Chaffe (Case C-497/10 PPU) [2012] Fam 22; re A (Children) (AP) [2013] UKSC 60; McKee v. McKee [1951] AC 352; re Barrios and Sanchez [(1989) FLC 77, 602; Lehartel v. Lehartel [1993] 1 NZLR 578; re M (Abduction: Non-Convention Country) [1995] 1 FLR 89; re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231; re J (a child) (FC), [2005] UKFIL 40 and Nithya Anand Raghavan v. State (Nct of Delhi) and another (2017) 8 SCC 454 rel.

(c) Administration of justice---

----Maintainability of lis and entitlement to relief---Distinction---If a case is deemed not maintainable, the Court does not proceed to examine its merits---On the other hand, "entitlement to relief" involves a claimant's substantive right to the remedy or relief sought in a lawsuit---Such determination is based on merits of the case, requiring Court to evaluate evidence and apply relevant laws to decide if claimant has a valid claim---Entitlement to relief is considered only after the Court has determined that the case is maintainable.

Muhammad Nasim Siddiqui v. Ali Akbar PLD 2018 Sindh 703 and Capt. Tariq Mehmood Malik v. PALPA Pilots Occupational Disability Fund Trust 2022 CLC 862 rel.

Irfan Sadiq Tarar for Petitioner.

Ch. Akbar Ali Shad for Respondents Nos. 1 and 2.

Sittar Sahil, Assistant Advocate General with Raza, S.I. for Respondents Nos. 3 to 8.

Sher Hassan Pervez, Research Officer, LHCRC and Muhammad Shahid, Librarian, Research Assistance.

P L D 2025 Lahore 235

Before Asjad Javaid Ghural and Muhammad Amjad Rafiq, JJ

The STATE---Petitioner

Versus

MUHAMMAD ALTAF---Respondent

Criminal Appeal No. 482 of 2022, decided on 14th November, 2023.

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

----S. 9(c)--- Possession of narcotic--- Appreciation of evidence---Confession of accused after amendment of charge---Legality---Prosecution case was that 2300 grams charas was recovered from the possession of accused---Accused did not plead guilty to the charge, yet admitted his guilt when the charge was amended---Validity---No specific prohibition was available for recording plea of guilt at any stage of trial and such arrangement in no case was opposed to right to fair trial if accused opted to waive the same to cut short the process in order to avoid the agony or rigors of protracted trial---However, Court was always on guard to take a careful look why the accused was admitting his guilt and should ensure that the trial of offence entailing capital punishment should not be terminated merely on the admission of guilt by the accused, for which recording of evidence was essential---Admission of guilt in the present case recorded by the Trial Court could not be declared illegal in the given circumstances---Such mode was perfect, in consonance with the dictum laid down by the apex Court; therefore, impugned judgment did not suffer from any illegality and called for no interference---Appeal was dismissed in limine, in circumstances.

Nasaruddin Mohammad v. Emperor AIR 1928 Calcutta 775; Shahbaz Masih v. The State 2007 SCMR 1631; Muhammad Ismail v. The State 2017 SCMR 713; Multan Jan v. The State 2020 PCr.LJ 88 and State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671 rel.

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

----S. 9(c)---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S. 9(8)---Possession of narcotic---Appreciation of evidence---Confession of guilt---Sentence, quantum of---Prosecution case was that 2300 grams charas was recovered from the possession of accused---Accused who sought sentence on the basis of his plea of guilt, in turn helped in reducing the costs of trial---If after attending the processes of trial the accused was to meet a particular sentence range then the Court could record plea of guilt at any stage, even mid-way, if accused was ready to assist and facilitate the system for cost-reduction of prosecution case and could reward the accused with minimum sentence range as a State bounty---As per S. 9(8) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, on pleading guilty by the accused, prosecutors were required to suggest appropriate sentence range---As per 'Code of Conduct for Prosecutors' issued under S. 17 of Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, while applying 'Full Code Test' which included evidential test and public interest test, it could be applied at any appropriate stage keeping in view the requirement of the said Code---Prosecutors should ensure that prosecution of an offence must be a "Proportionate Response" which meant that quantum of sentence must commensurate to the costs of prosecution---When an accused voluntarily admitted his guilt before the Court, he must be dealt with more leniently in terms of quantum of sentence---Appeal was dismissed in limine, in circumstances.

Syed Aftab Ejaz's case PLD 1978 Lah. 361; Muhammad Arif and another v. The State 1991 PCr.LJ 623 and King Emperor v. Kasim Walad Mohamed Saffer AIR 1925 Sind 188 rel.

P L D 2025 Lahore 249

Before Mirza Viqas Rauf, J

Mst. MISBAH IFTIKHAR and another---Petitioners

Versus

Mst. ALEESA and 3 others---Respondents

Writ Petition No. 1234 of 2023, heard on 26th September, 2024.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.12(2)---Family Courts Act (XXXV of 1964), S. 14---Family Courts Rules, 1965, R.3---Constitutional petition---Maintainability---Filing of application under S.12(2), C.P.C., against the decree passed by the Appellate Court---Under R. 3 of the Family Courts Rules, 1965, the courts of the District Judge, the Additional District Judge are also designated as Family Courts along with the Civil Judge but ordinarily functions of Family Courts are assigned to the Civil Judge and the District Judge and the Additional District Judge acts as appellate court as is evident from the bare reading of S.14 of the Family Courts Act, 1964 (Act)---Additional District Judge, who decided the application of petitioners under S.12(2), C.P.C., was officiating as Appellate Court, thus, writ petition was maintainable.

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

----S. 17---Civil Procedure Code (V of 1908), S.12(2)---Decree passed by the appellate court challenged through application under S.12(2), C.P.C.---Maintainability---"Person" competent to file application under S.12(2)---Scope---By virtue of S.12(2), C.P.C., any person can challenge the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an application to the court which passed the final judgment, decree or order---Term "person" used in S. 12(2) has wider import and cannot be narrowly interpreted, so as to restrict it to refer to only a judgment debtor or his successors but it should be read to include any person adversely effected even though not a party to the proceedings wherein such decree, judgment or order is passed---Scope of S.12(2), C.P.C., is not narrow but wide enough and it is not restricted to the judgment, decree or order obtained while playing fraud with the court but it also extends to the cases where a judgment, decree or order has been obtained by the parties through fraud inter se by concealment of true facts---Despite an embargo in terms of S.17 of the Act there is no legal impediment in the way of an aggrieved person moving an application under S.12(2), C.P.C., before the Family Court---Constitutional petition was allowed, in circumstances.

Muhammad Arshad Anjum v. Mst. Khurshid Begum and others 2021 SCMR 1145 and Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 ref.

Muhammad Arshad Anjum v. Mst. Khurshid Begum and others 2021 SCMR 1145; Fozia Mazhar v. Additional District Judge, Jhang and others PLD 2024 SC 771 and Fozia Mazhar v. Additional District Judge and 2 others 2021 CLC 270 rel.

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

----S.12(2)---Constitution of Pakistan, Art.199---Decree, setting aside of---Plea of fraud and misrepresentation---Application under S.12(2), C.P.C., was dismissed summarily on the ground of maintainability and also on merits without framing of issues---Validity---Though it is not a principle of universal application that in each and every case, the court is bound to frame the issues before deciding the fate of an application under S.12(2), C.P.C., but where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality said application should not be dismissed summarily---Allegations levelled by the petitioners in their application had due force to compel the court to frame issues instead of dismissing the application in a cursory and slipshod manner---On the one hand, the Appellate Court held the application under S.12(2), C.P.C., not maintainable and on the other dilated upon its merits---After forming negative opinion about the maintainability of application the Appellate Court should have simply dismissed the same on said score instead of delving into its other merits.

Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 rel.

Agha Muhammad Ali Khan for Petitioners.

Mirza Muhammad Nazakat Baig for Respondent No.1.

Respondents Nos.2 and 3: Ex-parte.

P L D 2025 Lahore 263

Before Shams Mehmood Mirza, J

FAYSAL BANK LIMITED---Plaintiff

Versus

Messrs DYNASEL LIMITED and others---Defendants

C.O.S. No. 28 of 2014, decided on 13th May, 2024.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S.9---Suit for recovery of finance---Entries of statement of account---Proof---Parties prove facts stated in pleadings---Statement of account is simply the ledger maintained by bank reflecting outstanding amount of a finance facility but its entries are required to be proved by underlying documents by evidence led by the plaintiff.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Suit for recovery of finance against surety---Maintainability---Pre-condition---Existence of a debt is a sine qua non for an action against surety even if it is separately and independently brought against it---Foundation or basis of claim even in suit against surety is liability of principal debtor.

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

----S. 45---Execution proceedings---Several co-defendants---Principle---Plaintiff who has obtained judgment against several co-defendants who are jointly and severally liable, can take execution proceedings against any one of the co-defendants, or any combination of them or all of them.

(d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Suit for recovery of finance---Debtor and guarantor, joining of---Principle---Even if contract of guarantee by its terms makes guarantor not jointly liable and cause can be said to be separate, the creditor can bring an action by joining principal debtor and surety as defendants.

Bank of Bihar Ltd. v. Damodar Prasad and another [1969] 1 SCR 620 rel.

(e) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Civil Procedure Code (V of 1908), O.II, R.2---Contract Act (IX of 1872), S. 128---Suit for recovery of finance---Liability of surety---Joint cause of action---Plaintiff/bank filed suit against principal borrowers and surety for failure to repay finance facilities---Validity---Plaintiff/bank by provisions of O. II, R. 2, C.P.C. was precluded from splitting claim which had its foundation in joint cause of action against all defendants---Provision of Explanation to O. II, R. 2, C.P.C. supported case of plaintiff/bank in treating cause of action against all defendants as unified and joint---Plaintiff/bank proved its case against defendants for recovery of amounts under finance facilities in question and mark-up under Running Finance facility in addition to preliminary decree that was passed earlier---High Court decreed the suit in favour of plaintiff/bank and against defendants, jointly and severally---Suit was decreed accordingly.

Saudi Pak Industrial and Agricultural Investment Limited v. B.A Rajput Steel and Re-rolling Mills (Pvt.) Limited and others 2016 CLD 465; Sri Sri Raja Lakshmi Narayan Jew and others v. The Province of East Pakistan 1969 SCMR 898; Mst. Bakht Bibi v. Muhammad Aslam Khan and others 2016 MLD 1411; Loo Chay Sit v. Estate of Loo Chay Loo (2010) 1 SLR 286; Muhammad Luqman v. The State PLD 1969 Lah. 257; High Noon Textile Limited and others v. Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Limited and 4 others 2010 CLD 567; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; National Construction Limited v. Standard Insurance Co. Limited 1984 CLC 286 and Kamila Aamir and another v. Additional District and Sessions Judge and others PLD 2023 Lah. 601 ref.

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

----S. 128---Word "coextensive"---Scope---Word "coextensive" in S. 128 of Contract Act, 1872 refers to the extent to which surety is liable towards creditor---Surety is not liable for more than what is due from principal debtor---Surety, under S. 128 Contract Act, 1872 may impose limits on restricting its liability by entering into a special contract.

Ashar Elahi and Syed Majid Ali Bukhari for Plaintiff.

Haq Nawaz Chattha for Defendants Nos.1 to 8.

Zaki ur Rehman for Defendant No.9.

P L D 2025 Lahore 286

Before Ahmad Nadeem Arshad, J

SABIR ALI---Appellant

Versus

MUNAWAR and others---Respondents

Civil Revision No. 2938 of 2022, heard on 24th April, 2024.

Civil Procedure Code (V of 1908)---

----S. 48(1) & O.XXI, R.35---Limitation Act (IX of 1908), First Sched., Art. 181 & S. 15---Execution of a decree for possession and sanctioning of mutation---Computation of period of limitation---Exclusion of time during which proceedings were suspended---Revival of earlier executions petitions not decided through final order being continuation of proceedings---Scope---First and second execution petitions, which were filed within time, were consigned to record due to misunderstanding that the decree had been satisfied and for non-deposit of cost of warrant of Dakhal---Upon filing of third execution petition objection petition was filed by the petitioner raising objection as to its maintainability being barred by time, which was dismissed by the executing and appellate Courts---Validity---Words 'fresh application' had been used in S. 48(1), C.P.C., therefore, what was contemplated under this section by the words 'fresh application', was a substantive merely ancillary or incidental to a previous application, that was to say if the decree holder sought to set the Court into motion to take further proceedings in respect of an application already pending or where the application had been recorded or where the execution proceedings had been suspended by reasons of appeal or other proceedings, it would not be regarded as fresh application---Execution application was deemed to be pending so long as no final order disposing it judicially had been passed thereon---Subsequent application in such a case for execution would be deemed to be one merely for the continuation of the original proceedings---Where final judicial order terminating the execution petition had been passed on the application, such execution proceedings could not be revived and the subsequent application for execution would be regarded as fresh application and not one for revival and continuation of the original proceedings---Mere reports, in the 'Warrant Dakhal' and 'Rapt Roznamcha Waqiati', that possession was given to the decree holders could not be taken as conclusive proof of the fact that the decree holders were put into physical possession of the suit land decreed in their favour till the decree holders admitted the said fact---Decree holders had not come to the court for some new or fresh relief rather they approached the executing court to get the relief given by High Court, thus, their third execution petition was just revival of their earlier execution petitions which were filed within time and consigned to record without satisfaction of the decree passed in their favour and the decree holders were pursuing their case since long and their decree was still unsatisfied---Civil revision was dismissed, in circumstances.

Rana Kent Malaviya and another v. Satya Narain Malaviya AIR 1938 Allahabad 552; Krishnamachari v. Chengalraya Naidu AIR 1940 Madras 281; Venlappa and others v. Lakshmi Kant Rao AIR 1956 Hyderabad 7; Muhammad Umer Khan v. Muqarrab Khan and another PLD 1976 Pesh. 43 and United Bank Limited v. Fateh Hayat Khan Tawana and others 2015 SCMR 1335 rel.

Raja Abdul Rehman for Petitioner.

Muhammad Ghafoor Malik for Respondents Nos. 1 to 6.

Ms. Samia Khalid, Additional Advocate General for Respondent No. 7.

P L D 2025 Lahore 293

Before Asim Hafeez and Anwaar Hussain, JJ

Messrs BILAWAL GULL BUILDERS---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 2009 of 2024, heard on 5th March, 2024.

(a) Punjab Procurement Rules, 2014---

----Rr.2(aa) & 56---Tender for civil works---Lowest bid---Vested right---Responsive bid---Object, purpose and scope---Security of different nomenclature---Excluding security from insurance companies---Petitioners/bidders claimed to be the lowest bidders who were aggrieved of demand of authorities to furnish "Quality Assurance Security" or "Quality Control Guarantee"---Validity---Lowest quoted bid per se did not make bidder successful and eligible for award of contract, when quoted price was lower than estimated cost---Such bid was not responsive in the first place---Bidder with lowest quote was directed to provide security for covering differential and at such point of time there was no relevance of performance guarantee---If bidder had met the contingency and furnished requisite security, in the kind as directed, only then bid could be classified as "lowest evaluated bid"---Unless contingency was met, no occasion for acceptance of bid had arisen, notwithstanding howsoever low the quote was---Once such condition was fulfilled, the bid was accepted and contract was awarded, then status of the bidder was elevated to the contractor, who was then obligated to provide performance guarantee---Bid was to be accepted only once it was found responsive, and it could not be treated as responsive unless the security demanded, for difference between quoted price and estimated cost, was provided---Only upon acceptance of the lowest evaluated bid the adjective "successful" was added to the credit of bidder---Division Bench of High Court endorsed findings recorded in clause (i) of operative part of decision in case titled as A.M. Construction Company (Private) Limited v. Province of Punjab, reported as 2023 CLC 616---Demand for arranging "Quality Assurance Security" or for that matter "Quality Control Guarantee", where applicable and subject to the amount ascertained, did not conflict with the requirement of procuring performance guarantee, in terms of R. 56 of Punjab Procurement Rules, 2014---Furnishing of additional security did not absolve the lowest evaluated bidder, identified as successful bidder in common parlance, from provisioning of performance guarantee---Exclusion of arranging security from insurance companies was a policy matter decision---Such exclusion did not violate mandate of public procurement regime, prevalent in the province of Punjab---Division Bench of High Court also endorsed decision passed in case titled Messrs Jalal Construction Company v. Secretary C & W Department of Government of Punjab and others, reported as 2024 LHC 329, to the extent of the findings recorded and conclusions reached therein regarding prevalent provincial procurement regime---Constitutional petition was disposed of accordingly.

A.M. Construction Company (Private) Limited v. Province of Punjab through Secretary Communication and Works Department and others 2023 CLC 616; Messrs Jalal Construction Company v. The Secretary C&W Department, Government of Punjab and 3 others W.P. No. 23988 of 2022 and Messers Ghulam Muhammad & Sons v. Water and Sanitation Agency (WASA) Faisalabad through Director General and others 2022 MLD 1216 rel.

Peshawar Electric Supply Company Ltd (PESCO) and another v. SS Polypropylene (Pvt.) Ltd., Peshawar and others PLD 2023 SC 316 ref.

(b) Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----S. 29---Punjab Procurement Rules, 2014, R. 25 (5)---Constitution of Pakistan, Art. 143---Procurement---Provincial subject---Standard Bidding Document---Scope---Instructions by Executive Committee of the National Economic Council (ECNEC)---Validity---Instructions of ECNEC for extending preference to standard bidding documents drafted by Pakistan Engineering Council is not biding and can not claim superiority vis-à-vis the prevalent procurement regime---Such instructions do not restrict or impede enforcement of public procurement regime envisaged under Punjab Procurement Regulatory Authority Act, 2009 and Punjab Procurement Rules, 2014---Instructions, having advisory status cannot be construed to undermine provincial autonomy and effective enforcement of procurement regime in Punjab---Government of Punjab has introduced contract form for the guidance of bidders and for regulating procurement matters---Violation of any provision of Punjab Procurement Regulatory Authority Act, 2009, the Punjab Procurement Rules, 2014, and regulations, orders or instructions made thereunder, attracts mis-procurement.

Constructors Association of Pakistan through Secretary General and 4 others v. Government of Balochistan through Secretary, Communication Department, Quetta and 8 others PLD 2024 Bal. 23 and Messrs Saad Ullah Khan and Brothers v. The Secretary Irrigation Department Government of Balochistan and another Constitution Petition No.1185 of 2022 distinguished.

Abdul Samad Ali for Petitioner.

Mehar Muhammad Bashir, Nadira Noor, Mehar Muhammad Ilyas Wasli, Haji Tariq Aziz Khokhar, Rana Muhammad Asif Saeed, Mehar Irshad Ahmad Arain, Sajid Hussain Qureshi, Muhammad Akmal Khan Sial, Malik Muhammad Tariq Rajwana, Mirza Muhammad Idrees Khan, Muhammad Saleem Bashir, Malik Sohail Ashiq Shujra, Muhammad Shahbaz Mughal, Ch. Muhammad Saeed Machra, Kanwar Wajih-ud-Din, Najia Noreen Maitla, Rana Muhammad Shakeel, Tariq Murtaz Khan Mallezai, Muhammad Usman Jameel, Mehar Adnan Ahmad Maken and Sajjad Hussain Khan Butta for Petitioners (in connected Petitions).

Imran Khan, Assistant Advocate General and Bilal Amin, Advocate/Legal Advisor for Respondents.

Zain Rashid, SDO Highway Lodhran, Muhammad Nasrullah SDO, Jam Pur and Muhammad Asif SDO Taunsa Barrage Division, Kot Addu for Respondents.

P L D 2025 Lahore 311

Before Shahid Karim, J

KASHIF LAW BOOK HOUSE---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 34660 of 2020, decided on 26th January, 2024.

(a) Constitution of Pakistan---

----Art. 19---Right to speech and expression---Reading material---Scope---Right guaranteed by Art. 19 of the Constitution is inextricably linked to and dependent upon right to read and receive information, as only then it is possible for right to freedom of speech, to be exercised in a wholesome manner---There must be sovereignty of choice to vest in a reader to sift through different sources of material of literary value which in turn, equips him or her with knowledge so that such right to freedom of speech and expression can be enjoyed---Such right is subject to reasonable restrictions imposed by law, amongst others, in the interest of friendly relations with foreign states and it may include restrictions to be imposed, if relations with a foreign state do not remain so friendly.

(b) Constitution of Pakistan---

----Art. 14---Dignity of a man---Right to read---Effect---Dignity of a man can attain its full potential by acquiring education and knowledge and which, in turn, entirely depends upon freedom to read books and journals as part of basic facilities that a person born in a free country is entitled to enjoy.

(c) Constitution of Pakistan---

----Art. 9---Right to life---Intellectual liberty---Reading books and journals---Scope---Reading makes a man perfect and it opens new vistas and liberates minds---Any prohibition on pursuit of intellectual liberty and on the concept of objective truth, threatens in the long run every department of thought---Reading not only enables free thought but in turn empowers free speech which is the cornerstone of liberty as enshrined in the Constitution---This is how a connection is established between reading and life and liberty (Article 9) so that right to read must be deemed comprised in the right to life and liberty as a penumbra of that right.

(d) Import Policy Order, 2016---

----Para. 5(A)(ii)---Notification SRO 927(I)/2019 dated 09-08-2019---Intellectual liberty---Books and journals---Restriction on import---Petitioner/book selling company was aggrieved of restrictions imposed by authorities on import of books and journals of Indian origin apart from goods of Israeli origin---Validity---Question involved was a political question and touched upon national security and foreign affairs matters---Political branches of government should have unfettered power over such matters---High Court declined to sit in judgment over decision-making of the Executive which was equipped with reports and relevant information to make a final decision---High Court declined to rebalance imperatives of the decision in order to come to a different conclusion---High Court at best, could ask the Executive to review its decision in respect of law books and journals---Matter which entailed foreign policy implications must reside with political branches including power to review---Notification SRO 927(I)/ 2019 dated 09-08-2019 was not un-Constitutional and was issued validly---High Court directed Federal Government to appoint an officer to hear review/revision pertaining to issues raised by petitioner/book seller company particularly in respect of law books and journals, as right to read was a fundamental right and was enshrined in the Constitution---High Court further directed Federal Government to consider recommendations of the Officer so appointed and decide thereafter---High Court also directed Federal Government to issue instructions regarding filing of review petitions by private persons---Constitutional petition was disposed of accordingly.

Chief Constable v Evans (1982) All ER 141, 154; City School Private Limited v. Government of the Punjab and others PLD 2018 Lah. 509; Griswold v. Connecticut, 381 U.S 479 (1965) at 482; Chicago and Southern Airlines, Inc. v. Waterman S.S. Corp., 333 U.S 103 (1948); SSHD v. Rehman [2001] UKHL 47; e.g. R (National Council for Civil Liberties) v. SSHD [2019] EWHC 2057 (Admin) and R (Miranda) v. SSHD [2016] EWCA Civ 6 rel.

Asfandyar Khan Tareen, Arslan Saleem Chaudhry, Arslan Akram, Rana Muhammad Afzal Razzaq Khan, Ghulam Abbas Haral, Muhammad Umer Rafiq, Abdul Latif and Muhammad Adeel Chaudhry for Petitioners.

Sh. Izhar ul Haq and Ch. Imtiaz Elahi for FBR.

Asad Ali Bajwa, D.A.G. for Respondents.

P L D 2025 Lahore 332

Before Ahmad Nadeem Arshad, J

SAKHAWAT HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 22286 of 2023, decided on 27th November, 2024.

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

----Arts. 2(9) & 128---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Paternity of minor (plaintiff), denial/challenging of---Deoxyribonucleic acid (DNA) test of the minor, conducting of---Scope---Subsistence of valid marriage---"Conclusive proof"---Application of defendant (ex-husband) for DNA examination of minor plaintiff was dismissed concurrently---Whether the petitioner/defendant can be allowed to get conducted DNA test of the minor plaintiff and produce the said report as evidence in order to challenge the paternity of minor plaintiff?---Held, it is matter of record that the petitioner contracted marriage with the respondent (plaintiff lady), however, he divorced her after about seven months of their marriage---After the divorce, minor/plaintiff was born after almost 06½ months of the dissolution of marriage---Petitioner has not denied the marriage with respondent (plaintiff lady), however, he denied the paternity of minor---Petitioner, being defendant, moved the application whereby he prayed for conducting Deoxyribonucleic acid (DNA) test---As per Art. 128 of the Qanun-e-Shahadat, 1984 ('the Order 1984'), a child born to a woman during the subsistence of valid marriage or within two years after its dissolution is conclusive proof of his legitimacy, provided that the woman remains unmarried after the divorce---Said fact was regarded as a "conclusive proof" and no evidence could be admitted to refute the same as Art. 2(9) of the Order, 1984, provides that "when one fact is declared by this Order to be conclusive proof of another, the Court, on proof of the one fact, regards the other as proved and shall not allow evidence to be given for the purpose of disproving it"---Stipulation in Art. 128 of the Order, 1984, is that the birth of a child within the period specified in said Article is conclusive proof that he is a legitimate child---Once the relevant facts as to commencement of dissolution of marriage and the date of birth of a child within a period envisioned in Art. 128 are proved and the date of birth is within the period specified in Art. 128(1), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the said period---Thus, both the Courts below rightly dismissed the application of the petitioner/ defendant(ex-husband)---Constitutional petition filed by defendant (ex-husband), being merit-less, was dismissed.

Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 ref.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2---Qanun-e-Shahadat (10 of 1984), Art. 128---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Paternity of minor (plaintiff) denied by husband---Deoxyribonucleic acid (DNA) test of the minor, conducting of---Scope---Application of defendant(ex-husband) for DNA examination of minor plaintiff was dismissed concurrently---Validity---Although birth during continuance of a valid marriage or within two years after its dissolution is a conclusive proof of legitimacy under Art. 128(1)(a) of the Order 1984,but under certain circumstances the husband can disown the paternity of a child---Since both parties are Muslims and S. 2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provision of Art. 128 of the Qanun-e-Shahadat, 1984---When a person denies that he is the natural/ biological father of children born within the period stipulated in Art. 128, the Muslim Personal Law (Shariat), firstly, provides that legitimacy/paternity must be denied by the father immediately after birth of the child [as per Imam Abu Hanifa] and within the post natal period (maximum of 40 days) after birth of the child [as per Imam Muhammad and Imam Yousaf]---There can be no lawful denial of paternity after this stipulated period---The Hedaya, Fatawa-e-Alamgiri and other texts all agree on this principle of Shariat---In the present case, the petitioner contracted marriage with the respondent (plaintiff lady), however, he divorced her after about seven months of their marriage---Minor/plaintiff was born after almost 06½ months of the dissolution of marriage---Hence, the first denial of paternity appearing from the record in the instant case is in the written statement furnished by the petitioner after three years of birth of minor---Therefore, while applying the principles of Muslim Personal Law (Shariat) as mandated by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the petitioner cannot be allowed to deny the legitimacy/paternity of minor plaintiff---Thus, both the Courts below rightly dismissed the application of the petitioner/defendant(ex-husband)---Constitutional petition filed by defendant (ex-husband), being merit-less, was dismissed.

Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 and Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449 ref.

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

----Arts. 2(9) & 128---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Paternity of minor (plaintiff), denial of---Deoxyribonucleic acid (DNA) test of the minor, conducting of---Scope----Honour and dignity of women and innocent children---Each human being has a unique DNA pattern, which is acquired by inheriting it from the biological parents---DNA can be found in the human body and samples can be taken from sliva, skin tissues, blood, hair and semen for establishing the DNA matching with the DNA of another human being---Though by using DNA technology, the Courts are in a better position to reach at a just conclusion but the question is whether the a defendant/(ex-)husband can be allowed to get conducted DNA test of the minor plaintiff and produce the said report as evidence in order to challenge the paternity of minor plaintiff---It is for the honour and dignity of women and innocent children as also the value placed on the institution of the family that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization---It is becoming a common practice in our society that whenever a suit for recovery of maintenance allowance is filed against a person he comes forward to the Court and challenges the legitimacy of the child by moving an application requesting for conducting DNA analysis of the child---Ethically, questioning the paternity of a child during a maintenance suit can be seen as a tactic to evade responsibility rather than a legitimate claim based on evidence---It often reflects a desire to avoid financial obligations and may be motivated by personal animosity or financial concerns---Such practice should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the family unit and the legal system that is designed to protect the interests of vulnerable children---When a parent questions the legitimacy of the child, it creates an atmosphere of doubt and insecurity---This practice undermines the child‟s sense of identity, dignity, and belonging, which can have long-lasting psychological effects---It is crucial that courts focus on the child's needs and emotional welfare, rather than allowing a parent to challenge paternity without valid justification---Use of DNA tests to challenge paternity, while scientifically valid, should not be viewed as a tool for harassment or delay in matters of child maintenance---Thus, both the Courts below rightly dismissed the application of the petitioner/defendant(ex-husband)---Constitutional petition filed by defendant (ex-husband), being merit-less, was dismissed.

Muhammad Ashraf Azad for Petitioner.

Sohail Akhtar for Respondent No.3. (Proxy)

P L D 2025 Lahore 340

Before Shahid Bilal Hassan, J

MUHAMMAD ADIL NAWAZ BHATTI through Attorney---Petitioner

Versus

CHAIRMAN UNION COUNCIL NO. 116-EME and 3 others---Respondents

Writ Petition No. 62590 of 2023, decided on 30th January, 2024.

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

----Ss. 2(b) & 7---Rules under the Muslim Family Laws Ordinance, 1961, R. 3(b)---Notification S.R.O.No.1086(K)61 dated 09.11.1961---Pakistan origin spouses living abroad having developed strained relations---Divorce proceedings, carrying out of---Jurisdiction/authority---Pakistan Consulate/Mission abroad and Chairman Union Council in Pakistan---Petitioner (Overseas Pakistani) filed constitutional petition against refusal of the concerned Chairman Union Council(Respondent) to issue him divorce effectiveness certificate---Validity---Petitioner was permanently residing in Germany and record (valid Resident/Health Card) pertaining to respondent/lady showed that she was also living in Germany---Even at the time of alleged notices of Talaq the petitioner was not available in Lahore/Pakistan---In cumulative view of the provisions under Ss. 2(b) & 7 of Muslim Family Laws Ordinance, 1961 ('the Ordinance 1961') and R. 3(b) of the Rules made under the Ordinance 1961 as well as Notification S.R.O. No.1086(K)61 dated 09.11.1961, in the present case, the jurisdiction for taking up the matter-in-hand was with the designated officer in the Pakistan Consulate/Mission in Germany while the Union Council and/or the Chairman would have authority if the wife was residing within its territorial jurisdiction at the time of pronouncement of divorce---Thus, as per Notification S.R.O. No. 1086(K)61 dated 09.11.1961, officers of Pakistan Mission abroad are authorized to discharge the functions of Chairman under the Ordinance 1961 and the Chairman, Union Council/respondent had no authority to deal with the matter in hand in respect of divorce---Thus, the impugned order passed by the respondent/Chairman Union Council (Respondent) had rightly been passed while construing law on the subject, which did not need any interference by the High Court---Constitutional petition, having no force and substance, was dismissed, in circumstances.

Mt. Sharifan v. Abdul Khaliq and another 1983 CLC 1296; Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others PLD 2019 Lah. 285; Mian Irfan Latif through Special Attorney v. Nazim/ Chairman Union Council No.100 and another 2009 YLR 1141; Mst. Sana Asim Hafeez v. Adminstrator/ Chairman, Arbitration and Conciliation Court 2016 MLD 1061; Syeda Wajiha Haris v. Chairman, Union Council No.7, Lahore 2010 MLD 989 and Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others PLD 2019 Lah. 285 ref.

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

----Ss. 2(b) & 7---Rules under the Muslim Family Laws Ordinance, 1961, R. 3(b)---Notification S.R.O. No. 1086(K)61 dated 09.11.1961---Pakistan origin spouses living abroad having developed strained relations---Divorce proceedings, carrying out of---Jurisdiction/authority---Non-disclosure of proceedings abroad---Approaching Court with unclean hands---Petitioner (Overseas Pakistani) filed constitutional petition against refusal of the concerned Chairman Union Council (respondent) to issue him divorce effectiveness certificate---Validity---Petitioner did not disclose the factum of initiation of proceedings before the District Courts in Germany with regards to complaint against physical assault, claim for separate accommodation and maintenance, meaning thereby the petitioner had not approached the High Court with clean hands---Thus, the impugned order passed by the respondent/ Chairman Union Council (respondent) had rightly been passed while construing law on the subject, which did not need any interference by the High Court---Constitutional petition, having no force and substance, was dismissed, in circumstances.

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

----Ss. 2(b) & 7---Rules under the Muslim Family Laws Ordinance, 1961, R. 3(b)---Notification S.R.O. No. 1086(K)61 dated 09.11.1961---Pakistan origon spouses living abroad having developed strained relations---Divorce proceedings, carrying out of---Jurisdiction/Authority---Pakistan Consulate/Mission abroad and Chairman Union Council in Pakistan---Chairman Union Council (respondent) refused to issue to the petitioner divorce effectiveness certificate on the plea that under the Notification S.R.O. No. 1086(K)61 dated 09.11.1961 (SRO)Pakistan Consulate/Mission abroad had the authority in matter-in-hand---Petitioner (Overseas Pakistani) filed constitutional petition against the said refusal contending that SRO in question had been struck down by the Islamabad High Court---Validity---Said S.R.O. was fully in vogue in Punjab as no verdict as such had been passed by the Lahore High Court---A relief cannot go beyond the provincial boundary and affect any other province or area or its people---Thus, as per Notification S.R.O. No. 1086(K)61 dated 09.11.1961, officers of Pakistan Mission abroad are authorized to discharge the functions of Chairman under the Ordinance 1961, and the Chairman, Union Council/respondent had no authority to deal with the matter in hand in respect of divorce---Thus, the impugned order passed by the respondent/Chairman Union Council (respondent) had rightly been passed while construing law on the subject, which did not need any interference by the High Court---Constitutional petition, having no force and substance, was dismissed, in circumstances.

Hassan Shahjehan v. FPSC through Chairman and others PLD 2017 Lah. 665 ref.

Malik Muhammad Imtiaz Mahal for Petitioner.

Ms. Yasrab Gulzar for Respondent No.3.

Mian Jaffer Hussain, Deputy Attorney General for Pakistan.

Qamar Zaman Qureshi, Additional Advocate General Punjab for Respondents.

P L D 2025 Lahore 347

Before Muhammad Sajid Mehmood Sethi Rasaal Hasan Syed, JJ

Messrs MAG APARTMENTS PRIVATE LIMITED through Chief Executive Officer---Appellant

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General and another---Respondents

I.C.A. No. 26642 of 2023, heard on 18th November, 2024.

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

----S. 48---General Clauses Act (X of 1897), S. 21---Completion of acquisition---Acquisition Commission, powers of---Principle---Power of Acquisition Commissioner to withdraw from acquisition of any land is unfettered till possession has been taken---Provision of Land Acquisition Act, 1894 contemplates that once possession has been taken, acquisition is complete, and the Commissioner can no longer exercise power to withdraw---After possession has been taken, land is vested in the Government, and notifications issued prior to it cannot be cancelled under S. 21 of General Clauses Act, 1897.

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

----Ss. 4 & 13---Acquisition of land---Denotification---Possession not transferred---Effect---Appellant/land owner was aggrieved of judgment passed by Judge in Chambers of High Court whereby de-notification of acquired land was set-aside---Validity---Land in question was included in notification dated 06-11-1980 issued under S. 4 of Land Acquisition Act, 1894and notification dated 05-01-1981 was issued under S. 13 of Land Acquisition Act, 1894---Award of Khasra number in question was not announced and proceedings to acquire its possession were initiated to the extent of 01-Kanal 15 Marla only, which did not include land of appellant---No party can be expected to wait indefinitely, as Government acquires its valuable right to the immovable property---If 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 should have told the landowners where they stood---Land acquisition process started decades ago, and landowners were struggling to get their legitimate rights---No law could condone indolence of respondent-Lahore Development Authority---Respondent/ Commissioner Lahore Division, taking into account the conduct of respondent/LDA, was justified to de-notify land of appellant measuring 04-Kanal comprising Khasra number in question---Intra Court Appeal was allowed in circumstances.

Government of Pakistan through Secretary Ministry of Defence Rawalpindi and another v. Akhtar Ullah Khan Khattak and others PLD 2024 SC 218 rel.

Liaqat Ali v. District Collector, Gujrat and 4 others 2022 MLD 1195 and Wali Rehman v. The Additional Commissioner (Revenue) Gujranwala Division and 7 others 2022 CLC 106 ref.

Muhammad Khalil Rana for Appellant.

Ms. Samia Khalid, Additional Advocate General and Ch. Waseem Arif for Respondents.

P L D 2025 Lahore 352

Before Anwaarul Haq Pannun and Sultan Tanvir Ahmad, JJ

FARAZ IQBAL JAMIL and another---Appellants

Versus

The FEDERATION OF PAKISTAN and 4 others---Respondents

Intra Court Appeal No. 71740 of 2023, decided on 25th April, 2024.

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

----S. 3---Passports Rules, 2021, R. 22 (2) Lists A & B---Passport Control List (PCL)---Categories of persons---Appellants were aggrieved of placing their names in PCL and were denied exit from Pakistan for the reason that their mother had been declared proclaimed offender in a criminal case---Validity---Federal Government is vested with powers to regulate departure from and entry within Pakistan, under R. 22 of Passport Rules, 2021---It is required under R. 22(2) of Passport Rules, 2021, that Directorate concerned and Directorate General of Immigration and Passport maintain PCL for placement of names in categories "A" and "B"---Category "A" admits names of persons involved in anti-state activities---There was no allegation against appellants for anti-State activities, levelled by authorities---Under category "B" list of names of those who had been refused passport but did not fall in category "A" was to be maintained---Respondents authorities never refused passport to appellants under Passport Rules, 2021---Criminal case in question involved allegation of huge loss to government exchequer and accused in that FIR did not join investigation---This alone could not be a valid reason for placing names of appellants on PCL for such a long time and curtailing their rights recognized in law---Year of occurrence given in FIR was 2019 when appellants were less than 16 years of age---Division Bench of High Court set aside the order passed by Judge in Chambers of High Court as names of appellants could not be retained in PCL---Intra Court Appeal was allowed in circumstances.

The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 6 others PLD 2023 Lah. 359; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan and 4 others 2019 PCr.LJ 1123; Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior and others 2017 PCr.LJ 1569; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 CLD 544; Farah Mazhar and 3 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others PLD 2022 Lah. 119; Mrs. Ifrah Murtaza and another v. Government of Pakistan and others PLD 2019 Lah. 565; Hamid Khan through Authorized Attorney v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and

others 2024 YLR 59; Faisal Maqbool Shaikh v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 2 others (W.P. No. 2141 of 2023), Dr. Shireen M. Mazari v. Federation of Pakistan through Secretary Interior, Ministry of Interior Islamabad and another 2024 MLD 1020; Tabish Badar through Special Power of Attorney v. Pakistan, through Secretary, Ministry of Interior and 2 others 2023 CLC 1457 and Jaffar Khan v. Federation of Pakistan, through Secretary, Ministry of Interior, Islamabad and 3 others PLD 2023 Bal. 65 rel.

Muhammad Azhar Siddique, Ms. Salma Riaz and Ms. Amna Liaqat for Appellants.

Muhammad Mansoor Ali Sial, Assistant Attorney General for Pakistan and Muhammad Nawaz Shah, Additional Advocate General, Punjab for Respondents.

P L D 2025 Lahore 366

Before Shujaat Ali Khan, J

NUSRAT AFTAB---Appellant

Versus

RABEAH HUSSAIN and 4 others---Respondents

F.A.O. No. 26851 of 2022, heard on 6th May, 2022.

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

----O. XL, R.1 & O. XXXVII, Rr. 1, 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.46-A & 78-A---Suit for declaration, rendition of accounts, recovery, permanent and mandatory injunction---Receiver, appointment of---Pre-requisites---Neither any emerging situation had been pointed out by the trial court regarding appointment of receiver, nor any persuasive reasons for exercising of powers under O. XL, C.P.C., had been divulged in the impugned order---Trial Court despite observing that the power to appoint a receiver is to be sparingly used by the courts of law, accepted the application filed by the respondents while relying upon emails despite the fact that same could not be referred until and unless they were proved in terms of the provisions of Electronic Transactions Ordinance, 2002, read with Arts. 46- A & 78-A of the Qanun-e-Shahadat, 1984--- In case of any substance in the application for appointment of receiver, the Trial Court could order for inquiry and if there had been any report to the effect that the subject matter of the suit was at the verge of waste or peril, it could appoint a receiver but the same could not be done on the basis of the apprehension of the respondents---First appeal against order was accepted, in circumstances.

Mobin Rafique and another v. Rashid Ahmed and 2 others PLD 2012 Sindh 449 and Uzin Export Import Enterprises for Foreign Trade v. Messrs Asia Steel Industrial Aids Ltd. and 4 others 1986 MLD 1356 ref.

Malik Muhammad Ishaque (Represented by his Legal Heirs) v. Messrs Erose Theatre and others PLD 1977 SC 109; Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179; Atif Mehmood Kiyani and another v. Messrs Sukh Chayn Private Limited, Royal Plaza, Blue Area, Islamabad and another 2021 SCMR 1446; Sh. Munir Ahmad v. Muhammad Ismail and 2 others 1971 SCMR 666; Ali Mohamedbhai v. Sad Ruddin PLD 1959 (W.P.) Kar. 452; Commissioner of Income-tax v. Seth Govindram Sugar Mills AIR 1966 SC 24 (V 53 C 7) and M. S. V. Narayanan Chettiar v. M. S. M. Umayal Achi AIR 1959 Madras 283 (46 C 88) distinguished.

Muhammad Hussain and 2 others v. Muhammad Asghar and 2 others 2004 MLD 1624; Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982; Latif-Ur-Rehman v. Haji Farmanullah PLD 2014 Pesh. 1 and Mst. Azra Parvez and 3 others v. Sheikh Ashfaq Hussain and 7 others 2015 CLC 1695 rel.

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

----O. XL, R. 1---Partnership Act (IX of 1932), S.42---Receiver, appointment of---Death of partner---Dissolution of firm---Continuation of partnership---Acts done by the surviving partner, protection of---When no contrary clause exists in the Partnership Deed, in the event of death of a partner, the partnership stands dissolved but when a specific clause has been incorporated in the Partnership Deed to the effect that even in the event of death of a partner the partnership would continue, until and unless the said clause is declared illegal by a court of competent jurisdiction, the same carries due weight and any act performed by the surviving partner is duly protected under the law.

Mst. Tahira Kausar v. S.H.O. and others 2005 YLR 3046; Muhammad Ashraf Khan v. Abdul Qadar and 3 others 1995 SCMR 296; Messrs Eastern Medical Technology Services v. Province of Punjab and others PLD 2019 Lah. 395 and Commissioner of Income-Tax v. Ganeshi Lal & Sons 2000 PTD 677 distinguished.

Ms. Sadia Malik for Appellant.

Hafeez ur Rehman Ch. for Respondents.

P L D 2025 Lahore 379

Before Abid Hussain Chattha, J

Messrs JALAL CONSTRUCTION COMPANY through Proprietor and others---Petitioners

Versus

The SECRETARY, C & W DEPARTMENT, LAHORE and 3 others ---Respondents

Writ Petition No. 23988 of 2022, decided on 9th February, 2024.

(a) Constitution of Pakistan---

----Art. 156---National Economic Council---Object, purpose and scope---Executive Committee of National Economic Council (ECNEC), role of---National Economic Council is to review general and overall economic conditions of country and formulate plans regarding financial, commercial, social and economic policies with primary objective to ensure balanced and sustainable development keeping in view regional equity in accordance with principle of policy set out in Chapter 2 of Part-II of the Constitution---National Economic Council renders advice to Federal and Provincial Governments---ECNEC is Executive Committee of National Economic Council to swiftly transact business of National Economic Council---General policy advice of ECNEC requiring all procuring agencies of Federal, Provincial and Local Governments throughout Pakistan to adopt and use SBDs (Standard Bidding Documents) prepared by PEC (Pakistan Engineering Council) does not prevail over express statutory provisions.

(b) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S.27---Public Procurement Rules, 2004, R. 23---Public Procurement Regulations, 2008, Regln. 3---Standard Bidding Documents (SBD)---Scope---Performance Security---Exclusion of insurance Bond/guarantee as a form of guarantee by a Federal Procuring Agency is permissible under the SBDs of Pakistan Engineering Council (PEC)---Ultimate power to make SBDs has been conferred upon Public Procurement Authority, however, until the same are made or notified, the procuring agencies within the framework of Federal Government have been obligated to use SBDs prescribed by Pakistan Engineering Council (PEC)---Current legal framework of procurement at Federal level is in line with decision of ECNEC, although the Authority by exercising powers to develop SBDs conferred upon it, may validly make SBDs on its own by amending Regln. 3 of Public Procurement Regulations, 2008---At Federal level, the Authority constituted under Public Procurement Regulatory Authority Ordinance, 2002, read with Public Procurement Rules, 2004 and Public Procurement Regulations, 2008 is legally empowered to devise SBDs but it has adopted SBDs prepared by PEC---All procuring agencies falling under Federal Government are obliged to use SBDs of PEC in their respective procurement process---SBDs of PEC allows a procuring agency to exclude insurance bond/guarantee from an insurance company having AA rating from PACRA/JCR as a form of security with respect to performance or additional performance/quality assurance security by prescribing as such in its SBDs.

(c) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 27---Punjab Procurement Regulatory Authority Act (VIII of 2009), S. 3---Punjab Procurement Regulatory Authority Rules, 2014, R. 25---Public Procurement Rules, 2004, R. 23---Public Procurement Regulations, 2008, Regln.3---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Performance Security---Insurance Bond, exclusion of---Pre-condition---Discrimination---Contractual dispute---Petitioners were successful bidders in tenders floated by Federal and Provincial Agencies---Dispute was with regard to exclusion of Insurance Bond as a guarantee to Performance Security submitted by petitioners---Validity---Exclusion of insurance bond/guarantee as a form of security by procuring agencies of Federal Government and Provincial Government of Punjab with respect to performance or additional performance/quality assurance guarantee was permissible in terms of lawful discretion of a procuring agency provided it was specifically stated in SBDs---Bidders who participated in bidding process, subject to bidding documents, had no vested right to tender securities in a particular form of their choice that was not part of SBDs of a procuring agency as they knowingly had participated in a bidding process in accordance with the terms and conditions of SBDs---Petitioners failed to make out a case of discrimination as exclusion of insurance bond/guarantee indiscriminately applied to all bidders with reference to a particular bidding process---Where facts emanating from contractual disputes were admitted, constitutional jurisdiction under Art. 199 of the Constitution could be exercised---Act of exclusion of insurance bond/guarantee as a form of security with respect to performance or additional performance/quality assurance security by a procuring agency falling under Federal or Provincial Government of Punjab was not in conflict with the decision of ECNEC---High Court directed respondents/procuring agencies to issue fresh notice to each petitioner to furnish security in the requisite amount and form mentioned in applicable SBDs in all pending contracts, failing which each petitioner could be dealt with in accordance with the terms and conditions of applicable contract---Constitutional petition was disposed of accordingly.

Messrs Ghulam Muhammad & Sons v. Water and Sanitation Agency (WASA), Faisalabad through Director General and others 2022 MLD 1216; A.M. Construction Company (Private) Limited v. Province of Punjab through Secretary Communication and Works Department and others 2023 CLC 616; Messrs RMS Pvt. Ltd. v. Government of the Punjab and others W.P. No. 72544 of 2021 and Nisar Ahmed Khan v. National Highway Authority and others C.P. No. D-2779 of 2023 rel.

(d) Pakistan Engineering Council Act (V of 1976)---

----S. 3 (1)---Standard Bidding Document (SBD)---Scope---Public procuring agency under Pakistan Engineering Council Act, 1976, cannot mandatorily require to follow its SBDs.

(e) Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----S. 3---Punjab Procurement Regulatory Authority Rules, 2014, R. 25---Standard Bidding Documents (SBDs)---Scope---Performance Security---Insurance Bond---Exclusion of Insurance Bond from an issuance company as a form of security with respect to additional performance security---In Province of Punjab, the Authority set up under Punjab Procurement Regulatory Authority Act, 2009, read with Punjab Procurement Regulatory Authority Rules, 2014, is legally empowered to devise SBDs which have been duly made and notified---All procuring agencies including Local Governments in the Province of Punjab are obliged to use SBDs prepared by the Authority under Punjab Procurement Regulatory Authority Act, 2009---Conscious act of exclusion of insurance bond/guarantee from an insurance company as a form of security with respect to performance or additional performance/quality assurance security is valid---All bidders are obliged to take part in procurement process in accordance with terms and conditions of SBDs.

Ch. Muhammad Ibrahim, Muhammad Ibraheem Maken, Bilal Hussain, Ch. Muslim Abbas, Ch. Zulfiqar Ali, Ch. Moazzam Tufail Gujjar, Abrar Ahmed Ch., Syed Ali Raza Shah, Azmat Ali Chohan, Imran Raza Chadhar, Riaz Karim Qureshi, Irfan Ghaus, Shahzad Ahmad Khan, Malik Shahbaz Hussain, Mian Ali Haider, Shahid Iqbal Sanotra, Muhammad Shahid Tasawar, Muhammad Azam Zafar, Salman Abid Mayo and Nazim Ali Dogar for Petitioners (in the titled and connected Petitions).

Muhammad Yasin Hatif, Miss Seemab Aslam, Shahid Mehmood, Yahya Bajwa, Mohsin Mumtaz, Syed Ali Moin-ud-Din Gillani, Syed Yousaf Moin-ud-Din Gillani, Gohar Mustafa Qureshi, Ali Ahmed Toor, Asghar Baghir Cheema, Azmat Hayat Khan Lodhi, Barrister Haroon Dugal, Barrister Pirzada Aurangzeb, Waheed

Ahmad, Zafar Iqbal Gill, Muhammad Haseeb Javed, Nasir Javed Ghumman, Deputy Attorney General, Sikandar Nisar Saroya, Assistant Advocate General, for Respondents (in the titled and connected Petitions).

Muhammad Awais, Assistant Director (Legal), PPRA, Muhammad Ali, Law Officer for NHA, Miss Ayesha Bashir Cheema, AD Legal for BISP.

Zakir Shah, Senior Law Officer, C & W Department, Imran Ali, Section Officer Litigation, Ministry of Planning, Islamabad.

Malik Mubashir Ishaque, Research Officer, Ministry of Planning Islamabad.

P L D 2025 Lahore 405

Before Muhammad Amjad Rafiq, J

Rai MUHAMMAD ASLAM---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Miscellaneous No. 40397-M of 2024, decided on 28th October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 540-A---Exemption from personal appearance---Grounds---Application of the accused under S. 540-A, Cr.P.C., for exemption from personal appearance permanently on the ground of earning his livelihood abroad was dismissed by the Trial Court, but same was allowed by the Revisional Court---Validity---Exemption of accused from attendance for a long period is always read as detrimental to expeditious trial but legislator has also taken care of such issue while introducing S. 540(2), Cr.P.C., which is a saving clause---Court could direct an appropriate authority for alternate arrangement for appearance of accused on video link if he is in Pakistan, and if abroad, Court can pass on such direction to concerned High Commission for arrangement of place suggested by the Commission---Thus, during the trial if the accused was incapable of remaining before the Court, he could seek his physical exemption from appearance either through lawyer or through virtual presence on video link---Consequently, impugned order did not call for any interference, therefore petition was dismissed accordingly.

Haji Aurangzeb v. Mushtaq Ahmad and another PLD 2004 SC 160; Muhammad Nawaz v. The State and another 2015 PCr.LJ 58 and Aftab Ahmad v. The State through Assistant Advocate-General, Rawalakot 2019 PCr.LJ 267 ref.

Haji Aurangzeb v. Mushtaq Ahmad and another PLD 2004 SC 160; Muhammad Nawaz v. The State and another 2015 PCr.LJ 58; Aftab Ahmad v. The State through Assistant Advocate-General, Rawalakot 2019 PCr.LJ 267; Muhammad Latif v. Zaheer Iqbal and another 2020 MLD 160; Intizar Hussain and another v. Amjad Hussain and another 2023 PCr.LJ 596; Raja Pervez Ashraf v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others PLD 2020 Isl. 24; Sajjad Akbar v. The State through Advocate General Khyber Pakhtunkhwa, Peshawar and 3 others 2022 MLD 1325; Meera Shafi v. Ali Zafar PLD 2023 SC 211; Khawaja Anwer Majid v. National Accountability Bureau through Chairman NAB and another PLD 2020 SC 635; Imran Ahmad Khan Niazi v. Special Judge, (Anti-Terrorism Court), Lahore and 3 others PLD 2004 Lah. 486; Munawar Hussain and another v. The State 2020 PCr.LJ 1184 and Muhammad Israr v. The State and another PLD 2021 Pesh. 105 rel.

Zulfiqar Ali Dhudhi for Petitioner.

Syed Muntazir Mehdi Bukhari, ADPP with Zulfiqar ASI.

P L D 2025 Lahore 414

Before Ahmad Nadeem Arshad, J

FALAK SHER and others---Petitioners

Versus

HASHMAT BIBI and others---Respondents

Writ Petition No. 3631 of 2015/BWP, decided on 21st February, 2024.

(a) Powers-of-Attorney Act (VII of 1882)---

----S.2---Power of attorney---Interpretation---Power of attorney must be construed strictly as giving only such authority as is conferred expressly or by necessary implication---Power of attorney cannot empower beyond what it really conveys and its contents must be taken into consideration as a whole---Power of attorney only gives that power which is specifically mentioned therein.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another PLD 2002 SC 71 rel.

(b) Counsel and client---

----Power of attorney (Vakalatnama)---Scope---Power of attorney (Vakalatnama) does not confer impliedly the power of compromise on the counsel or to make any statement to withdraw suit or to get the suit decreed (on basis of compromise), until and unless such powers have been specifically given to the attorney.

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

----Ss. 12(2) & 115---Compromise of proceedings---Statement of counsel/ lawyer---Petitioners were aggrieved of disposal of proceedings in favour of respondents on the basis of statement made by their counsel/lawyer---Validity---Valuable rights of parties were involved in the lis, therefore, while deciding the case on the basis of compromise, the Court should have applied maximum care and caution to ascertain whether the parties had agreed to the statement of compromise given by their counsel---Petitioners engaged counsel to pursue their case diligently and efficiently and had never authorized him to make any statement of compromise or to get the suit decreed on the basis of compromise---No authority through Vakalatnama was given to the counsel to make compromise with the opposite party nor to get the suit decreed on the basis of compromise---Statement made by petitioners' counsel was not binding upon them---Courts below committed illegality while dismissing application of petitioners under S. 12(2) C.P.C.---High Court in exercise of revisional jurisdiction set aside orders passed by two Courts below wherein judicial mind was not applied and application under S. 12(2) C.P.C. was decided on surmises and conjectures---High Court remanded the matter to Trial Court to decide the matter afresh---Revision was allowed accordingly.

Muhammad Hussain and others v. Mst. Hanaf Ilahi and others 2005 SCMR 1121 and Abdul Shakoor and others v. Haroon and others 2008 SCMR 896 rel.

Asif Imran Teja for for Petitioners.

Sheikh Irfan Karim-ud-Din for Respondents.

P L D 2025 Lahore 425

Before Muhammad Sajid Mehmood Sethi and Raheel Kamran, JJ

UNITED BANK LTD. through authorized attorneys---Appellant

Versus

MUHAMMAD AMJAD HAYAT KHAN---Respondent

E.F.A. No. 41 of 2023, heard on 18th April, 2024.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss.3 (2), 19 & 22---Civil Procedure Code (V of 1908), S.47---Execution proceedings---Correction of decree---Awarding of cost of funds---Executing Court, jurisdiction of---Suit for recovery was filed by respondent/plaintiff against appellant/bank on the ground that his amount was lying with appellant/bank and as the bank itself received mark-up of more than 13.50% therefore, he was also entitled to receive profit on that amount which was lying with the bank---Trial Court passed decree in favour of respondent/plaintiff to recover the amount along with cost of funds---Appellant/bank filed application for revisiting judgment and decree to the extent of awarding Cost of funds, which application was dismissed by Trial Court---Validity---Cost of funds is basically the cost that a financial institution is entitled to recover from borrower on account of funds which as per terms of finance or the law ought to have been in the custody of a financial institution but happened to be in the custody of customer after default---Rationale of the same is that financial institution has been deprived from placing the funds somewhere else for its financial benefits which is the core business of financial institution---Questions relating to executability of an order or decree can be raised even in execution proceedings and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution---It is not for Executing Court to decide whether decree passed is legal or illegal or whether it is erroneous or not, but it is open to Executing Court to consider whether decree sought to be executed is void or not---Any decree passed by any Court or forum is void if the Court or the fourm which passed it has no jurisdiction over the subject matter---Division Bench of High Court set aside the order passed by Executing Court, as the decree was not executable to the extent of award of cost of funds---Appeal was allowed accordingly.

Ahmad Abbas v. Additional District Judge and others 2022 CLC 1296; Deputy Director Finance and Administration Fata through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others 2022 SCMR 566; Reference No.01 of 2012 PLD 2013 SC 279; Nadeem Ahmed Advocate v. Federation of Pakistan 2013 SCMR 1062; Abdul Haq Khan and others v. Haji Ameerzada and others PLD 2017 SC 105; The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; Messrs Long Term Venture Capital Modaraba v. Messrs State Life Insurance Corporation of Pakistan 2005 CLD 122; Bank of Punjab through Attorney v. Manzoor Qadir and another 2021 CLD 1037; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others PLD 2001 SC 131 and V. Chinna Lakshmaiah v. Samurla Ramaiah and others AIR 1991 AP 177 rel.

Ch. Saleem Akhtar Warraich for Appellant.

Syed Tariq-ur-Rehman Hashmi for Respondent.

P L D 2025 Lahore 430

Before Tariq Saleem Sheikh, J

SHAKEEL AKHTAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 71205 of 2021, decided on 6th July, 2023.

(a) Police Rules, 1934---

----R. 25.2(3)---Constitution of Pakistan, Art. 13(b)---DNA test---Witness against himself, principle of---Applicability---DNA test of accused person does not offend Art. 13(b) of the Constitution---DNA collection in criminal cases is analogous to police practice of taking photographs or collecting fingerprints of accused and it accomplishes the same function more effectively---Such test is not testimonial because investigator - or Court - draws its own conclusions---By providing sample for test, accused does not impart any information based on his own knowledge and does not become a witness against himself, violating Art. 13(b) of the Constitution.

Salman Akram Raja and another v. Government of Punjab and others 2013 SCMR 203; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Smt. Selvi and others v. State of Karnataka AIR 2010 SC 1974; Schmerber v. California 384 U.S. 757 (1966); Boling v. Romer 101 F.3d 1336, 1340 (10th Cir. 1996); Maryland v. King 569 U.S. 435 (2013); M. P. Sharma v. Satish Chandra and others AIR 1954 SC 300; State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808; Nandini Satpathy v. Dani (P.L.) and another AIR 1978 SC 1025; Ritesh Sinha v. State of U.P. AIR 2013 SC 1132; Gautam Kundu v. State of West Bengal AIR 1993 SC 2295; Syed Ikram Gardezi v. The State and another 1980 PCr.LJ 941; Alpha Insurance Company Limited and others v. United Insurance Company of Pakistan Limited and another 1996 SCMR 1668; Abdul Latif Aassi v. The State 1999 MLD 1069 = 2001 PCr.LJ 548 and Muhammad Nawaz v. Additional District and Sessions Judge and others PLD 2023 SC 461 rel.

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

----S. 94---Qanun-e-Shahadat (10 of 1984), Arts. 24, 40, 59 & 164---High Court (Lahore) Rules and Orders, Vol. III, Chapter,1-E, R.2---Penal Code (XLV of 1860), S. 302--- Qatl-i-amd---DNA Test---Terms "whenever" and "thing"---Scope---Filling in lacuna in prosecution case---During recording of prosecution evidence, complainant filed application for DNA test of accused for comparison with samples of deceased kept at Punjab Forensic Science Agency---Trial Court allowed the application filed by complainant---Validity---Extensive powers have been given under S. 94, Cr.P.C. to the Court---Effect of word "whenever" used in S. 94, Cr.P.C. is that Court can exercise that authority at any stage of trial---Language of S. 94, Cr.P.C. is general and it includes an accused person---Term "things" used in S. 94, Cr.P.C. and Art. 161 of Qanun-e-Shahadat, 1984 must be given a broad meaning and understood to signify anything connected with the offence which may serve interest of justice---High Court declined to interfere in order passed by Trial Court as the order would not allow prosecution to fill lacunae in its case, which was based entirely on circumstantial evidence---DNA test of accused would help the court to make a correct decision---Revision was dismissed, in circumstances.

Om Prakash Sharma v. CBI, Delhi AIR 2000 SC 2335; Abdul Latif Aassi v. The State 1999 MLD 1069 : 2001 PCr.LJ 548 and Zahira Habibullah H. Sheikh and another v. State of Gujarat and others AIR 2004 SC 3114 rel.

(c) Punjab Forensic Science Agency Act (XIII of 2007)---

----S. 2(1)(g)---Forensic material---DNA sample---Scope---Term "forensic material" under S. 2(1)(g) of Punjab Forensic Science Agency Act, 2007 means a document, material, equipment, impression, or any other object connected with commission of offence, a civil cause or any other proceedings---Such description fully covers a DNA sample.

Muhammad Nawaz for Petitioner.

Rai Asif Mehmood, Deputy Prosecutor General for the State.

Mudassar Naveed Chatha and Muhammad Waqas for Respondent No.3.

P L D 2025 Lahore 446

Before Shujaat Ali Khan, J

ASIF HUSSAIN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commission and 4 others---Respondents

Writ Petition No. 32915 of 2022 and (other connected cases), decided on 21st December, 2022.

(a) Elections Act (XXXIII of 2017)---

----Ss. 2(xviii) & 55---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Disciplinary proceedings---Election Commission, jurisdiction of--- Petitioners/civil servants challenged jurisdiction of Election Commission to initiate departmental proceedings against them, especially in the light of the fact that after annulment of election in the constituency they no more remained election officials---Validity---High Court declined to dismiss the petition for the reason that petitioners/civil servants would have a chance to challenge final order to be passed by the Commission on the conclusion of the departmental proceedings---If any proceedings right from their inception were untenable, jurisdiction of High Court to take care of such proceedings/orders could not be abridged on technical grounds---Commission could only proceed against a person till the time he fell within the definition of an election official as contemplated under S. 2(xviii) of Elections Act, 2017---Constitutional petition was maintainable, in circumstances.

Chairman, Federal Land Commission v. Mst. Sanam Iqbal and others PLD 2021 Lah. 42 and Federation of Pakistan through Secretary Finance and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 rel.

(b) Elections Act (XXXIII of 2017)---

----Ss. 48 & 55---Disciplinary proceedings---Election Commission, jurisdiction of---Petitioners/civil servants performed election duties and on conclusion of elections, Election Commission issued show cause notices to them for initiating disciplinary proceedings against them---Validity---According to S. 55(1) of Elections Act, 2017, a person can be deemed to be under the control, superintendence and discipline of the Commission for the period commencing from his date of appointment or deputation till publication of name of returned candidate in Official Gazette---Both the relevant Provincial laws as well as Federal Rules relating to efficiency and discipline of civil servants provide complete mechanism to proceed against an official/officer and any order passed in derogation of such procedure cannot be allowed to hold the field merely on technical grounds that High Court cannot adjudicate upon a dispute relating to terms and conditions of government servants---Merely declaring the Commission as competent authority to conduct disciplinary proceedings against an election official does not empower it to by-pass the procedure provided under the relevant law---When law requires that a particular act is to be performed in a specific manner, the same cannot be allowed to be deviated and any violation on the part of the Executive in such regard is amenable to judicial review by superior courts---Election Commission, under S. 55 of Elections Act, 2017 can initiate disciplinary proceedings against an election official, who remains election official for the period starting from date of his appointment/deputation for election till the date that fate of election in the constituency is declared---After declaration of fate of election held in the Constituency, petitioners/civil servants did not remain subject to its superintendence and control---Upon declaration of fate of election in the Constituency, petitioners/civil servants no more remained election officials, hence, the Commission had no jurisdiction to initiate proceedings against them---High Court set aside disciplinary proceedings initiated by Election Commission against petitioners/Civil servants as the same were coram-non-judice---If the Election Commission thinks that the petitioners/civil servants were involved in any subversive activities during their deployment in election duty, it would be at liberty to refer the matter to their parent departments for initiation of proceedings under relevant law---Constitutional petition was allowed accordingly.

PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others 2021 SCMR 637; Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others PLD 2019 SC 509; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; Messrs Karachi Golf Club (Private) Limited through Manager Accounts and Finance and others v. Province of Sindh through Director Sindh Revenue Board and others 2021 PTD 558; Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others PLD 2020 Lah. 632; Muhammad Ashraf and another v. Additional Commissioner (Revenue), Rawalpindi Division and others 2019 YLR 2800; Haji Muhammad Arif Khattak and 2 others v. Chairman/Director General, National Accountability Bureau and another PLD 2018 Pesh. 207; Shaikh Atif Zia v. Province of Sindh through Chief Secretary Government of Sindh and 3 others 2018 MLD 181; Muhammad Ashraf v. Election Commission and others 2017 MLD 1209; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681; Senior Superintendent of Police (Operation) and others v. Shahid Nazir 2022 SCMR 327; Sabira Khatoon v. Government of the Punjab and others 2021 PLC (C.S.) 1600; Attaullah Khan v. Ali Azam Afridi and others 2021 SCMR 1979; Ajmir Shah, Ex-Sepoy v. The Inspector-General, Frontier Corps Khyber Pakhtunkhwa and another 2020 SCMR 2129; Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz PLD 2011 SC 260; Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1 and Shah Nawaz Kutrio v. Province of Sindh through Chief Secretary Government of Sindh and 2 others 2019 PLC (C.S.) 1209 ref.

Syed Liaqat Shah v. Vice-Chancellor, University of Engineering and Technology, Peshawar and others 2018 SCMR 1661 and Ghulam Rasool and others v. Ali Akbar and others 1974 SCMR 64 distinguished.

(c) Interpretation of statutes---

----Definition of a word---Principle---When definition of a word, term or phrase renders a substantial provision redundant, preference should be given to the interpretation which favours purpose of the enactment---When substantial provision renders the matter crystal clear no contrary view can be adopted.

Khurshid Anwar Bhinder and others v. Federation of Pakistan another PLD 2010 SC 483 rel.

Hafiz Tariq Nasim and Barrister Haris Azmat for Petitioner (in Writ Petitions Nos.32915 of 2022 and 32918 of 2022).

Muhammad Ahsan Bhoon for Petitioner (in connected W.P. No.33844 of 2022).

Mubeen-ud-Din Qazi for Petitioner (in connected W.P. No.34255 of 2022).

Ghulam Farid Sanotra for Petitioner (in connected W.P. No.47305 of 2022).

Naveed Ahmad Khawaja assisted by Ms. Asifa Manzoor, H.M. Zeshan Khan and Syed Shuja ul Hassan Naqvi for Petitioners (in connected W.P. No.33714 of 2022).

M. Ali Johri for Petitioner (in connected W.P. No.46485 of 2022).

Abdul Rehman Bajwa for Petitioner (in connected W.P. No.47488 of 2022).

Muhammad Iqbal Mohal for Petitioner (in connected Writ Petitions Nos.43421, 43054 and 33846 of 2022).

Ahmad Yar Khan, assisted by Syed Saqlain Hussain for Petitioner (in connected Writ Petitions Nos.46361 and 46358 of 2022).

Shah Nawaz Khan Niazi for Petitioners (in connected Writ Petitions Nos.35280 and 33841 of 2022).

Rana Abdul Sattar Khan for Petitioner (in connected Writ Petitions Nos.34114, 34110, 34452, 42019 and 34109 of 2022).

Khanzada Mukarram Khan for Petitioner (in connected W.P. No.33842 of 2022).

Tahir Mahmood Ahmad Khokhar, Deputy Attorney General for Pakistan assisted by Ch. Naseer Ahmad Gujjar, Assistant Attorney General for Pakistan for Respondents.

Rana Shamshad Khan, Additional Advocate General, Punjab.

Afnan Karim Kundi for ECP along with Khurram Shahzad, Additional Director General (Legal), Ch. Umer Hayat, Director (Legal), Imran Arif Ranjha, Legal Advisor and Hafiz Adeel Ashraf, Legal Assistant ECP.

P L D 2025 Lahore 486

Before Muhammad Sajid Mehmood Sethi, J

TANVEER AHMED---Appellant

Versus

IMTIAZ ANWAR---Respondent

R.F.A. No. 1829 of 2023, heard on 6th November, 2024.

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

----Art. 17(2)(a)---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of a promissory note---Non-appearance of second attesting witness---Inconsequential---Evidence produced deficient---Defendant filed appeal as the Trial Court decreed the suit---Validity---Only one witness out of the attesting witnesses of the pronote was produced, who admitted, during cross-examination, that appellant/defendant did not sign the pronote in his presence; that loan was not paid in his presence, and that the other witness of promissory note did not come to house of plaintiff/ respondent in his presence at the time when the promissory note was being written---Thus said attesting witness had not supported the stance of respondent/ plaintiff and his depositions were in contradiction to the statement of respondent/plaintiff---The other attesting witness had died so could not be produced in evidence, however, his son, as a witness of the plaintiff/ respondent, identified the signatures of his father on exhibited pronote---Thus, evidence produced by respondent/plaintiff was not sufficient to hold that the disputed amount had been paid and pronote and receipt had been duly executed---Trial Court while passing the impugned decision had misinterpreted the evidence brought on record and erred in law, hence the same were unsustainable in the eye of law---High Court set-aside the impugned judgment and decree, consequently, respondent's suit was dismissed---Appeal, filed by defendant, was allowed, in circumstances.

Gulzar Mehmood Khan v. Abdul Whaeed 2016 CLC 848 and Khawaja Aftab Ahmad v. Qazi Abdul Ali 2016 YLR 1552 ref.

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

----O. XXXVII, R. 1 & 2---Suit for recovery on the basis of a promissory note---Family/business relationship between the parties---Proof, absence of---Effect---Defendant filed appeal as the Trial Court decreed the suit---Validity---Respondent/plaintiff was required under the law to establish that there was a relationship between the parties, business or family ties which pondered him to lend such a handsome amount---The contents of the plaint did not reflect such averment, however in cross-examination as a witness, respondent/plaintiff simply stated that appellant/defendant was his relative without further elaborating the nature of relation and family terms, if any, thus in absence of any explicit stance qua relationship, it was not understandable that how respondent/plaintiff gave such a considerable amount to appellant as loan---Hence his claim was not sustainable on this score---High Court set-aside the impugned judgment and decree, consequently, respondent's suit was dismissed---Appeal, filed by defendant, was allowed, in circumstances.

Mehr Noor Muhammad v. Nazir Ahmed PLD 2024 SC 45 ref.

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

----S. 36---Civil Procedure Code (V of 1908), O. XXXVII, R. 1 & 2---Suit for recovery on the basis of a promissory note---Insufficient stamp duty---Objection regarding insufficient stamp duty---Trial Court admitting a document in evidence---Effect---Defendant filed appeal as the Trial Court decreed the suit---Submission of the appellant/ defendant was that the Trial Court though exhibited the documents yet vowed to address the objection (qua insufficient stamp duty) at the time of final decision, but said objection had not been appropriately addressed by the Court at the time of final decision---Held, that the submission was totally misconceived; firstly in view of S. 36 of the Stamp Act, 1899, which provides that once a document has 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; and secondly, such objection 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---Party challenging the admissibility of the document must be alert to see that the document is not admitted in evidence by the Court---In the present case as the promissory note had been admitted in evidence, the same cannot be reviewed or revised by the same Court or a Court of superior jurisdiction---High Court set-aside the impugned judgment and decree, consequently, respondent's suit was dismissed---Appeal, filed by defendant, was allowed, in circumstances.

Mehr Noor Muhammad v. Nazir Ahmed PLD 2024 SC 45 ref.

Malik Mushtaq Ahmad for Appellant.

Muhammad Murtaza Hassan for Respondent.

P L D 2025 Lahore 491

Before Ch. Muhammad Iqbal, J

TARIQ MEHMOOD and others---Petitioners

Versus

FATEH MUHAMMAD and others ---Respondents

Civil Revision No. 3843 of 2014, heard on 11th December, 2024.

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

----Ss. 42 & 54---Muslim Personal Law (Shariat) Application Act (IX of 1948), S. 2---Muslim Personal Law (Shariat) Application Act (XXVI of 1937), S. 2---Suit for declaration and injunction---Islamic Law---Inheritance---Non- Muslim successor-in-interest---Entitlement---Concurrent findings of facts by two Courts below---Suit land was owned by a Muslim and one of his sons converted to Qadiani faith---Respondents/plaintiffs assailed mutation of inheritance attested in favour of petitioners/defendants on the plea of change of faith---Suit and appeal were concurrently decided in favour of respondents/ plaintiffs---Validity---Canon of the Quran and Sunnah were applicable to inheritance of estate of deceased Muslim---Non-Muslim was not entitled to inherit any share from the estate of his Muslim relative as successor or predecessor---Predecessor-in-interest of petitioners/ defendants was Qadiani at the time of incorporation of inheritance mutation whereas his father who was owner of suit land was a Muslim---Predecessor-in-interest of petitioners/defendants was not entitled to inherit from the estate of his Muslim father---Trial Court rightly decreed suit of respondents/plaintiffs which decision was lawfully upheld by Lower Appellate Court---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below, as the petitioners/defendants could not point out any illegality or material irregularity in judgments and decrees passed by two Courts below, neither there was any jurisdictional defect---Revision was dismissed, in circumstances.

Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534; The Book of the Shares of Inheritance and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

(b) Constitution of Pakistan---

----Art. 260 (3)---Declaratory amendment---Effect---Amendment in Art. 260(3) of the Constitution is declaratory and operates retros-pectively.

Muhammad Ashraf and 2 others v. Mst. Niamat Bibi and 2 others PLD 1981 Lah. 520 rel.

Mian Ghulam Rasool for Petitioners.

Muhammad Siddique Shahid and Mian Muhammad Aslam for Respondents.

P L D 2025 Lahore 496

Before Muhammad Amjad Rafiq, J

Sheikh NADEEM ANWAR---Petitioner

Versus

ILLAQA MAGISTRATE and others ---Respondents

Writ Petition No. 36921 of 2022, decided on 11th November, 2024.

(a) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 17---Criminal Procedure Code (V of 1898), S. 173---Code of conduct---Investigation Report---Duty of Prosecutor---Scope---Prosecutor is required to apply evidential and public interest tests on report submitted under S. 173, Cr.P.C. in order to evaluate evidence and applicability of offences against accused---Case cancellation report is a report under S. 173, Cr.P.C., therefore, such tests shall also be applied on it but only if prosecutor does not concur with police opinion so as to recommend the Court that sufficient material is available to proceed with the case---If prosecutor is in agreement with case cancellation report, he is not obliged to apply evidential test or public interest test because case assessment report is written to show availability of evidence and applicability of offence against any or all accused.

(b) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 9 (7) ---Police Rules, 1934, Rr. 24.7 & 25.57---Penal Code (XLV of 1860), S. 406---Criminal Procedure Code (V of 1898), S. 173---Constitution of Pakistan, Art. 199---Constitutional petition---Criminal breach of trust---Closure of case---Words "due consideration to such submission"---Connotation---Petitioner was aggrieved of cancellation report submitted by police with regard to FIR registered against accused---Validity---Words "due consideration to such submission" have strong connotation that Court cannot simply ignore it rather while disagreeing with opinion of prosecutor, it has to give reasons---Administrative opinion or opinion in official capacity does not bind Court to give reasons for disagreement rather it is regulated by discretion of Court to consider it or not consider it---In the present case Trial Court had thought it appropriate not to consider it which could not be termed as an illegality---High Court declined to interfere in order passed by Trial Court as the same was perfect---Petitioner was not non-suited rather had an alternate efficacious remedy of filing of private complaint---Constitutional petition was dismissed, in circumstances.

Bahadur and another v. The State and another PLD 1985 SC 62 rel.

Muhammad Ishnaq Sahou for Petitioner.

Imran Abbas Sahi, Assistant Advocate General with Adnan, SI.

P L D 2025 Lahore 502

Before Shahid Karim, J

Messrs MUMTAZ GHANI TEXTILE (PVT.) LTD. through Chief Financial Officer and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance

and 2 others---Respondents

Writ Petition No. 79375 of 2023 (and other connected petitions), heard on 21st January, 2025.

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 3, 12(1), 12(3), 23B & 23J---Constitution of Pakistan, Arts, 9, 10A, 14 & 18---Adjudicating Proceedings and Appeal Rules, 1988---State Bank Notification No.F.E.I/2002 dated 05.01.2022---Foreign Exchange Circular No.1 dated 13.02.2023---Foreign Exchange Circular No.2 dated 31.03.2023---Payment of exported goods---Delayed realization of export proceeds---Issuance of show cause notice by State Bank of Pakistan (SBP)---Lien on export proceeds---Adjudication process---Due process of law, violation of---Assumption of role of Adjudicating Officer by the SBP---Legality---Claim of the petitioner was that Circular No.2 of 2023 issued by SBP amending Foreign Exchange Manual by adding paragraph 33A was ultra vires and impinged on their rights to deal with their funds---Plea of the SBP was that as per Ss. 3, 12(3) and 20(3) of the Foreign Exchange Regulation Act, 1947 (Act) powers were vested with SBP to issue the circular---Validity---Section 20(3) of the Act merely grants power to SBP to give directions qua making of payment and doing of other acts, inter alia, by authorized dealers in the course of their business and these directions may be given as appears to SBP to be necessary or expedient for the purpose of securing compliance with the provisions of the Act---SBP was not at all empowered to add anything or impose stricter conditions to the conditions already prescribed by Adjudication Proceedings and Appeal Rules, 1988 (Rules), and power to do so vested in the Adjudicating Officer upon a complaint being filed to him and that too at the conclusion of the hearing after following due process of law---SBP had arrogated to itself the power vested in the Adjudicating Officer by virtue of S. 23J of Act regarding the recovery of sums due to the Government in execution of the orders passed by him---Circular No.2 condemned the authorized dealer unheard and was a pre-emptive order issued by use of SBP's dominant position as a regulator---Such act of SBP not only offended the provisions of the Act but also the constitutional rights enshrined in Arts. 9, 10A, 14 and 18 of the Constitution---SBP could have issued a notification for the purpose of securing compliance with the provisions of S. 23B of the Act but could not have imposed conditions in the form of paragraph 33A of Circular No.2 to usurp the powers of Adjudicating Officers under S. 23B of the Act---Intent of the legislature in enacting S. 23B of the Act read with Rules, 1988, could not be nullified or circumvented by an administrative order to mark a lien on export proceeds realized by the exporters, which would tantamount to adjudication by SBP prior to an adjudication process for which the law empowers specific officers of SBP to undertake the enquiry---Constitutional petitions were allowed, in circumstances and show cause notices based on Circular No.2 were struck down with a direction to SBP to proceed with the matter in accordance with law by referring the matter to the Adjudicating Officer.

(b) Constitution of Pakistan---

----Art. 10-A---Fair trial---Due process of law---Determination of civil rights---Scope---Constitutional right recognized by Art. 10A of the Constitution is a fundamental right inhering in a person to fair trial and due process for the determination of his civil rights.

Barrister Muhammad Umer Riaz, Saqib Haroon Chishti, Abdul Waheed, Muhammad Amin, Rana Rehan, Haseeb Tariq, Barrister Hassan Safdar Khan, Rashid Khan, Rana Muhammad Afzal Razzaq Khan, Sajid Asghar Langhra, Awais Toseef Rana, Faisal Anwar Minhas, Hafeez Ullah Maan, Asif Amin Goraya, Nazakat Abbas Bhatti and Muhammad Sohail Anjum for Petitioners.

For Respondents:

Ahmed Pervaiz for SBP.

Azmat H. Lodhi for FBL.

Zahid Mahmood Arain for UBL.

Muhammad Riaz for Bank Al-Falah.

Kashif Hussain for Meezan Bank.

Zameer ud Din Ibad for Sindh Bank.

Mirza Abdul Basit for Soneri Bank.

Asad Ali Bajwa, D.A.G with Muhammad Waqar Khalique, Law Officer, SBP.

P L D 2025 Lahore 508

Before Masud Abid Naqvi, J

ALLAH DITTA---Appellant

Versus

NOOR AHMAD---Respondent

Regular First Appeal No. 25617 of 2023, decided on 9th December, 2024.

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

----Ss. 43 & 118---Statutory presumption in favour of a negotiable instrument---Scope---Departure from the statutory presumption --- Suit for recovery on the basis of pronote---Promissory note executed under conditional promise---There is an initial statutory presumption that the negotiable instrument is made, drawn, accepted or endorsed for the consideration and in a case to the contrary, the onus is on the person who is denying the consideration to prove the same---However, if the plaintiff presents facts contrary to the stated consideration on the pronote or which militate against the presumption then the presumption is lost/destroyed and the burden of proving the validity shifts to the plaintiff to prove that the pronote was executed by the defendant for consideration---In the instant case, the plaintiff himself pleaded that due to involvement of defendant's son, an FIR No.689/2018 with offences under Ss. 392/411, of P.P.C. was registered against him and the defendant being father of accused executed the disputed pronote and receipt pronote with the clear undertaking/promise to pay an amount of Rs.760,000/- to plaintiff if his son was found involved in the crime, and during the investigation police declared his son guilty---On the refusal to honor his promise the plaintiff was constrained to file suit against the defendant---The defendant completely denied the facts pleaded by the plaintiff---Held: There remained no doubt that the defendant did not receive any consideration for the pronote and receipt and the amount written in these exhibited documents was simply an imaginary figure which was not received by the executor---The alleged negotiable instrument was made or transferred without valid consideration and the negotiable instrument without consideration creates no obligation for the payment between the parties according to S. 43 of the Negotiable Instruments Act, 1881---Findings of the court below were upheld/confirmed---Regular First Appeal was dismissed in limine.

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

----S. 23---Lawful objects and considerations---Scope---Section 23 of Contract Act, 1872, also invalidates agreements if their considerations, objects or purposes are illegal, including those that violate public policy---Non-compoundable offenses are regarded as matters of public concern and permitting private agreements to settle such offences would compromise public interest and proper administration of justice---No Court of law can countenance or give effect to an agreement which attempts to take administration of law out of hands of the judges and put it in the hands of private individuals---This policy is based on the principle that criminal prosecution in non-compounding offenses cannot be compounded at the free will and choice of the parties which is not a private dispute between them but is one in which society at large is interested and any private agreement by the person ostensibly aggrieved, in return for a reward, to forbear from or withdraw or abandon the prosecution knocks at the root of criminal justice---If such agreements are allowed to be enforced by the courts, the doors will be opened to blackmailing on large scale---Therefore, the agreement to pay consideration for the pronote in the present case being the compounding of non-compoundable criminal charges was void in law---Findings of the court below were upheld/confirmed---Regular First Appeal was dismissed in limine.

Peer Amjad Shah Sawar Bodla for Appellant.

P L D 2025 Lahore 512

Before Tariq Saleem Sheikh and Muhammad Tariq Nadeem, JJ

IMDAD ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 448 of 2022, heard on 25th October, 2023.

(a) Anti-Rape (Investigation and Trial) Act (XXX of 2021)---

----Ss. 3 & 18---Penal Code (XLV of 1860), S. 377-B---Child molestation---Appreciation of evidence---Delay in registration of FIR---Inconsequential---Overly technical objections by defense---Accused was alleged to have committed sodomy with the victim child---Trial Court convicted the accused and sentenced him to imprisonment for fourteen years---Plea raised by accused was that Trial Court did not sign judgment as Special Court and there was unexplained delay of two days in registration of FIR---Validity---Not signing of judgment as Special Judge was an objection overly technical as the Judge was duly notified and had jurisdiction in the matter---Law generally encourages prompt reporting of crimes---Courts recognize that child abuse is a sensitive issue---Several factors can contribute to delay in reporting child sexual abuse, including fear, shame, threats from perpetrator or lack of awareness---Delay in making such reports to police are not material unless circumstances are such that they warrant an adverse view---Legal system aims to balance need to protect children from abuse with the principles of fairness and due process---Accused failed to refer to any circumstances which required taking an adverse view against prosecution because of the delay---Complainant was victim's father while prosecution witness was paternal uncle who had adopted the victim---Prosecution witnesses did not harbour any ill will towards accused that could serve as a motive for falsely implicating him in the present case---Statements of prosecution witnesses were in line with testimony of victim providing consistent and corroborative evidence---Child sexual abuse is a deeply traumatic and sensitive issue that demands that justice system handle such cases with exceptional care and consideration for unique needs and vulnerabilities of child victims---Parliament passed Anti-Rape (Investigation and Trial) Act, 2021 to effectively deal with rape and sexual abuse offences (enumerated in Schedule thereof) but some of its provisions had not been implemented since promulgation---High Court directed Federal Government to immediately review the steps taken to implement Anti-Rape (Investigation and Trial) Act, 2021 and ensure that requisite systems were in place---High Court directed Trial Courts to exercise extreme caution when writing judgments and must identify victims using acronyms rather than full names---High Court declined to interfere in conviction and sentence awarded by Trial Court to accused---Appeal was dismissed, in circumstances.

Piao Gul v. The State PLD 1960 SC (Pak) 307; Muhammad Ramzan v. Mst. Khalida Parveen PLD 1971 Lah. 813; Allah Jiwaya v. Judge Family Court and another 1990 MLD 239; Matiullah v. Mst. Saddiqa 2017 MLD 1871; Zahid v. The State 2022 SCMR 50; Irfan Ali Sher v. The State PLD 2020 SC 295; Mubeen Ahmed v. The State and another PLD 2021 Isl. 431; R v. DAI [2012] 2 LRC 633; R. v. Marquard [1993] 4 R.C.S. 223; Raja Khurram Ali Khan and others v. Tayyaba Bibi and another PLD 2020 SC 146; Rameshwar v. The State of Rajasthan AIR 1952 SC 54; State of Orissa v. Machindra Majhi and another AIR 1964 Ori. 100; State of Maharashtra v. Prabhu Barku Gade 1995 Cri. LJ 1432; Khalil v. The State PLD 1956 Lah. 840; Muhammad Ramzan alias Jana v. The State 1968 PCr.LJ 392; Abdul Ghani and others v. The State PLD 1959 Dacca 944; Muhammad Ilyas v. Kabir Hussain and another 2003 YLR 806; The State v. Muhammad Boota 2014 YLR 306; Iftikhar Ali v. The State 2022 PCr.LJ 1396; Bashir Ahmed v. The State PLD 1979 Kar. 147; Muhammad Mansha v. The State 2019 SCMR 64; Vetrovec v. The Queen [1982] 1 S.C.R. 81; R v. W. (R.) [1992] 2 S.C.R. 122; Abdullah Khan v. The Queen [1990] 2 R.C.S. 531; Dattu Ramrao Sakhare and others v. State of Maharashtra (1997) 5 SCC 341; Panchhi and others v. State of U.P. 1998 (7) SCC 177; Ratansingh Dalsukhbhai Nayak v. State of Gujarat (2004) 1 SCC 64; Muhammad Afzal v. The State PLD 1957 (W.P.) Lah. 788; Ulfat Hussain v. The State 2010 SCMR 247; State through Advocate General Sindh v. Farman Hussain and others PLD 1995 SC 1; Keefe v. State 50 Ariz. 293, 72 Pac. 2d 425; People v Gage, 62 Mich. 271, 28 N.W. 835 (1886); In re Cindy L. (1997) 17 Cal.4th 15, 69 Cal. Rptr. 2d 803, 947, P2d 1340 and Arif Fareed v. Bibi Sara and others 2023 SCMR 413 rel.

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

----Arts. 3 & 17---Witness and competency---Voir dire test---Applicability---Child witness---Scope---Child is competent to be a witness if he possesses capability and intelligence to understand and respond rationally to questions - a criterion known as the "voir dire test"---Satisfaction of the Court in terms of Art. 3 of Qanun-e-Shahadat, 1984 is not a mere procedural formality but a legal obligation and must be discharged with utmost care and caution.

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

----S. 377-B---Child abuse---Trial---Testimony of child/victim---Evaluation of child's testimony as a victim of sexual abuse requires a thorough and balanced approach to ensure protection of their rights and interests while upholding principles of justice---Absence of corroboration should not automatically discredit child's testimony in such cases---Tender age of child, combined with other case specific circumstances, such as demeanour and unlikelihood of tutoring may make corroboration unnecessary---This is a factual consideration in each case---Courts must acknowledge that children may respond to trauma of abuse in diverse ways, which may include confusion, fear or emotional distress---Sexual abuse of a child can take form of penetrative or non-penetrative acts---Non-penetrative cases pose more significant challenges, especially in our societal context---This category has a heightened risk of false accusation and judges must determine guilt or innocence of accused by thoroughly examining all available evidence, considering surrounding circumstances and adhering to applicable legal standards---Conviction based on uncorroborated testimony of a child victim of sexual abuse is legally possible but its viability depends on circumstances of the case and strength of child's testimony.

Bashir Ahmed v. The State PLD 1979 Kar. 147; Raja Khurram Ali Khan and others v. Tayyaba Bibi and another PLD 2020 SC 146; Zahid v. The State 2022 SCMR 50 and Atif Zareef and others v. The State PLD 2021 SC 550 rel.

(d) Evidence---

----Hearsay---Connotation---Principles of trustworthiness and necessity---Applicability---Hearsay evidence is given by a witness consisting of a report of something which someone else has said rather than a statement of something the witness has actually seen or experienced---Certain hearsay statements can carry reliability even without subjecting original declarant to cross-examination---Trustworthiness can be established from circumstances under which statement was made, guaranteeing a level of reliability comparable to that found in a statement that has undergone cross-examination---There are situations where applying cross-examination test is impossible- such as in cases where the declarant has died and it becomes necessary to consider the statement in its untested form if it is to be used at all---Exceptions to hearsay rule are based on two fundamental principles: trustworthiness and necessity.

Wigmore on Evidence (1940), § 1364, Vol. V, p.9 and Yun, J. (1983). A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, Columbia Law Review, Vol. 83, No.7 (Nov. 1983), pp. 1745-1766 https://www.jstor.org/stable/1122326 rel.

(e) Criminal trial---

----Child witness---Approach of Courts---When a child engages with the judicial system, the response should be supportive, collaborative and aligned with a child-right-driven approach---Involvement with legal system can take various forms, such as being party in legal case, acting as a witness, undergoing legal proceedings or seeking legal remedies---This approach is based on acknowledging children as rights holders and vulnerable individuals, emphasizing crucial need to establish an environment that prioritizes their well-being and protection throughout legal processes.

Mirza Muhammad Nadeem Asif for Appellant.

Najeeb Ullah Khan Jatoi, Deputy Prosecutor General for the State.

Ch. Ahmad Mehmood Goraya for the Complainant.

Research assistance by Asim Murtaza Cheema, Research Officer, LHCRC.

P L D 2025 Lahore 540

Before Muhammad Amjad Rafiq, J

SADIA AZIZ---Petitioner

Versus

D.P.O. and others ---Respondents

Writ Petition No. 3109-H of 2024, heard on 2nd May, 2024.

(a) Islamic law---

----Walayat (Guardianship) and Hizanat (Custody)---Difference---Mother, entitlement of---There is difference between Walayat (Guardianship) and Hizanat (Custody); in Muslim Law, as in almost every other system of law, the father is the natural guardian of the person and property of his minor child but Islam recognizes the mother as having prior right of custody, obvious reason is the nourishment, sustenance, patronage and upbringing of a human child so as to make him/her a useful human being---Mother keeps a caring instinct, therefore, is the suitable person for such task; that is the reason, for custody, the term 'Hizanat' has been used---Word "Hizanat" is derived from the Arabic word "Hizan" which means 'lap of the mother', it denotes giving a child to the mother's lap for caring and rearing; which signifies love, care and affection directly and constantly needed by a male child up to the age of seven years and female child till she attains puberty---Care, love and affection play a vibrant and vital role in developing the nature and character of a person and as such Hizanat can safely be termed as a tribute and privilege of a minor assigned and vested in the mother---Woman who holds the custody is called "Hizana" and she loses the right of hizanat in certain circumstances suggested in the law---As per Para 352 of Muhammadan Law, mother is entitled to custody of male child until he has completed the age of seven years and her female child until she has attained puberty---Such right continues even if she is divorced by the father of the child; however, if she marries a second husband, stranger to child, in which case custody belongs to the father but subject to determination by Guardian Court---There are certain conditions which disqualify females for custody---Para 354 of Muhammadan Law says that a female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody in certain situations---Under the law mother has a preferential right for custody of a minor till the prescribed age---Even if divorce has become effective between the spouses, mother does not lose her right of hizanat except in the situations mentioned in Para 354 of Muhammadan Law subject to determination by Guardian Court---In the present case, the circumstances warranted that minor being of tender age required the lap of mother; therefore, interim custody of minor was regulated in favour of petitioner/mother who shall be bound to produce him before the Gurdian Court where the proceedings were pending, yet subject to final determination by the Guardian Court as to the rights of parties for custody and visitation of minor---Constitutional petition, filed by mother of minor, was disposed of.

Miss Hina Jilani, Director of A.G.H.S. Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151; Rahimullah Choudhury v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305; Mst. Qurat-ul-Ain v. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others 2024 SCMR 486 and Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123 ref.

(b) Islamic law---

----Conflicting views expressed in text books on Muslim Law (such as Hedaya, Fatawai-i-Alamgiri, Radd-ul-Mukhtar, Muhammadan Law by Sayyed Amir Ali, etc.)---Question as to how the Courts shall determine which view is correct?---Held that where there is no Quranic or traditional text or an Ijma' on a point of law, and if there is a difference of views between A'imma and Faqihs, a Court may form its own opinion on a point of law.

Mst. Zohra Begum v. Sh. Latif Ahmad Munawwar PLD 1965 (W.P.) Lahore 695 ref.

(c) Islamic law---

----Hizanat---Scope---Hizanat is regulated through Muslim Personal Law of the parties; under the Shia Law mother is entitled to the custody of male child until he attains the age of two years and if female child until she attains the age of seven years.---After the child has attained the abovementioned age, the custody belongs to the father---Under Shafei Law the mother is entitled to the custody of her daughter even after she has attained puberty and until she is married.

Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi PLD 1958 (W.P.) Karachi 150 and AIR 1941 Mad. 760 ref.

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

----S. 491---Constitution of Pakistan, Art. 199(1)(b)(i)---High Court (Lahore) Rules and Orders, Vol. V, Chap. 4-F---Habeas petition filed before the High Court---Maintainability---Claim of respondent/father was that custody of father was neither illegal nor improper, therefore, habeas petition was not maintainable---Validity---Under S.491, Cr.P.C. the High Court exercises two-fold jurisdiction; firstly, to direct the production of a person who is illegally detained to be brought before the Court so as to set him at liberty; and secondly, to direct the production of a person so that he be dealt with in accordance with law---In the latter case, it is not essential that the detention must be by use of force; if a person has been confined in a manner not warranted by law, in that situation also the Court can issue appropriate direction under S. 491, Cr.P.C.

Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 ref.

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

----Vol. V, Chap. 4-F, Rr. 1 to 18---Constitution of Pakistan, Art. 199 (1)(b)(i)---Criminal Procedure Code (V of 1898), S. 491---Proceedings under S. 491 of Cr.P.C.---Forum(s)---Scope---Proceedings under S. 491 of Cr.P.C. can be initiated before the Sessions Judge or Additional Sessions Judges and before the High Court if any person is in illegal and improper custody; similar relief can also be sought by a party under Art. 199(1)(b)(i) of the Constitution through writ of Habeas Corpus when any person is in custody without lawful authority or in unlawful manner---Article 199(1)(b)(i) of the Constitution is usually applicable on malfeasance, misfeasance and nonfeasance of any party with respect to custody of a detenu---However, High Court (Lahore) Rules and Orders do not create any difference in the format of petition and style of orders in both types of petitions; Chapter 4-F, Volume-V of High Court (Lahore) Rules and Orders consists of rules framed by the High Court under S. 491(2) of Code of Criminal Procedure, 1898, which regulate the proceedings on petitions under S. 491, Cr.P.C.---Such Rules further clarify that Chapter-4, Part-J of Volume V deals with rules for the issuance of orders/directions under Arts. 199 & 202 of the Constitution and Clause 27 of the Letter Patent---According to Part-1 of Part-J, such application shall be governed by Rr. 1 to 18 of Chapter 4-F, Volume-V of High Court (Lahore) Rules and Orders, which means Rr. 1-18 shall also be applicable on habeas petition filed under Art. 199 of the Constitution---Thus, in appropriate cases order for recovery of minor can be issued under Art. 199 of the Constitution.

Muhammad Ajmal Khan Bhutta for Petitioner.

Zafar Iqbal Awan, Additional Advocate General with Mehboob, ASI.

P L D 2025 Lahore 551

Before Abid Hussain Chattha, J

MOHAMMAD MOHSIN RAZA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JATOI, DISTRICT MUZAFFARGARH

and 3 others---Respondents

Writ Petition No. 12505 of 2020, heard on 17th October, 2022.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched., 10(5) & 10(6)---Suit for dissolution of marriage on the basis of Khula---Return/surrender of dower---Principles---Family Court while dissolving marriage on the basis of Khula decreed the claim of the dower of plaintiff (ex-wife) to the extent of 75% of unpaid dower mentioned in column No. 16 of the Nikahnama in the shape of residential house and return of 25% of paid dower as mentioned in columns Nos. 13 & 14 of the Nikahnama---Plea of the petitioner (ex-husband/defendant was that the rule that allowed return or surrender of up to 25% of admitted prompt dower or up to 50% of deferred dower encapsulated in Ss. 10(5) & 10(6) of the Family Courts Act, 1964, ('the Act 1964') had been declared repugnant to the injunctions of Islam by the Federal Shariat Court in case titled, "Imran Anwar Khan and others v. Government of Punjab through Secretary Ministry of Law, Lahore and others" reported as PLD 2022 FSC 25 ('the Imran Anwar Khan case')---Question was what were the principles governing the surrender or return of dower in case of dissolution of marriage or Khula in the light of 'Imran Anwar Khan case'?---Held, that Family Court had the discretion to determine the quantum of return or surrender of dower in a case of dissolution of marriage or Khula depending upon the facts and circumstances of the case---Therefore, when divergent pleadings regarding entitlement or surrender of dower are taken by the parties in a suit for dissolution of marriage, the proper course is to decide the same after recording of evidence---However, Ss. 10(5) & 10(6) of the Act 1964 were introduced in 2015 to regulate the question of surrender of dower in the case of Khula which prescribed a discretionary upper limit for the Court to order surrender of dower up to fifty percent of deferred dower or up to twenty-five percent of admitted prompt dower of the wife in favour of the husband---Courts generally invoked S. 10(5) of the Act 1964 even in a case of Khula where either the suit was decreed summarily or otherwise when it was proved that Khula was obtained by the wife for no fault of the husband---Judgment in the 'Imran Anwar Khan case' was rendered in this context; which struck down the prescribed upper ceiling with respect to surrender of dower encapsulated in subsections (5) & (6) of S. 10 of the Act 1964 being repugnant to Islam and as such, declared the same to be ineffective from 01.05.2022---It is, therefore, pertinent to examine and assess its impact on the pending cases involving the cases of Khula---Pertinently, the Federal Shariat Court, in case titled "Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others" reported as PLD 2014 Federal Shariat Court 43 while setting certain principles, concluded [ in Para (xii)]that "the quantum of return or surrender of dower shall be decided in the light of said/certain principles without resort to statutory upper ceiling stipulated in Ss. 10(5) & 10(6) of the Family Courts Act 1964 having been struck down as repugnant to injunctions of Islam after the cutoff date declared in the Imran Anwar Khan case"---In the present case, the Family Court framed a specific issue (No. 2) regarding entitlement of the respondent/plaintiff to a decree for dower in her favour and against the petitioner in view of dissolution of marriage---Columns Nos. 13, 14 & 16 of the original pert of (duly Exhibited) Nikahnama revealed that Rs. 5000/- cash, 03 Tolas gold ornaments and 05 Marlas constructed house were listed therein as dower---As such, the plea/version of the petitioner based on oral evidence regarding non-fixation of 05 Marlas house was discarded for the reason that presumption of truth was attached to Nikahnama produced by the respondent which could not be dislodged by counter evidence---Accordingly, the Courts below after due appreciation of evidence on record, concurrently held that at the time of Nikah, cash and gold ornaments were paid to the respondent but 05 Marlas constructed house was not paid at that time or thereafter---Whereas, the respondent substantially proved the reasons for seeking Khula as per her pleadings and successfully established that she was not entirely at fault for failure of her matrimonial relationship---At the same time, the respondent did not produce conclusive evidence of torture and cruelty on the part of the petitioner to prove that she was not at fault at all---Therefore, it can safely be concluded that proportionally, the petitioner was more at fault than the respondent for the dissolution of marriage between them---Family Court after declaring the entire dower as prompt invoked Ss. 10(5) & 10(6) of the Act 1964 and ordered that the respondent was entitled to her dower but must return or surrender 25% of her admissible dower as consideration for Khula---In this context, the non-paid dower stipulated in the Nikahnama in the shape of house measuring 05 Marlas was reduced in measurement to 03 Marlas and 07 Sarsais---Applying the principles of law enunciated in the 'Imran Anwar Khan case' to the facts and circumstances of the instant lis, it became explicitly evident that decision of the Courts below regarding grant of Khula to the respondent against return or surrender of 25% of dower was fully justified based on evidence on record in the wake of charges of cruelty, torture and use of drugs against the petitioner since it was not a case of Khula simpliciter based on personal dislike of the respondent against the petitioner---Hence, notwithstanding that upper ceiling of surrender of dower contained in subsections (5) & (6) of S. 10 of the Act 1964 had been struck down by the Federal Shariat Court yet the decision was otherwise sustainable on the touchstone of principles of Islamic law reiterated and endorsed in the 'Imran Anwar Khan case'---High Court maintained the impugned judgments and was not inclined to interfere with the same in exercise of extraordinary and discretionary constitutional jurisdiction vested under Art. 199 of the Constitution---Constitutional petition filed by ex-husband/defendant, being merit-less, was dismissed, in circumstances.

Dr. Anees Ahmad v. Mst. Uzma PLD 1998 Lah. 52; Khalid Mahmood v. Anees Bibi and 2 others PLD 2007 Lah. 626; Muhammad Kamran v. Mst. Samera Majeed and others 2018 YLR 1251; Mst. Saima Irum and 3 others v. Tariq Javed and another 2006 MLD 83; Mst. Zahida Bi v. Muhammad Maqsood 1987 CLC 57; Imran Anwar Khan and others v. Government of Punjab through Secretary Ministry of Law, Lahore and others PLD 2022 FSC 25 and Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43 ref.

Muhammad Irfan Arabi and Muhammad Kaleem Ullah Chishti for Petitioner.

Rana Mehboob Ali for Respondents Nos. 3 and 4, assisted by Muhammad Zubair, Research Officer.

P L D 2025 Lahore 563

Before Jawad Hassan and Tariq Mahmood Bajwa, JJ

AAMIR NAWAZ MINHAS and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 1027 of 2025, decided on 8th April, 2025.

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

----Vol. V, Chap. No.3, Part-2, R. 1---Division Bench of High Court---Fixing and hearing of cases---Three eventualities have been provided in Chap. No. 3, Part-2, R.1 of Vol. V of High Court (Lahore) Rules and Orders viz (i) Save as provided by law (ii) by High Court (Lahore) Rules and Orders and (iii) by a special order of Chief Justice---Any matter in Constitutional jurisdiction of High Court has to be referred, heard and disposed of by a Single Judge sitting alone unless provided by law or High Court (Lahore) Rules and Orders or the order of Chief Justice.

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

----Vol. V, Chap. No. 3, Part-2, R. 1---National Accountability Ordinance (XVIII of 1999), S. 32---Constitution of Pakistan, Art. 199---Constitutional petition---Division Bench of High Court---Fixing and hearing of cases---Dispute was with regard to fixing of Constitutional petition pertaining to a matter related to proceedings before National Accountability Bureau, before Division Bench of High Court---Held: Provision of S.32 of National Accountability Ordinance, 1999 mandates Division Bench of High Court constituted by Chief Justice to decide cases arising out of final judgment or order of the Court---No provision (express or implied) is available under National Accountability Ordinance, 1999 which deals with direct placement of matters before Division Bench of High Court except appeals arising out of final judgment or order of the Court under S. 32 of National Accountability Ordinance,1999---Petitioners only sought writ of mandamus and certiorari against NAB for expeditious disposal of complaints; such matter should be placed and decided by Single Judge alone---Division Bench of High Court directed Registrar of High Court to fix the matter before Single Judge, in order to ensure proper fixation of cases in accordance with High Court (Lahore) Rules and Orders---Division Bench of High Court further directed that due care should be taken in future to ensure categorization of cases at the time of their filing whether those were to be placed before a Single Judge or a Division Bench---Question of jurisdiction was determined accordingly.

Azgard Nine Limited and others v. Registrar of Companies and others 2022 CLD 114; PGP Consortium Ltd. v. Securities and Exchange Commission of Pakistan and others 2020 CLD 541; Al-Arabia Sugar Mills Ltd. v. Securities and Exchange Commission of Pakistan and others 2020 CLD 748; The Chairman, National Accountability Bureau (NAB) v. Ramzan Sugar Mills Limited and others 2020 CLD 1462; Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447; Muhammad Yaseen v. Lahore Development Authority and another 2023 CLC 1507 and Mrs. Shagufta Shaheen and others v. The State through D.G. NAB, Khyber Pakhtunkhwa and another 2019 SCMR 1106 ref.

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

----Vol. V, Chap. No.3, Part-2, R. 1---Constitution of Pakistan, Arts. 4 & 10A---Division Bench of High Court---Fixing and hearing of cases---Treatment as per law---Due process and fair trial---Scope---It is inalienable right of every person to be treated as per law and rule of justice---Such treatment has two major components; first is access to justice and second is dispensation of justice---If cases before Division Bench are directly fixed or filed, it will deny the access to justice to a party's right to file appeal against the order of Single Judge of High Court before the Division Bench leaving aside a party remediless---Provision of Art. 4 of the Constitution itself deals with enjoyment of protection of law and to be treated as per law and Art. 10A of the Constitution deals with right of fair trial and due process.

Mrs. Shagufta Shaheen and others v. The State through

D.G. NAB, Khyber Pakhtunkhwa and another 2019 SCMR 1106 rel.

Shahzeb Jafar, Advocate Supreme Court and Barrister Moeed Ahmed for Petitioners.

Husnain Khurshid, Muhammad Wasiq Hassan and Tayyaba Abbasi, Special Prosecutors for NAB.

Sajid Khan Tanoli and Sayed Azher Naveed Shah, Deputy Attorney Generals with Arshad Mehmood Malik, Assistant Attorney General for Pakistan.

P L D 2025 Lahore 572

Before Sultan Tanvir Ahmad, J

MUHAMMAD ASIF---Appellant

Versus

Ch. MUHAMMAD HANIF---Respondent

R. S. A. No. 69 of 2014, heard on 10th March, 2025.

Specific Relief Act (I of 1877)---

----Ss. 12, 21(c) & 22---Agreement to sell, legality of---Description of subject property unclear---Effect---Concurrent findings of the courts below should not be interfered with by the High Court in second appeal if same are not contrary to law---The principal issue requiring determination in the present appeal was as to "whether the suit for specific performance could be decreed where the agreement to sell lacked reasonable certainty in terms of land description"---Facts, in brief, were that the appellant (vendee) filed a suit for specific performance based on an agreement dated 21.04.2007, alleging that the predecessor (vendor) of the respondents had agreed to sell certain land---However, the land description was vague and lacked precise identification such as killa, square, or khasra numbers---Even the appellant's attorney could not recall these details of land in his testimony---Trial Court declined specific performance due to the uncertainty in the agreement's terms---The appeal before the first appellate court filed by the appellant was also dismissed---Appellant (vendee) then filed second appeal before the High Court, arguing that the agreement had been proven and should have been specifically enforced---Held: S. 21(c) of the Specific Relief Act, 1877 does not permit to specifically enforce a contract the terms of which the court cannot find with reasonable certainty---In order to succeed in a suit for specific performance of a contract, claimant has to assert that a valid and enforceable contract existed between him and the other side beside clearly pleading the terms and conditions on the basis of which the contract was executed which he desired to be specifically performed---Specific performance is by no means an absolute right but one which rests entirely in judicial discretion and always with reference to facts of a particular case---Where Trial Court has exercised its discretion in one way, which is judicially exercised on sound principles and the decree is affirmed by the Appellate Court, then the High Court in second appeal should not interfere with this discretion, unless the same is contrary to law or usage having force of law---While refusing specific performance of the agreement the Trial Court exercised the discretion on sound and reasonable basis, which were upheld by the first appellate court and the same required no interference in second appeal before the High Court---The second appeal lacking any merit was dismissed, in circumstances.

Muhammad Miskeen v. District Judge Attock and others

2020 SCMR 406; Sheikh Akhtar Aziz v. Mst. Shabnam and others

2019 SCMR 524; Mian Muhammad Saleem and others v. Mst.

Hameeda Begum and others 1987 SCMR 624 and Naseer Ahmed Siddique through Legal Heirs v. Aftab Alam and another PLD 2011 SC 323 rel.

Ch. Muhammad Ashraf Jalal for Appellant.

Attiq-ur-Rehman Mughal for Respondent.

P L D 2025 Lahore 575

Before Muzamil Akhtar Shabir, J

GHULAM FAREED---Petitioner

Versus

MUHAMMAD BILAL and others---Respondents

Civil Revision No. 574 of 2024, decided on 6th November, 2024.

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

----S.12(2)---Specific Relief Act (I of 1877), S.8---Question of maintainability of application under S. 12(2), C.P.C.---Application filed before the District court, whereas, matter decided on merits by the High Court---Proper/competent forum for application under S. 12(2), C.P.C.---Scope---Merger of decrees---Application under S. 12(2), C.P.C. must be filed before the court that passed the final judgment, decree, or order---Proper forum for filing the application was High Court---Once an appellate decree merges into a High Court decision, it becomes the final order for the purpose of S. 12(2), C.P.C.---No subsequent application lies before a subordinate court---Legal point for determination before the High Court was as to "whether the application under S. 12(2), C.P.C. would be competent before the subordinate court or the High Court, where the decree of the subordinate court had merged into the final judgment of the High Court"---Brief facts of the case were that the suit for possession filed by respondent No.1 was dismissed by the civil court on 15.11.1997 by declaring the sale deed of respondent No.1 as based on fraud and collusion---Appeal filed by respondent No.1 was accepted on 07.09.1998 by the Additional District Judge, with the result that findings of the Trial Court were reversed and the suit was decreed in favour of respondent No.1 by upholding his sale deed, against which petitioner filed civil revision before the High Court which was dismissed on merits on 08.10.2015 and findings of the Additional District Judge were upheld by holding that registered instrument/sale deed attains presumption of truth and had preference over the mutation---Petitioner, thereafter, challenged the High Court decision before the Supreme Court of Pakistan which was withdrawn on 06.03.2020---Thereafter, petitioner filed application under S. 12(2), C.P.C. before the Additional District Judge on 01.02.2024 which was dismissed on 20.04.2024 and the said order was brought under challenge through the instant revision petition---Held: Decree passed by Additional District Judge dated 07.09.1998 had merged into order dated 08.10.2015 passed by the High Court, therefore, said order was final order in the matter and application under S. 12(2), C.P.C. filed by the petitioner before Additional District Judge was not maintainable and was rightly dismissed for the reason that same was required to be made before the court that had passed the final decision---Competent forum to challenge the validity of judgment, decree or order under S. 12(2), C.P.C. was the Court which passed the final order---In the present case, the final order had been passed by the High Court as the Supreme Court had not entertained the petitioner's application for leave to appeal against the same---No ground to warrant interference in the impugned order was made out for the reason that the same did not suffer from any illegality, jurisdictional defect or mis-reading and non-reading of material available on record.

Rasool Bakhsh and another v. Muhammad Ramzan 2007 SCMR 85 and Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555 rel.

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

----S.12(2)---Forum for filing application under S. 12(2), C.P.C.---Finality of judgment of High Court the determining factor for the purpose of competent forum for an application under S. 12(2), C.P.C.---Dismissal of leave to appeal by Supreme Court, effect of---High Court decree stands where leave to appeal is denied by the Supreme Court---If Supreme Court merely reaffirms a judgment or order of a High Court by refusing leave, the final judgment for purposes of S. 12(2), C.P.C. will be of the High Court and not of the Supreme Court---If, however, Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purposes of S. 12(2), C.P.C.

Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 rel.

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

----S.12(2)---Competent forum for filing an application under S. 12(2), C.P.C.---Improper forum invoked under S. 12(2), C.P.C.---Principle of merger of decrees---Scope---High Court's affirmation closes the door to subordinate court proceedings---Findings affirmed by High Court attain finality after refusal of leave to appeal by Supreme Court---No reopening before subordinate court under S. 12(2), C.P.C.---The reason provided by the petitioner for filing application under S. 12(2) C.P.C. before the Additional District Judge (who accepted appeal of respondent No.1) was that the appeal of respondent No.1 had been allowed by the Additional District Judge by reversing the findings of the Trial Court, whereafter, the order of the Additional District Judge was maintained by the High Court, and then the petition for leave to appeal was withdrawn from the Supreme Court, hence, the petitioner was aggrieved of the order of the Additional District Judge which was maintained by higher forums, consequently the petitioner had filed application before the Additional District Judge, which according to him was maintainable---Validity---Such argument of the petitioner was fallacious for the reason that supposing an order passed by the Trial Court was upheld up to the High Court or the Supreme Court on merits and not on technical grounds, then this argument of the petitioner would enable the aggrieved party to restart another round of litigation by filing application under S. 12(2), C.P.C. before the civil court by ignoring the findings affirmed by the forums above, therefore, this was not a valid ground to file application before the Additional District Judge---No ground to warrant interference in the impugned order was made out for the reason that the same did not suffer from any illegality, jurisdictional defect or mis-reading and non-reading of material available on record---Civil revision was dismissed, in circumstances.

P L D 2025 Lahore 581

Before Khalid Ishaq, J

MUHAMMAD HAFEEZ---Petitioner

Versus

MUHAMMAD RAMZAN and 17 others---Respondents

Writ Petition No. 10459 of 2019, decided on 23rd April, 2025.

(a) Gift---

----Registered gift deed, challenge to---Inheritance claims---Limitation, applicability of---Subsequent third-party transfers on the basis of gift deed---Gift deed not challenged in lifetime---Effect---Inheritance claims must overcome limitation unless exceptional circumstances---Exceptional circumstances where limitation did not apply in inheritance cases stated---The pivotal question under consideration in the instant matter was as to "whether, in the realm of inheritance claims, the bar of limitation retained its binding force and whether a legal heir could successfully challenge a decades-old registered gift and subsequent third-party transfers on the basis of inheritance, without first overcoming the statutory bar of limitation, particularly where the predecessor-in-interest, during their lifetime, neither contested the transaction nor asserted any legal right thereto"---Petitioner along with respondent No. 16, filed a suit for declaration and permanent injunction against a registered gift deed dated 03.09.1981, executed by his maternal grandfather (the original owner) in favor of his uncles (respondents Nos. 7-10) regarding some ancestral land---After the gift deed, respondents 7-10 sold the property to third parties (respondents 1-6) via registered sale deeds in 1984, and relevant mutations were sanctioned accordingly---During proceedings of the suit the contesting defendants filed application under section O. VII, R. 11 of C.P.C. which was disposed of by the Trial Court by completely ignoring the third party rights and questions of waiver, acquiesce and limitation---Being aggrieved of the Trial Court order the contesting respondents preferred civil revision petition under S. 115, C.P.C. which was allowed vide the impugned decree and consequently the plaint was rejected being barred by limitation---Held: It was not in all cases of inheritance that the question of limitation became irrelevant---In various claims of inheritance brought by female legal heirs against their brothers/male heirs, the question of limitation could not be ignored in every such case and such question of limitation was dependent upon facts and circumstance of each case---The impugned gift deed was challenged by the petitioner/plaintiff on 24.11.2015, after 34 years of the impugned gift deed and 06 years after the death of Mst. "SB" (real sister of respondents Nos. 7-10)---The present petitioner/ plaintiff had not inherited anything qua his claim on the basis of his relationship with his deceased mother Mst. "SB" as she did not leave behind any inheritance with respect to the suit property---Not only was the impugned gift deed not challenged within her lifetime, the subsequent transactions of sales to thirdparties, evidenced by registered instruments were not challenged either---If a predecessor did not challenge a transaction in his/her lifetime, which transaction purported to deprive the predecessor of his/her share and third party rights had been created, simple claim on the basis of inheritance would not absolve the question of limitation---The lack of challenge by the donor within the lifetime was fatal and the bar of limitation would accordingly apply---The question of limitation could not be dubbed irrelevant in every claim of inheritance---Only in the cases of exceptional facts, the question of limitation had not been treated as a statutory bar against the claims of inheritance---Those exceptional cases may be summed up in the following terms: i. Cases filed by female heirs, within their lifetime, claiming fraud and misrepresentation played against them qua the immoveable property left behind by their predecessor in interest; ii. Cases where it is pleaded and proved that the deprived female heir(s) were being paid some proportionate share from the income/lease of the immoveable property in question; iii. Cases where a co-sharer has successfully pleaded and proved that the rival heir or co-sharer was in deemed possession of immoveable property on behalf of all other heirs/siblings; iv. Cases where no third-party rights have been created in the immoveable property, which is/was subject matter of undisputed inheritance; v. Cases where the elements of acquiescence and waiver are absent on the part of the claimant legal heir or his/her predecessor in interest---The question of limitation could neither be ignored in every claim based on purported rights of inheritance nor it was permissible for the litigants to lay a statute barred challenge by couching the relief in the form of an inheritance claim---However, under the few exceptions, where a female was deprived of her share in the immoveable property of her predecessor, limitation would not be a question against her claim of inheritance where the female had successfully pleaded all the ingredients of fraud being played upon her while sanctioning the inheritance mutation by excluding her from inheritance---The limitation would not be an obstacle in the case of inheritance as where the fact of claimant lady being deprived from the inherited property by way of impugned mutation was concealed from her, however,she pleaded and proved that she was being paid her share of income from the property and once the same was denied, she brought the suit within her lifetime---A claim of inheritance must cross the bridge of limitation, waiver and acquiescence---An unchecked tendency of encouraging a relief in the guise of inheritance was not warranted under the law, particularly when the property in issue changed hands and the slumber of a purported claimant of inheritance crystalized valuable rights in favour of third parties---The encouragement of such claims and long drawn trials in statute barred suits was counter productive for genuine and bona fide claims of female heirs---In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law---There was no substance in the petition which was dismissed, in circumstances.

Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Mushtaq Ul Aarifin and others v. Mumtaz Muhamamd and others 2022 SCMR 55; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Taj Muhammad Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598; Saadat Khan and others v. Shahid-Ur-Rehman and others PLD 2023 SC 362; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Mohammad Boota (Deceased) through L.Rs., and others v. Mst. Fatima daughter of Gohar Ali and others 2023 SCMR 1901 and Noor Din (Deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928 rel.

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

----O. VII, R. 11---Limitation Act (IX of 1908), S.3---Qanun-e-Shahadat (10 of 1984), Art.100---Gift---Inheritance---Rejection of plaint---Plaint barred by law---Recording of evidence---Scope---Plaint that is clearly barred by limitation on its face must be rejected summarily---Duty of courts to act suo motu on limitation---Frivolous and fictitious claims to be nipped in the bud at the outset---Limitation runs even against void order---Presumption of authenticity attached to 34 year old gift deed---When the plaint is barred by any law on the face of it, recording of evidence would be a futile exercise and would amount to encouraging the abuse---Where on the plain reading of the plaint, it can be clearly seen that the suit is patently barred by limitation, no evidence is required---To plead that a plaint cannot be rejected because of the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in O. VII, R. 11 C.P.C., which essentially requires the court to reject the plaint which appears from its contents to be barred by limitation---Aggrieved person has to pursue his legal remedies with diligence and if a suit is beyond limitation, the delay of each and every day consumed for approaching the court beyond the period of limitation has to be explained---In the instant case the plaint on the face of it failed to explain the delay of a period of 34 years---The contents of the plaint failed to set up a case in a manner which rendered the question of limitation as a mixed question of law and fact---Mere reading of the contents of the plaint made it abundantly clear that it was statute barred and was liable to be dismissed in terms of O. VII, R. 11, C.P.C without employing valuable judicial resources and time of the Trial Court---By specifically incorporating the provision in terms of O. VII, R. 11, C.P.C, the legislature has empowered the court with an independent suo motu and sua sponte power to examine the plaint by using its wisdom---The courts always nip a frivolous suit in the bud, by rejecting such frivolous, fictitious and untenable claims in order to retain courts' docket and time for more serious claims---Non-actionable plaint or suit is a non-starter and in the interest of administration of justice and good judicial governance, it is best if such plaints are dismissed at the earliest---Keeping in view the mandatory provision of S. 3 of the Limitation Act, 1908, it is duty of every court and forum itself to look into the question of limitation irrespective of the fact whether any objection in this regard has been raised or not---Limitation runs even against a void order and a void order too has to be challenged within limitation---In the instant case, there was no justification at the outset merely by considering the averments of the plaint to overlook the delay of 34 years---When Mst. "SB" did not challenge the impugned gift deed in her life time despite third party transfers through registered deeds, petitioner/plaintiff had no right to claim inheritance of Mst. "SB"---Under Art. 100 of Qanun-e-Shahadat, 1984 a presumption was attached to the impugned gift deed which was 34 years old document at the time of its challenge before the Trial Court---In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the Impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law---There was no substance in the petition which was dismissed, in circumstances.

Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Fatima Moeen v. Additional District Judge, Sheikhupura 1992 SCMR 1199; Mst. Gul Nisa v. Muhammad Arif 1996 SCMR 1239; Haji Abdul Sattar v. Farooq Inayat 2013 SCMR 1493; Irshad Ali v. Sajjad Ali PLD 1995 SC 629; Muhammad Afzal v. Muhammad Hayat 1994 SCMR 12; Haji Abdul Karim and others v. Messers Florida Builders Pvt. Ltd . PLD 2012 SC 247; Saqib Ali v. Government of Punjab and others 2023 PLC (C.S.) 310; Shahin Shah v. Government of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others 2022 SCMR 1810; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Qaisar Mushtaq Ahmad v. Controller of Examination and others PLD 2011 SC 174; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Syed Iftikhar Hussain v. Ijaz Ahmad Cheema and another 1996 SCMR 943; Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Haji Ghulam Rasul and others v. Government of the Punjab through Secretary, Auqaf Department, Lah. and others 2003 SCMR 1815; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore 2006 SCMR 783; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Government of N.W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Chief Engineer, Gujranwala Electric Power Company GEPCO; Gujranwala v. Khalid Mehmood and others 2023 PLC 65; Kiramat Khan v. IG. Frontier Corps and others 2023 SCMR 866; Abid Hussain v. Secretary, Ministry of Defence, Government of Pakistan through Chief of Air Staff, Islamabad 2021 SCMR 645; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajid v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046; Ghulam Hussain Ramzan Ali v. Collector of Customs Preventive, Karachi 2015 PTD 107 = 2014 SCMR 1594; Ch. Shujaat Hussain and others v. Zafar Ahmed Qureshi and others 2014 SCMR 585; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Government of Sindh through Advocate-General, Sindh, Karachi v. Masood Hussain and others 2002 SCMR 155; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; S.Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 and Jamil Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---The purpose of invoking Art. 199 of the Constitution is to advance justice, rectify legal wrongs, and protect rights---Constitutional petition is not a substitute for appeal or revision---While exercising jurisdiction under Art. 199 of the Constitution, in the matters arising from appellate or revisional orders, High Court should only be concerned with whether or not the courts below acted within their jurisdiction---If such a court has the jurisdiction to decide a matter, it is considered competent to make a decision, regardless of whether the decision is right or wrong, and even if the said decision is considered to be incorrect, it would not automatically render it as being without lawful authority so as to invoke High Court's Constitutional jurisdiction---The object of exercising jurisdiction under Art. 199 of the Constitution is to foster justice preserve rights and to right the wrong---The conversion of scope of exercise of constitutional jurisdiction into that of a second appeal or second revision has consistently been deprecated by the Supreme Court of Pakistan.

Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Hasan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Mst. Mobin Fatima v. Muhammad Amin and 2 others PLD 2006 SC 214 and Secretary to the Govt. of the Punjab v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel.

Rana Muhammad Shahid Mahmood for Petitioner.

Rana Ahmad Tayyab Shahid, for Respondents Nos. 1 and 6.

Nemo for Respondents Nos. 2 to 5 and 7 to 16.

P L D 2025 Lahore 604

Before Shahid Karim, J

EFU GENERAL INSURANCE LIMITED through Authorized Officer and another---Petitioners

Versus

PROVINCE OF THE PUNJAB through Chief Secretary and 3 others---Respondents

Writ Petition No. 7002 of 2020 (and other connected Petitions), decided on 24th March, 2025.

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

----Ss. 2(22A), 33, 35 & Schedule-I, Art. 47 (as amended by Punjab Finance Act, 2018)---West Pakistan Stamp Inspection and Audit Rules, 1949, R.3---Constitution of Pakistan, Arts. 138 & 199---Constitutional petition---Public office---Collection of stamp duty---Insurance policies---Petitioners/insurance companies were aggrieved of notices for audit of accounts issued by Chief Inspector of Stamps, Board of Revenue Punjab---Dispute was with regard to deposit of stamp duty on instruments of insurance executed by petitioners/insurance companies---Held: If public functions under Art. 138 of the Constitution belong to Provincial Government then such functions can only be delegated to public officers who are departmental officials---Provisions of Stamp Act, 1899 concern themselves with collection and impounding of duties of stamp which, in essence, are public functions meant to be performed by public officers---Private bodies and persons included in definition of public office in Stamp Act, 1899 may carry out functions which can be described as public but as commercial organizations they cannot be said to possess powers solely in order that they may use them for the public good---Private bodies do not have the same duty that a public body, which is not a commercial undertaking, has---Private body is entitled to look to the interest of its shareholders---This also means that private bodies and persons may become subject to judicial review since their source of power is a statute---Offices to which a reference has been made in Appendix II of Stamp Act, 1899 do not include the bodies in dispute and not at all the offices of petitioners/insurance companies---Petitioners/insurance companies are not comprised in the list of Courts and offices and other accounts which are subject to stamp audit by a stamp auditor under West Pakistan Stamp Inspection and Audit Rules, 1949---Notices issued to petitioners/insurance companies were ultra vires as West Pakistan Stamp Inspection and Audit Rules, 1949 did not empower stamp auditor to inspect books and records of petitioners/ insurance companies for audit---Notices for audit were without lawful authority and Chief Inspector of Stamps was denuded of powers to serve such notices on petitioners/insurance companies to compel them to undertake stamp audit by stamp auditor nominated by Collector---High Court declared that definition of public office contained in S. 2(22A) of Stamp Act, 1899, to the extent of bodies in dispute was unconstitutional and without lawful authority and were struck out from the definition---High Court gave directions to modify definition of public officer in S. 2(22B) of Stamp Act, 1899---Constitutional petition was allowed accordingly.

Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; R (King) v. Secretary of State for Justice [2015] UKSC 54 and YL v. Birmingham City Council [2007] UK HL 27 ref.

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

----Ss. 33 & 35---Words "by any public officer" and "acted upon, registered or authenticated…. by any public officer"---Scope---Words "by any public officer" in section 35 of Stamp Act, 1899 are tied in with the forgoing words "acted upon, registered or authenticated…. by any public officer"---These are all public functions conferred by Provincial Government and there is no power in any private person to act upon, register or authenticate an instrument---Such power is inconceivable to vest in a private person nor can he be conferred such a power, for that would be unconstitutional and against the holding of Supreme Court in Mustafa Impex case reported as PLD 2016 SC 808---Functions contemplated by sections 33 and 35 of Stamp Act, 1899 are in essence public functions of a Constitutional nature and the wide scope of definition of 'public office' introduced by Stamp (Punjab Amendment) Act, 1973 would be in contradiction to such functions---Two potentially conflicting strands of the same term are hard to reconcile in the statutory setting of Stamp Act, 1899.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.

Imtiaz Rashid Siddiqui, Shahzad Ata Elahi, Gohar Mustafa Qureshi, Shahryar Kasuri, Khawaja Omer Ghias, Syed Kamal Ali Haider, Raza Imtiaz Siddiqui, Ali Umrao, Haider Aziz Sheikh, Muhammad Mohsin Malik, Asad Abbas Butt, Muhammad Asif, Ms. Ayesha Qazi, Awais Ahmed, Malik Muhammad Zarif, Ali Ahmad Toor and Syed Ali Ahmad Gillani for Petitioners.

Abdul Muqtadir Khan for Respondent No.4-FBR.

Mirza Nasar Ahmad, Addl. Attorney General, Asad Ali Bajwa, D.A.G., Jahanzeb Inam, Addl. Advocate General and Hassan Ijaz Cheema, A.A.G. for Respondents.

P L D 2025 Lahore 630

Before Jawad Hassan, J

KAKAKHAIL TRADERS---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petitions Nos.3661, 3851 and 3852 of 2024, heard on 4th February, 2025.

(a) Jurisdiction---

----Jurisdiction of Court---Assumption/exercise of---Scope---Every Court prior to taking cognizance and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the Court and if it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue.

Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR 592 and Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 ref.

(b) Constitution of Pakistan---

----Art. 199---Punjab Procurement Rules, 2014, R. 14---Benches of the (Lahore) High Court---Territorial jurisdiction---Invoking constitutional jurisdiction of a Bench of the High Court---Determination, criteria of---Petitioners/companies were aggrieved of their disqualification to tender their bids at pre-qualification stage of public procurement of livestock (Cow and Buffalo Heifers) to a scheme namely "Livestock Asset Transfer to Rural Women in South Punjab" ('the Scheme')---Petitioners had filed constitutional petitions before the Rawalpindi Bench of the Lahore High Court ('Rawalpindi Bench/Court')---Objection was raised regarding maintainability of constitutional petitions qua territorial jurisdiction of this (Rawalpindi) Bench/Court---Plea raised by the petitioners, against objection, was that the addresses of offices of the petitioners were located at Rawalpindi and Islamabad, thus cause of action had arisen at territorial jurisdiction of the Rawalpindi Bench/Court---Validity---Pertinently, all concerned official respondents (like the Director General, officers, members of grievance committee) relating to the Scheme belonged to concerned Department(s) of South Punjab (Bahawalpur), for the purpose to conduct proceedings under the Punjab Procurement Rules, 2014 ('the Rules 2014') i.e. issuing invitation of pre-qualification bids, entertaining grievances, conducting the procurement process of the Scheme and redressing the grievance of the bidders---It became apparent that neither the part of the cause of action had arisen in Rawalpindi nor the official respondents arrayed in present petition(s) against whom relief was sought, were situated in Rawalpindi, nor fell within the territorial jurisdiction of this (Rawalpindi Bench of) Lahore High Court and, thus, were not amenable to the jurisdiction of this Court---Constitutional petitions, falling beyond the territorial jurisdiction of this/Rawalpindi Bench of Lahore High Court, were dismissed, in circumstances.

Messrs Mandviwalla Builders and Developers and another v. M. Awais Sheikh CEO Mangla View Resport and Mangla Garrison Housing (Pvt.) Limited and others 2023 CLD 885 ref.

(c) Constitution of Pakistan---

----Art. 199---Punjab Procurement Rules, 2014, R. 14---Benches of the High Court---Territorial jurisdiction, assigning of---Writ, issuance of---Scope---Principle of dominant jurisdiction---Petitioners/companies were aggrieved of their disqualification to tender their bids at pre-qualification stage of public procurement of livestock (Cow and Buffalo Heifers) to a scheme namely "Livestock Asset Transfer to Rural Women in South Punjab" ('the Scheme')---Petitioners sought issuance of writ by the Rawalpindi Bench of the Lahore High Court ('Rawalpindi Bench/Court')---Held: Issuance of writ is an extraordinary jurisdiction of the High Court and is invoked when stipulations in the Constitution for its issuance are met---Petitioners had failed to satisfy that this (Rawalpindi bench of) High Court could exercise jurisdiction to pass direction to all the respondents---Under principles of dominant jurisdiction, Constitutional jurisdiction of High Court is exercised under Art. 199 of the Constitution and not under any other instrument; the Lahore High Court is created by the Constitution of Pakistan, thus, it can only exercise powers which are conferred upon it by or under the Constitution---It was mandatory upon the Bench of High Court to confine itself to its territorial jurisdiction as provided in the Constitution---Constitutional petitions, falling beyond the territorial jurisdiction of this/Rawalpindi Bench of Lahore High Court, were dismissed, in circumstances.

Karamat Ullah Khan Chaudhry v. The Federation of Pakistan and 2 others 2018 PLC (C.S.) 555; Mirza Luqman Masud v. Government of Pakistan and 14 others 2015 PLC (C.S.) 526; Azad Hafeez Ltd. v. Chairman, FBR and 5 others 2012 MLD 1684; Ibrahim Fibres Ltd. v. Federation of Pakistan and 3 others PLD 2009 Kar. 154; Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad PLD 2006 Lah. 789; Inaam Elahi Nasir and others v. National Bank of Pakistan and others 2013 PLC (C.S.) 899; Danish Kaneria v. Pakistan and others 2012 CLC 389; Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan and 3 others 2010 PTD 1233; High Noon Textile Ltd. v. Saudi Pak Industrial and Agricultural Investment Co. (Pvt.) Ltd and 4 others 2010 CLD 567; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and 3 others 2007 CLC 1113; Mst. Shahida Maqsood v. President of Pakistan and another 2004 CLC 565; Province of NWFP and another v. Abdur Rahman, Forest Contractor and others 1991 SCMR 1321 and Muhammad Naim v. State Cement Corporation of Pakistan and others 1989 CLC 1241 ref.

(d) Constitution of Pakistan---

----Arts. 198 & 199---Lahore High Court (Establishment of Benches) Rules, 1981, R. 3---Benches of the (Lahore) High Court---Territorial jurisdiction, assigning of---Invoking constitutional jurisdiction of a Bench of High Court---Determination, criteria of---Petitioners/ companies were aggrieved of their disqualification to tender their bids at pre-qualification stage of public procurement of livestock (Cow and Buffalo Heifers) to a scheme namely "Livestock Asset Transfer to Rural Women in South Punjab" ('the Scheme')---Petitioners had filed constitutional petitions before the Rawalpindi Bench of the Lahore High Court ('Rawalpindi Bench/Court')---Objection was raised regarding maintainability of constitutional petitions qua territorial jurisdiction of this (Rawalpindi)Bench/Court---Validity---In terms of Art. 198(3) of the Constitution, the Bahawalpur, Multan and Rawalpindi Benches of the Lahore High Court are constitutionally constituted Benches with the area assigned to them under Art. 198(6) of the Constitution---Said exercise is undertaken in accordance with the R. 3 of the Lahore High Court (Establishment of Benches) Rules, 1981 ('the Rules 1981'), which regulates the distribution of matters to be filed and heard by each Bench within the area assigned to it respectively---Thus, the matter-in-hand could not be entertained at the Rawalpindi Bench of the Lahore High Court merely because the addresses of the petitioners were at Rawalpindi and Islamabad---Since the subject matter of the titled petitions related to the Scheme for South Punjab and all related ancillary activities in respect of procurement in question were also carried out by the Livestock Department of South Punjab hence these petitions could not be adjudicated at Rawalpindi Bench of Lahore High Court---Constitutional petitions, falling beyond the territorial jurisdiction of this/Rawalpindi Bench of Lahore High Court, were dismissed, in circumstances.

Havaldar (Retd.) Chiragh Din Babar v. Muhammad Aslam and 3 others PLD 2009 Lah. 622 ref.

(e) Constitution of Pakistan---

----Art. 199(1A) [as inserted/introduced through the Constitution (Twenty-sixth Amendment) Act, 2024]---Constitutional jurisdiction of High Court, invoking of---Vague/ambiguous prayer---Effect---As mandated by Art. 199(1A) of the Constitution, introduced through 26th Amendment in the Constitution, the High Court cannot exercise jurisdiction or issue directives beyond the matters explicitly raised in the Constitutional petition---Therefore, the contents of petition must be clear and apt leading to actual grievance of the person---In the present constitutional petitions, the petitioners had made unclear, confused, and vague prayer---There must not only be a right but a justiciable right in existence to give jurisdiction to the High Court in the matter---Constitutional petitions with vague and ambiguous prayer, being non-maintainable, were dismissed, in circumstances.

N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Asdullah Mangi v. Pakistan International Airlines Corporation 2005 SCMR 445; Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041 and Muhammad Riaz Bhatti v. Federation of Pakistan and another 2004 SCMR 1120 ref.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court, invoking of---Public interest litigation---Scope and effect---Held, that in the garb of public interest litigation, matters are brought before the High Court which are neither of public importance nor relatable to enforcement of a fundamental right or public duty---Constitutional petitions, being non-maintainable, were dismissed, in circumstances.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 ref.

Fahad Iqbal for Petitioner (in W.P. No. 3661 of 2024).

Shoaib ur Rehman for Petitioner (in connected W.P. No. 3851 of 2024).

Samar Khan for Petitioner (in connected W.P. No. 3852 of 2024).

Khalid Ishaq, Advocate General Punjab along with Imran Shaukat Rao and Abid Aziz Rajori, Assistant Advocate Generals and Dr. Muhammad Ashraf, Director General Livestock Department, Punjab, Dr. Sohail Azmat, Deputy Secretary Technical and Muhammad Iqbal, Deputy Secretary (Admin), South Punjab Secretariat for Respondents.

Barrister Bushra Saqib on behalf of Respondent Noor Traders.

Abdus Salam, Senior Law Officer on behalf of Respondent/ Punjab Procurement Regulatory Authority.

Mujtaba-ul-Hassan and Adil Sarwar Sial, Research Officers, Lahore High Court, Rawalpindi Bench.

P L D 2025 Lahore 641

Before Tariq Saleem Sheikh and Muhammad Tariq Nadeem, JJ

MUHAMMAD RAMZAN and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 692, 704/J of 2022/BWP and Criminal Revision No. 26 of 2023, decided on 17th March, 2025.

Penal Code (XLV of 1860)---

----Ss. 365 & 376---Abduction, forcible intercourse/rape---Appreciation of evidence---Mentally impaired victim---Competency to testify---Alternative means to record testimony---Accused were charged for committing rape with the mentally impaired daughter of the complainant after her abduction---During the trial, Female Medical Officer testified that victim was deaf and dump and unable to speak; that she was mentally retarded and unable to tell about previous such incidents or give relevant gynecological history---Prosecution submitted an application before the Trial Court to determine whether victim was competent to testify---Consequently, the Court summoned victim, conducted a voir dire test and found her unable to testify---However, Trial Court failed to explore whether victim's testimony could have been recorded through alternative means, which declared her incompetent to testify under Arts. 3 & 17 of the Qanun-e-Shahadat, 1984, without seeking the opinion of a qualified psychiatric or psychological expert---Absence of expert evaluation constituted a serious procedural lapse, as mental incapacity did not automatically preclude a witness from providing testimony---Law did not rigidly assume that persons with disabilities were wholly incapable of expressing themselves---In criminal cases involving victims with cognitive or intellectual disabilities, their testimony should not be rejected outright due to their condition---Instead, appropriate procedural accommodations must be made to facilitate their meaningful participation in the legal process---Trial Court should have summoned an expert to assess whether victim communicated her experiences through alternative means before declaring her incompetent to testify---Thus, matter was remanded to the Trial Court with the direction to summon a forensic psychologist or psychiatrist to assess victim's capacity to communicate and the feasibility of recording her testimony through alternative means---Appeal was disposed of in the above terms.

Malik Farooq Haider for Appellant (in Crl. Appeal No.692 of 2022).

Muhammad Sharif Bhatti for Appellant (in Crl. Appeal No.704 of 2022).

Ch. Asghar Ali Gill, Deputy Prosecutor General for the

State.

Rab Nawaz Khan Baloch for the Complainant.

P L D 2025 Lahore 649

Before Ch. Muhammad Iqbal and Malik Waqar Haider Awan, JJ

SHAHBAZ AKMAL JANDRAN---Appellant

Versus

PROVINCE OF PUNJAB through Director General, Excise and Taxation, Lahore and another---Respondents

I.C.A. No. 22041 of 2025, decided on 15th April, 2025.

(a) Punjab Transparency and Right to Information Act (XXV of 2013)---

----Ss.3 & 13(1)(b)---Constitution of Pakistan, Arts. 9, 14 &19-A---Right to information---Scope and essence---Exception stated---Right to privacy of an individual---Brief facts of the matter were that the appellant, filed complaints under Art. 19-A of the Constitution read with S. 3 of the Punjab Transparency and Right to Information Act, 2013 (the "Act 2013") before the Punjab Information Commission (the "Commission"), seeking detailed information from the Excise and Taxation Department (the "Department"), regarding the Excise and Taxation officer, inspectors, zone numbers and names of property circles, etc.---The Commission directed the Department to disclose the information, however, the Department resisted, citing S. 13(1)(b) of the Act, 2013, which exempted disclosure of information violating individual privacy---The Department challenged the Commission's orders through Constitutional petition---The Single Judge-in-Chambers accepted the Constitutional petition while setting aside the Commission's orders, holding that the requested information fell within the domain of protected privacy---The appellant filed the present appeal (I.C.A) challenging the decision passed in the Constitutional petition---Moot point of the matter was as to "whether the scope of the fundamental right to access information, as enshrined under Art. 19-A of the Constitution, and the provisions of the Punjab Transparency and Right to Information Act, 2013, permitted the disclosure of personal information of taxpayer maintained by a public body, or whether such disclosure was lawfully barred under S. 13(1)(b) of the Act 2013 on the ground that it would cause harm to a legitimate privacy interest of individuals"---Held: The right to information was primarily intended to give access to the citizen to the information gathered and maintained by public authorities to ensure that government was functioning in a transparent manner and accountable to the people it served---By allowing individuals to have access to the information qua government activities, income, expenditure, policies, and decision-making, helps to prevent corruption, abuse of power, and promotes better governance---However, the Act 2013 ibid provides certain exception as under S. 13(1)(b) of the Act ibid any request to provide information which violates the privacy of an individual can validly be withheld---This was rooted in the idea that while the public has the right to know about the workings of government, the life of a private individual should be respected and protected---The privacy directly related to an individual's personal life, such as their name, address, phone number, family details, medical history, financial status, etc. which had validly been safeguarded in almost every law---Admittedly, the substantial information as permissible under the Act 2013 was already provided to the appellant by the respondent No.1/Department through the Commission/respondent No.2---The appellant made request for getting information qua disclosures of names of taxpayer and information regarding individual properties owned by different taxpayers but imparting of requisite information was subject to an unambiguous consent of said individual otherwise request could validly be regretted under S. 13(1)(b) of the Act ibid---The Commission in blatant excess of its jurisdiction passed the orders, whereby, the respondent No.1/ Department was directed to provide private information of the individuals to the appellant, thus the Single Judge in Chamber had rightly allowed the Constitutional petition of the respondent No.1/ Department and set aside the aforesaid orders of the Commission being violative to the above said provision of law and same was immune from any inference by the High Court through the present Intra Court Appeal---Intra Court Appeal being devoid of any merits was dismissed in limine.

(b) Punjab Transparency and Right to Information Act (XXV of 2013)---

----S.13(1)(b)---Constitution of Pakistan, Arts .9, 14 & 19-A---Right to information---Exception---Right to privacy of an individual---Scope---A public information officer may refuse an application for access to information where disclosure of the information shall or is likely to cause harm to a legitimate privacy interest, unless the person concerned has consented to disclosure of the information---Such provision gives the power to public information officer to refuse the application for access to information where such disclosure of information is likely to harm the legitimate privacy or interest of individual unless the person concerned has consented to disclosure of information---Right to information under Art. 19-A of the Constitution and the Punjab Transparency and Right to Information Act, 2013 does not extend to any 'legitimate privacy interest' of an individual guaranteed under Arts. 9 & 14 of the Constitution and protected under S. 13(1)(b) of the Act ibid.

(c) Islamic jurisprudence---

----Right to information---Right to privacy---Scope---The religion of Islam, undoubtedly is a complete and comprehensive code of life which provides full protection to privacy and confidentiality of every individual---It also emphasizes the importance as a mandatory injunction qua spying on others or unwarranted intrusion into their private personal affairs---In this regard, reference is made to Ayat No.12 of Surah Al-Hujurat.

Ayat No.12 of Surah Al-Hujurat ref.

(d) Constitution of Pakistan---

----Art. 14--- Punjab Transparency and Right to Information Act (XXV of 2013), Ss. 3 & 13(1)(b)---Right to information---Right to privacy and home of an individual---Dignity of a man---Scope---The solemnity of privacy of a person has been guaranteed under Art. 14(1) of the Constitution---Expression 'privacy of home' used in Art. 14 of the Constitution is not restricted to the physical house of a person but it covers the entire treasure of his personal life, as the privacy attaches to the person, not to the place where it is associated---The right to privacy involves the protection of individuals from unwarranted intrusion into their personal lives.

Muhammad Nawaz v. Additional District and Sessions Judge and others PLD 2023 SC 461 rel.

Ghulam Mustafa v. Judge Family Court and another 2021 CLC 204 and M. D. Tahir, Advocate v. Director, State Bank of Pakistan, Lahore and 3 others 2004 CLD 1680 ref.

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

----S.35-B---Special cost, awarding of---Futile and frivolous litigation against a state institution---Where a state institution is dragged in futile and frivolous litigation, special cost can be awarded.

Capital Development Authority, CDA through Chairman, CDA, Islamabad v. Ahmed Murtaza and another 2023 SCMR 61; Province of Punjab through the Deputy Commissioner, Collector District Gujranwala and others v. Zulfiqar Ali and another 2024 SCMR 22 and Javed Hameed and others v. Aman Ullah and others 2024 SCMR 89 rel.

Nadeem Sarwar for Appellant.

P L D 2025 Lahore 657

Before Aalia Neelum, C.J. and Abher Gul Khan, J

The STATE---Petitioner

Versus

SAQIB HUSSAIN---Respondent

Reference No.69061 of 2020, decided on 16th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 341, 465 & 466---Penal Code (XLV of 1860), Ss. 302(b), 376 & 201---Qatl-i-amd, rape, causing disappearance of evidence of an offence or giving false information to screen an offender---Appreciation of evidence---Deaf and dumb accused able to understand court proceedings---Scope---Accused were charged for committing murder of the daughter of complainant by firing---In the present case, Trial Court thought that the principal accused, though not insane, could not be made to understand the proceedings---Validity---Before referring to the reference, the Trial Court did not go through the record, as an enquiry was conducted on the application of principal accused for declaring him a lunatic under Ss. 465 & 466, Cr.P.C---Medical board unanimously opined that there was no active psychiatric morbidity at present and the Trial Court dismissed the application for declaring the accused a lunatic, and after that charge was framed against him---Trial Court observed that the said accused could not speak or listen---However, the Court did not note whether the accused could understand the gestures made to him---It was notable that a joint trial was conducted against the accused and his brother/co-accused---Said accused persons were represented and defended adequately by the advocate of their choice---Proper cross-examination of the witnesses was also carried out on behalf of defence---In such situation, the trial was conducted fairly and a sufficient opportunity to present the case was also afforded to the accused persons, including the principal accused---Trial Court was obliged to ascertain whether the accused could be made to understand the proceedings with the help of his relatives or friends or through technical assistance---If the Trial Court doubted the accused's physical and mental capacities, the procedure prescribed under S. 341, Cr.P.C., should be followed---If the trial proceeds in the ordinary way, the Court can pass a sentence if the accused is found guilty and convicted---However, if it is found that the accused cannot understand the proceedings and trial resulted in conviction, the Trial Court is required to forward the proceedings to the High Court, if the evidence warranted so, but it cannot pass a sentence against him---Trial Court must forward the proceedings to the High Court to pass such orders as the High Court think fit---Unless the accused is insane, the Trial Court can proceed with the trial even though the accused cannot understand the proceedings---Given the circumstances, the Trial Court submitted a reference without complying with the spirit provided under S. 341, Cr.P.C.---Therefore, the matter was remanded to the trial Court to proceed as per the law---Reference was answered in the negative.

Muhammad Akhlaq, Deputy Prosecutor General and Shahzeb, D.S.P. for the State

Rana Attiq-ur-Rehman for the Complainant.

Muhammad Khalid Ch. for Accused.

P L D 2025 Lahore 661

Before Faisal Zaman Khan and Khalid Ishaq, JJ

Mst. MISBAH FAROOQ and 5 others---Appellants

Versus

Messrs DAEWOO PAKISTAN EXPRESS BUS SERVICE LIMITED and 2 others---Respondents

Regular First Appeal No. 1123 of 2014, decided on 4th March, 2025.

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

----S. 9, O. VII, R. 14 & O. XVI, Rr. 1, 2---Suit for recovery of damages---Fatal road accident---Negligence on the part of vehicle company alleged---Onus to prove---Expert evidence, relevance of---Doctrine of res ipsa loquitur 'the thing speaks for itself', applicability of---Claim of vehicle being mechanically unfit resulting in the accident had to be proved through specific evidence---The appellants/plaintiffs filed a civil suit for damages against a transport company, following a serious road accident---Appellants/plaintiffs Nos. 1 and 2 (mother and daughter) were passengers on the bus, while the remaining appellants/ plaintiffs were immediate family members affected indirectly by the consequences of the accident---As a result of the accident, appellant/ plaintiff No. 1 was rendered permanently disabled, causing physical, emotional, and financial distress to the family---The primary claim was that the bus was mechanically unfit and unstable from the start of the journey, whereas, defendant company contended that the accident occurred due to a fault of another vehicle which suddenly changed lanes, forcing the bus driver to swerve, resulting in a rollover---The Trial Court partly decreed the suit, awarding Rs. 140,000 to plaintiff No. 1 and Rs. 40,000 to plaintiff No. 2---Dissatisfied from the Trial Court's decision, the appellants/plaintiffs filed the present appeal---Held: Considering that the doctrine of res ipsa loquitur 'the thing speaks for itself' only supplied an inference and not a conclusive presumption and since the defendants through their evidence were able to cast doubts by denying the claim of the appellants, the appellants/ plaintiffs were required to produce some expert evidence to bridge the gap but none was produced---The evidence brought by the defendants remained unchallenged---Since the appellants/plaintiffs had opted to take a specific position that occurrence was due to bus's mechanical and fitness failure, therefore, they had to prove it by producing some evidence but they failed to do so---It was clear that in the present case doctrine of res ipsa loquitur was not attracted and normal rule of evidence prevailed, therefore, the onus of proving negligence on part of the defendant was on the appellants/plaintiffs, particularly when the defendant had unrooted the prima facie presumption by producing bus driver, bus hostess and workshop in-charge, since it was appellant/ plaintiffs' position that the accident occurred due to fault in the bus---Neither the appellants/plaintiffs sought to rely on the record of maintenance and fitness of the vehicle in issue nor they sought to produce any such record or evidence through process of the court in terms of O. VII, R. 14, read with O. XVI, Rr. 1 & 2 of the C.P.C.---Had the appellants/plaintiffs applied for expert [advice or evidence] for the inspection of the bus or sought appointment of any expert and the response the respondent/defendant company had opposed such prayer, there would have been some inference in favour of the appellants/ plaintiffs---Although it was proved that appellant/plaintiff No.1 had sustained injuries, she was bedridden for life and her family members might be facing trauma and emotional stress for life, however, it was not proved that those had occurred due to direct negligence by the respondent/defendant company---There was nothing on record which could have established that the bus carrying the appellants/plaintiffs had any mechanical fault, which fault was then instrumental for causing the accident---Appeal being without merit was dismissed, in circumstances.

N K V Bros (Pvt.) Ltd. v. M Karumai Ammal AIR 1980 SC 1354 ref.

(b) Damages---

----Doctrine of 'Res ipsa loquitur' 'the thing speaks for itself'---Essential ingredients---Applicability and significance---'Res ipsa loquitur' is Latin for 'the thing speaks for itself'---This doctrine applies, when the things that inflicted the damage was under the sole management and control of the defendant; secondly, the occurrence was such that it would not have happened without negligence; and thirdly, there must be no evidence as to why or how the occurrence took place---In such circumstances the defendants have to persuade the court that the accident did not occur on account of their negligence---In simple words, res ipsa loquitur means an inference of negligence in civil proceedings; it permits an inference of a defendant's negligence from the happening of an event and thereby creates a prima facie case of negligence sufficient for submission to a Court---To warrant submission of the inference for the court's consideration, the plaintiff must establish: (i) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff---However, it is equally important to register that a defendant may rebut the inference of negligence with evidence that tends to cast doubt on the plaintiff's proof; and more importantly, the doctrine permits an inference of negligence to be drawn solely from the happening of the accident---The rule simply recognizes that some accidents by their very nature would ordinarily not happen without negligence---Res ipsa loquitur does not create a conclusive presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstances of the occurrence---Mere happening of an accident or injury will not give rise to an inference or presumption that it was due to negligence on the defendant's part, even in a strict liability context---It is insufficient by itself to establish a prima facie case of negligence , or to prove negligence as a matter of law---Stated another way, proof of an accident does not equate with proof of negligence---In an action based on negligence, the maxim res ipsa loquitur is merely a rule of evidence effecting onus; it does not alter the general rule that the onus to prove negligence rests upon the claimant---The doctrine has been applied to situations where a motor vehicle mounted the footpath , where a vehicle struck a pedestrian who was walking alongside the highway , where it was shown that the brake pipe of the vehicle was beyond repair, and where a vehicle of unsound condition was being driven on a poor road on a dark night.

Mst. Kamina and another v. Al-Amin Goods Transport Agency through L.R.s and 2 others 1992 SCMR 1715 and Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848 rel.

Dermatossian v. New York City Tr. Auth. 67 NY2d 219 [1986]; (E.g. James v Wormuth, 21 NY3d 540 [2013]; Morejon v Rais Constr. Co., 7 NY3d 203 [2006]; States v. Lourdes Hosp., 100 NY2d 208 [2003]; Abbott v. Page Airways (23 NY2d 502, 511 [1969]; Kambat (89 NY2d at 497) and States 100 NY2d at 212; Kambat v. St. Francis Hosp., 89 NY2d 489; Morejon v. Rais Const. Co., 7 NY3d at 209; States v. Lourdes Hosp. 100 NY2d at 214; Esso Petroleum Co. Ltd. v. Southport Corpn. [1956] AC 218; [1955] 3 All ER 864; Collvilles Ltd. v. Devine [1969] 2 All ER 53; Monforti v. K-Mart Inc. 690 Sol. 2d 631; Fla. Dist. Ct. App.5th Dist. 1997; Thompson v. Volles, (37 Del. 83); Transit Homes, Inc. v. Bellamy, 282 Ark. 453; Callvert v. Katy Taxi, Inc. [413 F.2d 841 (2d Cir. 1969); Brown v. Rolls Royce Ltd. [1960] 1 All ER 577; Ellor v. Selfridge & Co. Ltd. (1930) 46 TLR 236; Isaac Walton & Co. Ltd. v. Vanguard Motor Bus Co. Ltd. (1908) 25 TLR 13; 22 Bhagyawati Mittal v. Uttar Pradesh State Road Transport Corpn Lucknow AIR 1978 All. 356 and Gopibai Ghansbamdas Advani v. Food Corpn of India, Bombay AIR 1983 Bom. 137 ref.

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

----Arts. 72, 117 & 120---Tendering of document in the statement of counsel---Admissibility of such documentary evidence---Disputed documents tendered in evidence through counsel's statement cannot be considered because such procedure deprives the opposing party to test the authenticity of those documents by exercising its right of cross-examination.

Rustam and others v. Jehangir (deceased) through L.R.s 2023 SCMR 730; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Manzoor Hussain v. Misri Khan PLD 2020 SC 749 and Hameeda Begum v. Irshad Begum 2007 SCMR 996 rel.

(d) Damages---

----'General damages' and 'special damages'---Definitions---Distinction---Standards of proof---The "general damages" are implied or presumed to have accrued from the wrong complained of, for the reason that they are its immediate, direct or proximate result or such that thus necessarily result from the injury, or such that they did in fact result from the wrong, directly or proximately---The term "special damages" is defined as those which are actual, but not the necessary result of the injury complained of, and which in fact follow it as a natural and proximate consequence in a particular case i.e. by reason of special circumstances or conditions---Such special damages must be specifically pleaded and proved---In a suit for damages, the wrong done to the plaintiff must be proved to be immediate, direct or proximate result of the act, or acts of negligence.

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

----S.9---Suit for recovery of damages, filing of---Jurisdiction of Civil Court, invoking of---Ouster of Civil Court's jurisdiction in certain cases discussed--- Question as to what law governs the suit for recovery of damages---Held: Suit for recovery of damages is governed by S. 9 of C.P.C. as it would operate and vest jurisdiction in the Civil Court to adjudicate the suits for recovery of damages and the Civil Court is not robbed of its jurisdiction to try such kinds of suits as the said provision is all encompassing---This is based on well settled position of law that ouster of jurisdiction of Civil Court conferred upon it under S. 9 of C.P.C. cannot be readily inferred and an ouster by special law has to be specific, clear and unambiguous---Exclusion of jurisdiction of Civil Court must be expressed, and ouster clause, ousting general law's jurisdiction, must be construed very strictly.

Messrs Sui Northern Gas Pipelines Limited (SNGPL) v. Messrs Noor CNG Filling Station 2022 SCMR 1501; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Khulna and 4 others v. Abdul Jabbar and 9 others PLD 1968 SC 381 and Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others PLD 1997 SC 03 rel.

(f) Tort---

----Definition---"Tort" is an act or omission that gives rise to an injury either to person or property---A tortious breach is where one party (the tort-feasor) breaches the legally protected rights of another party (the claimant)---Torts tend to fall within four categories---They are: 1) torts of physical integrity; 2) torts of interests in property; 3) torts of use and enjoyment of land and; 4) torts of reputation.

Pakistan Television Corporation v. Noor Sanat Shah 2023 SCMR 616 rel.

(g) Jurisprudence---

----Justice and morality---Standards and yardstick to be adopted by courts while deciding cases---Scope---Judicial decisions must rest on legal principles, not on compassion or emotions---Justice or morality do not signify any concept of precision as morality may fluctuate from one community to another and from one country to the other---Courts are not required to enforce moral standards but as courts of law are merely concerned with the enforcement of law enacted by the legislature---Courts of law are not mandated to rule on the basis of mere agony, unfortunate pain and helplessness---It is the duty of every court to implement the enforced laws and to decide the disputes in accordance therewith, rather than on the basis of compassion---Any relief granted on the touchstone of subjective standards of leniency and compassions, rather than the law, cannot be sustained.

Sundas and others v. Khyber Medical University through V. C. Peshawar and others 2024 SCMR 46 and Superintendent of Police, Headquarters, Lahore and others v. Ijaz Aslam and others 2024 SCMR 1831 rel.

POSCO International Corporation through Authorized Officer v. RIKANS International through Managing Partner/Director and 4 others PLD 2023 Lah. 116 ref.

Mubashir Rehman Chaudhary for Appellants.

Faisal Zaffar for Respondents.

P L D 2025 Lahore 679

Before Muzamil Akhtar Shabir and Asim Hafeez, JJ

JAMSHAID AHMAD DASTI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

I.C.A. No. 267 of 2024, decided on 14th November, 2024.

National Highway Authority Act (XI of 1991)---

----S.10(2)---Punjab Tolls on Roads and Bridges Ordinance (VIII of 1962), Ss.3 & 4---Constitution of Pakistan, Art. 199---Intra Court Appeal---Constitutional jurisdiction of the High Court, invoking of---Factual controversies and disputed questions of facts---Policy decision of the Government---Scope---Constitutional jurisdiction of the High Court not to be invoked in cases of policy decision of the Government as well as in cases of factual controversies requiring determination of disputed questions of facts---The appellantchallenged the establishment of toll plazas and the award of contracts for toll collection during the tenure of the Caretaker Government---It was contended that the Caretaker Government was not authorized to award contracts and thetoll plazas were being established at intervals of 10-20 kilometers, violating paragraph 16 of the NHA Tolling Policy, which stipulated a minimum distance of 35-60 kilometers between toll plazas---The question requiring determination in the present appeal was as to "whether the Caretaker Government acted beyond its legal mandate by initiating the process for awarding toll collection contracts and establishing toll plazas at intervals"---Held: Sections 3 and 4 of the Punjab Tolls on Roads and Bridges Ordinance, 1962 empowered the Government of Punjab to levy toll tax on roads and bridges for the purpose of their maintenance and S. 10(2) of National Highway Authority Act, 1991 authorized the framing of policy for charging toll tax, hence, there was no violation of law to that extent---Although the proceedings were initiated by the Caretaker Government but the same were finalized when the elected Government was holding office, which not only issued the contract but impliedly endorsed the action of Caretaker Government for creation of toll plaza and leasing out rights for collection of toll and this was purely a policy decision, which could not be interfered with by the High Court unless shown to be suffering from any illegality or violation of law, which could not been shown from the record of present case---As regards the claim of the appellant that the distance between successive toll plazas was 10-20 kilometers, paragraph No.16 of NHA Tolling Policy while providing minimum distance for establishment of toll plazas also provided exceptions where requirement of minimum distance was not to be considered---In the present case the ground that toll plazas established at lesser distances without there being any supporting material to show that whether the case fell within the exception or not was a factual controversy requiring determination of disputed facts, which was not permissible in Constitutional jurisdiction of the High Court, hence, High Court was not inclined to pass any direction regarding such aspect of the matter---Present appeal failed to disclose any illegality or jurisdictional defect in the impugned order and did not warrant interference by the High Court and was dismissed, in circumstances.

Tariq Mehmood Dogar for Appellant.

P L D 2025 Lahore 682

Before Ahmad Nadeem Arshad, J

MUHAMMAD HUSSAIN and 2 others---Petitioners

Versus

ALI MUHAMMAD and others---Respondents

Civil Revision No. 1499 of 2012, heard on 30th October, 2024.

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

----Ss. 151 & 152---Specific Relief Act (I of 1877), Ss. 8 & 42---Amendment in decree---Scope---Clerical or arithmetic mistake---Determination---Accidental slip or omission---Suit for declaration with recovery of possession instituted by the petitioners/plaintiffs was dismissed, however, their appeal was partially allowed without giving the relief of possession---Petitioners sought amendment in the decree on the ground that while preparing the decree, the relief of possession was omitted by the Appellate Court, thus, the decree was in disagreement with the judgment---Validity---Petitioners in their suit themselves claimed to be owner in possession of the suit property and sought only declaration, thus, the court could not grant them relief of possession---"Accidental slip or omission" as used in S. 152, C.P.C. means to leave out or failure to mention something unintentionally; it is only where the slip or omission as accidental or unintentional could it be supplemented or added in exercise of jurisdiction conferred under S. 152, C.P.C.---Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings, however, where slip or omission is intentional and deliberate, it could only be remedied or corrected by way of review if permissible or in appeal or revision as the case may be---Trial Court declared the possession of the respondents/defendants valid on the basis of adverse possession, but the Appellate Court did not alter or set aside the findings of the Trial Court---Slip or omission was not accidental or unintentional rather it was intentional and deliberate, thus, if the petitioners had any grievance, then they should have approached the superior courts for redressal of their grievance, but they never challenged the said judgment and decree, which attained finality and could not be altered even with the consent of the parties---Decree was totally in accordance with the judgment, thus, did not call for any rectification under Ss. 151 and 152, C.P.C.---Civil Revision was dismissed, in circumstances.

Ram Singh v. Sant Singh and others AIR 1930 Lahore 210; Maharaj Pullu Lal v. Sripal Singh and others AIR 1937 Oudh 191; Federation of Pakistan and another v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Bank of Credit and Commerce International (Overseas) Ltd. v. Messrs Ali Asmestos Industries Ltd. and 5 others 1990 MLD 130; BCCI v. Ali Asbestos Limited 1991 CLC Note 347 at p.264 and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 distinguished.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and The Government of Pakistan vide Limitation (Amendment Act-II) of 1995) PLD 1996 Central Statute 1296 ref.

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

----S. 152---Amendment in decree---Limitation---Power of the court---Scope---There is no time limit for entertaining an application under S. 152, C.P.C.---Power can be exercised suo motu---Powers of court under S.152, C.P.C. are unlimited, which does not mean that they will be exercised in all cases in which an application for their exercise is made---Exercise of power will depend on the circumstances of each case---Power is, thus, discretionary with the court---Normally where S. 152, C.P.C. is attracted court will order amendment, unless it is inequitable to do so.

Mst. Farosha v. Fazal Gul and others PLD 1983 SC 220 and Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472 rel.

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

----O. XX, R. 6---Contents of decree---Conformity of decree with the judgment---Duty of court---Scope---It is duty of the court, while drawing the decree, to specify clearly the relief granted or other determination of rights of the parties in the suit so as to make it in conformity with the will of the court capable of enforcement.

Shaukat Ismail Charania v. Mrs. Shakeela Hayat Khan and others 2006 CLC 1126 rel.

Syed Kaleem Ahmad Khurshid and Ch. Sultan Mahmood Kamboh for Petitioners.

Nemo for Respondents.

P L D 2025 Lahore 692

Before Anwaar Hussain, J/Election Tribunal

MUHAMMAD YAR---Petitioner

Versus

NAVEED ASLAM KHAN LODHI and others---Respondents

Election Petition No. 65282 of 2024 and C.M. No. 1 of 2025, decided on 1st July, 2025.

(a) Elections Act (XXXIII of 2017)---

----S.155---Representation of the People Act (LXXXV of 1976) [since repealed], S. 67 (3)---Right of appeal---Distinction---Appeal under S. 155 of Elections Act, 2017 lies to Supreme Court against a "final decision" of the Tribunal---In contrast, S. 67(3) of Representation of the People Act, 1976 stated that any person aggrieved by a "decision" of the Tribunal may challenge it by way of an appeal to the Supreme Court.

(b) Elections Act (XXXIII of 2017)---

----Ss.145, 155 & 164---Civil Procedure Code (V of 1908), S.151---Dismissal for non-prosecution---Term "final decision"---Scope---Restoration---Absence of counsel---Election Tribunal, jurisdiction of---Applicant sought restoration of his election petition which was dismissed for non-prosecution---Respondent/returned candidate resisted restoration on the plea that Election Tribunal had become functus officio after dismissal of petition and remedy was to file an appeal before the Supreme Court---Validity---Right of appeal has not been expressly provided under S. 145(1) Elections Act, 2017---Rejection made after application of judicial mind constitutes a "final decision" and thus attracts appellate mechanism under S. 155 of Elections Act, 2017---Where a judicial determination terminates lis before Election Tribunal, it cannot be excluded from the ambit of a "decision" merely due to absence of express language---Dismissal in default is procedural termination/disposal of matter without application of judicial mind, leaving room for the petitioner to revert back and seek restoration of the petition by invoking inherent powers of the Tribunal, subject to show sufficient cause---Such procedural terminations do not constitute a final decision---Deliberate use of term "final decision" in S. 155 of Elections Act, 2017 reinforces and supports such interpretation---Provisions of Elections Act, 2017 aim at ensuring expeditious and effective adjudication of election disputes and such legislative objective is advanced - not defeated, by recognizing Tribunal's authority to restore petitions dismissed for non-prosecution, provided sufficient cause is shown---In the present cause list of cases of counsel for applicant exhibited that he was busy before other Bench of High Court on the fateful day---Medical certificate of applicant reflected that he was suffering from respiratory problem---When main petition was dismissed in December, 2024, there was smog and/or fog across the province and such respiratory problem had become severe, making it difficult for a patient suffering from respiratory disease to travel---Application was well within time and duly supported by affidavit and no serious objection was raised from the other side---Election Tribunal set aside the order dismissing election petition for non-prosecution and restored the same---Application was allowed.

Chaudhry Asad Ur Rehman v. The Election Commission of Pakistan and 17 others 2018 CLC 1040 distinguished.

Shehzad Khan Khakwani v. Aamir Hayat Hiraj and others

2011 CLC 25; Asif Nawaz Fatiana v. Walayat Shah and others

2007 CLC 610 and Ch. Safdar Mumtaz Sandhu v. Government of the Punjab through Chief Secretary, Punjab and others PLD 2009 Lah. 1 ref.

Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others 1987 SCMR 1107; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad and 5 others PLD 1989 SC 760; Sardar Talib Hussain Nakai v. Rana Muhammad Hayat and 2 others PLD 2011 Lah. 207; Syed Fakhar Imam v. Muhammad Raza Hayat Miraj and 5 others 2009 CLC 1; Muhammad Amjad v. Muhammad Anwar and 10 others 2003 MLD 57; Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others 2001 YLR 336; Muhammad Shafi and another v. Election Tribunal, Multan and another 1983 CLC 3031; H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 and Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 rel.

(c) Interpretation of statutes---

----Silence of statute---Effect---To imply a prohibition from silence of statute would yield a result contrary to the principles of justice and procedural fairness.

Qazi Misbah-ul-Hassan for Petitioner/Applicant.

Imran Khan, Assistant Advocate General.

P L D 2025 Lahore 704

Before Raheel Kamran, J

MUSHTAQ AHMAD and another---Petitioners

Versus

SAIQA CH. and others ---Respondents

Civil Revision No. 1077 of 2024, decided on 12th June, 2025.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Appellate stage---Application for additional evidence, filing of---Whether such application should be decided first through a separate order or conjointly with the main appeal?---Held: Under the law, particularly concerning application for additional evidence, there is no specific rule that mandates such an application must be decided prior to the final judgment in the main appeal through a separate order---Appropriate course of action, whether to decide the application first or conjointly with the appeal, is entirely dependent on the specific facts and circumstances of each case and the court's assessment of what is necessary to achieve a just and holistic adjudication---Paramount consideration remains the ability of the court to pronounce a satisfactory and complete judgment, which may, in certain circumstances, be best achieved by integrating the consideration of additional evidence with the overall merits of the appeal---Additionally, an important consideration in such matters is the content and potential impact of the intended additional evidence---If the appellate court determines that the evidence sought to be produced is of such a nature that its inclusion on the record could fundamentally alter the decision of the main case, then it might indeed be prudent to decide the application separately through a distinct order---This would allow for proper consideration of its admissibility and relevance before proceeding to the merits of the appeal---However, if the appellate court, after initial assessment, forms the view that the proposed evidence, even if admitted, would likely have no material impact on the outcome of the main case, then there is no compelling need to decide the application for additional evidence separately---In such a scenario, a conjoint decision of the application and the main appeal becomes a matter of judicial economy and efficiency---Such approach significantly contributes to the sound administration of justice by streamlining proceedings, preventing unnecessary delays, and ensuring the expeditious dispensation of justice.

Sultan Ali alias Sultan through L.Rs. and others v. Rasheed Ahmad and 45 others 2005 SCMR 1444 rel.

Muhammad Azam v. Muhammad Abdullah through legal heirs 2009 SCMR 326 distinguished.

Tahir Mahmood for Petitioners.

Syed Naeem-ul-Hassan Bukhari for Respondents Nos. 1

to 5.

P L D 2025 Lahore 709

Before Mirza Viqas Rauf, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION RAWALPINDI through Chairman---Petitioner

Versus

SADIA IQBAL---Respondent

Civil Revision No. 124-D of 2022, decided on 13th March, 2025.

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

----S.9 [as amended by Code of Civil Procedure (Punjab Amendment) Act, 2018]---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), S.29---Suits for declaration and injunction instituted by students seeking correction of date of birth and change of name---Jurisdiction of Civil Courts---Ouster of jurisdiction of Civil Court by special law---Extending the ouster clause to all cases covered by a general or special law---Special law in place directly dealing with the correction of date of birth and change of name---Jurisdiction of civil court ousted in such matters---Core issue before the civil court was with regards to its lack of jurisdiction to adjudicate such suits as specific provisions for seeking change in date of birth and change in name were provided under the calendar of the Board of Intermediate and Secondary Education Rawalpindi Volume-I which dealt with Act and Regulations whereas Volume II of the calendar prescribed the Rules---Chapter-III of Volume I provided the general regulations and Regulation 5 dealt with the matter relating to correction in date of birth of a candidate---Chapter-17 of Volume II of the calendar, on the other hand, provided the mode and manner of change in the name or surnames---Held: The amended version of S. 9, C.P.C. was in field but it was not taken into consideration at all---It was an admitted fact that all suits were instituted by the students after the amendment in S. 9, C.P.C.---From bare perusal of S. 9, C.P.C., it was clear that by virtue of amendment introduced through Act No. XIV of 2018 dated 20th March, 2018 to the extent of Province of Punjab, a radical and notable change was introduced by the legislature in the existing S. 9, C.P.C. and ouster clause was extended to the case for which a general or a special law was in force---This material change was undoubtedly not under consideration before the courts at the time of rendering the judgments---High Court allowed the civil revision and remanded the matters to civil court for deciding the question of jurisdiction afresh after keeping in consideration the amendment in S.9 C.P.C. introduced through Punjab Amendment Act No.XIV of 2018.

Nestle Pak Limited, Lahore through Authorized Signatory and another v. Shehryar Kureshi and 3 others 2024 CLD 502 ref.

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

----S. 9 [as amended by Code of Civil Procedure (Punjab Amendment) Act, 2018]---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), S. 29---General jurisdiction of civil court---Ouster of civil court jurisdiction---Scope---Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018), 'effect of'---In case of special law directly dealing with the subject-matter the jurisdiction of civil court would be ousted---Section 9 C.P.C., bestows jurisdiction upon the civil court to try all suits of civil nature except the suits for which its cognizance is either expressly or impliedly barred---Civil courts are, thus, courts of ultimate jurisdiction---It is trite law that even if there is any bar in the statute ousting the jurisdiction of civil court, it cannot operate as absolute---Civil courts are courts of ultimate jurisdiction and unless jurisdiction is either expressly or impliedly barred, the final decision with regard to a civil right, duty or obligation, shall be that of the civil courts---Where allegation of mala fide action has been made in plaint, the civil court despite the bar placed on the relevant statute can examine the acts on account of being tainted with mala fide, coram non judice or void---The civil court, however, cannot jump into the matter, if its jurisdiction is either expressly or impliedly barred unless remedy provided in the relevant statute is exhausted---Due to the specific bar contained under the Punjab Boards of Intermediate and Secondary Education Act, 1976, which comprehensively provided a statutory framework for addressing matters pertaining to the correction of date of birth and change of name in educational records, the amended provision of S. 9, C.P.C., would be attracted---In light of the express exclusion provided by the special law, the jurisdiction of the civil court stood ousted, as the legislature had entrusted such matters to the exclusive domain of the authorities established under the said Act, thereby precluding adjudication by civil courts---High Court allowed the civil revision and remanded the matters to civil court for deciding the question of jurisdiction afresh after keeping in consideration the amendment in S.9 C.P.C., introduced through Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018).

Board of Intermediate and Secondary Education, Faisalabad v. Muhammad Waleed 2021 MLD 123 ref:

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

----Ss. 9, 151 & O. XIV, Rr. 1, 2---Duty of courts to determine question of jurisdiction at limine stage---Proceedings without jurisdiction are void---Absence of jurisdiction vitiates entire proceedings---Non-framing of material issues---Omission to frame jurisdictional issue---Question of jurisdiction is always pivotal because if a court or tribunal having no jurisdiction proceeds with a matter and decides it, the entire proceedings would be illegal and coram non judice---It is thus obligatory for the court or tribunal to settle the question of jurisdiction at the very outset---In the present case, none of the courts had either framed proper issues to this effect or attended this pivotal question with judicious approach---Civil revision was allowed and matters were remanded to consider "whether the civil court had jurisdiction to try the suit in light of S. 9 C.P.C., as amended by Punjab Amendment Act No.XIV of 2018 in light of provisions contained in the Punjab Boards of Intermediate and Secondary Education Act, 1976 as well as the rules and regulations made thereunder".

Zahid Zaman Khan and others v. Khan Afsar and others PLD 2016 SC 409 rel.

Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. and others 2003 CLC 416 ref.

Haroon Irshad Janjua for Petitioner.

Ms. Nosheen Ashraf for Respondent No.1.

Malik Muhammad Khalid, Law Officer, National Database and Registration Authority (NADRA) for Respondent No.2.

P L D 2025 Lahore 724

Before Asim Hafeez, J

MUHAMMAD MANZOOR---Petitioner

Versus

MUHAMMAD SHAFI through legal heirs and others---Respondents

Civil Revision No. 3483 of 2014, decided on 3rd June, 2025.

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

----Ss. 39 & 42---Limitation Act (IX of 1908), First Sched., Arts. 91 & 120---Contract Act (IX of 1872), Ss.19 & 19-A---Declaration against void mutations, sought---Question as to whether cancellation or declaration was to be sought against a void mutation---Limitation for seeking cancellation and declaration stated---Mutation is not an instrument, therefore, Art. 91 of Limitation Act, 1908 would not be applicable and instead a declaratory suit should be filed, limitation for which is six years as per Art. 120 thereof---Predecessor of the respondents filed a suit on 07.05.2010 for declaration and permanent injunction, seeking invalidation of different mutations entered in 1998 without his knowledge or consent by claiming the knowledge of the same from 07.03.2007---He claimed he never sold the property nor facilitated the Roznamcha-Waqiati entries---Trial Court decreed the suit, and the Appellate Court affirmed the decision of Trial Court---Petitioner/defendant then filed present civil revision, arguing primarily on the ground of limitation under Art. 91 & Art. 120 of the Limitation Act, 1908---Core question requiring determination before the High Court was as to "whether the suit for declaration, challenging void mutations recorded without the plaintiff's consent or knowledge, was barred by limitation under Article 91 of the Limitation Act, 1908, or whether Article 120 applied in light of the alleged date of knowledge, rendering the suit within time"---Held: Notably no evidence was brought on record to substantiate knowledge qua impugned mutations, before 07.03.2007, when knowledge qua impugned mutations was alleged---It was important aspect of the matter that the suit was for declaration substantially and not specifically for seeking cancellation of mutations---Multiple causes of action were available and even if cause of action was taken from 07.03.2007, pleaded as the date of having knowledge of impugned mutations, still suit was within six years, and Art. 120 of Limitation Act, 1908 was attracted---With regards to the issue of applicability of Art. 91 of Limitation Act, 1908, same was not attracted to the present case as mutation was not an instrument as per settled law---In another aspect of the matter, facts alleged depicted that declaration was sought against void and unenforceable transaction(s) of sale, which transactions, in wake of denial, were not classifiable as voidable transactions under the scope of Ss. 19 & 19-A of the Contract Act, 1872; factum of extending consent to alleged transactions and execution of mutations in the first place was not alleged---Since declaration, being the primary and fundamental relief, was sought therefore S. 42 of the Specific Relief Act, 1877 and not the S. 39 thereof was attracted---Declaration of rights, allegedly prejudiced upon execution of mutations, was sought and that was within six years of the accrual of case of action, bringing Art. 120 in focus---In the present case, respondent No.1 had rightly sought declaration against void transactions---Even otherwise evidence of official witnesses is not convincing enough to dislodge allegations of fraud and deception exercised for procuring execution of impugned mutations regarding underlying transactions of sale---Petitioner failed to prove underlying transactions, payment of consideration, recording of Roznamcha-Waqiati and execution of mutations; aforesaid requirements become more pressing in the context that respondent No.1 was an illiterate person, who, admittedly, was not accompanied by any of his relatives at the time of noting on Roznamcha-Waqiati and execution of mutations---Petitioner produced uncertified copies of Khasra Girdawari's through statement of counsel after completion of evidence and cross examination of the witnesses produced, which were inadmissible in evidence---Once underlying transaction was not proved, simplicitor, impugned mutations were ineffective and insufficient to refute the title of the respondent No.1/plaintiff---Civil revision being devoid of merits was dismissed, in circumstances.

Fida Hussain v. Abdul Aziz PLD 2005 SC 343; Thakur Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others AIR 1926 PC 100 and Khalid Hussain and others V. Nazir Ahmad and others 2021 SCMR 1986 rel.

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

----First Sched., Art.91---Mutation, challenge to---Limitation---Scope---Mutation is not an instrument in the context of Art. 91 of the Limitation Act, 1908---Mutation records the effect of change in the ownership in fact caused by virtue of a legal transaction, effected through written document for the purposes of Art. 91 of the Act, 1908---Mutation is not the document of title but evidence thereof---Mutation in-fact embodies a transaction and an effect extended thereto for the purposes of revenue record---In essence mutation is the progeny, cause and effect of the transaction(s) and not predecessor thereto.

Fida Hussain v. Abdul Aziz PLD 2005 SC 343 rel.

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

---Arts.72, 117 & 120---Document---Proof---Documents tendered through statement of counsel after completion of evidence and cross-examination of the witnesses produced, are inadmissible in evidence.

Qamar-uz-Zaman and Muhammad Tayyab Gul for Petitioner.

Shaigan Ijaz Chadhar for Respondent No.1.

Waheed Alam, A.A.G. for Respondents Nos.2 and 3.

Shakeel Ahmad, Ch. Ahsan Gujjar and Malik Rizwan Khalid for legal heirs of Respondent No.5.

Hafiz Muhammad Muzammil for Respondents Nos. 6 to 10, 12 to 14.

P L D 2025 Lahore 731

Before Tariq Saleem Sheikh, J

SHAUKAT BUTT---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 25317 of 2025, decided on 30th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5), 435, 369 & 561-A---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Ad-interim pre-arrest bail---Non-appearance of petitioner/accused---Petitioner was granted post-arrest bail in the case but later on it was cancelled---Petitioner challenged the bail cancellation order by filing revision petition but the same was dismissed due to the petitioner's non-appearance---Petitioner challenged the bail cancellation order by filing another revision petition---Validity---Dismissing the matter solely due to the petitioner's absence might have defeated the very purpose for which it was admitted---Therefore, although the Court retained the discretion to dismiss application for non-prosecution, judicial propriety demanded that such discretion be exercised cautiously where the petition had passed the threshold of admission---Even where a revision petition was dismissed in default, the aggrieved party may seek its restoration under the inherent jurisdiction of the High Court---High Court was empowered under S. 561-A, Cr.P.C., to set aside such an order if sufficient cause for non-appearance was shown---Restoration in such circumstances did not attract the prohibition under S. 369, Cr.P.C., as a dismissal for non- prosecution did not constitute a judgment on merits---Second revision petition against the same order was not maintainable where the first was dismissed for non-prosecution because such dismissal did not operate as a decision on merits---However, that did not leave the aggrieved party remediless---Appropriate course was to seek restoration of the earlier petition under S. 561-A, Cr.P.C., by demonstrating sufficient cause for non-appearance---Mere assertion is not enough, the reasons must be stated with particularity and supported by material on record, where possible---Petition being not maintainable was dismissed accordingly.

Nisar Ahmad v. The State and another 1975 PCr.LJ 400; Muhammad Ramzan v. Allah Ditta and others 1982 SCMR 215; Munir Ahmad v. The State 1991 MLD 1781; Muhammad Hanif v. The State 1991 PCr.LJ 1353; Yar Mat Khan v. The State and another 2004 PCr.LJ 468 and Maulvi Asad Ahmad alias Asad and others v. The State and another PLD 1990 Lah. 1 rel.

Hafiz Naimat Ullah for Petitioner.

P L D 2025 Lahore 735

Before Raheel Kamran, J

Messrs OLYMPIA CHEMICAL LTD through Azhar Hussain Shamim

General Manager Services---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary (Board of Revenue) and others---Respondents

Writ Petition No. 49822 of 2022, decided on 19th March, 2025.

(a) Constitution of Pakistan---

----Arts. 8(1), 23, 24(1), 24(2) & 24(3)---Land Acquisition Act (I of 1894), S. 4---Acquisition of land sought by a company for a factory---Public purpose---Scope---Compulsory acquisition, non-permitting of---Scope---Protection of property---Scope---Company, having already established factory by acquiring land, sought additional land from private land owners in order to enhance its production capacity by extending its area---Company invoked constitutional jurisdiction of High Court being aggrieved of rejection of acquisition by Respondents (Board of Revenue-Settlement and all relevant departments)---Contention of the petitioner/company was that acquisition of land for a company was not necessarily required to be for the public purpose as the same might be for construction of a work that was likely to prove useful to the public---Objection of respondents was that even for industrial purpose acquisition of land could be allowed only when it served public purpose while the request of the petitioner/company for acquisition of land was merely for commercial purpose as was manifest from their application---Validity---Article 8(1) of the Constitution postulates that any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by Chapter 1 of Part II, shall, to the extent of such inconsistency, be void---Article 23 of the Constitution grants every citizen the right to acquire, hold and dispose of property within Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest---Article 24 of the Constitution guarantees/embodies protection of property rights, which inter alia postulates that no person shall be deprived of his property save in accordance with law---Sub-Article (2) of Art. 24 of the Constitution further restricts acquisition or taking possession of any property except for public purpose only and that too by the authority of law which provides for compensation therefor---Sub-Article (3) of Art. 24 of the Constitution contains specified exceptions to the general rules articulated in the first two provisions of Art. 24 of the Constitution, whereby validity of any law permitting compulsory acquisition or taking possession of any property has been made immune from challenge for certain purposes specified therein---Inasmuch as the exceptions specified in sub-Article (3) of Art. 24 of the Constitution limit the protection of fundamental right to property guaranteed under sub-Article (1), therefore, the same are to be construed narrowly and there is no room for reading into the said Article anything that abridges or undermines the protection of property rights---Thus, the principle of harmonious construction of the provisions of Art. 24 of the Constitution makes it abundantly clear that protection of property rights guaranteed under Art. 24 of the Constitution is only abridged or taken away for compulsory acquisition or taking possession of it under any law for any public purpose or such other purpose as have been clearly specified in Art. 24(3) of the Constitution---No provision of Art. 24 of the Constitution permits compulsory acquisition or taking possession of any property by or under any law merely because the same is required for a company for its commercial purposes---Petitioner/Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the respondents regretting petitioner's request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed, in circumstances.

Hamza Rasheed Khan and another v. Election Appellate Tribunal, Lahore High Court, Lahore PLD 2024 SC 256 ref.

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

----Ss. 3(e) & 4---Constitution of Pakistan, Arts. 23 & 24(2)---Acquisition of land by a company fora factory---Public purpose---Scope---Compulsory acquisition, non-permitting of---Scope---Protection of property---Scope---Company, having already established factory by acquiring land, sought additional land from private land owners in order to enhance its production capacity by extending its area---Company invoked constitutional jurisdiction of High Court being aggrieved of rejection of acquisition by respondents (Board of Revenue-Settlement and all relevant departments)---Contention of the petitioner/company was that acquisition of land for a company was not necessarily required to be for the public purpose as the same might be for construction of a work that was likely to prove useful to the public---Objection of respondents was that even for industrial purpose acquisition of land could be allowed only when it served public purpose while the request of the petitioner/company for acquisition of land was merely for commercial purpose as was manifest from their application---Validity---"Company" has been defined in S. 3(e) of the Land Acquisition Act, 1894, which means a Company having been registered/ incorporated under prevalent law and includes a society registered under the prevalent law (i.e. Societies Registration Act, 1860 or Cooperative Societies Act, 1912)---In the present case, the request of the petitioner/Company for acquisition of land was merely for commercial purpose as was manifest from their own relevant application---The proposed expansion of the Company's factory aims to increase production of Soda Ash and Sodium Bicarbonate, which is essentially a commercial purpose---Article 24(2) of the Constitution erects a formidable barrier against the Government's use of authority for advancing private commercial interests---Article 23 of the Constitution, which guarantees the right to property, emphasizes that any restriction on this right must be reasonable and in the public interest---Compelling landowners to relinquish their property for a private company's commercial gain, without a direct public utility, failed this test---Acquisition of private land for a purpose other than public purpose is not legal---Requisition and acquisition for purpose of private business concern and not for public purpose or in public interest is illegal---Petitioner/Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the respondents regretting petitioner's request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed, in circumstances.

Federal Government Employees' Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad 2002 PLC (C.S.) 1655 and Radba Kanta Banik v. The Province of East Pakistan and 2 others PLD 1969 SC 545 ref.

Muhammad Ishaq and others v. Government of Punjab and others 2002 SCMR 1652 and Suo Motu Case No.13 of 2007 PLD 2009 SC 217 distinguished.

(c) Constitution of Pakistan---

----Arts. 24 & 268---Land Acquisition Act (I of 1894), Preamble---Land Acquisition Act, 1894, being a colonial law, continuity of---Scope---In terms of Art. 268 of Constitution, continuance in force of the Land Acquisition Act, 1894, ('the Act 1894') is subject to the Constitution and with necessary adaptations until altered, amended or repealed by the appropriate legislature---The phrase "subject to the Constitution" indicates that the continuance in force of laws was made subordinate to the constitutional scheme---Thus, continuance in force of the Act 1894, by virtue of Art. 268 of the Constitution, does not render any of the provisions of the Act, 1894,immune from challenge for being ultra vires the Constitution including on the ground of repugnancy to the fundamental right guaranteed under Art.24 of Constitution---Petitioner/ Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the Respondents regretting petitioner's request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed, in circumstances.

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

----S. 4---Acquisition of land sought by a company for a factory---Public purpose---Scope---Compulsory acquisition, non-permitting of---Protection of property---Scope---Interpretation of statutes---"Reading down" of a provision--- Company, having already established factory by acquiring land, sought additional land from private land owners in order to enhance its production capacity by extending of its area---Company invoked constitutional jurisdiction of High Court being aggrieved of rejection of acquisition by Respondents (Board of Revenue-Settlement and all relevant departments)---Contention of the petitioner/company was that acquisition of land for the company was not necessarily required to be for the public purpose as the same might be for construction of a work that is likely to prove useful to the public---Objection of Respondents is that even for industrial purpose acquisition of land could be allowed only when it served public purpose while the request of the petitioner/company for acquisition of land was merely for commercial purpose as was manifest from their application---Validity---In the scheme of the Land Acquisition Act, 1894 ('the Act 1894'), land can be acquired either for public purpose or for a Company---A literal construction of the provisions of the Act 1894 appears to be in conflict with Art. 24 of the Constitution insofar as those apparently permit acquisition of property by a Company even in the absence of any public purpose or such other purposes as have been specified in the exceptions stipulated in Art. 24(3) of the Constitution---A statutory provision, when read literally, leads to any violation of a fundamental right, or renders it without legislative competence---Court read such a provision narrowly to save it from invalidity---This is a rule of interpretation of statutes termed as "reading down"---The rule of "reading down", when applied to the Land Acquisition Act, 1894, would permit acquisition of property only for public purpose or any other purpose specified in sub-Article (3) of Art. 24 of the Constitution---Petitioner/Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the Respondents regretting petitioner's request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; Haroon-ur-Rasheed v. Lahore Development Authority and others 2016 SCMR 931; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531 and Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218 ref.

Shamim ur Rehman Malik for Petitioner.

Muhammad Osman Khan, Assistant Advocate General, Punjab for Respondents.

P L D 2025 Lahore 747

Before Aalia Neelum, C.J.

MUNIR AHMAD---Petitioner

Versus

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

Writ Petitions Nos. 52452 of 2024, decided on 10th April, 2025.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Public Interest Litigation (PIL)---Habitual litigants---Effect---Petitioner on behalf of a Non-Governmental Organization invoked constitutional jurisdiction of High Court on the same cause of action which had already been dismissed by another High Court---Held: Habitual litigants are increasingly flooding Courts with frivolous petitions---Police Interest Litigations (PILs) are filed on almost every subject under the sun---Many such petitions are (mere) exercises for garnering publicity---This tends to destroy sanctity of PILs which are a powerful instrument of securing socio-economic justice for the marginalized and underprivileged---Time of Court is exhausted in dealing with frivolous cases with no genuine cause of public concern---Such tendency must be firmly stopped by providing orders for anticipatory costs---Unless this is done, the Court would become a helpless spectator to loss of public time and resources in dealing with motivated litigation---When several hundred thousand cases await judicial decision, Court cannot allow an institution, administering justice to become a hapless victim of frivolous filings---High Court restrained itself from taking any adverse action against the petitioner at present stage---Constitutional petition was dismissed, in circumstances.

Muhammad Azhar Siddique and Amna Liaqat for Petitioner.

P L D 2025 Lahore 749

Before Jawad Hassan, J

MUHAMMAD ABBAS---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 965 of 2024, heard on 30th April, 2025.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Conversion fee, challenge to---Relevant authority charging rate which was not yet approved---Charging of rate prevalent on the date of filing of application---Scope---Principle of non-retroactivity, applicability of---Facts in brevity were that the petitioner filed a Constitutional petition under Art. 199 of the Constitution challenging the vires of the order passed by the Commissioner, Rawalpindi Division (respondent No.2) with the contention that the order was illegal and without lawful authority, as it imposed a conversion fee based on a notification that was still in the drafting stage and was not formally approved---It was the case of the petitioner that he should have been charged according to the rate applicable at the time of filing of his application---The petitioner's appeal was dismissed summarily, citing revised rates---Moot point for determination by the High Court was as to "whether the petitioner was liable to pay conversion fee as per the rate prevailing at the date when he moved an application before the concerned authority/respondent for the said purpose and what would be the effect of the principle of non-retroactivity in such like matters?"---Held: Rights of the parties were to be governed/decided as per the law prevailing at the time when cause of action had accrued, particularly in the matters pertaining to fiscal disputes, unless manifest intention of the law was otherwise---Law did not recognize any retrospective enforceability of a fiscal measure and issuance of a notification was not of any significance in legal importance till it was published in an official Gazette---A party had a right to have his petition heard on the basis of the law prevailing on the day he filed his petition---Since the impugned order failed to specify the applicable provisions of law for it to be deemed a speaking order, the same was set-aside and the matter was remanded back to the respondent No.2 to decide it afresh---Constitutional petition was allowed, in circumstances.

Sutlej Cotton Mills Ltd. Okara v. Industrial Court, West Pakistan, Lahore and others PLD 1966 SC 472; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; The Karachi Development Authority, Karachi v. Works Co-Operative Housing Society, Karachi and another PLD 1978 SC 307; City District Government, Karachi v. Muhammad Irfan and others 2010 SCMR 1186 and Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347 rel.

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

----S.24A---Constitutional petition---Passing of non-speaking order by public functionary, challenge to---Failing to mention applicable provisions of law---Effect---Petitioner invoked Art. 199 of the Constitution to challenge the vires of the order passed by respondent No.2 (Commissioner) on the ground that it unlawfully relied on an unapproved draft notification to impose a conversion fee, whereas the applicable rate was contended to have been the one prevailing at the time of filing of his application---Validity---Respondent No.2 failed to mention relevant provision of applicable law in the impugned order which was a legal lacuna---The impugned order did not fulfill the ingredients of a speaking order, therefore, same was set-aside and the matter was remanded back to the respondent No.2 to decide it afresh---Constitutional petition was allowed, in circumstances.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

(c) Interpretation of statutes---

----Retrospective and prospective effect of a statute---Scope---A law that takes away or abridges the substantive rights of the parties only applies prospectively, unless either by express enactment or by necessary intendment the legislature gives to it the retrospective effect.

Taisei Corporation and another v. A.M. Construction Company (Pvt.) Ltd. and another 2024 SCMR 640 rel.

Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others 1993 CLC 2073; Major (Rtd.) Muhammad Suleman Khan v. D.C./Registrar, Lahore District 2002 CLC 226; Sardar Muhammad v. Province of Punjab through Sub-Registrar and another 2017 CLC Note 49; Mrs. Nighat Saimi and another v. Province of Sindh through Secretary Revenue and 10 others PLD 2017 Sindh 596; Syed Ali Shah v. Government of Pakistan through Ministry of Defence and 2 others 1994 CLC 369 and Pakistan Mobile Communication Limited v. Abrar Ahmed and 4 others 2019 CLD 578 ref.

(d) Interpretation of statutes---

----Retrospective and prospective effect of a statute---Scope---The proper approach to the construction of a statute as to its prospective or retrospective applicability, in the absence of legislature's express enactment or necessary intendment, is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations.

Taisei Corporation and another v. A.M. Construction Company (Pvt.) Ltd. and another 2024 SCMR 640 rel.

Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others 1993 CLC 2073; Major (Rtd.) Muhammad Suleman Khan v. D.C./Registrar, Lahore District 2002 CLC 226; Sardar Muhammad v. Province of Punjab through Sub-Registrar and another 2017 CLC Note 49; Mrs. Nighat Saimi and another v. Province of Sindh through Secretary Revenue and 10 others PLD 2017 Sindh 596; Syed Ali Shah v. Government of Pakistan through Ministry of Defence and 2 others 1994 CLC 369 and Pakistan Mobile Communication Limited v. Abrar Ahmed and 4 others 2019 CLD 578 ref.

(e) Legislation---

----Non-retroactivity, principle of---Scope---Principle of non-retroactivity in context of prospective, fair and transparent application of laws---Scope---The principle of non-retroactivity was first articulated in Roman law, where, already by the end of the second century B.C. it applied in both criminal and civil law to protect the existing legal order and economic interest---Its significance is such that the individuals should be able to rely on laws in the expectation that the State will not afterward interfere with individuals' rights---This expectation would help to ensure the equality of all before the law, guarding predictability and legal certainty---The principle of non-retroactivity is actually a fundamental concept (in law) and it makes sure that statute/law is applied prospectively, rather than retrospectively---Its basic and most important purpose is to protect rights of individuals and organizations by preventing arbitrary or unjust applications of the relevant law---This principle is essential in ensuring that the laws and regulations are applied in a fair and transparent manner---One of its legal features is to restrict the enactment of retroactive laws, which can undermine trust in the legal system and create uncertainty---So, it can be safely stated that non-retroactivity is the legal principle that laws do not apply retroactively and ex-post facto laws are forbidden---This principle may be applied to judicial decisions as well as statutory law.

(f) Constitution of Pakistan---

----Arts.4 & 199---General Clauses Act (X of 1897), S.24A---Public functionary---Duty to pass speaking order---Scope---Every citizen of the country has an inalienable right to be treated in accordance with law as envisaged by Art. 4 of the Constitution---Hence, it is duty and obligation of every public functionary to act within four corners of mandate of the Constitution and pass a speaking order.

Town Committee, Piplan v. Muhammad Hanif and others 2008 SCMR 723 rel.

(g) Administration of justice---

----Speaking orders, passing of---Duty, significance and scope---Litigants who bring their disputes to the law courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders---A judicial order must be a speaking order manifesting by itself that the court has applied its mind to the resolution of the issues involved for their proper adjudication---The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable---When the order of a lower court contains no reasons, the appellate court is deprived of the benefit of the views of the lower court and is unable to appreciate the processes by which the decision has been reached.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

Arfan Ullah Malik, Advocate Supreme Court and Fayyaz Ahmad Khan for Petitioner.

Barrister Raja Hashim Javed, Assistant Advocates General, Sh. Kamran Shehzad on behalf of the Respondent No.3/District Council, Attock.

P L D 2025 Lahore 759

Before Raheel Kamran, J

NABILA HAKIM ALI KHAN---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 51439 of 2023, decided on 12th June, 2025.

(a) Interpretation of statutes---

----Applicability of enactment---Principle---When an Act of Parliament or a Provincial Assembly provides that it comes into force at once, then every provision of it becomes enforceable from the day the Act receives assent of the President or, as the case may be, the Governor, unless any provision of the Act suggests otherwise.

Messrs Khurshid Soap and Chemical Industries (Pvt.) Ltd. through Sheikh Muhammad Ilyas and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others PLD 2020 SC 641 rel.

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

----S. 7 (6) [as amended under Protection against Harassment of Women at the Workplace (Amendment) Act, 2021]---Elections Act (XXXIII of 2017), S. 230---Election Rules, 2017, R. 170 (1)---Constitution of Pakistan, Art. 199---Constitutional petition---Tenure post---Removal---Election Commission---Jurisdiction---Caretaker Government---Limitations---Petitioner was appointed as Ombudsperson for four years but she was removed from service by Election Commission, before completion of her tenure---Validity---In absence of statutorily prescribed procedure for removal of Ombudsperson, particularly when the appointment was for a fixed term, the incumbent could not be removed from office prior to the expiration of that term, save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within Protection against Harassment of Women at the Workplace Act, 2010---Removal of Ombudsperson was not provided under Protection against Harassment of Women at the Workplace Act, 2010, except in the case of resignation---Even if removal became necessary on grounds of proven misconduct or incapacitation, the power to take such action was logically lie with the appointing authority, i.e., the Government, following due process---Election Commission was nowhere authorized in such regard under the Protection against Harassment of Women at the Workplace Act, 2010---Primary purposes of Election Commission, as delineated in the Constitution and the Elections Act, 2017, revolves around the conduct of free and fair elections---Achieving such purposes inherently, Election Commission was not empowered to direct permanent removal of any office bearer---Nature of removal contemplated in the notification of Election Commission, the "immediate termination of services" - implied a permanent cessation of employment, which did not directly relate to the Election Commission's core function of ensuring fair elections---At the most, Election Commission's powers in relation to public officials during election period, as indicated by R. 170(1) of Election Rules, 2017, and S. 230(2)(f) of Elections Act, 2017, (regarding the Caretaker Government's limitations), extended to transfer or shuffling of public officials with the Commission's approval---Such had suggested a focus on preventing misuse of official positions to influence elections, rather than permanent removal of appointees, particularly those with a statutorily defined tenure---De-notification of petitioner by Caretaker Government of Punjab by way of notification in question was not within its lawful authority---High Court set aside notification in question issued by Government of the Punjab de-notifying services of petitioner as Ombudsperson Protection against Harassment of Women at Workplace---High Court declared notification in question to be null and void and petitioner was deemed to be in office as if the notification had not been issued---High Court directed that to ensure that future appointments to the position of Ombudsperson were beyond reproach, it would be apt to direct that the relevant authorities should, with due expediency, formulate and implement a comprehensive, transparent and merit-based appointment procedure---Constitutional petition was allowed, in circumstances.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43 and Mushtaq Ahmad Moral and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 rel.

(c) Constitution of Pakistan---

----Art. 10A---Fair trial and due process---Scope---Fair trial and due process rights guaranteed by article 10A of the Constitution are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(d) Employment---

----Tenure post---Object, purpose and scope---If incumbent knows he/she can be removed at any time without stated cause or due process, his/her ability to act fearlessly and independently, especially when dealing with potentially sensitive matters involving Government or influential individuals, can be curtailed---Security of tenure, within reasonable limits, is often considered essential for the effective functioning of such roles.

Badsha Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43 rel.

Ch. Ishtiaq Ahmad Khan, Adnan Ahmad Chaudhry, Jahangir Ahmad Bhatti, Shahrukh Shahbaz, Ms. Zarish Fatima, Amjad Ali Shah, Ch. Umar Latif and Ms. Uzma Razzaq Khan for Petitioner.

Barrister Hassan Khalid Ranjha, Additional Advocate General, Punjab, Muhammad Osman Khan, Assistant Advocate General, Punjab with Ibrar Ahmad, Law Officer, I&C Wing, S&GAD for Government of Punjab.

Imran Arif Ranjha, Advocate/Legal Advisor with Bashir Arshad, Deputy Director (Law), Ms. Bushra Rasheed, Senior Law Officer ECP and Hafiz Adeel Ashraf, Assistant Law Officer ECP for Election Commission of Pakistan.

Aaminah Qadir and Zeeshan Zafar Hashmi, Amici Curiae.

P L D 2025 Lahore 779

Before Ch. Abdul Aziz, J

UMER NAWAZ and another---Petitioners

Versus

DEPUTY DIRECTOR FIA and 5 others---Respondents

Writ Petition No.2336 of 2022, decided on 6th March, 2025.

Prevention of Electronic Crimes Act (XL of 2016)---

----S. 10---Constitution of Pakistan, Art. 199---Constitutional petition---Cyber terrorism---Scope---Blasphemous content ---Petitioners had raised serious questions of public importance with regard to uploading of blasphemous posts on different social media to ridicule holy personage and to mock the principles of Islam---Validity---World is rapidly expanding technologically and so is the case of cybercrime, which has many faces like identity thefts, hacking, financial frauds, blackmailing, pornography and above all, offences against religions---All such felonies are committed more or less conveniently, as the wrongdoer has the advantage of concealing his identity and not to leave his footsteps behind the crime---Task of lifting veil from the identity of such criminals is left to be performed only by investigators having expertise in the cybercrime---Uncontrolled evil of cybercrime has the potential to destabilize our society, which comprises upon believers of different religions, faiths and sects, mostly out of whom are not well educated---High Court directed that guidelines and instructions given in earlier cases be complied by giving them practical effect---High Court further directed that joint action plan submitted by different ministries and departments be strictly followed and a compliance report about the steps taken in pursuance thereof be submitted in High Court---High Court also directed that immediate steps were to be taken for implementing suggestions made in joint meeting of Pakistan Telecommunication Authority and Islamic Ideology Council---High Court further directed that in order to discourage false cases of blasphemy/religious hate material, it was discernible that at regional level a team of Islamic scholars from known Islamic sects be constituted---Each case of blasphemy, sectarian hatred and dissemination of anti-religion hate material be placed before such Islamic scholars so as to exclude possibility of registration of false case on account of some external pressure--Constituting team of Islamic scholars would eliminate possibility of false implication in such cases and at the same time would not let the actual culprits go scot-free---Numerical strength of officials posted in FIA to deal with cybercrimes was not compatible with the number of cases registered. Due to such reason investigations of sensitive cases including blasphemy, financial crimes, blackmailing, etc., were being delayed indefinitely---High Court directed Federal Government to enhance numerical strength of FIA officials and to establish a blasphemy cell separately to deal with relevant cases---High Court further directed Federal Government and Punjab Government to observe 15th of March of each year as Namoos-e-Rasalat Day and on the given date programs should be arranged for imparting information about the Holy Prophet and for enlightening different aspects of his life, as the General Assembly of United Nations in its 76th Session had specified 15th March as day to combat Islamophobia---Constitutional petition was disposed of accordingly.

Islamic Lawyers Movement through Tahir Farooq alias Allah Bakhsh Leghari v. Federation of Pakistan through Secretary Establishment, Government of Pakistan, Islamabad and 3 others 2012 CLC 1300; Muhammad Ayoub v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 6 others 2018 PCr.LJ 1133; Lugman Habib and others v. Federation of Pakistan and others 2021 MLD 1633 and Salman Shahid v. The State and 6 others PLD 2017 Isl. 218 rel.

Raja Imran Khalil, Jalil Akhtar Abbasi, Shaista Chaudhary, Zartasha Tanveer, Sidra Gulzar and Rao Abdul Raheem for Petitioners.

Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan with Ahmad Ishaque Jahangir, Director General FIA, Ayaz Khan, Addl. Director, Sarfraz Khatana, Deputy Director, Suleman Awan, Deputy Director (Investigation) for Respondents.

P L D 2025 Lahore 795

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

IMRAN AHMAD KHAN NIAZI---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary,Home Department and 4 others---Respondents

Writ Petition No. 45901 of 2024, heard on 25th July, 2024.

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

----S. 167---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 21(2) & 21-E---Constitution of Pakistan, Art. 10(2)---Arrest and detention, safeguard against---Physical remand---Appearance through video link---Accused, protection of---Terms "produced" and "excluding the time necessary for the journey from the place of arrest to the nearest magistrate"---Scope---Accused assailed order of Punjab Government passed under S. 21(2) of Anti-Terrorism Act, 1997, whereby he was made to appear before Magistrate via video link from Adiala jail, for proceedings related to his physical remand---Contention of the authorities was that order was passed under S. 21(2) of Anti-Terrorism Act, 1997 to provide security to accused---Validity---Fundamental right of an arrested person to be brought before a Magistrate within twenty-four hours, has been safeguarded under Art. 10(2) of the Constitution---Terms "produced" and "excluding the time necessary for the journey from the place of arrest to the nearest Magistrate" indicate a requirement for physical presence---Provision of Art. 10 (2) of the Constitution is vital in ensuring judicial oversight of detention process, protecting rights of detainee/accused from the moment of arrest---Special provision under S. 21E of Anti-Terrorism Act, 1997 specifically addresses the issue of remand---Provision of S. 21(2) of Anti-Terrorism Act, 1997 is a general provision that enables Government to take necessary steps to protect judges, accused individuals, witnesses, prosecutors, defence counsel, and others involved in Court proceedings---Provision of S. 21(2) of Anti-Terrorism Act, 1997 cannot override S. 21-E of Anti-Terrorism Act, 1997 and should not be interpreted in a way that nullifies or undermines it---Division Bench of High Court declared that order in question was ultra vires, illegal, and void---Division Bench of High Court further declared that reliance on and interpretation of S. 21(2) of Anti-Terrorism Act, 1997 by authorities was erroneous which could not justify physical remand of accused without his physical production---Provision of S. 21(2) of Anti-Terrorism Act, 1997 had not granted the Government any authority over remand proceedings, as its scope was limited to matters related to trial proceedings---Division Bench of High Court set aside order in question passed by Punjab Government whereby accused was produced through video link during physical remand---Constitutional petition was allowed in circumstances.

Salman Akram Raja and another v. Government of Punjab and others 2013 SCMR 203; Khawaja Anwer Majid v. National Accountability Bureau and another PLD 2020 SC 635; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Mian Muhammad Nawaz Sharif v. The State and another PLD 2018 Isl. 148; Munawar Hussain and another v. The State 2020 PCr.LJ 1184; Muhammad Israr v. The State and another PLD 2021 Pesh. 105; Meera Shafi v. Ali Zafar PLD 2023 SC 211; McCowan v. Baine [1891] AC 401, p.409; Messrs Hiralal Ratan Lal v. The Sales Tax Officer and another AIR 1973 SC 1034; Premanand and others v. Mohan Koikal and others AIR 2011 SC 1925; S.M.Zafar, Understanding Statutes, Edn. 2008, pp.483-4; Abdul Nafey v. Muhammad Rafique and others 2023 SCMR 2096; Dawood Abdul Ghafoor v. Justice of Peace and others 2021 PCr.LJ 1527; Government of KPK v. Abdul Manan 2021 SCMR 1871; JS Bank Limited v. Province of Punjab through Secretary Food, Lahore 2021 SCMR 1617; Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others 2022 SCMR 472; Raj Narain v. Superintendent, Central Jail, New Delhi, and another AIR 1971 SC 178; A. Barak, Purposive Interpretation of Law (Sari Bashi transl.) (2005), pp. 88-91; Muhammad Aslam Awan v. Federation of Pakistan and others 2014 SCMR 1289; Province of Sindh and others v. MQM and others PLD 2014 SC 531; Khurshid Soap and Chemical Industries (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2020 SC 641; Aam Log Ittehad and another v. The Election Commission of Pakistan and others PLD 2022 SC 39; Shehla Zia and others v. WAPDA PLD 1994 SC 693; D. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1101 (1989); Government of NCT of Delhi v. Union of India and another (2018) 8 SCC 501; A. Barak, Purposive Interpretation of Law (Sari Bashi transl.) (2005), pp. 374-5; Salman Akram Raja and another v. Government of Punjab and others 2013 SCMR 203; Khawaja Anwer Majid v. National Accountability Bureau and another PLD 2020 SC 635; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Mian Muhammad Nawaz Sharif v. The State and another PLD 2018 Isl. 148; United Kingdom through video link. In Munawar Hussain and another v. The State 2020 PCr.LJ 1184; Muhammad Israr v. The State and another PLD 2021 Pesh. 105; Imran Ahmad Khan Niazi v. Federation of Pakistan and others (Writ Petition No.839/2023); Meera Shafi v. Ali Zafar PLD 2023 SC 211; Imran Ahmad Khan Niazi v. Special Judge, ATC and others PLD 2024 Lah. 486; Farhan Masood Khan v. The State PLJ 2021 Cr.C. (Lahore) 550; Blackburn v. Flavelle [1881] 6 App Cas 628; PLJ 2001 Fed. St. 445; Reference No.1 of 2012 [Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973] PLD 2013 SC 279; Mullins v. Collins [(1874) L.R. 9 Q.B. 292, 295; Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 and Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.

(b) Constitution of Pakistan---

----Art. 10(2)---Arrest and detention, safeguard against---Physical presence of accused---Object, purpose and scope---Remand through video link---Scope---Provision of Art. 10(2) of the Constitution aims to protect individuals' Fundamental rights by ensuring judicial oversight of detention, preventing abuse of power, and upholding principles of justice and rule of law---Requirement for physical production of accused before Magistrate is a crucial deterrent to abuse and enhances accountability of law enforcement agencies---Allowing video link remand in place of physical production can undermine such protections, especially in our country where custodial torture is a pervasive issue---Impersonal nature of video communication may not offer the same level of scrutiny as an in-person meeting, potentially leading Magistrate to miss subtle signs of distress, coercion, or mistreatment that would be more noticeable face-to-face---Technical issues such as poor video quality, delays, or disruptions could impair Magistrate's ability to provide effective oversight---Existing language of Art. 10(2) of the Constitution does not support video link remand hearings---Employing purposive interpretation to justify appearance of accused through video link during physical remand hearings would contradict both the text and the provision's intent and this cannot be permitted.

Emperor v. Benoari Lal Sarma AIR 1945 PC 48; Kurra Dasaratha Ramaiah and others v. State of Andhra Pradesh 1992 Cri.LJ 3485; Government of the Punjab v. Abdur Rehman and others 2022 SCMR 25; Senator Asif Ali Zardari v. State 2000 MLD 921; The State v. Nasir Javed Rana PLD 2005 SC 86; Ramesh Kumar Ravi alias Ram Prasad and others v. State of Bihar and others AIR 1988 Patna 199 and Kurra Dasaratha Ramaiah and others v. State of Andhra Pradesh 1992 Cri.LJ 3485 rel.

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

----Ss. 167 & 344---Physical and judicial remand---Distinction---Remand under S. 167, Cr.P.C. differs from that under S. 344, Cr.P.C.---Provision of S. 167, Cr.P.C. allows a Magistrate, whether or not he has jurisdiction to try the case, to remand the accused to either police or judicial custody, depending on judicial determination---Remand to police custody under S. 167, Cr.P.C. is specifically for the purpose of investigation---In contrast, S. 344, Cr.P.C. applies where, due to absence of a witness or any other reasonable cause, it becomes necessary for Court to postpone commencement of any inquiry or trial---Court may, at its discretion, postpone or adjourn proceedings and if accused is in custody, remand them by warrant---No magistrate can remand an accused to custody under S. 344, Cr.P.C. for more than 15 days at a time---Remand under S. 344, Cr.P.C. is strictly to judicial custody and can only be to a judicial lock-up---Provision of S. 167, Cr.P.C. deals with detention during investigation, while S. 344, Cr.P.C. pertains to detention during inquiry or trial.

(d) Interpretation of statutes---

----Intention of Legislature---Determination---When wording is explicit, the Legislature's intent should be understood directly from the text, without resorting to interpretative aids.

Barrister Salman Safdar, assisted by Usman Riaz Gill, Ch. Ishtiaq Ahmad Khan, Ali Hamza, Ch. Hussain Arshad, Muhammad Asif Khan, Zafar Iqbal Mangan, Mian Sajid Ali, Javed Iqbal, Umar Latif, Muhammad Sohail, Muhammad Tahir Tauseef Cheema, Kashif Bashir, Mian Imran Pasha, Arsalan Altaf, Mustafa Imran Shaukat, Amna Liaqat, Salma Riaz, Mohsin Murtaza Cheema, Zarish Fatima, Khaqan Meer, Malik Khalid Awan, Mazhar Ali Haider, Muhammad Abdullah and Syeda Zunaira Gillani for the Petitioner.

Ms. Shehzeen Abdullah, Acting Advocate General, along with Ch. Baleegh-uz-Zaman, Additional Advocate General; Sittar Sahil, Muhammad Farrukh Khan, Falak Sher Bakhsh Gill, Asghar Leghari and Hussain Ibrahim, Assistant Advocates General for Respondents Nos.1, 3 and 4.

Syed Farhad Ali Shah, Prosecutor General Punjab for Respondents Nos.5 and 6.

Zain Qazi, Assistant Attorney General for Pakistan for Respondent No.7.

Rao Abdul Jabbar Khan and Rana Nauman Gohar, Special Public Prosecutors for Respondent No.2.

Research assistance: Sher Hassan Pervez and Asim Murtaza Cheema, Research Officers, LHCRC.

P L D 2025 Lahore 818

Before Anwaar Hussain, J

SULTAN MEHMOOD RANA---Petitioner

Versus

NAEEM AHMAD and 5 others---Respondents

Civil Revision No. 931-D of 2018, decided on 19th February, 2024.

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

----Ss. 14, 17 & 42---Limitation Act (IX of 1908), First Sched., Art. 178---Application to make the Award of Arbitrator as Rule of Court, filing of---Limitation, commencing date of---Scope---Appellate Court held that the award cannot be made Rule of the Court as it was not filed by the petitioner within 90-day time period stipulated under Art. 178 of the Limitation Act, 1908, ('the Act 1908')---Whether the limitation period commences from the date of issuance of formal notice in writing by the Arbitrator(s) to the parties or the general knowledge of the parties about making and signing of the award is sufficient to non-suit a litigant on question of limitation?---Held: Article 178 of the Act 1908 clearly depicts that the limitation starts from "the date of service of the notice of the making of the award"---Section 14(1) of the Act 1940 makes it clear that the Arbitrators after making and signing of the award have to give a notice, in writing, of the making and signing of the award to the parties---The requirement of a notice in writing is important as the service of notice is the point from which the limitation for making an application to the Court for filing the award commences per Art. 178 of Act 1908---Section 14(1) of the Act 1940 is to be also read with S. 42 of the Act 1940, which (Section 42) provides that any notice that is required to be served by an Arbitrator shall be served in the manner provided in the arbitration agreement or if there is no such provision then by delivering it to the person on whom it is to be served or by sending it by post at the usual address of such person---Provisions under S. 42 of the Act 1940 make it clear that the Act 1940 provides a clear and specific manner in which the notice is to be served by the Arbitrator(s)---There is no room of implied notice under the law in respect of making and signing of the award---Provisions of S. 42 of the Act 1940 have technical meanings and can only be construed as requiring of issuance of a separate notice in writing by the Arbitrator(s) notwithstanding the fact that a party has knowledge of the passing of the award through receipt of any instrument (cheque in the present case) handed over to him for satisfaction of amount awarded by the Arbitrator(s)---Law of limitation contemplates general principle of administration of justice, which has the effect of preventing a party from having recourse to redressal of rights through judicial process even where such rights subsist and therefore, any law whereby the recourse to the Court(s) is restricted, must be construed strictly---The proceedings should only be held to be barred by time if the chicaneries of law of limitation are made applicable in strictest sense---High Court set-aside the impugned judgment rendered by the Appellate Court and directed that the appeal of the respondent shallbe deemed to be pending, which shall be decided on its merits after extending an opportunity of hearing to the parties---Revision was allowed accordingly.

Muhammad Shafi and others v. Muhammad Sabir and others PLD 1960 Lah. 591 ref.

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

----First Sched., Arts. 178 & 181---Arbitration Act (X of 1940), S. 14---Application to make the Award of Arbitrator as Rule of Court, filing of---Limitation, commencing date of---Scope---Appellate Court held that the award cannot be made Rule of the Court as it was not filed by the petitioner within 90-day time period stipulated under Art. 178 of the Limitation Act, 1908, ('the Act 1908')---Question as to how the limitation is to be governed, if no notice is given by the Arbitrator(s) to the party---Held, that in such eventuality it is Art. 181 of the Limitation Act, 1908, which is residuary clause that will be applicable and the same contemplates a period of three years--- High Court set-aside the impugned judgment rendered by the Appellate Court and directed that, the appeal of the respondent shall be deemed to be pending, which shall be decided on its merits after extending an opportunity of hearing to the parties---Revision was allowed accordingly.

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

----Ss. 14, 17 & 42---Limitation Act (IX of 1908), First Sched., Arts. 178 & 181---Application to make the Award of Arbitrator as Rule of Court, filing of---Limitation, commencing date of---Scope---Whether the limitation period commences from the date of issuance of formal notice in writing by the Arbitrator(s) to the parties or the general knowledge of the parties about making and signing of the award is sufficient to non-suit a litigant on question of limitation?---Held: The Arbitration Act, 1940,('the Act 1940') makes it clear that after an award is rendered, any party thereto or any person claiming thereunder may request the Arbitrator(s) or the Umpire to cause the award or its signed copy thereof, together with any disposition or the document, which may have been taken and/or proved, to be filed in the Court---Pertinently, no limitation has been provided under the Act 1908 whereby the party is required to make a request to the Arbitrators or the Umpire to cause the award to be filed in the Court and again residuary Art. 181 of the Act 1908 is applicable and a party to arbitration proceedings can make such a request to the Arbitrators within three years' time period from the date of making and signing of the award---Imperatively, the object of giving notice to the parties is to enable them to file an application for setting aside the award---Pertinently, when the respondent filed an application for cancellation of the award, he also categorically acknowledged that the Arbitrators had not issued any formal notice, in writing, to the parties regarding making of the award---High Court set-aside the impugned judgment rendered by the Appellate Court and directed that the appeal of the respondent shall be deemed to be pending, which shall be decided on its merits after extending an opportunity of hearing to the parties---Revision was allowed accordingly.

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

----Ss. 14, 17 & 42---Limitation Act (IX of 1908), First Sched., Arts. 158 & 178---Application to make the Award of Arbitrator as Rule of Court, filing of---Limitation, commencing date of---Scope---Appellate Court held that the award cannot be made Rule of the Court as it was not filed by the petitioner within 90-day time period stipulated under Art. 178 of the Limitation Act, 1908, ('the Act 1908')---Whether a Court can dismiss the objections to the award but at the same time refuse to make the award a Rule of the Court on the ground that the application of a party for filing/making the award a Rule of the Court was not within limitation---Held: Pertinently, once an award is before the Court, either through the Arbitrator(s) or any party (for example the respondent), then in terms of S. 17 of the Arbitration Act, 1940, ('the Act 1940'), it is the duty of Court to examine the same and see whether it suffers from any patent illegality or if there is any cause to remit the award to the Arbitrator(s) irrespective of the fact that opposite party (the petitioner in present case) has not approached the Court within time---Provision of S. 17 of the Act 1940 is couched in mandatory terms as the same is signified by use of the word "shall" and cast a duty upon the Court to pass a decree if it sees no cause to remit or set-aside the award---The proceedings under S. 17 commence once an award has been filed in the Court---The very fact that the respondent filed an application seeking cancellation/setting aside of the award means that it was admitted that the award had been made and that the proceedings under S. 17 of the Act 1940 shall commence---Once an award comes before the Court then the Court has got jurisdiction to take further proceedings in accordance with the law and pass a decree thereon---Thus, once the award is before the Court, it is the duty of the Court to scrutinize the award, which is independent of the fact whether any side has objected to the same or not or the application of one of the parties to arbitration proceedings is time barred---In present case, the Trial Court discharged that duty and passed the decree on the basis of the award in favour of the petitioner whereas the Appellate Court has upended the said findings without touching the merits of the case by merely holding that the application of the petitioner to make the award a Rule of Court was time barred which in-fact was not as examined hereinabove, and hence, the finding of the Appellate Court below is erroneous and not sustainable---High Court set-aside the impugned judgment rendered by the Appellate Court and directed that the appeal of the respondent shall be deemed to be pending, which shall be decided on its merits after extending an opportunity of hearing to the parties---Revision was allowed accordingly.

Noor Muhammad v. A.D.J. Nankana Sahib and others 1996 CLC 268; Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 and A. Qutbuddin Khan v. Chec Milliwala Dredging Co. (Pvt.) Ltd. 2014 SCMR 1268 ref.

Syed Kabeer Ahmad Mehmood for Petitioner.

Abdul Salam Alvi for Respondent No.1.

P L D 2025 Lahore 827

Before Jawad Hassan, J

Sardar AMBER MAQSOOD---Petitioner

Versus

FEDERATION OF PAKISTAN, PRIVATISATION COMMISSION PIACL and others ---Respondents

Writ Petition No. 2010 of 2024, decided on 27th June, 2025.

(a) Privatization Commission Ordinance (LII of 2000)---

----Ss.23 & 24---Privatization (Modes and Procedure) Rules, 2001, R.3---Privatization Commission (Hiring of Financial Advisors) Regulations, 2018, Regln. 3---Privatization Commission (Confidentiality and Secrecy of Documents) Regulations, 2003, Regln. 3---Pakistan International Airlines Corporation (Conversion) Act (XV of 2016), S. 3---Constitution of Pakistan, Arts.173 and 199---Privatization procedure of Pakistan International Airlines Corporation Limited, challenge to---Notice of intent to commence privatization and valuation of assets---Requirements---The petitioner filed 'pro bono publico' writ petition challenging the privatization process of Pakistan International Airlines Corporation Limited (PIACL), alleging non-compliance with the mandatory provisions of Ss. 23 & 24 of the Privatization Commission Ordinance, 2000, inasmuch as no lawful advertisement of intent was issued nor proper valuation of assets was undertaken, thereby rendering the entire exercise arbitrary, non-transparent, and violative of the fundamental right to information under Article 19-A of the Constitution---Nub of the matter was the determination as to "whether the process of privatization undertaken by the Privatization Commission was in conformity with Ss. 23 & 24 of the Ordinance 2000 and the Rules and Regulations framed thereunder or whether the same was tainted with arbitrariness, procedural impropriety or lack of lawful authority"---Held: There was no doubt that failure to comply with the procedural requirements of S. 23 of the Ordinance 2000 would have rendered the privatization process legally defective and open to judicial review---Bare reading of Ss. 23 of the Ordinance 2000read with S. 5(o) of the Ordinance 2000 made it abundantly clear that it was the duty of the Privatization Commission to invite open applications for the purpose of privatization, after consultation with the Federal Government, for making the process transparent and competitive by preventing favoritism and ensuring fair competition---It was evident from the record that the required newspaper advertisements were published in national newspapers "Daily Express", "Daily Jang" (Urdu Newspapers) and "Dawn" and "Business Recorder" (English Newspapers) on 02.04.2025---Notice of invitation was also got published in international dailies "Financial Times" (03.04.2024), "China Daily" (02.04.2024) and "The Wall Street Journal" (02.04.2024) by the Commission---The said advertisement was also got published on 15.04.2025 with at least thirteen days gap on "Daily Express", "Daily Jang" (Urdu Newspapers) and "Dawn" and "Business Recorder" (English Newspapers)---In this view of the matter, the record demonstrated that advertisement of privatization of the "PIACL" was issued in consultation with the concerned enterprise in accordance with requirement of the S. 23 of the Ordinance 2000---Moreover, the issuance of a formal valuation report was a condition precedent for the progression of the privatization process which ensured that the Commission, bidders, and the public were fully aware of the independently assessed value of the asset being privatized---It was evident from the notice of advertisements that the Privatization Commission had appointed EY Consulting LLC, as the Financial Advisor along with other consortium members to conduct the transaction---If S. 24 of the Ordinance 2000 was read with S. 23 of the Ordinance 2000 along with Ss. 5(o) & 5(p) of the Ordinance 2000, it transpired that Privatization Commission was empowered to evaluate the bids against the criteria fixed by it---Record was indicative of the fact that the Privatization Commission had appointed EY Consulting LLC, as the Financial Advisor to conduct the transaction in the prescribed manner after seeking proper approval from the Cabinet and hence this requirement was also fully met with by the respondents---Privatization Commission had duly conducted the process of privatization as per Ss. 23 & 24 of the Ordinance 2000---Regarding application of the petitioner seeking summoning and production of record pertaining to assets, valuation reports and financial particulars of PIACL regarding process of privatization, such request could not be entertained given the fact that such documents were confidential under Regln. 3 of the Privatization Commission (Confidentiality and Secrecy of Documents) Regulations, 2003---The process of privatization was strictly followed as per prescribed criteria, therefore, present petition was dismissed, in circumstances.

(b) Competition Act (XIX of 2010)---

----Ss. 3, 11 & 12---Privatization Commission Ordinance (LII of 2000), Ss.23 & 24---Privatization of Pakistan International Airlines Corporation Limited (the PIACL)---Competition Commission of Pakistan---Role, object and scope---In the privatization of the "PIACL"the role of Competition Commission of Pakistan (the CCP)is both pivotal and exemplary, reflecting its statutory mandate as an independent, quasi-judicial regulatory authority established under S. 3 of the Competition Act of 2010---The CCP's involvement in the acquisition of 100% shareholding of the PIACL by PIA Holding Company Limited (Holdco) underscores its critical function in scrutinizing mergers and acquisitions to prevent any appreciable adverse effect on competition within relevant markets.

Dilsons (Private) Limited and others v. Security and Exchange Commission of Pakistan and another 2021 CLD 1317 ref.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court, invoking of---Public interest litigation---Locus standi---Scope---Public Interest Litigation is an extraordinary jurisdiction enabling the High Court under Article 199 of the Constitution to address questions of public importance involving the enforcement of fundamental rights of the public at large, particularly where disadvantaged or unorganized segments of society are unable to approach the Court themselves---Such jurisdiction has been exercised in matters of environment, human rights, detention, labour, prisoners, health, education, and transparency in governance---However, it is settled by now that Public Interest Litigation cannot be misused for private motives or publicity and the petitioner must establish bona fide intent supported by credible material to justify judicial intervention---Public Interest Litigation, though entertained with a liberal approach, must be founded upon some credible material demonstrating violation of law or infringement of fundamental rights---Mere bald assertions, unaccompanied by documents or evidence, cannot constitute a valid cause for invoking the extraordinary jurisdiction of the High Court under Art. 199 of the Constitution.

Kakakhail Traders v. Province of Punjab and others PLD 2025 Lah. 630 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court, exercise of---Non-functionality/non-existence of statutory forum to entertain statutory remedy provided by law---Scope and effect---Ordinarily when a statute provides for an alternate forum, a party must first exhaust such remedy before invoking constitutional jurisdiction---However, where the statutory forum is non-existent or has not been constituted, the litigant cannot be left remediless---The extraordinary jurisdiction of the High Court under Article 199 is therefore available in such exceptional circumstances to ensure that justice is not defeated merely on account of the failure of the executive to establish the requisite forum.

Kakakhail Traders v. Province of Punjab and others PLD 2025 Lah. 630 ref.

(e) Interpretation of statutes---

----Preamble of a statute---Purpose, scope and significance---Preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law---The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

Messrs Tradhol International SA Sociedad Unipersonal v. Ms Shakarganj Limited 2023 CLD 819; Abwa Knowledge (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2021 Lah. 436; Chenab Flour and General Mills and others v. F.O.P through Secretary Revenue Division and others PLD 2021 Lah. 343; Messrs Jet Green (Pvt.) Limited v. Federation of Pakistan and others PLD 2021 Lah. 770; M.C.B. v. Adeel Shahbaz and others 2023 CLD 655; Pakistan Tehreek e Insaaf through Asad Umar v. Governor Punjab through Principal Secretary PLD 2023 Lah. 179 = PLJ 2023 Lah. 467; Messrs Bahria Town (Pvt.) v. District Consumer Court and others PLJ 2022 Lah. 199; PLD 2022 Lah. 488; F.O.P v. Nasir Munir Ahmed and others 2022 CLC 2072; Addl. Registrar Company v. Al-Qaim Textile Mills Ltd. 2021 CLD 931; Ch Fayyaz Hussain Wains v. Province of Punjab and others PLD 2022 Lah. 1 and Shaheen Merchant v. Federation of Pakistan and others 2021 PTD 2126 ref.

(f) Privatization Commission Ordinance (LII of 2000)---

----S. 5---Privatization Commission---Functions, objectives and purpose---Section 5 of the Privatization Commission Ordinance 2000 makes it abundantly clear that the Privatization Commission has been entrusted with a broad spectrum of functions---Its role is two-fold: firstly, to act as an advisory body to the Federal Cabinet by recommending policy guidelines, preparing comprehensive programmes, and suggesting necessary legislative or regulatory measures; and secondly, to serve as an implementing agency to plan, manage and control the privatization process once it has been duly approved by the Cabinet.

(g) Privatization Commission Ordinance (LII of 2000)---

----S.25---Privatization by the Privatization Commission---Scope, authority, and procedural compliance---The privatization policy aims to create a mechanism for generation of funds for the retirement of government debt while ensuring improvements in service and operational capacity of utilities in a transparent manner for effective management of domestic industry, greater domestic investment and economic growth---The objectives of privatization are to improve the operational efficiency and overall performance of entities, to reduce the fiscal burden of the Government, to promote and strengthen the capital market, the creation of a conducive economic environment and improve overall efficiency---The process of privatization is enshrined in S. 25 of the Ordinance 2000and the Privatization (Modes and Procedure) Rules, 2001---The Board of the Privatization Commission and the Cabinet Committee on Privatization determine the process after deciding one of the modes viz (i) sale of assets and business; (ii) sale of shares through public auction or tender; (iii) public offering of shares through a stock exchange; (iv) management or employee buyouts by management or employees of a SOE; (v) lease, management or concession contracts; (vi) any other method as may be prescribed---The objective of privatization is not merely profit-making, but to enhance productivity, attract investment, and reduce inefficiency in loss-making enterprises---It has also been acknowledged globally that privatization can bring about managerial autonomy and operational flexibility, enabling enterprises to compete in a globalized economy---These decisions affirm that privatization, if conducted within the framework of law and with appropriate safeguards, aligns with the constitutional mandate of economic development and public welfare---Therefore, rather than being viewed with skepticism, privatization deserves protection and support when it is pursued with accountability, fairness, and the broader goal of national progress.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

(h) Constitution of Pakistan---

----Art.199---Privatization Commission Ordinance (LII of 2000), S.25---Constitutional jurisdiction of the High Court in matters relating to 'privatization policy' and 'economic and commercial matters'---Judicial overreach---Scope---Protection of foreign investment in Pakistan---Constitutional courts must exercise judicial restraint in economic and commercial matters, particularly in relation to the privatization policy, to prevent disruption of national economic objectives and divestment from loss- making State-Owned Enterprises---High Court cannot ignore the instances of judicial overreach wherein extensive interference by courts in contractual and investment matters has, over time, contributed to uncertainty in the regulatory landscape, adversely affecting Pakistan's ability to attract and retain foreign investment---Investor confidence, both domestic and international, hinges upon the predictability and stability of legal framework---The Constitutional courts of Pakistan must exercise judicial restraint in matters that impact foreign investment in Pakistan---The role of Courts in matters of economic policy is necessarily limited---The judicial review of economic decisions is confined to assessing whether the policy is arbitrary, irrational, discriminatory, or violative of constitutional mandates---The wisdom of privatization and the decision to open certain sectors to foreign investment, lies primarily within the competence of the elected branches of Government, provided the process complies with the law and respects Constitutional boundaries.

The Commissioner Inland Revenue and others v. Mekotex

(Pvt.) Ltd. and others PLD 2024 SC 1168 and Dr. Akhtar Hassan

Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

M.C.R. (Pvt.) Ltd. Franchisee of Pizza Hut v. Multan Development Authority and others 2021 CLD 639; China Harbour Engineering Company Ltd. and others v. Z. Z. Enterprises and others 2024 CLD 917 and Messrs 5 H Insaat Ve Ticaret Anonim Sirketi v. Secretary Local Government and others 2025 CLD 813 ref.

(i) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Judicial restraint in matters relating to Government's economic and privatization policies---Scope, purpose, limits and concept---In the absence of any glaring illegality, or violation of fundamental rights, the Courts must exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative to encourage and promote the investment process because judicial restraint encourages the judges to exercise their powers with restraint and wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the Government having financial perspective and outcome and exercise---Under Art. 199 of the Constitution, the Court is thought competent to exercise the power of judicial review to examine administrative actions from the touchstone of violation of law and breadth of the Constitution, yet the power of judicial review is regulated by the principle of judicial restraint, the purpose and extent of which has already been discussed supra---While using powers under Art. 199 of the Constitution relating to a policy of the Government with financial layout and implications, the Court exercises the power of judicial review with judicial restraint as a substantive approach to interfere in such matters within the contemplation of judicial review while exercising Constitutional jurisdiction.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

Muhammad Azam v. Province of Punjab and others 2022 CLC 532; Muhammad Umais v. Cantonment Board Rawalpindi and others PLD 2022 Lah. 148 and Syed Faisal Mehboob v. Federation of Pakistan and others 2022 CLC 1153 ref.

Nazakat Hussain Abbasi and Asif Mehmood for Petitioner.

Barrister Haseeb Shakoor Piracha, Additional Attorney General with Barrister Zain Mansoor, Assistant Attorney General and Barrister Raja Hashim Javed, Assistant Advocate General for Respondents..

Barrister Sardar Kalim Ilyas, Advocate Supreme Court with Barrister Minaal Tariq for Respondent No.2.

Barrister Pirzada M. Aurang Zaib with Wajih Hassan Pasha, Safdar Shaheen Pirzada, Advocate Supreme Court, Maham Jamal and Muhammad Talib Shahzad for Respondent No.5.

Haroon Abbasi, DGM Legal PIACL for Respondent No.6.

Dr. Kabir Ahmed Sidhu, Chairman and Barrister Ambreen Abbasi, Senior Legal Advisor on behalf of Competition Commission of Pakistan.

P L D 2025 Peshawar 1

Before Syed Arshad Ali, J

Mst. FALAK SHEHNAZ and another---Appellants

Versus

Mst. FARAH DEEBA and others---Respondents

F.A.O. No. 144-P of 2021, decided on 9th December, 2022.

(a) Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act (XLIV of 2019)---

----Ss. 4, 7 & 12---Women's property rights---Determination---Attachment of property---Ombudsman, jurisdiction of---Appellant was aggrieved of order passed by Ombudsman attaching and sealing entire disputed property till the decision of complaint---Validity---There was an apparent disparity between Ss. 4 & 7 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019---Woman who was deprived of her ownership or possession of property could file a complaint under S. 4 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 to Ombudsperson if no proceedings in a court of law were pending regarding the property---Whereas in S. 7 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019, the Ombudsperson was given authority to entertain a complaint in respect of any dispute relating to property right of woman despite pendency of claim before competent court of law---Ombudsperson was authorized to conduct enquiry, investigation and probe through Deputy Commissioner and could conduct a summary enquiry---After conclusion of such enquiry, Ombudsperson could file a report in Court of law in which the case was already pending, recommending that the proceedings in Court could be terminated or put in abeyance unconditionally or subject to any Court order the Ombudsman be permitted by the Court to take further proceedings under the Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019---High Court referred the matter to Provincial Government for appropriate measures in the matter---Appeal was disposed of accordingly.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; British Columbia Development Corporation v. Friedmann (Ombudsmen) 1984 SCC 121; Reference No. 2 of 2005, PLD 2005 SC 873; Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Durga Hotel Complex v. Reserve Bank of India and others AIR 2007 SC 1467; State v. Zia-ur -Rehman PLD 1973 SC 49; Registrar v. Wali Muhammad 1997 SCMR 141; Sharaf Faridi v. The Federation of Pakistan PLD 1989 Kar. 404; Government v. Aziz Ullah Memon PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 and Muhammad Ayaz and others v. Malik Zareef Khan and others PLD 2016 Pesh. 8 ref.

Ghulam Qasim v. Mst. Razia Begum and others PLD 2021 SC 812 rel.

(b) Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act (XLIV of 2019)---

----S. 4---Proceedings before Ombudsperson---Joint property---Scope---There is an inherent defect in Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 as it does not provide procedure for share of woman when it is jointly held/owned by her along with other members of her family.

(c) Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act (XLVI of 2019)---

----Ss. 5 & 7---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 135 & Chapter XI---Land Record Manual, Para. 18---Civil Procedure Code (V of 1908), S. 9---Property disputes---Jurisdiction---Principle---In cases where a woman is deprived of her right relating to a property, when her title is clear and the person depriving her of her rights is not co-owner in suit property, then Ombudsperson, after a preliminary inquiry can pass an order under S. 5 of Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 by putting her in possession of the property---When a woman as well as other members of her family are joint owners in the disputed property, then in case of agriculture property which is assessed under Khyber Pakhtunkhwa Land Revenue Act, 1967 the mechanism for partition is provided under S. 135, Chap. XI of Khyber Pakhtunkhwa Land Revenue Act, 1967 read with paragraph No.18 of Land Record Manual---Similarly where any immovable property is outside the scope of Khyber Pakhtunkhwa Land Revenue Act, 1967, then under S. 9 of Civil Procedure Code, 1908, claimant can approach Civil Court for separation of share/partition of the disputed property.

Ghulam Mohyud Din Malik for Appellants.

Ms. Shakila Begum, AAG, for Official Respondents.

Zahid Ullah Zahid for Respondents.

Assistance and research in the matter was provided by Miss Irum Nosheen, Research and Reference Officer of this Court.

P L D 2025 Peshawar 21

Before Shakeel Ahmad, J

NIAZ MUHAMMAD---Petitioner

Versus

MUHAMMAD NAVEED KHAN and 2 others---Respondents

Regular First Appeal No. 378-P with C.M. No. 271-P of 2023, decided on 12th June, 2024.

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

----S.31---Transfer of Property Act (IV of 1882), S.54---Specific Relief Act (I of 1877), Ss. 12 & 24(b)---Suit for specific performance of agreement to sell immoveable property---Non-deposit of remaining sale consideration--- Bilateral/contingent contracts--- Scope--- Trial Court dismissed the suit for non-compliance for order of deposit of remaining sale consideration---Question before High Court was whether appellant seeking enforcement of agreement to sell in a bilateral/contingent contracts was required to deposit remaining sale consideration in Trial Court---Contention of the appellant was that the contracts were contingent being based on the happening of some future or subsequent events and were not enforceable till the occurrence of that events, therefore, suit of the appellant could not be dismissed solely for non-deposit of remaining sale consideration in Court---Validity---Both the agreements were bilateral agreements and in a bilateral agreement, the contracting parties promised each other that they would perform or refrain from performing an act---Remaining sale consideration was not agreed to be paid in lump sum rather it had been agreed upon that the appellant would pay the remaining sale consideration after plotting and sale of the suit property, which clearly indicated that it was a commercial type of bilateral agreement between the parties---Agreement to sell as a whole was to be considered and read, but the Trial Court before passing the orders overlooked the whole contents of bilateral agreement relied upon by the appellant---Agreement executed between the parties was a contingent contract, which imposed pre-condition for implementing the terms of the contract; it was a qualified contract and would only come into being when the conditions incorporated therein were fulfilled---Fulfillment of the conditions was the transformation of that potentiality into actuality---Conversely, the failure of the condition was the failure of that chance to become a fact---Where execution of a future contract is a condition or a term of the bargain, there cannot be an enforceable contract unless the condition or term is fulfilled---Impugned orders of Trial Court were not sustainable, in circumstances---Appeal was allowed accordingly.

Hamood Mehmood v. Mst. Shabana Ishaque 2017 SCMR 2022 distinguished.

Ijaz Ahmad Choudhry v. Learned Civil Judge and others 2020 CLC 291 and Muhammad Asif Awan v. Dawood Khan 2021 SCMR 1270 rel.

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

----O. XLI, Rr.1 & 20 & S.153---Limitation Act (IX of 1908), S.22---Suo motu power of High Court to implead a party---Scope---Plea of non-impleadment of one of defendants as a respondent in the appeal after the expiry of period of limitation---Validity---Appeal, which is the continuation of suit, is a document of accusation for judicial examination by higher forum---Where a party is not impleaded inadvertently, the High Court is empowered to act suo motu or on the behalf of party irrespective of the provisions of S.22 of the Limitation Act, 1908---Section 153, C.P.C., preserves the power of the Court to amend, inter alia, any proceedings in a suit or all necessary amendments at any time for the purpose of determining the real question or issue and a party should not be denied relief on account of mere technicalities in the procedural law, which is intended and designed to foster the cause of justice and not to defeat it---This power can be exercised at any time during pendency of the lis and even after the passage of the decree at the appellate stage---High Court while exercising suo motu power impleaded the omitted defendant as respondent and allowed the appeal accordingly.

Muhammad Suleman v. Abdul Rashid PLD 1987 Lah. 387; Musmar and another v. Khair Ullah Khan and others PLD 1954 Pesh. 52; Benazir Bhutto Hospital Rawalpindi through Medical Superintendent v. Khalid Pervaiz and 8 others 2017 CLC 1381; Haji Fazal Ghani v. Fazle Ahad and 4 others 2021 YLR 1055 and Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 ref.

Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532; Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363 and Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824 rel.

Sadiq Ali Mohmand for Appellant.

Abdul Sattar Khan and Saifur Rehman for Respondents.

P L D 2025 Peshawar 31

Before Fazal Subhan and Dr. Khurshid Iqbal, JJ

MUHAMMAD SADIQ---Petitioner

Versus

The STATE---Respondent

Writ Petition No.168-D of 2024 with C.M.A. No.180-D of 2024, decided on 6th June, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 35, 397 & 544-A---Penal Code (XLV of 1860), Ss. 302(b), 324, 449, 337-A(iii) & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, shajjah-i-hashimah, ghayr-jaifah-mutalahimah---Constitutional petition---Diyat, payment of---Accused filed petition for allowing him to pay the amount of diyat, fine and compensation in installments---Trial Court convicted the petitioner and awarded sentences with different amount of fine/compensation---Held, that fine has been prescribed as a distinct and independent punishment and therefore, in addition to the main/substantive punishment, the Court can award a punishment of fine, wherever it is provided under the Penal Code---Careful perusal of S. 35 read with S. 397 of Cr.P.C shows that in the matter of awarding sentences for different offences in a criminal trial, the Court has been given discretion to order that sentences so awarded for different offences in the same trial may commence one after the other in such manner, as the Court directs---At the same time, the Courts have been given discretion to pass an order that such punishments shall commence simultaneously and run concurrently---However, in the matter of punishment/s of fines, or in default to undergo simple imprisonment for certain terms, no such powers or discretion have been given to the Courts and in such case, the simple imprisonment in default of payment/s of fines shall run one after another or consecutively---Thus, the sentences of fine and in default thereof, to undergo simple imprisonment for two and three months respectively, shall run consecutively---Since the petitioner was ready to pay the amount of diyat, fine and compensation, therefore the petition was disposed of accordingly.

Abdul Majid v. The State and another 2005 YLR 1551 and Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 ref.

Ali Abbas v. The State PLD 1959 (W.P.) Karachi 56; Abdul Majid v. The State and another 2005 YLR 1551; Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 and Shaheen Tahir v. Superintendent, Central Jail, Faisalabad and another PLD 2008 Lah. 497 rel.

Farooq Akhtar for Petitioner.

Ghulam Muhammad Sappal, Addl: A.G. for the State.

P L D 2025 Peshawar 36

Before Kamran Hayat Miankhel and Dr. Khurshid Iqbal, JJ

BALQIAZ ALI SHAH alias ATTA ULLAH JAN---Petitioner

Versus

WRASHEM GUL and 6 others---Respondents

Writ Petition No. 273-B of 2024, decided on 30th May, 2024.

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

----S.154---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 302 & 34---Quashing of FIR---Constitutional jurisdiction of High Court---Scope---Petitioner/accused sought quashment of FIR by invoking constitutional jurisdiction of the High Court---Validity---Allegations against the petitioner/accused, on the face of it, did disclose commission of a cognizable offence and the contentions of the petitioner related to factual controversy, which could only be determined after recording pro and contra evidence and said exercise could not be done in constitutional jurisdiction of the High Court---Petitioner/accused had the right to put his defence before the Investigating Officer and if the allegations put-forth by the complainant were found false, the Investigating Officer could proceed against him in accordance with law---Moreso, the complainant had come up with certain allegations and justice demanded that he might be given an opportunity to prove the same---Thus, ordinary course of trial is not to be deflected by resorting to quashing of the FIR---Constitutional petition, being merit-less, was dismissed in limine, in circumstances.

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

----Ss. 154, 156, 169, 173 (3), 249-A, 265-K & 561-A---Penal Code (XLV of 1860), S. 182---Quashing of FIR---Scope---Allegations against the petitioner/accused, on the face of it, did disclose commission of a cognizable offence---Under S. 154, Cr.P.C., the Police has statutory duty to register FIR regarding commission of any cognizable offence, and its purpose is only to set the criminal law in motion---Provisions of S. 154, Cr.P.C., are mandatory in nature---When FIR is registered, then the local Police under S. 156, Cr.P.C have the statutory rights to investigate the case and interference by Court with duties of police is not permissible under the law---As FIR is not an encyclopedia of all the relevant facts, therefore, the image presented by the FIR will be clarified when all the incriminating material is brought on record during investigation and if the accused is found innocent during investigation, he can be dealt with in accordance with the provisions of Ss. 169/173(3), Cr.P.C., read with Ss. 249-A/265-K. Cr.P.C, besides pressing into service the punitive proceedings by sending a complaint under S. 182, P.P.C., against informer/complainant of the FIR---Therefore, it would be unjust, if before the real facts are collected by the investigating agency, the FIR alleging the commission of cognizable offences is nipped in the bud---Constitutional petition, being merit-less, was dismissed in limine, in circumstances.

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

----Ss. 154 & 561-A---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 302 & 34---Quashing of FIR---Exceptional circumstances---Scope---Powers of the High Court---Scope---Of-course, the High Court has the powers to quash FIR but only in exceptional circumstances, i.e., where the allegations made in the FIR, on the face of it, do not constitute a cognizable offence, or the allegations made in the FIR are false or it reflects that an attempt has been made to convert civil liability into a criminal case, or where there is an express legal bar in any of the provisions of the Code or the concerned Act, under which a criminal proceeding is instituted---Thus, the High Court has no jurisdiction, whatsoever, to take the role of the Investigating Agency and to quash the FIR, while exercising constitutional power under Art. 199 of the Constitution or under S. 561-A, Cr.P.C., unless and until very exceptional circumstances exist---Constitutional petition filed by accused, being merit-less, was dismissed in limine, in circumstances.

Brig. (Retd.) Imtiaz Ahmad v. The Government of Pakistan 1994 SCMR 2142 and Dr. Ghulam Mustafa v. State and others 2008 SCMR 76 ref.

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

----Ss. 154 & 561-A---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 302 & 34---Partial quashing of FIR---Legality---Quashing of FIR filed by only one of the accused persons---Scope---Allowing partial quashment of FIR for one accused is not permissible under law---Constitutional petition, being merit-less, was dismissed in limine, in circumstances.

Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 and Naeem Abbas v. Federal Investigation Agency (FIA), Islamabad and 7 others 2015 PCr.LJ 1592 ref.

P L D 2025 Peshawar 41

Before Syed Arshad Ali, J

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Appellants

Versus

Messrs HMA PUMPS (PVT.) LTD. PESHAWAR CANTT. and another---Respondents

R.F.A. No.186 of 2023 with C.M. No.299 of 2023 with C.M. No.541 of 2023, decided on 20th May, 2024.

Arbitration Act (X of 1940)---

----Ss. 14, 16 & 20---Award passed by arbitrators unanimously---Scope---Remitting (re-referring) matter to Arbitrators or umpire---Reconsideration---Scope---Provincial Government filed appeal against the order passed by the Civil Court whereby the award made by the umpire was made rule of court---Argument of the Appellant (Provincial Government) was that as earlier, during the proceedings before the Court, Arbitrators had passed award unanimously, the Court had wrongly accepted application of respondents/Company for remitting/re-referring the matter to the umpire---Contention of the respondents/ company was that it was provided under S. 16 of the Arbitration Act 1940 ('the Act 1940') that the award could be remitted to the arbitrators or the umpire for reconsideration, therefore, the Trial Court had rightly remitted the award to the umpire, instead of arbitrators---Question as to whether in a case when an unanimous award has been passed, the matter may be re-referred/remitted to the arbitrators who passed the award or it could be referred to an umpire---Held, that S. 16 of the Act 1940 and Rr. 2, 4 & 5 of the First Schedule of the Act 1940 clearly demonstrate that the umpire can only take cognizance in the matter if there are the circumstances provided under R. 4, which, inter alia, include that both arbitrators could not agree on a particular issue---Therefore, an umpire cannot be called upon to act under R. 5 if the circumstances as provided under R. 4 do not arise---Thus, the contention of the respondents/company went counter to the scheme of S. 16 of the Act 1940, which clearly envisaged that where award had left undetermined any of the matters referred to arbitration, or where it determined any matter not referred to arbitration and such matter could not be separated without affecting the determination of the matter referred to, the Court was competent to remit the award or any matter referred to arbitration of the arbitrators or umpire for reconsideration---This clearly implies that if the ambiguity, as stated in S. 16 of the Act 1940, arises out of the award passed by the arbitrators, then the matter shall be referred to the arbitrators and in case the same is arising out of the award passed by the umpire, then obviously the same has to be referred for reconsideration to the umpire---Indeed, the word "reconsideration" is a determining fact implying the intention of legislation because the award passed by the arbitrator cannot be reconsidered by the umpire as the role of umpire comes into play only when there is disagreement between the arbitrators---Thus, the impugned order of the Trial Court remitting the award to the umpire was patently illegal and the entire edifice built upon the said order had to crumble to the ground being coram non judice and against the letter and spirit of S. 16 of the Act 1940 read with the First Schedule of the Act 1940---High Court set-aside the impugned order of the Trial/Civil Court to the extent of remitting the award to the umpire, the award passed by the umpire; and the impugned judgment/order of the Trial Court making the disputed award passed by the umpire as rule of the Court were also set aside and the matter was sent back to the Trial Court to redecide the application of the respondents/company, which it had filed under S. 16 of the Act 1940---Appeal, filed by the Provincial Government, was allowed accordingly.

Muhammad Farooq Shah v. Shakirullah 2006 SCMR 1657 ref.

Yasir Khalid, A.A.G. for Appellants.

Barrister Muhammad Yaseen Raza Khan and Barrister Muhammad Ibrahim Khan Afridi, Amicis Curiae for Respondents.

P L D 2025 Peshawar 45

Before Muhammad Faheem Wali, J

ATTAULLAH---Petitioner

Versus

GHAZANFARULLAH and others---Respondents

Civil Revision No.34-D of 2023 with Civil Misc. Nos.5I and 58-D of 2023, decided on 14th November, 2023.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3 & O. XV, R. 4---Specific Relief Act (I of 1877), Ss.12, 42 & 54---Suit for specific performance, declaration and permanent/mandatory injunction---Alternate prayer for recovery of earnest money---Non-deposit of remaining sale consideration---Dismissal of suit by the Court under O. XVII, R. 3, C.P.C.---Power of Court to proceed further when either party fails to comply with order of the Court or when provisions of O. XVII, R. 3, C.P.C., is invoked---Scope---Contention of the petitioner was that suit should have been dismissed entirely without passing of money decree---Validity---Where a party to a suit, to whom time has been granted, fails to perform any act necessary to the further progress, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith---Word 'forthwith' does not mean to pronounce judgment at once or dismiss the suit at the same time---Though the word 'forthwith' means without any further adjournment yet, it cannot be equated with the words "at once pronounce judgment' as used in O. V, R. 4, C.P.C.---Language employed in O. XVII, R. 3. C.P.C., by using the words 'the Court may, notwithstanding such default, proceed to decide the suit forthwith' is permissive and discretionary and does not, in all circumstances, entail penal consequences---Although suit of the respondent could be dismissed due to non-deposit of remaining sale consideration, yet he could not be dislodged from the relief in equity for the return of already paid money---Provisions of R. 3 of O. XVII do not place any bar on the discretion of Court to proceed ahead with the suit in view of the circumstances of the case---Civil Revision was dismissed accordingly.

Muhammad Aslam v. Nazeer Ahmad 2008 SCMR 942; Hasham Khan and others v. Haroon ur Rashid and others 2022 SCMR 1793 and Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 rel.

Ahmad Ali, Haji Shakeel and Miss Shumaila Awan for Petitioner.

Rizwanullah Khan Arain for Rrespondent No.1.

Aamir Farid Saddozai, Assistant Advocate General for Respondents Nos. 4 to 8.

P L D 2025 Peshawar 50

Before S M Attique Shah, J

AMIR SULTAN SAFI, ADVOCATE---Petitioner

Versus

WAQAS SABIR---Respondent

Civil Revision No. 154-P with C.M. No. 239-P of 2022, decided on 28th September, 2023.

Punjab Forensic Science Agency Act (XIII of 2007)---

----S. 9(3)---Qanun-e-Shahadat (10 of 1984), Art. 164---Defamation Ordinance (LVI of 2002), S. 9---Defamation---Suit for recovery of damages---Audio and video evidence---Forensic examination---Scope---Application of the petitioner, filed after closure of evidence, for sending the video for forensic report/expert opinion regarding its originality was dismissed by the Trial Court---Validity---By now, it is possible with the advancement of science and technology to get a forensic examination, audit or test conducted through an appropriate laboratory, so as to get it ascertained as to whether a video or tape is genuine or not and such examination, audit or test can also reasonably establish, if such video has been edited, doctored or tampered with or not---Any party could make a request for forensic examination of an audio tape or video through an appropriate laboratory, so as to get it ascertained as to whether the audio tape or video is genuine or not through moving a proper application to the concerned court---Trial Court had totally overlooked the fact that the petitioner was seeking expert opinion of the video regarding its originality or otherwise and production of additional evidence in light thereof---Trial Court also failed to appreciate that by virtue of O. XVIII, R. 17, C.P.C., the additional evidence could be allowed at any stage---Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed documents/ signatures/video, the court had ample power to do the needful so as to advance justice rather than injustice---Trial was at the verge of conclusion, but in order to ascertain as to whether the video in question was genuine or not, there was no harm, even at such stage, to accept the request of the petitioner qua sending the video for forensic report regarding its originality and genuineness in the larger interest of the justice---Civil revision was allowed, in circumstances, while accepting the application of the petitioner for sending video for forensic report/expert opinion.

Ishtiaq Ahmad Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675 and Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 rel.

Khalid Mahmood for Petitioner.

Amjad Ali Khan for Respondent.

P L D 2025 Peshawar 54

Before Ishtiaq Ibrahim and Shakeel Ahmad, JJ

ARSALAN ARIF and others---Petitioners

Versus

SALMA GUL and another---Respondents

Writ Petitions Nos. 168-A and 169-P of 2015, decided on 2nd February, 2023.

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

----S. 5, Sched. & S.7(2), proviso---Family Courts Rules, 1965, R.6---Suit for recovery of dower, maintenance allowance, dowry articles, and gold ornaments was instituted by wife/respondent after being divorced by the husband/petitioner---During pendency of suit both the parties file miscellaneous applications---Application for summoning Nikah Khawan filed by the respondent was accepted, whereas applications filed by the petitioner for return of pictures, correction in the examination-in-chief of PW.1 and cross-examination of PW.2 and return of plaint for want of jurisdiction were dismissed---Validity---Marriage was solemnized at Abbotabad and after its dissolution respondent was living with her parents at Abbotabad---Rule 6 of the Family Courts Rules, 1965, is limited to suits for dissolution of marriage or dower and enables the estranged wife to bring a family suit in a court within the local limits of which she ordinarily resides, thus, the finding of the family court as to territorial jurisdiction was not erroneous or without lawful authority---No prohibition exists in the Family Courts Act, 1964 for calling or production of witnesses even if his name is not mentioned in the list of witnesses---Respondent had not committed a legal error by calling Nikah Khawan as a witness for examination in the Family Court whose name was already available in the list of witnesses, thus, contention of the petitioner was based on misconception---Statements of PW.1 in examination-in-chief and PW.2 in cross-examination were recorded in open court in presence of parties and their counsel, however, the application for correction therein was filed by the petitioner after signing the statements by the Presiding Officer, thus, the correction was rightly disallowed---Pictures had become part and parcel of judicial record, thus, application for return of the same was rightly declined---Application of the petitioner qua medical examination of the respondent was also held to be unwarranted for the reason that after Rukhsati, the respondent remained with the petitioner for sufficient time and performed her marital obligations and the matrimonial ties between the parties had already been broken after consummation---Constitutional petitions were dismissed, in circumstances.

(b) Administration of justice---

----Law leans in favour of adjudication on merits rather than on technicalities.

Zia-ur-Rehman Tajik and Altaf Muhammad for Petitioners.

Syed Qaulb-e-Abbas for Respondents.

Date of hearing: 2nd February, 2023.

JUDGEMENT

SHAKEEL AHMAD, J.----Through this single judgment, we intend to decide the instant writ petition and connected Writ Petition bearing No. 169-P/2015, as not only the common questions of law and facts are involved therein, but both the petitions have also arisen out of one and the same order dated 07.02.2015, passed by the learned Judge Family Court/Senior Civil Judge, Abbottabad.

1. This and connected constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, call into question the legal correctness of order of the learned Judge Family Court/Senior Civil Judge, Abbottabad dated 07th February 2015 by which several applications moved by the petitioners were dismissed, while one application filed by the respondent No. 1 for summoning of Nikah Khawan, was accepted.

2. Brief facts leading to the filing of this petition are that marriage of the petitioner No. 1 and Salma Gul (respondent No. 1) was performed at Sheik-Ul-Bandi, Abbottabad on 02.11.2012 as per Muslim rites in lieu of dower amount of Rs. 200,000/- (two lac), however, she was divorced by the petitioner No. 1 on 24.02.2013, and after dissolution of marriage, she started living with her parents at Abbottabad. She brought a suit for recovery of her dower, maintenance allowance @ Rs. 10,000/- per month since January 2013 till May 2013 including period of Iddat, return of dowry articles as per list appended with the plaint, and in alternative its market value, and recovery of gold armament weighing 20 tolas or its market value, allegedly given to her as bridal gift in the Court of Senior Civil Judge/Judge Family Court at Abbottabad.

3. After service of summons, the petitioners put their appearance before the learned trial court, contested the lis by filing their written statements, raising therein many legal and factual objections. From divergent pleadings of the parties, issues were framed on 29.06.2013, and parties were directed to produce their evidence. In pursuance thereof, the respondent No. 1 produced all her witnesses and examined them in Court and closed her evidence on 17.09.2013. After closure of evidence, she submitted an application before the learned trial court for summoning of Nikah Khawan as her witness, simultaneously, the petitioners moved application for return of pictures, produced and exhibited in the statement of PW-1 as Ex.PW-1/2 to 1/7, petitioner No. 1 also filed an application for necessary correction in the examination-in-chief of PW1 and cross-examination of PW-2, and return of plaint for want of jurisdiction. The learned trial court, after providing right of evidence to the learned counsel for the parties, accepted the application of the respondent No. 1, and dismissed all the miscellaneous applications moved by the petitioners through single order dated 07.02.2015. Hence, these petitions.

4. It is worth mentioning that this and the connected constitutional petition was transferred to this Court vide order dated 17.06.2015, on the ground that one of the Hon'ble Judge of this Court (Mr. Justice Lal Jan Khatak) had remained as an associate of Mr. Arif Khan advocate, father of the petitioner. Regarding maintainability of this and connected Writ Petition No. 169-P/2015, the learned counsel representing the petitioners submitted that the constitutional petition is competent against an interim order passed by the Judge Family Court, as he was left with no remedy under the law except to file writ petition. He next submitted that on acceptance of application of the respondent No. 1 allowing her to produce Nikah Khawan as her witness is illegal as envisaged by section 7(2) of the Family Courts Act, 1964. He added that the learned Family Court at Abbottabad has no jurisdiction to take cognizance of the matter. He further submitted that the impugned order is not a speaking order in terms of section 24-A of the General Clauses Act, 1897. He lastly submitted that the impugned order suffers from legal infirmities, therefore, not sustainable in the eye of law.

5. As against that, the learned counsel for the respondent argued that the impugned order does not suffer from legal infirmity, therefore, needs no interference. He next argued that section 7(2) does not place embargo on calling of any witness whose name is mentioned in the list of witnesses and went on to say that name of Nikah Khawan is mentioned in the list of witnesses. He further argued that the marriage was solemnized at Abbottabad, and after dissolution of marriage, respondent No. 1 is still residing at Abbottabad, therefore, the Court at Abbottabad is competent to take cognizance of the matter. He lastly argued that once statement of a witness is recorded in the open Court and signed by the Presiding Officer, cannot be altered/modified, and no request for any change can be made in it, and prayed for dismissal of the instant and connected writ petition.

6. We have considered rival contentions of the learned counsel for the parties and perused the impugned judgment and material available on the record.

7. Adverting to question of jurisdiction of the judge Family Court, Abbottabad, urged before us, we find that there is no denial of the fact that the marriage between the parties was solemnized at Abbottabad, and after dissolution of marriage, she shifted to her parents' house at Abbottabad, and is residing within the territorial limits of judge Family Court at Abbottabad. The territorial jurisdiction of the Family Court is governed by Rule 6 of the Family Courts Rules, 1965, which reads as under:--

"6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which-

(a) the cause of action wholly or in part has arisen, or

(b) where the parties reside or last resided together:

Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."

1. A perusal of the proviso to Rule 6 of the West Pakistan Family Courts Rules, 1965, reflects that the proviso is limited to suits for dissolution of marriage or dower and enables the estranged wife to bring a family suit in a court, within the local limits, of which she ordinarily resides. The proviso to Rule 6 of the Rules ibid has been inserted to consider the convenience of the wife including the ex-wife involved in the suit. On this score, the finding of the learned trial court cannot be said to be erroneous or without lawful authority.

2. Turning to the point of calling of Nikah Khawan as a witness of the respondent No, 1, on the application moved by her. A plain reading of proviso to Section 7 of the West Pakistan Family Courts Act, 1964, reflects that it empowers the Court to call any witness and produce any document at any stage, if the court considers such evidence expedient in the interest of justice. Admittedly, the name of Nikah Khawan was mentioned in the list of witnesses. It gives ample power to the Court to call any witness whether named in the list of witnesses or not, much less to say the power to grant time for providing necessary particulars as to the evidence which the witness named in the list of witnesses would depose. Even otherwise law leans in favour of adjudication on merits rather than on technicalities. Since no prohibition exists in the Family Courts Act of 1964 for calling or production of witnesses even if his name is not mentioned in the list of witnesses. In our view, the learned counsel has not committed a legal error by calling Nikah Khawan as a witness for examination in the Court whose name is already available in the list of witnesses. In light of the discussion made hereinabove, we are of the view that the contention of the learned counsel for the petitioners seems to be based on misconception, therefore, cannot be entertained.

P L D 2025 Peshawar 59

Before S M Attique Shah, J

MUHAMMAD SAJJAD and others---Petitioners

Versus

RAMESH and others---Respondents

Civil Revision No. 975-P of 2021, decided on 11th April, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 8---Civil Procedure Code (V of 1908), Ss. 11, 115, O. VII, R. 11 & O. XI, Rr. 2, 3---Rejection of plaint owing to decision in the earlier suit on the basis of compromise---Res judicata, principle of---Scope---Application for rejection of plaint on the basis of res judicata filed by the petitioners along with their written statement in the latter suit for declaration, possession and partition instituted by the respondents was accepted by the Trial Court, however, the appellate court reversed the finding of Trial Court for the reason that the decision in the earlier suit was not conclusive having been taken on a compromise and not on merits---Validity---Principle of res judicata is based on the consideration that the same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties---Mere observation on a question of fact without proper adjudication in absence of evidence, would not operate as res judicata--- Besides, other grounds, the condition of a final decision on the merits of a dispute between the parties is of paramount importance---When litigation ended on the basis of a statement of parties, without conclusive determination of the disputed question of fact on merits between the parties, the same could at best be termed a decision on the basis of a compromise/settlement and under such circumstances the principle of res judicata would not attract to subsequent litigation---Doctrine of res judicata could only be applied when the previous lis/application or proceeding had directly or substantially decided the controversy between the parties on merits after recording their evidence---Except one of the respondents, none of the parties in the case remained parties in the earlier lis, thus, provision of O. XI, Rr. 2 & 3, C.P.C. was not attracted to that proceedings---High Court refused to exercise its revisional jurisdiction being narrow and limited in its scope and dismissed the civil revision, in circumstances.

Muhammad Saleem v. Additional District Judge, Gujranwala PLD 2005 SC 511 and Mubeen Rafeeq v. Rashid Ahmad PLD 2022 Sindh 449 rel.

Iftikhar Jan for Petitioner.

Rehmanullah for Respondents.

P L D 2025 Peshawar 62

Before Kamran Hayat Miankhel and Dr. Khurshid Iqbal, JJ

Mst. BENAZIRA BIBI---Petitioner

Versus

The STATE and 5 others---Respondents

Writ Petition No. 332-B of 2024, decided on 10th September, 2024.

Criminal Procedure Code (V of 1898)---

----Ss.169, 173 & 190(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Investigation report---Name in Column No. 2---Constitutional petition---Complainant was aggrieved of placing name of accused person in Column No. 2 of investigation report submitted by investigating officer in case of qatl-i-amd and attempt to commit qatl-i-amd---Validity---Under the scheme of investigation, the Police Officer was empowered to release an accused upon the execution of a bond if it appeared to him that there was insufficient evidence or reasonable ground of suspicion to justify forwarding the accused to a Magistrate as per S. 169, Cr.P.C.---However, of great importance was the fact that these powers were not analogous to those of the Trial Court, which evaluated the credibility of evidence---In cases where the prosecution and the defence evidence were in conflict, the Trial Court served as the ultimate forum to weigh palpably both sets of evidence on a judicial scale, determining which to rely on and which to discard---Subsection (3) of S. 173, Cr.P.C., empowered the Magistrate to make such orders for the discharge of the bond or 'otherwise' as deemed fit after receiving the police report showing that the accused had been released on bond---Ipse dixit of the police was not binding on the Court and the Court retained the ultimate authority to determine the fate of the accused, regardless of their names being placed in Column No.2 of the challan---Placing the name of the respondent/accused in Column No.2 of the challan was within the statutory powers of the officer-in-charge of the police station and, thus, no jurisdictional error had been established---Authority now rested with the Magistrate to make such orders, after going through the record, as deemed appropriate, either discharging the bond or otherwise---Release of the accused under S. 169, Cr.P.C. did not equate to acquittal, and neither the Magistrate nor the Trial Court was bound by the ipse dixit of the police without conducting an independent assessment of the record---As challan had already been submitted in the case, therefore, Court left it to the forum seized of the matter to pass such orders under the law as deemed appropriate in the circumstances of the case---Constitutional petition was accordingly dismissed in limine.

Sheikh Zahoor Ahmed v. The State and others 2023 PCr.LJ 1567; Yasir Khan v. Imtiaz and 2 others PLD 2013 Pesh. 46 and Pordil Khan v. State through Advocate-General, Khyber Pakhtunkhwa, and 11 others 2016 MLD 314 rel.

Masood Adnan for Petitioner.

P L D 2025 Peshawar 67

Before Muhammad Naeem Anwar and Shahid Khan, JJ

WAQAS KHAN and 2 others---Petitioners

Versus

The STATE---Respondents

Writ Petition No. 1308-M of 2022 (with Interim Relief), decided on 21st June, 2023.

Criminal Procedure Code (V of 1898)---

----S. 265-K---Honourable acquittal---Scope---Petitioners (three in number) one being a student and others intending to go abroad needed good character certificates that were issued by the concerned District Police Officer---Petitioners filed constitutional petition seeking issuance of Character Certificate without mentioning an extra note having a reference of a FIR having been registered against them as well as subsequent order of their acquittal ('the impugned note')---Reason/ basis, statedly, for impugned note was that though the petitioners had been acquitted in the said criminal case by the Court but in exercise of its powers under S. 265-K, Cr.P.C on the basis of a compromise---Contention of the petitioners was that though a compromise was effected between the parties, yet due to acquittal of an accused either way in a case, the FIR would certainly lose its effect; thus, impugned note was unreasonable and unjustified---Validity---Record revealed that though the petitioners were initially charged in the said FIR but subsequently, they had been acquitted by the competent Court of law under S. 265-K, Cr.P.C, on confirmation of a compromise---An acquittal in a criminal case ,either on the basis of merit or a compromise, is honorable acquittal and an acquittal on the basis of compromise could not be legally underestimated, therefore, all acquittal whether on the basis of merit or compromise are to be regarded and respected with the same yardstick---All acquittals if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove its case against the accused on the strength of evidence of unimpeachable character---All acquittals are certainly honourable---There can be no acquittals, which may be said to be dishonorable---Law has not drawn any distinction between these types of acquittals---In the present case the nature of allegations which were made against the petitioners in the FIR were not of moral turpitude or any allegations against the State or which affected the society at large as it was only a dispute between two individuals which ended up in a happy note as good conscious and truthfulness prevailed among them and as such they entered into a compromise and accordingly the petitioners had been acquitted---Though the petitioners were charged in the FIR but once they were acquitted by the competent Court of law then all the allegations levelled in the FIR were considered to be no more in existence and they were to be presumed, treated and regarded as innocent persons under the law, therefore, the factum of mentioning of the FIR and acquittal order on the basis of compromise in the impugned character certificates for police clearance were neither legal nor justifiable rather the same would amount to defeating the very purpose and effect of the acquittal order---High Court directed the concerned District Police Officer (respondent) to issue "Character Certificates for police clearance" to all the three petitioners without mentioning the impugned note---Constitutional petition was allowed accordingly.

Dr. Muhammad Islam v. Government of Khyber Pakhtunkhwa and 2 others 1998 SCMR 1993 ref.

Shabir Ahmad Khan (Dawlatkhel) for Petitioners.

Syed Sultanat Khan, Asstt: A.G. along with Rashid Ahmad, DSP for Respondents.

P L D 2025 Peshawar 71

Before Ijaz Anwar and Muhammd Ijaz Khan, JJ

JUBILEE LIFE INSURANCE COMPANY LTD.---Petitioner

Versus

FEDERAL INVESTIGATION AGENCY (FIA) through Director General, Islamabad and 3 others---Respondents

Writ Petition No. 3419-P of 2023 with IR, decided on 22nd August, 2024.

(a) Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---

----R. 5---Inquiry and Investigation---Jurisdiction of Federal Investigating Agency ('FIA')---Scope---Powers of FIA regarding investigation are duly structured in Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---Federal Investigation Agency can only inquire and investigate certain offences either committed in connection with matters concerning Federal Government or for matters connected therewith.

(b) Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---

----R. 5---Insurance Ordinance (XXXIX of 2000), Ss. 121, 122, 124 & 156---Securities and Exchange Commission of Pakistan Act (XLII of 1997), S. 20---Dispute between insurance company and insured persons---Inquiry and Investigation---Whether Federal Investigation Agency had jurisdiction in the matter---Petitioner/Insurance company assailed initiation of inquiry proceedings by Federal Investigation Agency ('FIA') on the complaints of respondents/insured persons, pertaining to dispute over insurance amount---Validity---Besides having numerous other functions, Securities and Exchange Commission of Pakistan is also a regulator of business of insurance companies---Securities and Exchange Commission of Pakistan had taken up the case of respondents/insured persons with petitioner/company and proceedings for settlement between the parties were in progress while respondents/insured persons were not agreeing to amount which were released to them---If there was any genuine dispute between parties it could be resolved before forums provided under Insurance Ordinance, 2000---Such dispute could not be made a base for proceedings under penal criminal laws---Provisions of Insurance Ordinance, 2000 are special law which has to prevail over general law---Special mechanism has been provided for dealing with offences for contravention of Insurance Ordinance, 2000---High Court quashed inquiry proceedings initiated by FIA as the same was uncalled for and without lawful authority--- Constitutional petition was allowed, in circumstances.

The Murree Brewery Co. Ltd v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447; Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584; Pakistan Engineering Company Ltd through Managing Director and 2 others v. Director General, FIA Islamabad, and 3 others 2011 YLR 337; Muhammad Hammad ur Rehman Zafar v. Director, FIA Lahore and another PLD 2022 Lah. 177 and Oxford University Press, Peshawar v. Inayat-ur-Rehman and others 2021 SCMR 321 ref.

Ziaullah Khan and 5 others v. Government of Pakistan through Secretary Interior and others PLD 2022 Pesh. 122; State Life Insurance Corporation of Pakistan v. Commissioner Insurance, SECP and another 2017 CLD 1515 and Saeed Muhammad Shah v. Federal Investigation Agency and others 2017 SCMR 1218 rel.

Syed Hamid Ali Shah for Petitioner.

Barrister Rahat Ali Khan Nahaqi, Assistant Attorney General, along with Ms. Laila Manan, Sub-Inspector, FIA/ACC, Peshawar.

Younas Ali Shah for Respondents Nos. 3-4.

P L D 2025 Peshawar 84

Before S M Attique Shah and Syed Arshad Ali, JJ

MUHAMMAD ANWAR and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR through Chief Secretary and others ---Respondents

Writ Petition No. 1521-P of 2021, decided on 14th May, 2024.

Pharmacy Act (XI of 1967)---

----S.25---Khyber Pakhtunkhwa Drugs Rules, 1982, R. 18---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---License of Pharmacist, renewal of ---Category-B Pharmacists/Dispensers and Category-C Apprentices---Policy matter---Petitioners were aggrieved of refusal of authorities to renew their licenses on the ground that they were only Category-B Pharmacists/Dispensers and Category-C Apprentices, due to amendment made to Khyber Pakhtunkhwa Drug Rules, 1982---Validity---Amendment was brought in Khyber Pakhtun-khwa Drug Rules, 1982, in public interest as sale by non-qualified persons would endanger lives of public---Decision of Provincial Government to amend the rules was a policy matter of the Province and had been in the larger interest of people---Reasonable qualification was prescribed by law for entering into a lawful trade/business---In the year 1980, when rules were first passed, there was dearth of qualified pharmacists hence laxity in qualifications for drug retail license---Situation was substantially different and pharmacy graduates were neither hard nor costly to find---Prohibiting carrying of such business by unqualified person was in public interest and qualification so prescribed by government through legislation in question qualified the test of reasonableness---High Court declined to interfere in policy decision of Government---Constitutional petition was dismissed, in circumstances.

Judicial Review of Public Actions by Justice (R) Fazal Karim page-728; Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667; 83 US 36; 21 L Ed 394; Ganapati v. The State of Ajmir AIR 1955 SC 188; Cooverji v. Excise Commissioner AIR 1954 SC 220 and Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 ref.

Adeel Anwar Jehangir for Petitioners.

Muhammad Bashar Naveed, A.A.G. and Rahat Ali Khan Nahaqi, Assistant Attorney General along with Abbas Khan, D.G. Drugs and Ibrahim, Deputy Secretary Drugs for Respondents.

P L D 2025 Peshawar 97

Before Muhammad Naeem Anwar, J

Syed LEHAZULLAH---Petitioner

Versus

HOUSING DIRECTOR through Housing Director General and another---Respondents

Civil Revision No. 614-P of 2017, decided on 1st August, 2024.

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

----First Sched., Art. 164---Civil Procedure Code (V of 1908), O. IX---Setting aside ex-parte decree---Limitation---Once a person appears, participates in proceedings, submits written statement and later on absents himself from proceedings, which results into ex-parte decree, application for setting aside of such ex-parte decree will have to be submitted within a period of thirty days as provided in Art. 164 of the Limitation Act, 1908.

Shahid Pervez alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 ref.

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

----S. 12(2) & O. IX, R. 13---Dismissal of suit in default---Application for recalling of dismissal order---Dismissal of said application for non-prosecution---Subsequent application under S. 12(2) of C.P.C.---Maintainability---When the remedy under O. IX, R. 13, C.P.C. was availed and the application was dismissed for non-prosecution, the petitioner was required to submit the application for restoration of the application which was dismissed for non-prosecution, but he filed the application and had sought setting aside ex-parte decree through revival of the suit by filing an application under S. l2(2), C.P.C.---Application under S. 12(2), C.P.C. and revival of suit in consonance with sub-clause (2) of S. 12 is for an aggrieved person but on the ground of fraud, mis-representation and want of jurisdiction---Application under S. l2(2), C.P.C was not a substitute for the application for setting aside decree under O. IX, R. 13, C.P.C., rather grounds of the application under S. 12(2) C.P.C., were different to the application, which could be seen and adjudged within the four corners provided by the legislature---No doubt, suit of the respondent/plaintiff had been decreed against the petitioner ex-parte but due to lethargic attitude of the petitioner/defendant---Record also reflected that the suit of the plaintiff for recovery of a specific amount was also dismissed for non-prosecution---No doubt, in appropriate cases, application filed under S. l2(2), C.P.C., required submission of written reply, framing of issues and recording of evidence but not in each case, as it depended upon facts and circumstances of each case---Revision was dismissed with costs accordingly.

Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Mrs. Anis Haider v. S. Amir Haider and others 2008 SCMR 236 and Ghulam Muhammad v. Ahmed Khan 1993 SCMR 662 ref.

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

----S. 12(2)---Dismissal of suit in default---Application for recalling of the dismissal order---Dismissal of said application for non-prosecution---Subsequent application under S. 12(2) of C.P.C.---Application under S. 12(2) of C.P.C was concurrently rejected---Pendency of revision petition before the High Court for a long time due to conduct of revision petitioner---Effect---Costs, imposition of---High Court observed that frivolous litigations are initiated by parties without any locus standi---Present case was one of the classic examples where present application remained pending before this (High) Court for the last six years where on each date, the petitioner requested adjournment---On one hand, frivolous litigation may cause and increase the backlog and on the other hand, it creates hurdle in smooth administration of justice and for such like matters it was held time again by the Superior Courts that incompetent petition requires its burial from its inception---Petitioner had availed remedy under O. IX, R. 13 and lastly, he filed application under S. 12(2), C.P.C. which was not maintainable---Hence, it was rightly dismissed by the lower Court---In wake of the conduct of the petitioner for the last six years, costs of Rs. 50 000/- was imposed on him, to be recovered by the Executing Court along with decreetal amount---Revision was dismissed with costs accordingly.

Nemo for Petitioner

Ms. Neelam A. Khan for Respondents.

P L D 2025 Peshawar 103

Before S M Attique Shah, J

MUHAMMAD ASHIQ KHAN and another---Petitioners

Versus

MUHAMMAD DAUD and others---Respondents

Writ Petition No. 575-P of 2020, decided on 27th May, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42, 8 & 54---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.3---Shamilat-Deh---Partition---Suit for declaration, possession and permanent injunction---Jurisdiction of Civil Court to entertain a suit for declaration---Scope---Exclusion of certain land from operation of Land Revenue Act, 1967 (Act, 1967)---Petitioners claimed their share in the Shamilat-Deh by way of instituting a suit, which was dismissed for want of non-impleadment of necessary and proper parties---Appeal preferred by the petitioners was partially accepted by declaring them co-sharer to certain extent and no declaratory decree was passed for the reason that since the subject matter of the suit was Shamilat-Deh, therefore, Civil Court had no jurisdiction to entertain the suit---Validity---Question of jurisdiction of the Civil Courts or Revenue Courts established under the provisions of Land Revenue Act, 1967 (Act, 1967) in the matter of Shamilat lands depends upon the nature of the property---Disputed property was admittedly recorded as Ghair Mumkin Abadi in the revenue record, thus, Revenue Courts established under the Act had no jurisdiction to entertain the suit, as the jurisdiction of Revenue Courts was only confined to the lands which were used for agricultural or ancillary purposes and assessed for land revenue, which was certainly not the case of the petitioners---Property in dispute being Shamilat land and comprised of Ghair Mumkin Abadi was excluded from the operation of the Act, 1967 in terms of S.3 of the Act, 1967, and as such the same fell within the jurisdiction of Civil Court, albeit, for maintaining suit for declaration in the matters of Shamilat-Deh filed under S.42 of the Specific Relief Act, 1877, the entire proprietary body of the village was required to be impleaded being necessary and proper party, as no effective decree could be passed without their impleadment in the suit---Constitutional petition was allowed, in circumstances, while remitting the matter to the Trial Court with the direction to allow the petitioners to file an application for impleadment of the entire proprietary body of the village being necessary and proper parties in the array of defendants in the suit.

Fayaz and others v. Muhammad Haneef (Civil Revision No. 700-P of 2022); Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC 9; Rabnawaz and others v. Akbar Ali and others 1989 SCMR 93; Atta Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCMR 138; Sher Hassan's case (Civil Revision No. 552-P/ 2020); Ghulam Rasool v. Ikram Ullah PLD 1965 Lah. 429; Muhammad Arif and others v. Nawab and others 1997 SCMR 1792 and PLD 2019 SC 297 rel.

Asif Ali Shah for Petitioners.

Shehzad Gul Khattak for Respondents.

P L D 2025 Peshawar 110

Before Ijaz Anwar and S M Attique Shah, JJ

AKRAM KHAN DURRANI---Petitioner

Versus

Malik ADNAN KHAN and others ---Respondents

Writ Petition No. 4508-P of 2024, decided on 19th September, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 142 & 155(2)---Constitution of Pakistan, Arts. 199 & 225---Constitutional petition---Election results for general seat of Provincial Assembly---Interlocutory orders, assailing of---Petitioner/returned candidate assailed election proceedings challenging his election result---Validity---Appeal under S. 155(2) of Elections Act, 2017 lays to High Court against final decision of Election Tribunal, in cases where challenge is thrown to election of a local government---Elections Act, 2017 has purposely not provided for a forum to challenge interlocutory orders of Election Tribunal---Jurisdiction of other forums has been barred under Art. 225 of the Constitution, when election dispute is proceeded in Election Tribunal---High Court declined to interfere in the proceedings before Election Tribunal---Constitutional petition was dismissed, in circumstances.

Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233; Shella B. Charles v. Election Tribunal and another 1997 SCMR 941; Rashida Yaqoob v. Election Tribunal and others 2017 CLC Note 17; Muhammad Ijaz Ahmad Chaudhry v. Election Tribunal and others 2014 CLC 542; Habib Bank Limited v. Judge, Banking Court and others 2015 CLD 1875; Ali Adnan Dar through Attorney v. Judge, Family Court and others PLD 2016 Lahore 73; Mian Aurangzeb Noor v. Rent Controller, Lahore and others 2012 CLC 1729; Muhammad Abdullah Yousaf and others v. Miss Nida Ayub and others PLD 2005 SC 252; Shaikh Ala-ud-Din v. Election Tribunal, Lahore High Court, Lahore and others 2009 YLR 1930; Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and others PLD 2008 SC 429; The President, All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Dur Muhammad Khan Nasar and others v. Muhammad Shafiq Tareen and others PLD 2014 Bal. 152; Bilal Akbar Bhatti v. Election Tribunal, Multan and others PLD 2015 Lah. 272 and Muhammad Asim Kurd alias GAILOO v. Nawabzada Mir Lashkari Khan Raisani and others 1999 SCMR 689 ref.

Anwar-ul-Haq for Petitioner.

Shumail Ahmad Butt for Respondents.

P L D 2025 Peshawar 116

Before Muhammad Ijaz Khan and Muhammad Faheem Wali, JJ

JUNAID AHMAD---Petitioner

Versus

The STATE---Respondent

Writ Petition No. 1027-A of 2024, decided on 3rd December, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 35, 397 & 561-A---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Separate trials for the same offence---Concurrent running of sentences---Scope---Section 397, Cr.P.C provides that even if an accused person was sentenced in two or more cases and tried separately, in such eventuality, such sentences could be ordered to run concurrently---Applying the said yardstick to the case of petitioner, the case of the petitioner would be covered under S. 397, Cr.P.C., as he too had been convicted for the same kind of offence in different trials---In case earlier conviction was not brought to the notice of the Court at the time of handing down the subsequent conviction/sentence, the Trial or Appellate/Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial was announced in exercise of its inherent jurisdiction under S. 561-A, Cr.P.C., read with S. 397, Cr.P.C., provided of course, where the trial, or Superior Courts of appeal have specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively---Thus, there remains no doubt that the High Court has jurisdiction under S. 561-A read with S. 35 and or S. 397, Cr.P.C., as the case may, to order such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently---Section 397, Cr.P.C, shows that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently---In such eventuality, the Court has wide power to direct that sentences in one trial would run concurrently---Provision of S. 397, Cr.P.C., conferred wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one---Thus, extending the beneficial provision in favour of the appellant would clearly meet the ends of justice---Constitutional petition was allowed and High Court directed that sentences of the petitioner shall run concurrently instead of consecutively.

Rahib Ali v. The State 2018 SCMR 418; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 and Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and others PLD 2015 SC 15 rel.

Dr. Muhammad Saqib Lughmani for Petitioner.

Arbab Ifrahim, Assistant Advocate General for the State.

P L D 2025 Peshawar 120

Before Shakeel Ahmad and Dr. Khurshid Iqbal, JJ

NASIR MAHMOOD, REGIONAL OPERATIONS' CHIEF, HBL and others---Petitioners

Versus

KAMRAN KHAN and another---Respondents

Criminal Appeal No. 1453-P of 2019, decided on 13th November, 2024.

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss. 15, 16 & 17(2)---Criminal Procedure Code (V of 1898), Ss. 404 & 423---Order of Consumer Court---Appeal---Maintainability---High Court, jurisdiction of---Right to appeal under S. 17(2) has been extended to all orders of the Consumer Court, including those under S. 15---Since the Act, 1997, did not provide any procedure governing the appeals at the appellate stage, the reference to the Criminal Procedure Code, 1898, is purely procedural, aimed at ensuring an effective and consistent framework at the appellate stage---Bar created by S. 404, Cr.P.C does not apply to appeals under S. 17(2) of the Act, 1997, as the latter, being a special law, expressly provides the right to appeal to the High Court---Inclusion of the phrase "mutatis mutandis" pertains solely to procedural aspects and does not subject the appeal to the bar under S. 404, Cr.P.C.---Furthermore, S. 3 of the Act, 1997 underpins this view by providing that its provisions are in addition to and not in derogation of, any other law for the time being in force---Said facts imply that the right of appeal under the Act operates independently of the bar imposed by S. 404, Cr.P.C. thereby supplementing the existing legal framework rather than being subordinate to it---Therefore, the explicit statutory right in S. 17(2) of Act, 1997 carves out an exception to the general bar imposed by S. 404, Cr.P.C.---Order accordingly.

All Swat Paper Chips and Pops Owners Association, District Swat through President v. Bakht Afsar Ex-DEO, District Shangla Amir Jumat Islami PK-87 Shangla and 5 others 2019 PCr.LJ 225 ref.

Ali Gohar Durrani for Appellants.

Nemo for Respondents.

Niaz Muhammad, A.A.G. for the State.

P L D 2025 Peshawar 125

Before S M Attique Shah and Shakeel Ahmad, JJ

SHAZIA TEHMAS KHAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 1617-P of 2024, decided on 27th March, 2024.

(a) Separation of powers, doctrine of---

----Trichotomy of power is essential and important as it is a basic feature of the Constitution.

(b) Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988---

----R. 6---Constitution of Pakistan, Arts. 17, 65 & 199---Constitutional petition---Oath of elected representative---Freedom of association---Scope---Petitioners were notified as Members of Provincial Assembly on reserved seats, who were not administered oath before upcoming election of Senate---Validity---Oath is to Allah Almighty and surely not to the person who is administering such oath---Person who discharges such obligation only performs an administerial obligation required by the Constitution---When such person is incapable or is not willing to administer oath or when it is impracticable for him by any reason or he is avoiding to discharge such responsibility, then such person transgresses the Constitutional mandate bestowed upon him---Members of Provincial Assemblies constituted constituency for election of Senate and if petitioners were not administered oath, then the very constituency would remain incomplete which would be negation of Constitutional mandate---Non-administration of oath to petitioners would also amount to preventing them from exercising their right to vote which was also violative of the provisions of Art. 17 of the Constitution---High Court directed Chief Minister of Khyber Pakhtunkhwa and provincial Cabinet to take all material steps in terms of Art. 105 of the Constitution for summoning session of Provincial Assembly, so that oath was administered to petitioners in terms of Art. 65 of the Constitution before upcoming Senate elections---High Court directed Speaker of Khyber Pakhtunkhwa Assembly to administer oath to petitioners in the session to be requisitioned and also allow petitioners to sign Roll of Members in terms of Arts. 65 & 225 of the Constitution read with R. 6 of Provincial Assembly of Khyber Pakhtun-khwa Procedure and Conduct of Business Rules, 1988---Constitutional petition was allowed accordingly.

Chaudhry Pervez Elahi v. Deputy Speaker, Provincial Assembly of Punjab PLD 2022 SC 678; Pakistan Peoples Party Parliamentarian (PPPP) through its Secretary General and others v. Federation of Pakistan through, Ministry of Law and others PLD 2022 SC 574; Pakistan Muslim League v. Sardar Dost Muhammad Mazari and others PLD 2022 Lah. 469; Muhammad Hamza Shahbaz Sharif v. Federation of Pakistan and others PLD 2022 Lah 504; Muhammad Hamza Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Law and Justice and others PLD 2023 Lah. 105; Muhammad Irshad v. Government of Khyber Pakhtunkhwa through Local Government and others PLD 2016 Pesh. 170; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate and others v. Federation of Pakistan and others PLD 1997 SC 84; Watan Party and others v. Federation of Pakistan and others PLD 2011 SC 997; Messrs Mustafa Impex, Karachi v. Government of Pakistan through Secretary Finance PLD 2016 SC 808; State of Punjab v. Principal Secretary to the Governor of Punjab etc., decided on 10.11.2023 Writ Petition (Civil) No.1224 of 2003; Munn Hussain Bhatti, Advocate and others v. Federation of Pakistan and others PLD 2011 SC 407; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and others PLD 2012 SC 681 and Ch. Nasir Iqbal and others v. Federation of Pakistan through Secretary Law and others PLD 2014 SC 72 rel.

Amir Javed and Barrister Saqib Raza for Petitioners.

Sana Ullah, Deputy Attorney General for Federation of Pakistan.

Shah Faisal Utmankhel, Advocate General, Muhammad Bashar Naveed and Rahmat Ali Khan, A.A.Gs. for Provincial Government.

Samran Jehangir, Law Officer for Election Commission of Pakistan.

Ali Azim Afridi along with Mohsin Younis, Assistant Law Officer for Speaker Provincial Assembly.

P L D 2025 Peshawar 145

Before Wiqar Ahmad, J

Mian FAZL-E-KAREEM and others---Petitioners

Versus

KHAN MUHAMMAD and others ---Respondents

Civil Revision No. 556-P of 2016, decided on 19th October, 2023.

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

----Art. 112(2)---Judicial notice---Scope---Custom having force of law need not be proved separately in each case---Court may take judicial notice in accordance with Art. 112(2) of Qanun-e-Shahadat, 1984.

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

----Ss. 42 & 54---Suit for declaration and injunction---Share in inheritance---Wrong entries in revenue record---Effect---Petitioners/ plaintiffs claimed to be owners in suit property to the extent of Sharai share of their deceased predecessor-in-interest---Petitioners/plaintiffs assailed entries in revenue record in favour of respondents/defendants---Suit and appeal filed by petitioners/plaintiffs were dismissed by Trial Court and Lower Appellate Court respectively---Validity---In every Jamabandi brought on record, same position of self-cultivation of owners had been shown---Such entries expressly indicated that brothers of deceased predecessor-in-interest of petitioners/plaintiffs had been cultivating property in dispute---One of the petitioners/plaintiffs who appeared as witness affirmed that suit property was still in their possession---Petitioners/plaintiffs were in continuous possession of property in dispute and mere wrong entries in revenue record were deemed to be a refreshing cause of action with each repetition---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Courts below and decreed the suit in favour of petitioners/plaintiffs to the extent of Shari share of their deceased predecessor-in-interest---High Court directed revenue authorities to redraw entries in revenue record and enter inheritance mutation in respect of legacy of deceased predecessor-in-interest of petitioners/ plaintiffs---Revision was allowed accordingly.

Maqbool Ahmad and others v. Fazal-i-Haq and others 2012 SCMR 917; Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791; Fayyaz Hussain and others v. Haji Jan Muhammad and others 2018 SCMR 698; Feroz Khan and others v. Mir Azam and others (C.R. No. 1196-P of 2010); Salamat Ali v. Muhammad Din PLD 2022 SC 353; Saadat Khan and others v. Shahid ur Rehman and others PLD 2023 SC 362; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974 ref.

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

----S. 115---Revisional jurisdiction---Concurrent findings of facts by two Courts below---Scope---Revisional Court is not supposed to follow wrong findings of facts of two Courts below and to become contributory thereto.

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

----S. 115---Revisional Court---Moulding of relief---Scope---Civil Court or Revisional Court has jurisdiction to mould relief.

Syed Shahid Shah for Petitioners

Muhammad Shoaib Khan for Respondents.

P L D 2025 Peshawar 155

Before Muhammad Faheem Wali, J

SULTAN-UL-ARIFEEN and 15 others---Appellants

Versus

Mst. MUSARRAT SHAHEEN and 28 others ---Respondents

R.F.A. No. 39-A of 2019, decided on 10th October, 2024.

Land Acquisition Act (I of 1894)---

----Ss. 18, 30 & 54---Acquisition of land---Compensation---Entitlement---Private partition---Effect---Referee Judge accepted objections of respondents and held them entitled to compensation as co-sharers---Validity---Property was privately partitioned and as a result of such partition, all co-owners were assigned specific portions of properties---Such private partition was further strengthened through mutation and after getting their specific portions of holdings, the parties remained in constant possession in exclusion of other co-owners---Private partition was a bona fide transaction and no co-owner ever questioned its validity---As a result of such private partition, respondents/objectors were given property which was later on acquired---Petitioners were excluded from questioning such private settlement---Referee Judge had rightly held that respondents/objectors were entitled to receive amount of compensation of land by answering reference under S. 30 of Land Acquisition Act, 1894, in positive---High Court in exercise of appellate jurisdiction declined to interfere in the order passed by Referee Judge---Appeal was dismissed, in circumstances.

Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514; Muhammad Sarwar v. Zulfiqar and others 1998 SCMR 592; Mst. Zakia Begum v. Nadir Khan and 40 others 2011 YLR 1397; Principles and Digest of the Law of Evidence, by Justice Monir Vol. II, Pakistan Edition at page 1296; Muhammad Munawar Bajwa v. Mst. Zubera Shaheen and another 2004 CLC 441 and Irshad alias Abdul Rahim and 2 others v. Ashiq Hussain PLD 2007 Kar. 421 ref.

Junaid Anwar Khan and Zia Muhammad Khan for Appellants.

Muhammad Rafique Yousaf for Respondent.

P L D 2025 Peshawar 163

Before Ishtiaq Ibrahim, C.J. and Sahibzada Asadullah, J

SHANDANA GULZAR KHAN---Petitioner

Versus

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

Writ Petition No. 1465-P of 2024, decided on 27th June, 2024.

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

----S.160---Constitution of Pakistan, Art. 199---Notice of appearance issued by Federal Investigation Agency (FIA)---Territorial jurisdiction of Peshawar High Court---Scope---Notice of appearance---Petitioner was aggrieved of notice under S.160, Cr.P.C. issued by FIA in connection with a criminal inquiry against her---Action of a Constitutional or Federal Authority that affected a person or group of persons in a particular Province could be challenged in the High Court of the Province in Constitutional jurisdiction under Art. 199 of the Constitution where the cause of action arose, or the effect was received/suffered, regardless of the location of the head-office of such Authority---No doubt FIA was a Federal institution/body and the impugned notice had been issued by the FIA Cyber Crime (Lahore), but the petitioner being permanent resident of (Peshawar) Khyber Pakhtunkhwa, and an MNA and affected by the impugned notice in that Province, could question the impugned notice before Peshawar High Court, particularly, in the circumstances when it was not certain from record that from where the alleged material was generated, uploaded and made viral on the alleged twitter Account of the petitioner---In that view of the matter, Peshawar High Court had got the territorial jurisdiction to entertain the instant petition---Petition was allowed, in circumstances.

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

----S.160---Constitution of Pakistan, Art. 10A---Notice of appearance issued by Federal Investigation Agency (FIA)---Petitioner was aggrieved of notice under S.160, Cr.P.C., issued by FIA in connection with a criminal inquiry against her---Petitioner contended that she was being unfairly targeted for political reasons under the guise of prosecution---Petitioner claimed that the complaint supposedly triggering the issuance of the impugned notice was highly questionable, lacking crucial details such as a date, diary receipt number and essential information regarding the alleged offence and place of occurrence; that it merely summarized the accusation as a "highly intimidating campaign against State functionaries and creating violence in public and society through information system."---In the comments the respondents had furnished allegations of the complaint against the petitioner which were totally different from the one mentioned in the impugned notice---Held, that according to the principles of natural justice, constitutional provisions and statutory safeguards, an authority must promptly notify an individual of the charges against him/her allowing adequate time to prepare a defence or gather evidence, as necessary---Impugned notice was excessively ambiguous, making it difficult to provide a suitable response---Federal Investigation Agency, while adhering to the directives of the Islamabad High Court, issued a circular outlining the essential protocols to be followed by the Agency when issuing processes, etc.---Among the directives to be followed by the FIA and its functionaries in conducting investigation etc. was one specifying the obligation to inform the summoned individual about the essence of the allegation, etc.---Upholding the principle of natural justice, one of the oldest tenets, it was imperative that individuals were promptly informed of the specific charge or allegations against them at the outset of any legal proceedings---An executive body tasked with investigating offences bore both moral and legal obligations to proceed with caution, diligence and respect for the constitutional rights of the public---Authoritatively summoning an individual without adequately informing him of the nature of the charge represented the misuse of power, which was unequivocally prohibited in a well-functioning justice system---Impugned notice was issued in violation to petitioner's fundamental right to due process of law---Mechanism adopted by the respondents being against the law smelled of mala fide on their part, therefore, the impugned notice was liable to be set at naught---Courts normally do not interfere in the matter when it is in investigation phase, but when mala fide is floating on the face of record then in such like situation the Courts cannot sit as silent spectators---Petition was allowed by setting aside the impugned notice.

Federal Government through Secretary Interior Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; 2017 PCr.LJ 1540; 2016 PCr.LJ 1056; pld 2020 Sindh 9; 2021 MLD 1330 and 2022 PCr.LJ 245 ref.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903; Anwar Ahmad Khan v. The State 1996 SCMR 24; Shahnaz Begum v. Honourable Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008 and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro 2010 SCMR 624 rel.

Muhammad Muaazam Butt and Bassam Ahmad Siddiqui for Petitioner.

Sana Ullah, D.A.G. for Respondents along with Ali Raza SI, Nand Lal, AD (Investigation), CCRC Lahore and Arshad Iqbal, AD (Legal).

P L D 2025 Peshawar 177

Before Ijaz Anwar and Syed Arshad Ali, JJ

Syed MASOOD HUSSAIN SHAH and others---Petitioners

Versus

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

Writ Petition No. 2662-P of 2024 with I.R., decided on 3rd July, 2024.

(a) Interpretation of statutes---

----Rights of subjects---Scope---Statute which transgresses on the rights of a subject whether as regards his person or property, should be construed, if possible, in such a way that it may preserve such rights.

Crawford, "Statutory Construction" Page 474, Understanding Statute, Page 258 and The State v. Syed Qaim Ali Shah 1992 SCMR 2192 rel.

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

----S. 24-A---Speaking order---Object, purpose and scope---Statutory authority dealing with rights of people whether exercising judicial or quasi-judicial functions, while passing any order under any statute, is required to give reasons for passing that order---Reasons must confirm that statutory authority while passing an order has considered the matter as required by statute conferring power to it to pass such order and it is satisfied that the circumstances exist which are prerequisite for passing such order---Such reasons must be reflected from the contents of the order---Any vague order of a statutory authority, though authorized under the law to pass the order, is nullity in the eye of law.

R v. HEFC, ex parte Institute of Dental Surgery (1994) 1 WLR 242 rel.

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

----S. 12(a)---Word "reasonable"---Object, purpose and scope---Word "reasonable" itself attracts judicial process of ascertainment of quality of consistency with reasons---Word "reasonable" excludes subjective satisfaction and in judging whether a restriction is reasonable, an objective standard, that is, the standard of average prudent man has to be applied.

Muhammad Amin Muhammad Bashir Limited v. Government

of Pakistan through Secretary Ministry of Finance, Central

Secretariat, Islamabad and others 2015 SCMR 630 and PLD 1964 SC 673 rel.

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

----S. 12(a)---Words "his property"---Applicability---Words "his property" occurring in S. 12 of National Accountability Ordinance, 1999 cannot be given wider meaning as to include any of the property owned by accused---Such words have to be restricted only to those assets or properties of accused which are subject matter of investigation---If wider meaning is given to it as to include any of the property of accused then it has the effect of enlarging scope of National Accountability Ordinance, 1999 to those properties of accused, the acquisition whereof is no offence under National Accountability Ordinance, 1999---Penal statute has to be construed strictly to preserve the rights of citizens.

The State v. Syed Qaim Ali Shah 1992 SCMR 2192

and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

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

----S. 12---Freezing of property---Exercise of power---Essential conditions---Essential conditions for invoking S. 12 of National Accountability Ordinance, 1999 in a case are; (i) the power under S. 12 can be exercised by Chairman NAB (delegatee) or the Court trying an accused for any offence as specified under National Accountability Ordinance, 1999; (ii) there must be reasonable grounds for believing that accused has committed an offence under National Accountability Ordinance, 1999; (iii) the reasons for such belief of his must be provided in the order; and (iv) property/assets so frozen by the order under S. 12 of National Accountability Ordinance, 1999 must have some nexus with alleged crime of accused being investigated.

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

----S. 12---Constitution of Pakistan, Arts. 18 & 23---Constitutional petition---Freezing of accounts---Confirmation by Accountability Court---Petitioners/accused persons were aggrieved of freezing of all their bank accounts including those having no nexus with investigation---Validity---Accounts of petitioners/accused in question had no connection with alleged inquiry/investigation being conducted by NAB, and if said accounts remained frozen then it would have an adverse effect on execution of the contract as it would hamper mode of receiving payment from the employer as well as payment to employees and payment towards other contractual obligations of petitioners/accused---Defense offered by petitioners/accused persons required evidence---Orders passed by Chairman NAB neither contained any reasons nor he had mentioned in the orders any relevance of amount allegedly earned by petitioners through corruption and corrupt practices with the accounts so frozen---So far guilt of petitioners/accused persons had not been established---Harsh order of NAB authorities had the effect of depriving both the petitioners / accused persons of carrying on lawful trade as well as right to hold property in terms of Arts. 18 & 23 of the Constitution---Orders of NAB authorities were unreasonable, harsh, deficient in its contents and incorrect in its result---Freezing orders were an offhand decision by NAB authorities which completely lacked essential attributes of S. 12 of National Accountability Ordinance, 1999, and were not sustainable in the eye of law---High Court declared that orders passed by NAB authorities followed by orders of Accountability Court were illegal and without lawful authority---Constitutional petition was allowed, in circumstances.

Dr. Muhammad Azam Kasi v. The State through Deputy Prosecutor-General Accountability Court No.1, NAB, Quetta 2012 PCr.LJ 1950; Shah Rukh Jamal v. National Accountability Bureau, Islamabad and others PLD 2022 Isl. 1; Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903; Mst. Rukhsana Bangash v. Chairman, National Accountability Bureau (NAB) and 4 others 2021 PCr.LJ 1813; Messrs Memom Motors Private Limited through Genral Manager v. National Accountability Bureau through Chairman and 2 others 2014 PCr.LJ 1378; Ehsan Ullah Sirazai and another v. Director General (Karachi) National Accountability Bureau and another PLD 2018 Sindh 696; Haji Muhammad Arif Khattak and 2 others v. Chairman/ Director General, National Accountability Bureau and another PLD 2018 Pesh. 207; Adam Amin Chaudhry and another v. National Accountability Bureau (NAB) Islamabad through Chairman and 29 others 2023 PCr.LJ 1536; Pir Mazharul Haq v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Mansur ul Haque v. Government of Pakistan PLD 2008 SC 166; Fazlul Qader Choudhury v. Crown PLD 1952 FC 19; Ch. Abdul Malik v. The State PLD 1968 SC 349; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; United Business Lines, S.I.E. Gujranwala and another v. Government

of Punjab through Secretary, Local Government, Lahore and 5 others PLD 1997 Lah. 456 and Messrs Chenab Cement Product (Pvt.) Ltd.

and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672 rel.

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

----Ss. 12 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Freezing of bank accounts---Alternate and efficacious remedy---Scope---During pendency of objection petitions before Accountability Court, petitioners/accused persons assailed orders passed by NAB officials freezing all their bank accounts including those which were not subject matter of inquiry and investigation before NAB---Objection was raised by NAB to maintainability of Constitutional petition on the ground that S. 13 of National Accountability Ordinance, 1999 provided mechanism for receiving and adjudication of an objection by any person aggrieved by freezing order passed under S. 12 of National Accountability Ordinance, 1999, and such objection petition was already pending before Accountability Court---Validity---Almost 75 bank accounts of petitioners/accused persons had been frozen by NAB authorities without realizing that those accounts related to existing business activities of petitioners/ accused persons, in which not only pecuniary interest of petitioners/ accused persons were involved but the accounts related to their business activities regarding execution of public contracts and huge interest of the government/semi government organization were also involved---Remedy under S. 13 of National Accountability Ordinance, 1999 was merely illusory---It was not a settled rule that in all circumstances availability of an alternate remedy to an aggrieved person would be a bar for maintaining Constitutional petition---High Court overruled the objection of NAB authorities---Constitutional petition was held to be maintainable, in circumstances.

Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranawala and others PLD 2014 Lah. 221 and Adamjee Insurance Company Ltd v. Muhammad Ramzan and others PLD 2020 SC 414 rel.

Shumail Ahmad Butt and Barrister Qasim Wadoud for Petitioners.

Syed Azeem Dad, D.P.G. and Muhammad Ali, A.D.P.G. for Respondents.

P L D 2025 Peshawar 201

Before Ijaz Anwar, J

MADAD KHAN---Petitioner

Versus

Mst. SAMIYA NISAR and others ---Respondents

Writ Petition No. 5340-P of 2024, decided on 11th April, 2025.

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

----S.25---Custody of minor---Visitation rights of father---Scope---Real parents have an inherent right to meet and visit their children---Visitation schedule of minor with non-custodial parent, settlement of---Welfare of minor is of paramount consideration in custody matters---The petitioner (father) filed a suit for custody and visitation rights of his minor son whose temporary custody was with the respondent No.1 (mother)---Despite an already given schedule for visitation the Family Court declined enforcement of the visitation schedule citing the child's reluctance and panic attacks at the prospect of meeting his father---Aggrieved by the said order, the petitioner filed an appeal whereby appellate court set aside the Family Court's order and restored the father's visitation rights---Despite scheduling of visitation schedule by the High Court in an earlier petition, Trial Court did not enforce the schedule, citing the child's aversion to the father---However, the appellate court, considering all prior orders and welfare of the child, reinstated the father's right of visitation---Validity---Welfare of the child was of paramount consideration in any decision regarding custody or visitation rights, however, at the same time, non-custodial parent's inherent right to maintain relationship with his child could not be ignored---This right was crucial for the emotional and psychological development of the child---Denying visitation rights could lead to emotional deprivation and parental alienation syndrome, where the child could develop negative feelings towards the non-custodial parent due to lack of interaction---It was the duty of courts to evaluate the potential impact of visitation on the child's well-being, especially if there were concerns about the child's mental health or safety---In cases where there were concerns about the child's safety or well-being, courts could impose conditions on visitation which could include supervised visits, the presence of a mental health professional or the requirement for the non-custodial parent to provide surety bonds to ensure the child's safe return---High Court upheld the findings of the appellate court with direction to chalk out a visitation schedule---Constitutional petition was disposed of, in circumstances.

Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991; Nutan Gautam v. Prakash Gautam 2019 INSC 467 and Sanghamitra Ghosh v. Kajal Kumar Ghosh 2006 INSC 864 rel.

Hap Nawaz v. Mst. Zeba Rasheed and others 2023 YLR 816; Mst. Muneeba Raheel v. Raheel Taufiq 2020 CLC 1353; Mst. Hira v. Additional Sessions Judge, Hyderabad and another 2019 MLD 804; Mst. Maryam Masood v. Mughisuddin Mirza 2009 CLC 1443; Mst. Avesha Abdul Maleek v. Additional District Judge, Sahiwal and others 2020 YLR 401; Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi 1989 CLC 1377; Shahida Adnan v. Additional District Judge and others 2021 YLR 1915 and Abeera Khan v. Adnan Jameel 2019 CLC 1478 ref.

Shahid Naseem Khan Chamkani for Petitioner.

Saifullah Muhib Kakakhel for Respondents..

P L D 2025 Peshawar 206

Before Dr. Khurshid Iqbal and Inam Ullah Khan, JJ

ABDUL WAQEEL and others---Petitioners

Versus

The STATE and others---Respondents

Writ Petition No. 351-D with C.M. No. 391-D of 2024 and Writ Petition No. 597-D with C.M. Nos. 653 and 675-D of 2024, decided on 13th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Registration of cross-version in presence of FIR, registered by Federal Investigation Agency (FIA)---Legality---Petitioners filed constitutional petition against the order passed by the Ex-officio Justice of Peace whereby on the application under S.22-A, Cr.P.C., filed by respondent, the concerned SHO was ordered to record her (respondent's) cross-version---Allegation/assertion of the respondent was that on fateful day, he was at his shop along with his uncle, the petitioners arrived in two vehicles, armed with firearms; that the petitioners allegedly abused and assaulted his uncle, stole Rs. 1,600,000 from the shop, took important documents and forcibly snatched mobile phones and Rs. 5,000 from his pocket and abducted his uncle---Respondent claimed that he reported the incident the same day via daily diary No. 22, but no action was taken---Consequently, respondent approached the Ex-officio Justice of Peace, leading to the issuance of impugned order---Validity---In the instant case, the FIR had already been registered by the FIA against the respondents' party---FIA operated under its special laws, including the Federal Investigation Agency Act, 1974, and was primarily responsible for investigating offenses related to federal statutes, including cybercrimes, financial frauds, human trafficking, and offences under special laws---On the other hand, local police operated under the Code of Criminal Procedure, 1898, (Cr.P.C.) and the Pakistan Penal Code, 1860, (P.P.C.) for general criminal offenses---Since both agencies function in different spheres, the clubbing of a complaint as a cross-version in a case already registered under FIA's domain raised legal and procedural complications---Ex-Officio Justice of the Peace, under S. 22-A(6), Cr.P.C, had the power to direct Police Officials to register FIR if a cognizable offense was made out---However, that power generally applied to local police and did not automatically extend to specialized investigation agencies like FIA, NAB or ANF unless a particular law permitted it---Moreover, cross-version cases were typically entertained where both versions would fall under the same jurisdiction (i.e., within the police domain)---Justice of Peace might have overstepped jurisdiction by directing that FIA-registered FIR be clubbed with another complaint as a cross-version case when the agencies had separate investigative mandates---Legally, FIA case could not be merged with a case investigated by local police since both agencies derived their authority from different legal frameworks---Thus, unless the allegations in the cross-version complaint related to the same federal law under which the FIA's, FIR was registered, the Ex-officio Justice of Peace lacked jurisdiction to order such clubbing---Constitutional petitions were allowed, accordingly.

Mst. Sughran Bibi v. The State PLD 2018 SC 595; Ali Raza v. Additional Sessions Judge PLD 2020 Lah. 109; Mian Allah Nawaz v. The State 2019 SCMR 2009; Muhammad Sharif v. Federation of Pakistan PLD 2021 Isl. 16 and State v. Haji Naseer PLD 2022 SC 347 rel.

Muhammad Ismail Alizai, Chaudhry Muhammad Javed Akhtar and Haji Muhammad Shakeel for Petitioners (in both the petitions).

Ghulam Muhammad Sappal, Addl. A.G. for Respondents Nos. 1 and 4 to 7 (in W.P. No.351-D of 2024) and for Respondents Nos.1 to 4 (in W.P.No. 597-D of 2024).

Muhammad Saleem Khan Marwat for Respondent No.3 (in W.P. No.351-D of 2024).

Bahadur Khan Marwat for Respondent No.5 (in W.P.No.597-D of 2024).

P L D 2025 Peshawar 212

Before Naeem Anwar and Dr. Khurshid Iqbal, JJ

GUL MUHAMMAD KHAN---Petitioner

Versus

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

Writ Petition No. 4738-P of 2024, decided on 20th March, 2025.

Pakistan Army Act (XXXIX of 1952)---

----Ss.59 & 135---Pakistan Army Act Rules, 1954, R. 53 (1)---Criminal Procedure Code (V of 1898), Ss. 1 & 382-B---Constitution of Pakistan, Art. 199---Constitutional petition---Civil offence---Commencement of sentence---Pre-sentence custody, benefit of---Special law---Scope---Accused persons were convicted in trials under Pakistan Army Act, 1952 and they sought benefit of S. 382-B, Cr.P.C. to include pre-sentence period of their custody---Validity---As Pakistan Army Act, 1952 is a special law, the trials conducted thereunder are not governed by provisions of Criminal Procedure Code, 1898---Sentence of imprisonment, in terms of S. 135 of Pakistan Army Act, 1952 commences from the date on which original proceedings are signed by military court---Provision of S. 1, Cr.P.C. restricts application of Criminal Procedure Code, 1898 to any local or special law, or any special jurisdiction or power conferred or any special form of procedure prescribe by any other law for the time being in force---Provision of S. 1, Cr.P.C. defines the scope and application of Criminal Procedure Code, 1898 to ordinary and general offences and trials, while it places all special laws and jurisdictions outside of its ambit---Military courts had granted benefit of the provision to the convicts---Provision of S. 135 of Pakistan Army Act, 1952 constitutes a special law, whereas S. 382-B, Cr.P.C. is a general law---Distinction for extending benefit of S. 382-B, Cr.P.C. in cases under Pakistan Army Act, 1952 is that in general law it is mandatory for Trial Court to take into consideration the pre-sentence custody period in the light of the principles laid down by Supreme Court in case titled Shah Hussain v. The State reported as PLD 2009 SC 460 and the effect thereof has to be taken into account at time of release of convict by the authority with whom he was undergoing the sentence whereas in the later (Pakistan Army Act, 1952), the Court at the time of sentencing the accused considers the period in which he remained in custody as under trial prisoner within the parameters of S. 382-B, Cr.P.C., and when he is convicted, the benefit of S. 382-B, Cr.P.C. is extended to him and included in his sentence at the time of conviction---High Court declined to interfere in the matter as Military Courts had granted benefit of S. 382-B, Cr.P.C. read with R. 53(1) of Pakistan Army Act Rules, 1954---Constitutional petition was dismissed in circumstances.

Manthar alias Manoo v. Federation of Pakistan (Cr. Misc. Appl. No. D-107 of 2014) distinguished.

Azhar Iqbal v. The State and 4 others 2014 PCr.LJ 1387; Nabi Dar v. Registrar Court of Appeals, Judge Advocate General's Department, GHQ, Rawalpindi and 3 others PLD 2009 Quetta 27 and Shah Hussain v. The State PLD 2009 SC 460 rel.

Sadiq Ahmad, Farhan Ullah Shahbanzai, Irfan Ali Yousafzai, Abid Ali, Wasif Ullah and Muhammad Waqar for Petitioner.

Sana Ullah, Deputy Attorney General, Waqar Orakzai, Assistant Advocate General, Lieutenant Colonel Rizwan Akram, Assistant Judge Advocate General for Pakistan Army for Respondents.

Shumail Ahmed Butt, Amicus Curiae.

P L D 2025 Balochistan 1

Before Muhammad Hashim Khan Kakar, C.J. and Muhammad Aamir Nawaz Rana, J

YAR MUHAMMAD and 29 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Local Government Civil Secretariat, Quetta and others---Respondents

Constitution Petitions Nos. 1365 and 1446 of 2024, decided on 12th October, 2024.

(a) Balochistan Local Government Act (V of 2010)---

----S. 80---Constitution of Pakistan, Art.18---Freedom of trade, business or profession---Business of selling and purchasing of vehicles in show rooms----Sealing of vehicle show rooms of the petitioners without any regulation and licensing system---Legality---Trade of selling and purchasing vehicles and establishing motor show rooms was not within the purview of S.80 of the Balochistan Local Government Act, 2010 (Act) and Schedule, thus, restriction imposed by the District Administration was not only illegal, but also amounted to violation of the fundamental rights of the citizens guaranteed by the Constitution---Without any provision of granting license in the Act for running business of motor show rooms, and on highly misconceived grounds, the motor show rooms of the petitioners were sealed---Constitutional petition was allowed, in circumstances, after obtaining affidavits from the petitioners to the effect that their business would not disturb the road traffic in any manner.

(b) Constitution of Pakistan---

----Art. 199---Mala fide action of Executive---Judicial review---Scope---Executive has no inherent power except what is conferred on it by law---Every executive action must be justified by disclosure of the powers so vested in the Executive under the law and can always be subject to judicial scrutiny---All such actions must not only necessarily be intra vires the law i.e. the statute or regulations, whereunder they are purportedly taken, but at the same time such actions must be free from mala fide of fact and law---If any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights guaranteed by the Constitution, the executive Government is not empowered to frame a policy.

Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior PLD 2007 SC 642 and East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak) 41, 68 rel.

Muhammad Ali Attari and Muhammad Akram Shah for Petitioners (in Constitution Petition No. 1365 of 2024).

Zahoor Ahmed Baloch, Additional Advocate General assisted by Waqar Khan Kakar, Deputy Commissioner (Revenue), Quetta for Respondents (in Constitution Petition No. 1365 of 2024).

Syed Ayaz Zahoor and Mehnaz Hameed for Petitioners (in Constitution Petition No.1446 of 2024).

P L D 2025 Balochistan 9

Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ

NAFEESA REHMAN---Petitioner

Versus

The ELECTION TRIBUNAL BALOCHISTAN, QUETTA and 2 others---Respondents

Constitutional Petition No. 142 of 2024, decided on 7th February, 2024.

Elections Act (XXXIII of 2017)---

----S. 104---Constitution of Pakistan, Arts. 224, 225 & 226---Reserved seats for women in Assemblies---Nomination paper, late filing of---Effect---Petitioner/lady assailed the dismissal order passed by the Election Tribunal whereby dismissal order passed by the Returning Officer for the reserved seats for women in National Assembly as well as in Provincial Assembly was upheld---Election Commission of Pakistan (ECP) issued revised schedule for filing of nomination paper in the General Elections to be held on 08.02.2024---Petitioner submitted her application to the Returning Officer after six days of the cut-off date for filing of nomination paper; which application was rejected by the Returning Officer---Validity---It is the mandate of S. 104 of the Elections Act, 2017, that for the purpose of election on seats reserved for women and non-Muslims in an Assembly, the political parties contesting election for such seats shall, within a period fixed by the Commission for submission of nomination paper, file separate list of their candidates in order to priority for seats reserved for women and non-Muslims with the Commission or, as it may direct, with the Provincial Election Commission or other authorized officer of the commission, who shall forthwith cause such list to be published for information of the public---Subsection (7) of S. 104 of the Elections Act, 2017, further mandates that the candidate contesting election of the said reserved seats for women or non-Muslim shall submit the nomination papers and its annexures to Returning Officer appointed by the Commission in this behalf---Admittedly, the petitioner had not submitted her nomination papers on the said reserved seats for women within the cut-off date (i.e. 24.12.2023) and had filed her application after six days of cut-off date for seeking permission to file nomination papers, which was not permissible under S. 104 of the Elections Act, 2017, therefore, the said application was rejected by the respondent/Election Tribunal on justifiable reason following the provision of law and the Election Tribunal had also passed the order in accordance with law---Word "election" in Arts. 225 & 226 of the Constitution connotes the entire electoral process commencing with the issue of notification calling the election and culminating in the declaration of result, and the electoral process once started cannot be interfered with at any intermediate stage by the Court---Scheme of Constitution under Arts. 224 & 225 of the Constitution and the Elections Act, 2017, seems to be that any matter which has the effect of vitiating the election should be brought up only at the appropriate stage in an appropriate manner before the Special Tribunal and not otherwise---When law stipulate that something has to be done in a prescribed manner it must be done in that manner and should not be done otherwise---Constitutional petition was dismissed, in circumstances.

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Ltd PLD 2016 SC 995 and Human Rights Case No. 4668 of 2006 PLD 2010 SC 759 ref.

Bahlol Khan Kasi for Petitioner.

Shahzad Aslam, Asst: Director (Law), ECP for Respondents Nos.1 to 3.

P L D 2025 Balochistan 13

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

HAJJ ORGANIZERS ASSOCIATION OF PAKISTAN (HOAP) BALOCHISTAN ZONE through Executive Body Member---Petitioner

Versus

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

Constitutional Petition No. 1210 of 2024, decided on 30th September, 2024.

(a) Constitution of Pakistan---

----Art. 17---Trade Organizations Act (II of 2013), S. 14(3)(d)---Hajj Organizers Association of Pakistan---Holding of elections---Freedom of association---Scope---Petitioner/Hajj Organizers Association of Pakistan (HOAP) assailed notices issued by Director General Trade Organization (respondent), directing them to conduct elections of their office bearers within the scheduled time, while debarring the incumbent Members of Executive Committee from contesting the upcoming election---Contention of the petitioner was that the impugned notices were contrary to Art. 17 of the Constitution---Validity---Article 17 of the Constitution clearly manifests that every citizen shall have the right to form an association or union, but simultaneously it also enunciates that it is subject to reasonable legal restrictions imposed by the law---Similarly, holding of elections for the purpose of representation is also a fundamental right and requirement, which can neither be abridged or taken away nor it can be delayed without any lawful justification on the basis of lame pretext, thus such objection/ contention of the petitioner was misconceived---Constitutional petition was dismissed, in circumstances.

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

----Ss. 14(3)(d), 14(3)(e) & 21---Trade Organizations Rules 2013, R. 21(15)---Constitution of Pakistan, Art. 17---Hajj Organizers Association of Pakistan---Holding of elections---Incumbent debarred from contesting forthcoming elections---Legality---Petitioner/Hajj Organizers Association of Pakistan (HOAP) assailed notices issued by Director General Trade Organization (respondent), directing them to conduct elections of their office bearers within the scheduled time, while debarring the incumbent Members of Executive Committee from contesting the upcoming election---Contention of the petitioner was that not allowing the incumbent members of the executive committee to contest elections for the next tenure, was unjustified being violative of Art. 17 of the Constitution---Validity---Association of the petitioner was governed by Trade Organizations Act, 2013 ('the Act 2013')---Section 14(3)(d) of the Act 2013, inter alia, empowers the Regulator to watch and supervise any election held by or for the purpose of electing persons to the Executive Committee, whereas clause (e) of S.14(3) also enunciates that any person, committee or office bears of the trade organization in matters relating to the electoral process before the conduct of the election may approach the Regulator in appeal---Moreover, the Act 2013 also provides a remedy of appeal as contemplated under S. 21 of the Act 2013---Act 2013 was amended in the year 2022, wherein a number of amendments were made part of the Act 2013---Sub-rule (15) of R. 21 of the Trade Organization Rules of 2013 clearly contemplates that on completion of term, office bearers and members of the executive committee shall not be eligible to contest election or co-opt in any representative capacity in the trade organization for the next tenure, which straight away demolished the contention/argument of the petitioner that the members of executive committee of the organization could not be restricted to participate in the election for the second time for being violative of Art. 17 of the Constitution---Constitutional petition was dismissed, in circumstances.

Habibullah Nasar for Petitioner.

Khushal Khan Kasi, Assistant Attorney General ("A.A.G.") for Official Respondents.

P L D 2025 Balochistan 18

Before Rozi Khan Barrech, J

BIBI FAREEDA---Petitioner

Versus

JAN BIBI---Respondent

Civil Revision No. 75 of 2024, decided on 27th September, 2024.

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

----Ss. 42, 104, 151 & 152---Powers of courts under S.152, C.P.C. to correct clerical or arithmetical errors---Scope---Petitioner against auction of the property in execution proceedings preferred an appeal, which was allowed in the year 2021---Application filed by the petitioner under S. 152, C.P.C. in the year 2023 for correction of name of the appellant in the title of appeal was dismissed by the Appellate Court on the ground of delay of two years---Validity---There is no restriction on the power of the Court under Ss.151 & 152 of C.P.C. to correct the mistake in the plaint, judgment or decree, if the same occurs due to a bona fide mistake or oversight and the party is not found to be guilty of gross negligence---Mere fact that the petitioner sought correction after a lapse of a period of two years was not a valid ground to refuse the relief---Correction was not sought in the judgment and decree of Trial Court, rather the same was sought qua correction of the name in the title of appeal filed under S. 104, C.P.C., without prejudicing the other side---Constitutional petition was allowed, in circumstances.

(b) Administration of justice---

----Procedural law---Purpose and scope---All the rules of procedural law have been enacted for the purpose of administration of justice---Basic purpose of all the rules is to serve the administration of justice and they should be subordinate to it---Procedural law should not be construed strictly so as to put the parties to undue inconvenience because the principle object behind all legal formalities is to safeguard the paramount interest of justice---No one should be defeated merely on the basis of technicalities unless offering insurmountable hurdles---Legal technicalities should not be allowed to stand in the way of justice, which may lead to unsettlement and uncertainty of law.

Saifullah Baloch for Petitioner.

P L D 2025 Balochistan 21

Before Gul Hassan Tareen, J

SHAZIA JAFFAR and 4 others---Appellants

Versus

GENERAL PUBLIC and 2 others---Respondents

Succession Appeal No. 01 of 2023, decided on 13th November, 2023.

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

----Ss. 265 & 272---Application for grant of Letter of Administration---Term "District Delegate"---High Court may appoint such judicial officer within any district to act for the District Judge as Delegates to grant Letter of Administration in non-contentious case under S. 265 subsection (1) of the Succession Act, 1925; Judicial Officers so appointed are called "District Delegates".

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

----Ss. 286, Explanation & 272---Application for grant of Letter of Administration---Term 'contention'---Term 'contention is defined in Explanation of S. 286 of Succession Act, 1925, which (contention) means the appearance of any one in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.

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

----Ss. 265, 272, 286 & 288---Application for grant of Letter of Administration---Contentious case---District Delegate, powers of---Scope---Contention (objection) raised in the application---Scope and effect---Succession appeal was filed against the order passed by the District Delegate whereby the application made by the respondent for grant of Letter of Administration was allowed---Objection/contention of the appellants was that the respondent had divorced the deceased about 35 years back; as such, application made for grant of Letter of Administration was unjustified and mala fide---Validity---Under S. 272 of the Succession Act, 1925, the District Delegate may grant Letter of Administration in an application for grant of the same, in which there is no contention---In the present case, there was contention of the appellant, as such, the District Delegate could not have granted Letter of Administration under S. 286 of the Succession Act, 1925---District Delegate can only deal with non-contentious matter; as soon as, caveat is entered and proceeding becomes contentious, he loses his jurisdiction and therefore, cannot grant Letter of Administration---In contentious cases, S. 288 of the Succession Act, 1925, provides procedure which prescribes two alternatives in contentious cases---District Delegate may either return the petition to the applicant in order that the same may be presented to the District Judge ,or the District Delegate may impound the petition and, in that case, he shall himself send the same to the District Judge---Section 288 of the Succession Act, 1925, firstly, applies to all contentious cases, and secondly in doubtful cases, but in either case, the District Delegate has no jurisdiction to frame issues and proceed with the proceedings after contest---In the present case, appellants opposed the grant of Letter of Administration to the respondent with the contention that the deceased/lady was divorced and, therefore, respondent could not be granted Letter of Administration---District Delegate on submission of such contention ought to have, either returned the application to the respondent for presentation to the District Judge or should have by himself sent the same to the District Judge---District Delegate instead of doing that, proceeded to frame issues and granted the Letter of Administration and exercised jurisdiction of District Judge which was not vested in him under the said provision---Thus, impugned order was simply void and liable to be set aside---District Delegate ought to have taken notice of S. 288 of the Succession Act, 1925, however, he appeared to have overlooked the mandatory provision of S. 288 of the Succession Act, 1925---High Court set-aside the impugned order passed by the District Delegate (Civil Judge) in application of Letter of Administration and matter was remanded to the District Delegate with direction to deal with the said application strictly in accordance with S. 288 of the Succession Act, 1925---Appeal was disposed of accordingly.

Jameel Ahmed Khan Babai for Appellants.

Muhammad Nawaz Khan Tareen for Respondents Nos. 2 and 3.

P L D 2025 Balochistan 25

Before Muhammad Hashim Khan Kakar, C.J. and Muhammad Aamir Nawaz Rana, J

MUNAWAR KHAN---Petitioner

Versus

The GOVERNMENT OF BALOCHISTAN through Chief Secretary and 8 others---Respondents

Constitutional Petition No. 1807 of 2024, decided on 17th December, 2024.

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

----S. 11EE & Fourth Sched.---Constitution of Pakistan, Art. 4---Affiliation with a proscribed organization, allegation of---Placing of name in the Fourth Sched. to the Anti-Terrorism Act, 1997---Right of individuals to be dealt with in accordance with law---Scope---Petitioner, a professional driver, was aggrieved of inclusion of his name in the Fourth Schedule to the Anti-Terrorism Act, 1997, by concerned Deputy Commissioner (respondent) and his representation seeking review and reconsideration of the impugned order was dismissed---Validity---Fundamental rights of citizens, including the right to life, liberty, and security, has been guaranteed in the Constitution of Pakistan---Article 4 of the Constitution states that every citizen has the right to enjoy the protection of law and to be treated in accordance with the law---Provision of Art. 4 of the Constitution underscores the importance of safeguarding individual liberties against arbitrary state action---In the context of constitutional rights, the interpretation of laws that curtail the liberties of citizens is a critical aspect of legal jurisprudence---Principle of strict interpretation is grounded in the understanding that any law, which imposes restrictions on fundamental rights, must be clear, precise, and unambiguous---Fundamental rights are paramount to ordinary state-made laws and cannot be curtailed without clear legislative intent and such law is required to be scrutinized rigorously to ensure that it does not violate constitutional guarantees---Considering the impugned order on the touch stone of the settled principles of law, the same was based merely on surmises and conjectures to the extent of the petitioner which was neither justified and reasonable nor was in accordance with constitutional provisions---Respondents had failed to produce credible evidence, and not even a single document was produced to substantiate the claim that the petitioner was involved in terrorism; was an activist, or office-bearer or an associate of an organization kept under observation under S. 11D of the Anti-Terrorism Act, 1997, or proscribed under S. 11B of the Anti-Terrorism Act, 1997, and/or in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism or acting on behalf of, or at the direction of, any person or organization proscribed under the Anti-Terrorism Act, 1997---Petitioner had also sworn in an affidavit/executed a bond as envisaged under S. 11EE of Anti-Terrorism Act, 1997---Deputy Commissioner (respondent) had acted beyond the scope of his authority by issuing the impugned order without any material evidence and through a non-speaking order based on surmises and conjectures---Such order was not only arbitrary but also violated the fundamental rights guaranteed under the Constitution of Pakistan---High Court declared the impugned order illegal, unlawful and without lawful authority to the extent of the petitioner and the respondents were directed to delete the name of the petitioner from the Fourth Sched. of the Anti-Terrorism Act, 1997---Constitutional petition was allowed.

Jameel Ramzan for Petitioner.

P L D 2025 Balochistan 28

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

Syed MATIULLAH AGHA---Appellant

Versus

Haji MUHAMMAD HUSSAIN alias Haji MUHAMMAD HASSAN---Respondent

R.F.A. No. 3 of 2022, decided on 24th October, 2023.

Negotiable Instruments Act (XXVI of 1881)---

----Ss. 5, 6, 30, 72, 73 & 84---Civil Procedure Code (V of 1908), O. XXXVII---Suit for recovery on the basis of negotiable instruments (nine cheques)---Pre-requisites---Presentment of cheque before the bank---Seven out of nine claimed cheques (cheques-in-question) not having been presented before the bank, were produced by the respondent/plaintiff in his statement recorded before the Trial Court---Trial Court decreed recovery of whole amount regarding nine cheques---Validity---Record reveals that appellant/defendant in his written statement denied the factum of outstanding amount, and that the respondent/plaintiff through a representative of concerned branch of the Bank, being one of his (plaintiff's) witnesses, only succeeded to produce(get exhibited) two cheques (amounting to Rs. 5 lac each) issued by the appellant/respondent which were dishonored; the remaining seven cheques (cheques-in-question) were produced by the respondent/plaintiff in his statement recorded before the Trial Court---Admittedly, there was no evidence on record produced by the plaintiff for presentment of the cheques-in-question to the concerned branch of the Bank---Section 5 of the Negotiable Instruments Act, 1881, ('the Act 1881') defines "bill of exchange" and section 6 of the Act 1881 defines "cheque" as a bill of exchange drawn on specified banker and not expressed to be payable otherwise than on demand---It appears that dishonor by non-acceptance or non-payment gives rise to an immediate right to recourse against the drawer of the bill of exchange---Section 68 of the Act 1881 deals with all negotiable instruments including cheques while S. 73 of the Act 1881deals with the cheque and provides the time of presentment and its consequence; this section further provides that a cheque must be presented for payment within reasonable time after its delivery to the holder---It is the mandate of the Act 1881 that all negotiable instrument should be presented for payment within a reasonable time---According to section 72 of the Act 1881, the drawer of the cheque is the principle debtor and he cannot avoid his liability towards the holder except in case of non-presentment of a cheque within a reasonable time---Sections 72 & 84 of the Act 1881 stipulate that unless a cheque is presented for payment within a reasonable time of its issue no right to recover the amount would accrue---Presentment of a cheque, being a bill of exchange, is a condition precedent in order for a payee to charge the drawer/maker of a cheque; thus, for filing suit under O. XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank, as presentment under the provisions of the Act 1881 is the cause of action, in a suit based upon such an instrument---In the present case, admittedly there was no evidence of presentment of the seven cheques (in-question) having been exhibited/produced by the plaintiff in his statement before the Trial Court to the concerned branch of the Bank, therefore, to the said extent suit of the respondent/plaintiff under O. XXXVII, C.P.C., was not maintainable, however to the extent of two cheques duly exhibited [total amount of Rs.10,00,000/- (ten lac only)], the impugned judgment was maintained---High Court set-aside impugned judgment/ decree to the extent of said seven cheques and suit to that extent filed by the respondent/plaintiff was dismissed---However, impugned judgment/ decree to the extent of two duly exhibited cheques was maintained---Appeal filed by the defendant, was partly allowed.

National Bank of Pakistan v. Shahyar Textile Mills Ltd. 2003 CLD 1370; Al-Hamd Edible Oil Industries (Pvt.) Limited through Chief Executive v. Syed Waseem Hyder 2008 CLC 1578 and Khalifa Azhar Mumtaz v. Ghulam Akbar 2014 CLC 1448 ref.

Rehmatullah Barech for Appellant.

Mian Badar Munir for Respondent.

P L D 2025 Balochistan 37

Before Gul Hassan Tareen, J

Mst. FARZANA (widow) and another---Petitioners

Versus

ABID KHAN and 2 others---Respondents

Civil Revision Petition No. 30 of 2024, decided on 19th August, 2024.

Civil Procedure Code (V of 1908)---

----Ss. 9, 115 & O. VII, Rr.10(2), 11(d)---Return of plaint owing to territorial jurisdiction of first court---Presenting the returned plaint before the court having territorial jurisdiction instead of filing a fresh suit---Appearance and participation of the petitioners in the returned suit without raising any objection---Doctrine of estoppel---Waiver by way of acknowledging the proceedings of Trial Court from the point at which the plaint was returned---Effect---Contention of the petitioners was that on the return of plaint respondent should have instituted a fresh suit instead of presenting returned plaint before the court of competent jurisdiction and the proceedings of the Trial Court should have started from the point as if the suit had been instituted for the first time---Validity---Return of plaint means the return of the entire record of the suit to the plaintiff, who may present the plaint (along with entire proceedings) to the court having territorial as well as pecuniary jurisdiction, therefore, on return of plaint, plaintiff is not authorized by the C.P.C. to bring a fresh plaint and on presentation of the same plaint, the court shall proceed with the suit from the point at which the plaint was returned---In the instant case on presentation of plaint, petitioners had appeared before Trial Court and started participating in the proceedings without raising any objection---Trial Court commenced examining the evidence of respondent and petitioners had cross-examined respondent's witness and had not raised any objection at the earliest possible opportunity that suit should not be tried from the point at which it was returned, and they had not claimed that they would submit a fresh written statement---Petitioners had participated in the proceedings from the point at which the Trial Court commenced the proceedings, therefore, they by their conduct had waived the objections and acknowledged the proceedings of the Trial Court from the point at which it was when the plaint was returned---Petitioners failed to demonstrate, if any prejudice had been caused to them by the proceedings held by the Court not having the territorial jurisdiction and by the proceedings held by the Trial Court from the point at which the plaint was presented, thus, application made by petitioners under O. VII, R. 11, C.P.C., was barred by doctrine of waiver---Where a party participates in the proceedings before a Court whose authority to adjudicate upon does not suffer from inherent defect of jurisdiction, such party cannot afterwards raise objection on the proceedings conducted by such Court, therefore, Appellate Court had rightly set-aside the suit's rejection order passed by the Trial Court, which did not suffer from any error of law and of jurisdiction which may attract the provision of S.115, C.P.C.---Civil Revision was dismissed accordingly.

Pakistan Telecommunication Ltd. v. Faizan Bibi PLD 2013 Sindh 80; Saleem Mehtab v. Refhan Best Food Ltd. 2010 MLD 1015 and Zubaida Begum v. Muhammad Saeed 1991 MLD 1312 ref.

Abdul Hameed Khan v. Nasrullah PLD 2021 Bal. 59; Ata-ur-Rehman Qadri v. Capital Development Authority 2016 CLC 132; Gul Usman v. Deputy Commissioner 2014 CLC 1681; Lucky Enterprises v. Zeal Pak Cement PLD 2013 Sindh 277 and Muhammad Hussain v. Muhammad Shafi 2004 SCMR 1947 rel.

Shahood Ahmed Khan Kakar for Petitioners.

Saifullah Khan Durrani for Respondent 1.

Saifullah Sanjrani, Assistant Advocate General (A.A.G.) for Respondents Nos. 2 and 3.

P L D 2025 Balochistan 43

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

SAJJAD AHMED and 3 others---Petitioners

Versus

GUL SIMA and 5 others---Respondents

C. P. No. 1105 of 2021, decided on 20th November, 2023.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Dower, claim of---Concurrent findings of facts by two Courts below---Respondent/widow claimed to be owner of house given to her in lieu of her dower money (Haq Mehr)---Petitioners/sons of deceased contended that Kabeen Nama was a forged document and their father had divorced respondent in his life time---Validity---Family matters were quasi judicial proceedings and findings arrived at by Family Court and Lower Appellate Court must not be overturned, more particularly in Constitutional petition, unless the findings arrived at by the fora below were found to be arbitrary, perverse, in violation of law or if error was so obvious that it would not be acceptable---High Court declined to interfere in concurrent findings of facts by two Courts below in favour of respondent/widow, as the same did not suffer from any error of law and facts---Constitutional petition was dismissed, in circumstances.

Arif Fareed v. Bibi Sara 2023 SCMR 413; M. Hamad Hassan v. Mst. Isma Bukhari 2023 SCMR 1434 and Mst. Tayyebaa Ambareen and another v. Shafaqat Ali Kiyani and another 2023 SCMR 246 rel.

Muhammad Saleem Lashari, Salman Langove and Umar Babar for Petitioners.

Habib-ur-Rehman Qambrani for Respondents Nos.1 to 4.

P L D 2025 Balochistan 49

Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ

Mst. SAFIA and another---Petitioners

Versus

SABIT ALI and another---Respondents

Constitutional Petition No. 44 of 2024, decided on 10th October, 2024.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Family suit filed by the parents of spouse---Locus standi---Husband pleaded that petitioners/parents of his deceased wife had no locus standi to file a family suit for recovery of dowry articles---Validity---Jurisdiction of a Family Court is circumscribed and is restricted to the "matters" mentioned in S. 5, Sched., which shows that it does not empower a Family Court to adjudicate upon a claim of a party qua his/her right of inheritance or Tarka---Petitioners being parents of deceased spouse, who was wife of defendant/respondent, sought share in the dowry articles being Tarka, for which they had approached the Family Court by way of filing a suit for recovery of dowry article and since determination of share in the Tarka of a deceased or its distribution did not fall within the jurisdiction of the Family Court, thus, suit was not maintainable and they had no locus standi to approach the Family Court---Constitutional petition was dismissed, in circumstances.

Federation of Pakistan v. Public at Large PLD 1991 SC 750; Federation of Pakistan v. Public at Large PLD 1991 SC 731 and Muhammad Javed and another v. Mst. Roshan Jahan PLD 2019 Sindh 1 rel.

(b) Constitution of Pakistan---

----Art. 199---Concurrent findings of Trial and Appellate Courts---Jurisdiction of High Court---Scope---In case of concurrent findings of the courts below, scope of the constitutional petition becomes very limited.

2008 YLR 2309 and PLD 2008 Kar. 2005 rel.

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

----Preamble---Object and purpose---Family Courts Act, 1964, has primarily been promulgated for "expeditious settlement" and "disposal of disputes" mentioned in the S. 5, Sched., which primarily cater for the disputes arising out of "marriage", which is between the "spouses" and the "family affairs", which are the outcome of marriage.

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

----Ss. 2(d), 6, 7, 8, 9, 10, 11, 12, 12-A & 17---Family dispute---Disposal---Procedure stated.

Niaz Muhammad for Petitioners.

P L D 2025 Balochistan 54

Before Muhammad Hashim Khan Kakar, Acting Chief Justice and Shaukat Ali Rakhshani, J

MUHAMMAD LUQMAN KAKAR and 2 others---Petitioners

Versus

QUETTA DEVELOPMENT AUTHORITY through Director General and 4 others---Respondents

Constitutional Petition No. 842 of 2021, decided on 28th March, 2024.

(a) Balochistan Building Control and Town Planning Rules, 2022---

----R. 149 (2)---Quetta Development Authority Ordinance (IV of 1978), Preamble & S. 40---Housing scheme---Conversion/usage of residential area into commercial area---Scope and effect---Petitioners, residents of a Housing Scheme being regulated under Quetta Development Authority/QDA (scheme-in-question), were aggrieved of involvement of the private respondents in commercial activities (in the shape of Offices, Clinics, Guest Houses, Restaurants and Schools etc.) in the residential area of scheme-in-question---Contention of the petitioners was that on account of mushroom growth of unlawful commercial activities, they were facing multifarious inconveniences---Validity---Rule 149(2) of the Balochistan Building Control And Town Planning Rules, 2022, prescribes a complete procedure to avail sanction or approval for converting residential area into commercial---Not a single document had been brought on record by the private respondents to show that any such prescribed sanction/approval for converting the disputed premises into commercial or any other particular purpose, other than the residence, had been obtained---Record also revealed that the QDA (Respondent) merely issued notices regarding violations to the private respondents yet the same were issued on temporary basis and there was nothing on record to show that any penal action was initiated or taken against them---Private respondents were involved in commercial activities in the residential area which wrong was recurring since long and the concerned authorities of the official respondents were negligent and remained mum---High Court directed the official respondents (Quetta Development Authority) to cease all commercial activities found in violation of applicable laws/ regulations immediately---Constitutional petition, was allowed accordingly.

(b) Balochistan Building Control and Town Planning Rules, 2022---

----R. 149(2)---Quetta Development Authority Ordinance (IV of 1978), Preamble & S. 40---Constitution of Pakistan, Art. 199---Housing scheme---Conversion/usage of residential area into commercial area---Scope and effect---Fundamental rights of residents---Scope---Petitioners, residents of a Housing Scheme being regulated under Queta Development Authority/QDA (scheme-in-question), were aggrieved of involvement of the private respondents in commercial activities (in the shape of Offices, Clinics, Guest Houses, Restaurants and Schools etc.) in the residential area of scheme-in-question---Contention of the petitioners was that on account of mushroom growth of unlawful commercial activities, they were facing multifarious inconveniences and their fundamental rights of free movement and peaceful enjoyment of property had seriously been jeopardized---Validity---It was duty of respondent/QDA to provide a complete residential atmosphere to the residents of scheme-in -question---Due to negligence on the part of authority and non-implementation of the provisions of law, mushroom growth of non-residential/commercial activities-in-question have cropped up which has overloaded the domestic facilities meant for residents of the area in the shape of choking of drains, parking of vehicles on roads/streets, traffic congestion, use of extra electricity and gas---Engagement of private respondents in commercial activities in residential areas are causing harm to the environment, public health and the general well-being of the community which warrants intervention by the High Court to safeguard the interests of the public and ensure compliance with the law---High Court directed the official respondents (Quetta Development Authority) to cease all commercial activities found in violation of applicable laws/regulations immediately---Constitutional petition, was allowed accordingly.

(c) Balochistan Building Control and Town Planning Rules, 2022---

----R. 149(2)---Quetta Development Authority Ordinance (IV of 1978), Preamble & S. 40---Constitution of Pakistan, Art. 25---Housing scheme---Usage of residential area as commercial one since long---Vested right---Negative equality---Wrong concession---Petitioners, residents of a Housing Scheme being regulated under Queta Development Authority/QDA (scheme-in-question), were aggrieved of involvement of the private respondents in commercial activities (in the shape of Offices, Clinics, Guest Houses, Restaurants and Schools etc.) in the residential area of Scheme-in-question---Contention of the petitioners was that on account of mushroom growth of unlawful commercial activities, they were facing multifarious inconveniences and their fundamental rights of free movement and peaceful enjoyment of property had seriously been jeopardized---Contention of private respondent was that a vested right had been created in his favour as he was occupying the premises for the commercial activity since long, as such commercial activities were going on around the area---Held, that said contention was without any substance for the reason that Art. 25 of the Constitution does not envisage any negative equality---Such right can only be claimed when decision is taken in accordance with law---A wrong concession in favour of one person does not entitle any other person to claim benefit of a wrong decision---If such type of activities are allowed, it would seriously impair the use of the property not only of petitioners but of all those who were living in such residential areas---High Court directed the official respondents (Quetta Development Authority) to cease all commercial activities found in violation of applicable laws/regulations immediately---Constitutional petition was allowed accordingly.

Salman Khan for Petitioners.

Syed Jamil Agha for Respondent No. 1.

Zahoor Ahmed Baloch, Addl. A.G. for Respondent Nos.2, 4 and 5.

Muhammad Mushtaq Anjum for Respondent No.3.

P L D 2025 Balochistan 60

Before Shaukat Ali Rakhshani, J

MUSHTAQ AHMED and 6 others---Petitioners

Versus

FOUZIA NAWAZ and 14 others---Respondents

Civil Revision No. 723 of 2022, decided on 29th October, 2024.

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

----Ss.42, 8 & 54---Civil Procedure Code (V of 1908), S.12(2) & O.VII, R.2---Suit for declaration, partition, possession, rendition of accounts, mesne profit and permanent injunction---Possession of the property by other successors---Admission as to right of legacy of respondent/ plaintiff except mesne profit---Claim of mesne profit by co-sharer---Scope---There was admission as to right of share of respondent in the legacy left by the predecessor, however, only decree of mesne profit was assailed as the courts below did not determine the mesne profit specifically---Validity---Mesne profits are typically granted to a person, who has been dispossessed of a property by someone through wrongful possession as defined under S.12(2) of C.P.C., however, as a general rule one co-sharer cannot claim mesne profit against other co-sharer in possession of a joint property on the principle that every co-sharer is deemed to have lawful right on every bit of such property unless severance takes place, but an exception arises, when a co-sharer in possession excludes or ousts the others, thereby depriving them of their rightful share of the property's benefits, profits and rents---Right of share of respondent in the legacy left behind by her predecessor had not been disputed, except assailing the decree of mesne profit---Evidence on record entitled respondent No.1 and other legal heirs of the predecessor to have share in the legacy left by him, which had rightly been appreciated by the Trial Court with reasons and upheld by the Appellate Court. which required no interference except to the extent of mesne profit---Admittedly respondent was living with petitioners and her expenses were also borne by them---Trial Court while deciding the matter had not specifically determined and calculated the mesne profit due thereof, thus, the decree was not executable---Decree to the extent of mesne profit could not be altered and amended because the decree had neither been challenged by respondent or any other legal heir nor cross objections thereof had been filed by them---High Court in exercise of its revisional jurisdiction partially allowed the civil revision by maintaining the judgments and decrees, however, decree to the extent of mesne profit was set aside.

Muhammad Rafiq v. Bibi Asifa 2013 CLC 1446; Mahmood Ali Khan v. Hamid Ali and others (C.P.L.A. No.83-K of 2014); Muhammad Anwar v. Dr. Gohar Ali 2007 CLC 621 and Gul Banu v. Shahnaz Banu 2023 CLC 861 rel.

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

----S.12(2)---Mesne profit---Meaning and purpose---In civil law mesne profit refers to the profits and benefits derived by a person in wrongful possession of a property and the very object of awarding a decree for mesne profit is to compensate the person, who has wrongly been kept out of possession, even though he was entitled to possession thereof and deprived of the enjoyment and potential profits from the property.

Sheraz Ahmed for Petitioners.

Muhammad Ali for Respondent No. 1.

Ameer Zaman Jogezai, A.A.G. for the State.

P L D 2025 Balochistan 68

Before Rozi Khan Barrech, J

ALLAH DAD---Petitioner

Versus

MAQBOOL AHMED---Respondent

F.A.O. No. 1 of 2024, decided on 1st November, 2024.

Civil Procedure Code (V of 1908)---

----Ss. 47 & 151---Execution proceedings---Application for grant of relief not mentioned in the decree---Scope---Decree of eviction was passed by the Rent Tribunal with a direction to hand over vacant possession of shops and deposit remaining rent amount---Respondent/ decree holder filed an application under S. 151, C.P.C. before the Executing Court for grant of outstanding utility bills, which was allowed---Validity---It was not within the domain of the Executing Court that in the execution proceedings, the question as to whether the view of the court which passed the decree was right or wrong as it was no more open for adjudication by the Executing Court---Grounds taken in the application filed by the respondent under S. 151, C.P.C. were never pleaded in the eviction application nor during the recording of evidence were pointed out by the witnesses in their statements made before the Trial Court and neither the Trial Court gave any findings in respect of the utility bills, thus, the decree had attained finality---Appellant himself was responsible for having lost his defense---Decree had to be executed as it is and it is not permissible to go behind it---Respondent did not take the plea before the Trial Court to the effect that there was some ambiguity regarding the facts in the case and the issue was not framed on a controversial point---Executing Court could not re-determine the rights and liabilities of the parties and once a decree was passed, it had to be executed in its terms---Points of attack or defense which were never agitated at the time of trial could never be raised at the stage of execution of the decree by filing an independent application under S.151 C.P.C.---Appeal was accepted, in circumstances.

Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 rel.

Gulzar Kanrani for Appellant.

Muhammad Ali Marri for Respondent.

P L D 2025 Balochistan 34

Before Nazeer Ahmed Langove, J

Mst. BIBI RAQEEMA---Petitioner

Versus

BIBI ZULEKHA and 5 others---Respondents

Civil Revision No. 532 of 2021, decided on 28th December, 2023.

Succession Act (XXXIX of 1925)---

----Ss.376 & 383---Police official---Succession certificate---Death on duty---Compensation amount---Tarka---Scope---Petitioner/widow of Shaheed police official was aggrieved of inclusion of name of mother of deceased in succession certificate pertaining to compensation amount awarded on death in line of duty---Validity---Compensation granted to a person after his death does not fall within the definition of Tarka---Mother of deceased could not claim any share in compensation amount---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and restored that of Trial Court, excluding name of mother of deceased from succession certificate for amount in question---Revision was allowed accordingly.

Jamil Shah for Petitioner.

Munir Ahmed Kakar for Respondent No. 1.

Allauddin Kakar, Assistant Advocate General for Respondents Nos. 2 to 4.

P L D 2025 Balochistan 72

Before Muhammad Kamran Khan Mulakhail and Iqbal Ahmed Kasi, JJ

ABDUL WALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 514 and 532 of 2023, decided on 10th June, 2024.

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

----S. 367---Penal Code (XLV of 1860), Ss. 302(b), 393 & 34---Rewriting of judgment---Scope---Accused were charged for murdering the brother of complainant while attempting to commit robbery---Perusal of the judgment impugned revealed that at the first instance, the Trial Court, observed that the accused persons with their common intention, had committed the murder of the deceased, while in the subsequent para, the Court deviated from its own views and mentioned that sole fire was made at deceased due to panic and fear, meaning thereby, that they had no prior intention to kill the deceased---Thus, the Trial Court had taken erroneous views in the judgment impugned and violated the provisions of S. 367, Cr.P.C., therefore, the judgment impugned was not a proper judgment at all, as legally a judgment should invariably discuss the merits/demerits of the statements of the witnesses, with reference to the charge and a proper judgment must specify the points for determination and the reasoning of the Court for such determinations---Though normally minor omissions and commissions were curable and could be ignored by the Appellate Courts, but failure to specify the points of determination, absence of reasons for decision about the contentions raised in the matter or a total lack of reasoning, constituted a material defect in the judgment which could not be conveniently overlooked---In other words, a judgment which was not lucid, complete, self contained and unambiguous does not fulfill the requirements of S. 367, Cr.P.C---Accordingly, the conviction recorded on the basis of such judgment could not be sustained/upheld---Case was remanded to the Trial Court for the limited purpose to re-write the judgment on the basis of existing judicial record within two months strictly in accordance with law.

Muhammad Nawaz and others v. The State through P.G. and others PLD 2022 SC 523 rel.

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

----Ss. 302(b), 393 & 34---Criminal Procedure Code (V of 1898), S.367---Qatl-i-amd, attempt to commit robbery, common intention---Appreciation of evidence---Contents of judgment---Scope---Accused were charged for murdering the brother of complainant while attempting to commit robbery---Although, it was an admitted fact that the Trial Court while framing charge against the accused persons had charged them for the offence of common intention falling under S. 34, P.P.C., but while deciding the lis, each accused was dealt on the basis of 'individual liability'---Conviction was recorded against accused "B" for the murder of the deceased, however, the applicability of S. 34, P.P.C., with reference to other accused was totally ignored and they were convicted on the basis of individual liability without assigning a 'definite finding' regarding their participation in commission of offence in furtherance of their common intention falling under S. 34, P.P.C---When all the accused persons were specifically charged for having committed the crime in furtherance of their common intention, the trial Court ought to have given a 'definite finding' regarding the applicability of Ss. 302 & 34, P.P.C., to all the accused persons qua the charge of murder---Trial Court ignored the fact that all the accused persons committed their respective overt acts in furtherance of their common object, and as such, they were part of the unlawful assembly, hence, the conviction and sentence recorded against the accused on the basis of individual liability in the absence of any 'definite finding' to negate that the act of each individual was without premeditation, was beyond the scope of law---Act of each individual, if committed in furtherance of the common intention, the facts were to be dealt conjointly to arrive at a conclusion in the spirit of law---Case was remanded to the Trial Court for the limited purpose to re-write the judgment on the basis of existing judicial record within two months strictly in accordance with law.

Rehmatullah Bareech and Ehsanullah Kakar for Appellants (in Criminal Appeal No.514 of 2023).

Younus Mengal, A.P.G. for the State (in Criminal Appeal No.514 of 2023).

Muhammad Bilal Khan for Appellant (in Criminal Appeal No.532 of 2023).

Younus Mengal, A.P.G. for the State (in Criminal Appeal No.532 of 2023).

P L D 2025 Balochistan 87

Before Muhammad Hashim Khan Kakar, C.J. and Muhammad Aamir Nawaz Rana, J

UMAR---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs Department and 3 others---Respondents

C. P. No. (L) 11 of 2024, decided on 1st November, 2024.

(a) Balochistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1) [as amended by Balochistan Maintenance of Public Order (Amendment) Ordinance (IX of 2002)]---General Clauses Act (X of 1897), S. 24-A---Preventive detention---Scope and application---Satisfaction of Government---Pre-requisites, absence of---Petitioner assailed order of his detention under S. 3(1) of Balochistan Maintenance of Public Order (Amendment) Ordinance (IX of 2002) (MPO)---Petitioner was detained for adversely affecting the public safety, order and maintenance of law and order---Validity---Section 3 of the MPO empowers the government to detain a person if it is satisfied that such detention is necessary to prevent that person from acting in a manner prejudicial to public safety and maintenance of public order---Law mandates that the authority issuing the detention order must provide clear and cogent reasons for such action, supported by material evidence---Deputy Commissioner must not act arbitrarily or capriciously, rather, the decision must be based upon credible evidence that substantiates the claim of potential harm to public order---In the present case detention order was based merely on surmises and conjectures and detention of the petitioner was neither justified and reasonable nor in accordance with constitutional provisions---Respondent failed to produce a single document or credible evidence to substantiate the claim of potential harm to public order---Detention order failed to articulate the reasons for detention---Authority must provide a reasoned order that reflects the application of mind to the facts of the case and failure to provide reasons for detention had rendered the detention order illegal and void---Order passed by authority was declared to be illegal, unlawful and without lawful authority.

Federation of Pakistan v. Amatul Jalil Khawaja PLD 2003 SC 442 rel.

(b) Constitution of Pakistan---

----Arts. 4, 9 & 10---Preventive detention---Fundamental rights---Scope---Right to life, liberty and security---Right of individuals to be dealt with in accordance with law---Scope---Every citizen has the right to enjoy the protection of law and to be treated in accordance with the law---This provision underscores the importance of safeguarding individual liberties against arbitrary state action---Principle of strict interpretation is grounded in the understanding that any law, which imposes restrictions on fundamental rights, must be clear, precise, and unambiguous---Fundamental rights are paramount to ordinary state-made laws and cannot be curtailed without clear legislative intent and such laws are required to be scrutinized rigorously to ensure they do not violate constitutional guarantees.

(c) Balochistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1) [as amended by Balochistan Maintenance of Public Order (Amendment) Ordinance (IX of 2002)]---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Detention order---Judicial review---Scope---Alternate remedy, availability of---Invoking of constitutional jurisdiction of High Court instead of availing remedy provided under the relevant law would only be justified when the order/action was palpably without jurisdiction---To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper---In the present case detention order was not only palpable but also bereft of any legal reasoning, thus, issuance of direction to the petitioner for availing the alternate remedy would be an exercise in futility and would not serve the ends of justice---Constitutional petition was held to be maintainable.

Sarwar Khan Mandokhail for Petitioner

Zahoor Ahmed Baloch, Additional Advocate General (A.A.G) for Respondents.

P L D 2025 Balochistan 92

Before Gul Hassan Tareen, J

NIAZ MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision Petition No. 72 of 2023, decided on 23rd October, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 540, 345(2), 337 & 338---Penal Code (XLV of 1860), Ss. 302(b) & 34---Contract Act (IX of 1872), S. 23---Calling an acquitted co-accused as a prosecution witness---Legality---Qatl-i-amd, common intention---Compromise made with co-accused on the condition that he would testify against accused---Legality---Application of the petitioner, sought recalling of the acquitted accused as a prosecution witness was dismissed by the Trial Court---Validity---Accused "PK" was arrested who had confessed his guilt before the Investigating Officer and disclosed that "MI" was his co-accused and they both committed qatl-i-amd of the deceased---On such disclosure, the respondent No.2 was arrested who also confessed to the charged offence---Both the accused were sent to face the trial where they were indicted; they pleaded not guilty and claimed trial---In the course of trial, the accused "PK" compounded the offence with the complainant/ petitioner---Trial Court accepted the application made under S.345 (2), Cr.P.C and acquitted the accused "PK"---Allegedly, the acquitted accused had confessed his guilt before the Investigating Officer; therefore, he being a participator of the qatl-i-amd of the deceased was an eye witness, as such, he was competent witness---Participator of offence becomes a competent witness when he is tendered pardon under Ss. 337 & 338, Cr.P.C.---Even otherwise, the admission of guilt before the Investigating Officer of an accused is not relevant under Arts. 38 & 39 Qanun-e-Shahadat, 1984, therefore, evidence of such witness is inadmissible---Disclosure of any accused is not admissible in evidence against a co-accused---Since the prosecution could not place reliance on the confession of accused made before the police, therefore, the prosecution could not be allowed to produce such piece of evidence before the Trial Court against the co-accused/ respondent No.2---Perusal of record inferred that the petitioner had compromised the offence with the acquitted accused on the condition that he would give testimony against the respondent No.2, because the petitioner had not mentioned any reason of compromise with the acquitted accused in his application made under S.540, Cr.P.C.---If such practice is allowed to prevail, then, the same will result in mockery of law and the complainant/prosecution will be at liberty to pick and choose between the accused persons and compromise the case with an accused of his choice so as to bring him as his witness and punish an accused, he wisked to get punished---Such nature of compromises would defeat the provisions of Ss. 337 & 338, Cr.P.C., therefore, same are void under S. 23 of the Contract Act, 1877, to the extent of calling acquitted accused as a prosecution witness---Since, the prosecution had not resorted to the provisions of Ss. 337, 338 or S.494, Cr.P.C., for offering pardon to the accused "PK" during the investigation or trial nor had withdrawn prosecution against him, therefore, the said accused could not be called as a prosecution witness under S.540, Cr.P.C.---Criminal revision petition was dismissed, in circumstances.

Rafiullah v. 11th Additional District and Sessions Judge (West) Karachi and others 2020 MLD 942; Wasiullah v. Ali Mohseen and 2 others 2016 PCr.LJ 1124; Siddiqullah v. The State and another PLD 2009 Pesh. 1; Malik Muhammad Younas and another v. Umer Hayat and another 1998 MLD 1195; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lahore 690 and Abdur Rashid and another v. The State 1970 PCr.LJ 722 ref.

Abdur Rashid and another v. The State 1970 PCr.LJ 722

rel.

Akbar Khan Kakar and Ghulam Wali Achakzai for Petitioner.

Fazal-ur-Rehman State Counsel for Respondent No.1 and Taimoor Shah Kakar for Respondent No.2.

P L D 2025 Balochistan 98

Before Naeem Akhtar Afghan, C.J. and Iqbal Ahmed Kasi, J

Malik ABDUL RAHIM KHAN and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others---Respondents

Constitution Petitions Nos. 1319, 1450 and 1476 of 2021, decided on 1st December, 2022.

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

----Ss. 5 & 6---Creation of a new district---Policy decision of Provincial Government---Petitioners, being residents of Killa Abdullah city, assailed the notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah---Validity---Constitution or re-constitution/creation of Divisions, Districts or subdivisions and to vary limits of a District or a subdivision or Tehsil is essentially an administrative measure falling within the statutory provisions of Ss. 5 & 6 of the Balochistan Land Revenue Act, 1967, to which the presumption of regularity is attached---Sections 5 & 6 of the Balochistan Land Revenue Act, 1967, empower the Government of Balochistan (GoB) to vary the number and limits of Divisions, Districts, or to create new Divisions and Districts---Policy decision of such nature falling within the ambit of powers of the GoB has to be taken in view of public interest, practical administrative convenience and difficulties of local population---Record reveals that previously the area of District Killa Abdullah was part and parcel of District Pishin---In the year 1993, District Pishin was bifurcated and new District Killa Abdullah was created by GoB with its Headquarter at Killa Abdullah city---After few months of creating District Killa Abdullah with its Headquarter at Killa Abdullah City, vide Notification dated 04.12.1994, the GoB declared Chaman city as temporary Headquarter of newly created District Killa Abdullah with the stipulation that Killa Abdullah city shall continue to remain as permanent Headquarter of District Killa Abdullah---Since 04.12.1994 till issuance of impugned Notification dated 29.06.2021, Chaman city remained Headquarter of District Killa Abdullah for all practical purposes and the Headquarter of District Killa Abdullah was never shifted back from Chaman city to Killa Abdullah city, due to which, the infrastructure development of all the required offices of Headquarter of District Killa Abdullah was made in Chaman city instead of Killa Abdullah city by the GoB---Vide impugned Notification dated 29.06.2021, District Killa Abdullah has been bifurcated by creating new District Chaman with Headquarter at Chaman city (comprising of subdivision city Chaman and subdivision Saddar Chaman with Tehsil city Chaman and Tehsil Saddar Chaman) and District Killa Abdullah with its Headquarter at Jungle Pir Alizai---Since Killa Abdullah city and Jungle Pir Alizai are situated at a distance of almost 15-kilomters from each other, therefore it hardly makes any difference for the inhabitants of District Killa Abdullah to reach the Headquarter of District Killa Abdullah whether it be at Killa Abdullah city or at Jungle Pir Alizai---Record reveals that even 15-Acres of Government land is not available in Killa Abdullah city; on the contrary, sufficient Government land is available in Jungle Pir Alizai---As compared to the congested population and non-availability of Government land in Killa Abdullah city, Jungle Pir Alizai has vast area of Government land which can conveniently be utilized for establishing/construction of different office buildings needed for Headquarter of District Killa Abdullah for which sufficient funds have already been approved by the GoB and construction of few buildings has also been started---Thus, existence of few office buildings and a small Railway Station of pre-partition time cannot be made a basis to make Killa Abdullah city as Headquarter of District Killa Abdullah---Petitioners have failed to show by placing any relevant material that action on the part of GoB in issuing the impugned Notification dated 29.06.2021 for District Killa Abdullah with its Headquarter at Jungle Pir Alizai is tainted with mala fides or is suffering from any legal infirmity---Decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the GoB warranting interference by the High Court in its constitutional jurisdiction---Constitution petitions were dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Balochistan Land Revenue Act (XVII of 1967), Ss. 5 & 6---Creation of a new district---Policy decision of Provincial Government---Judicial review---Petitioners, being residents of Killa Abdullah city, assailed notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah---Validity---Though the impugned Notification is a policy decision of Government of Balochistan but the same is not immune from being called in question before the High Court as powers of judicial review under Art. 199 of the Constitution are available in case of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of the Government---However, in the present case, decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the Government of Balochistan warranting interference by the High Court in its constitutional jurisdiction---Constitution petition was dismissed, in circumstances.

Kamran Murtaza, Adnan Ejaz, Tahir Ali Baloch and Asad Achakzai for Petitioners (in C.P. No.1319 of 2021).

Abdul Wasay Tareen, Aminullah Kakar and Sayed Muhammad for Respondent No. 4 (in C.P. No.1319 of 2021).

Nusrat Ullah Baloch, Assistant Advocate General ('A.A.G.') for Respondents Nos. 1 to 3. (in C.P. No.1319 of 2021).

Abdul Qadoos Tareen, Intervener/applicant/Respondent No. 5 (in C.P. No.1319 of 2021).

Naimatullah Achakzai for Petitioner (in C.P. No. 1450 of 2021).

Nusrat Ullah Baloch, A.A.G. for Respondents Nos.1 to 4 (in C.P. No. 1450 of 2021).

Abdul Qadoos Tareen for Intervener/applicant/Respondent No.5 (in C.P. No. 1450 of 2021).

Tariq Ali Tahir and Barkhurdar Khan for Petitioner (in C.P. No. 1476 of 202).

Nusrat Ullah Baloch, A.A.G. for Respondents Nos.1 to 4 (in C.P. No. 1476 of 202).

P L D 2025 Balochistan 106

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ABDUL KARIM and another---Petitioners

Versus

DIRECTOR GENERAL, FIA and others---Respondents

Constitutional Petitions Nos. 1828 and 1845 of 2022, decided on 11th August, 2023.

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

----S. 5(5)---Anti-Money Laundering Act (VII of 2010), S. 8---Seizure of assets---Constitution of Pakistan, Arts. 4, 9, 18, 23, 24 & 25---Constitutional petition---Attachment of property involved in money laundering---Scope---Petitioner was facing inquiry and investigation and Federal Investigation Agency blocked his bank accounts---Validity---Freezing of bank accounts deprives individuals of their hope to lead a meaningful life, as it takes away their most significant asset (cash in bank accounts)---Thus, some Investigating Officers, who made departure from observing formalities while blocking the accounts of citizens for an indefinite period, could not be allowed to violate the fundamental rights of citizens, enshrined in Arts. 4, 9, 18, 23, 24 & 25 of the Constitution---Said provisions of law provided the entire mechanism for attachment of property involved in money laundering, wherein, the Investigating Officer on the basis of a report in his possession received from the concerned investigating agency, by order in writing, with prior permission of the Court, could provisionally attach property, which he reasonably believed to be proceeds of crimes or involved in money laundering for a period not exceeding ninety days from the date of such order---If such permission was granted, then in terms of S. 9 of the Anti-Money Laundering Act, the Investigating Officer shall not later than seven days from the date of order of attachment made under subsection (1) of S. 8, served a notice of not less than 30 days on the person concerned---Such notice shall call upon the person to indicate the sources of his income, earning or assets or out of which or by means of which he has acquired the property attached under subsection (1) of S. 8 and the evidence in which he relied and the other relevant information and particulars---Members of Federal Investigation Agency frequently closed third-party accounts involving odd transactions under mere suspicion and that too without affording them an opportunity to explain their position regarding the transactions---Instead of freezing the account to the extent of the amount involved in the alleged transaction, they blocked the account while barring the third party from enjoying the amount not relevant to the alleged transaction---Admittedly, primarily the order of seizure was to be obtained from the appropriate authority and in the latter part of S. 5(5), it was mentioned that such seizure order was subject to confirmation by the Court having jurisdiction to try the offence---Members of Federal Investigation Agency, while inquiring or investigating an offence of money laundering or any other offence within their jurisdiction, must seek permission from the Court to freeze bank accounts under S. 5(5) of the Federal Investigation Agency Act, 1974 and Ss. 8 & 9 of the Anti-Money Laundering Act, 2010---Such permission must be sought from the Court within the territorial jurisdiction where the offence occurred specially the Court in whose territory the holder of a bank account under investigation was involved in suspicious activity or directly connected to an offence of money laundering---Federal Investigation Agency was a federal entity and had its tentacles throughout the country, as such calling of suspects to different cities of the country or headquarters, instead of conducting investigations at their place of residence was not suitable---Localized approach instead of the currently adhered centralized one could yield better results and streamline operations---In such state of affairs, the impugned seizure letter dated 10.10.2022 issued by the Assistant Director, State Bank Circle (SBC) FIA suffered from perversity; was clear transgression of authority, and was a nullity in the eye of law---Petitions were allowed, in circumstances.

Aimal Khan Kakar, Amicus Curiae for Petitioner (in C.P. No. 1828 of 2022).

Shai Haq Baloch, Addl. Advocate General assisted by Hameedullah Babar, Assistant Director (Legal) FIA assisted by Ali Raza, Assistant Director/In-charge CCRC, Quetta, Ayaz Khan, SI, FIA and Shai Mureed, District Manager UBL for Respondents (in C.P. No. 1828 of 2022).

Riaz Ahmed Soomro and Aimal Khan Kakar, Amici Curiae for Petitioner (in C.P. No.1845 of 2022).

Shai Haq Baloch, Addl. Advocate General assisted by Hameedullah Babar, Assistant Director (Legal) FIA assisted by Ali Raza, Assistant Director/ In-charge CCRC, Quetta, Ayaz Khan, SI, FIA and Shai Mureed, District Manager UBL for Respondents (in C.P. No.1845 of 2022).

P L D 2025 Balochistan 113

Before Zaheer ud Din Kakar and Iqbal Ahmed Kasi, JJ

SAEED AHMED and 4 others---Petitioners

Versus

BIBI KHOURD and others---Respondents

Constitution Petition No. 110 of 2023, decided on 25th March, 2024.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S. 42---Suit for declaration and partition of joint properties---Application for amendment of plaint---Proposed amendment not specified with exactitude---Plaintiffs filed an application under O. VI, R. 17 of Civil Procedure Code, 1908 ('C.P.C.') praying for necessary amendments in the plaint---Trial Court dismissed the application of the petitioners/ plaintiffs---Petitioners/plaintiffs filed constitutional petition as their revision petition was also dismissed---Validity---Provisions of O. VI, R. 17, C.P.C., empower any party to a suit to alter or amend its pleadings in such manner as may be just; from the said requirement of law, it is clear that any party to a litigation is supposed to be clear and categoric in what it/they are praying to be inserted in already filed pleadings by way of amendment---For this, an applicant(s) under O. VI, R. 17, C.P.C. should indicate in clear terms as to which part of the pleadings, it/they intend to add or delete and in case of addition, proposed addition must be provided in unequivocal terms---Proposed amendment must not be vague or evasive---In the present case, the application moved by the petitioners/plaintiffs seeking amendment, it was difficult to ascertain, with some exactitude, as to what was required to be added in the already filed plaint and at which part of the plaint---The wording used in R. 17 of O. VI, C.P.C., clearly suggests that relevant portions of the pleadings must be pointed out by the person(s), intending to cause any amendment in the pleadings, and the portion, which is to be inserted as a result of alteration or amendment is concerned, should be specifically provided---The application moved by the petitioners/plaintiffs was lacking completely in this regard---Nowhere in the application, any proposed amendment, in clear terms, had been provided and similarly, it was not mentioned as to in which part of the already filed plaint, the proposed amendment was to be added or altered---General prayer for amendment cannot be made or allowed and such proposed amendment should be in writing and in explicit form and in the same way, order if allowing amendment should also be specific and clear showing nature and extent of amendment allowed---No illegality or irregularity had been noticed on the part of the Courts below while dismissing the application moved by the petitioners/plaintiffs, seeking amendment in the plaint---Constitutional petition was dismissed, in circumstances.

Matwali Khan v. Shah Zaman and others PLD 1965 AJ&K 26 ref.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S. 42---Suit for declaration and partition of joint properties---Second application for amendment of plaint---Plaintiffs filed an application under O. VI, R. 17 of Civil Procedure Code, 1908 ('C.P.C.') praying for necessary amendments in the plaint---Trial Court dismissed the application of the petitioners/plaintiffs---Petitioners/plaintiffs filed constitutional petition as their revision petition was also dismissed---Validity---Record revealed that prior to the present application, the petitioners/plaintiffs sought amendment, which was allowed and in the present application same facts were narrated by them, which showed that they were lingering on the matter on one pretext or the other---Petitioners/ plaintiffs had not made out their case for amendment in the already filed plaint and also failed to point out as to how the present amendment would be relevant, especially, when they filed the same fact in the application, which was allowed---No illegality or irregularity had been noticed on the part of the Courts below while dismissing the application moved by the petitioners/plaintiffs, seeking amendment in the plaint---Constitutional petition was dismissed, in circumstances.

Muhammad Arshad Aziz for Petitioners.

Chaudhary Sri Chand for Respondents Nos. 1 to 1-G and 2 to 8.

Changaiz Dashti, Assistant Advocate General for Respondents Nos. 10 to 12.

P L D 2025 Balochistan 118

Before Rozi Khan Barrech, J

UMER KHAYAM JOGEZAI and 4 others---Petitioners

Versus

MUMTAZ and 22 others---Respondents

Civil Revision Petition No. 328 of 2024, decided on 15th October, 2024.

Civil Procedure Code (V of 1908)---

----Ss. 115, 151, O.VII, R. 14 & O. XIII, Rr. 1, 2---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Suit for declaration, possession and permanent injunction---Application for production of document, rejection of---Delay in filing the application---Good cause, presence of---Petitioner assailed the order of rejection of application---Held: Order XIII, Rule 2, C.P.C. provided a remedy when a party failed to produce documents under O. XIII, R. 1 or O. VII, R. 14, C.P.C., which laid down that documentary evidence not produced as required should only be received if good cause for non-production was shown to the court's satisfaction, and the court must record its reasons for admitting such evidence---Mere delay in filing is not sufficient cause to disallow the document production, negating the purpose of O. XIII, R. 2, C.P.C.---Application to produce documents or additional evidence can be filed at any stage, especially when document's genuineness is certain---Such evidence should not be excluded if produced late---Court has discretion to admit documents at a later stage to ensure justice and decide rights on merits, not on technicalities---If document authenticity is not in doubt, the application should not be lightly dismissed, as procedures aim to advance justice, not obstruct it---Civil revision was accepted, in circumstances.

Muhammad Naeem Kakar for Petitioners.

Adnan Ejaz for Respondents Nos. 1 to 21.

Ameer Zaman Jogezai for Respondents Nos. 22 to 23.

P L D 2025 Balochistan 121

Before Muhammad Hashim Khan Kakar, C.J. and Muhammad Aamir Nawaz Rana, J

MUHAMMAD AFZAL JAMI---Petitioner

Versus

PROVINCE OF BALOCHISTAN through Senior Member, Board of Revenue, Balochistan and 3 others---Respondents

C. P. No. (t) 43 of 2022, decided on 17th December, 2024.

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

----R. 149---Constitution of Pakistan, Arts. 29, 30 & 199---Contract Act (IX of 1872), S.23---Constitutional petition---Maintainability---Compromise between the litigants and lawyer qua transfer of certain land as remuneration/professional legal fee---Legality---Issuance of notification by Revenue Department declaring the land settlement work carried out in the concerned Mauza as null and void---Principle of laches---Claim of the petitioner/lawyer was that Fard qua the land mutated to him in lieu of remuneration was not issued to him---Validity---Petitioner, who was a practicing lawyer, had himself admitted that he had received the property in question in lieu of his remuneration, which R. 149 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 (Rules) had specifically prohibited, thus, the transaction carried out was not only against R. 149 of the Rules, but against the Principles of Policy enshrined in Arts. 29 & 30 of the Constitution, as the consideration in the agreement between the petitioner, as a practicing lawyer, and certain litigants was unlawful in view of said Rule---Thus, the said agreement was void in terms of S. 23 of the Contract Act, 1872---Petitioner had not uttered a single word about the status of the original property owners of the property in question---Since the petitioner had derived his title from the plaintiffs of the civil suit/original owners, thus, it was incumbent upon the petitioner to prove that in fact the said owners, in the subsequent settlement proceedings, were also declared as owners, as the petitioner, on his own, had not asserted any ancestral right in the property---Petitioner had the knowledge of the notification, but even then instead of challenging the same, accepted the same and participated in the settlement proceedings, so subsequently, when his name was not incorporated as the owner of certain land, he at a belated stage challenged the notification without explaining the legal justification of such long delay, thus, the petition suffered from laches---Constitutional petition was dismissed, in circumstances.

Tahir Ali Baloch along with Petitioner for Petitioner.

Zahoor Ahmed Baloch, Additional Advocate-General for Respondents.

P L D 2025 Balochistan 127

Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ

AMINULLAH---Petitioner

Versus

KHALIL UR REHMAN and another---Respondents

Constitution Petition No. 1137 of 2022, decided on 18th December, 2024.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 66, 67, 68 & 72---Execution proceedings---Public Auction---Participation of decree-holder without permission---Effect---Non-compliance with mandatory provision---Payment of decretal amount during pendency of execution--- Challenge to possession order---Held, that O. XXI, Rr. 66, 67 & 68, C.P.C., outlined a comprehensive mechanism, whereby it was the duty of the Executing Court that after attaching the property, it had to direct the revenue authorities to assess the market value before referring the case to the District Revenue Officer for auction---Court was also required to instruct the Revenue Officer to include the reserved price in the auction proclamation, however, parties were not allowed time to inspect the property; the valuation and reserve price were absent---Proclamation must include all material particulars to inform potential bidders about the nature and value of the property---Non-compliance with O. XXI, Rr. 66, 67 & 68, C.P.C., vitiated the proceedings---If a decree-holder intends to participate in the auction, permission under R. 72 is mandatory, and only then can he claim a set-off of the purchase money---Decree-holder did not obtain such permission, rendering the auction proceedings violative of Rr. 66, 67, 68 & 72 of O. XXI, C.P.C., which was an illegality apparent on the record, thus, the auction was declared illegal---During litigation, the judgment-debtor produced documents proving full payment of the decretal amount, thus, the revisional court rightly set aside the auction/transfer order---No infirmity or perversity was found in the revisional court's order, rendering it immune from interference by the High Court---Constitutional petition was dismissed, in circumstances.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Bank Al-Habib Limited through Branch Manager v. Messrs Rafi Cotton Industries (Pvt.) Ltd. through Chief Executive and others 2023 CLD 154; Muhammad Zulfiqar and another v. Additional District Judge (West), Islamabad and others PLD 2016 Isl. 91; Trust Leaving v. Messrs Regent Dying 2005 CLC 1368; Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and others PLD 1993 Lah. 706; Mohib Textile Mills Limited through Director/ Shareholder/Representative, Formr Management of the Company v. National Bank of Pakistan, Karachi and others 2005 SCMR 1237; Siddique Weellen Mills through all Partners and 5 others v. Allied Bank of Pakistan Limited through Manager and General-Attorney, Badami Bagh Branch, Lahore 2002 CLD 1299; Messrs Asif Brothers, Jhang Saddar through Sole Proprietor and another v. Muslim Commercial Bank Limited through Manager and 3 others 2005 CLD 236; Muhammad Maherban v. Muhammad Siparas and others 2014 CLC 1329 and Muhammad Nazeer v. Waheed Anwar PLJ 2015 Lahore 938 ref.

Muhammad Ahmed Sheikh and 2 others v. J.S. Bank Limited through Branch Manager 2012 CLC 498 rel.

Petitioner in person.

Mushtaq Ahmed Anjum and Muhammad Yousaf Kakar for Respondent No.1.

Arbab Nasruminallah, Additional Advocate General for Respondent No.2.

P L D 2025 Balochistan 135

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

NAIMATULLAH ACHAKZAI, ADVOCATE---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Government of Balochistan and another---Respondents

C. P. No. 229 of 2021, decided on 18th July, 2023.

Balochistan Introduction of Mother Languages as Compulsory Additional Subject at Primary Level Act (III of 2014)---

----Preamble---Constitution of Pakistan, Arts. 199, 28 & 251---Constitutional petition---Implementation of national and regional languages as medium of education---Duty of Government, non-performance of---Petitioner sought implementation of Balochistan Introduction of Mother Languages as Compulsory Additional Subject at Primary Level Act, 2014---Held, that, mother tongue is the language which a child starts hearing after being born and it always helps in providing a definite shape to our emotions and thoughts---If a student is educated in his/her mother tongue, the rate of his or her educational success is higher compared to what is taught in a different medium---Student taught in mother tongue can easily master a new language---Right to education in mother tongue is the right of every child, however, unfortunately, in our country the majority of students are taught in a language other than their mother tongue, which compromises their ability to learn effectively---Our innocent children have no access to education in a language they speak and understand---Idea of one nation and one language killed the diversity and mother languages---Unity does not mean uniformity and the unity of our beloved country lies in its diversity---Government, in its response, acknowledged the existence of the Act but argued that its implementation had been delayed due to practical challenges and logistical issues---Government claimed to have taken certain preliminary steps towards implementing the Act---Government had a constitutional obligation to uphold and enforce the law---Mere existence of challenges could not absolve the Government from its duty to implement validly enacted legislation---It was the duty of the Government to adopt measures, including appropriate resource allocation and policy formation to overcome those challenges and ensure effective implementation---Constitutional petition was allowed, in circumstances, with a direction to take immediate and concrete steps for implementing the provision of the Act in its true spirit.

Muhammad Kowkab Iqbal v. Government of Pakistan PLD 2015 SC 1210 rel.

Naimath-Ullah Achakzai and Kaleemullah Kaleem for Petitioner.

Shai Haq Baloch, Additional Advocate General (A.A.G.) for Respondents.

P L D 2025 Balochistan 140

Before Gul Hassan Tareen, J

The SECRETARY B&R DEPARTMENT, GOVERNMENT OF BALOCHISTAN CIVIL SECRETARIAT, QUETTA and others---Petitioners

Versus

Sardar SIKANDAR HAYAT KHAN JOGEZAI---Respondent

Civil Revision Petition No. 456 of 2020, decided on 9th October, 2024.

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

----S. 115, O. XXIII, Rr. 2 & 3---Limitation Act (IX of 1908), Ss. 5, 29(2) & First Sched., Art. 162-A---Suit for recovery of money---Limitation---Permission to file fresh suit---Petitioner/Government assailed judgment and decree passed by two Courts below in favour of respondent/plaintiff---Petitioner/Government sought condonation of delay and contended that second suit filed by respondent/plaintiff was barred by limitation---Validity---Period of 90 days for filing of revision has been prescribed under Art. 162-A in First Schedule to Limitation Act, 1908---Bar prescribed by S. 29(2) of Limitation Act, 1908 does not apply to civil revision---Lower Appellate Court passed judgment and decree on 20-02-2020 and civil revision petition was governed by newly inserted Art. 162-A in Limitation Act, 1908, at the time of its filing---In province of Balochistan, provision of S. 5 of Limitation Act, 1908, was applicable to civil revision petitions filed under S. 115, C.P.C. for condonation of delay in filing petitions---Petitioners/Government obtained certified copy of judgment and decree on 11-11-2020, but the petition was filed on 30-11-2020---Delay of nineteen days was not explained---High Court declined to condone delay caused in filing of revision petition---Limitation of ninety days under Art. 162-A of First Schedule to Limitation Act, 1908 is relevant only when civil revision petition is filed by party to proceedings---Such impediment is non-existent when Court itself exercises jurisdiction under S. 115(1), C.P.C.---First suit which had been withdrawn was not to be considered and time spent on such suit was not to be deducted for the purpose of limitation even when permission to institute a fresh suit had been granted---Respondent/defendant was allowed to institute a fresh suit subject to all just and legal exceptions---Time spent in prosecution of first suit could not be excluded under O. XXIII, R. 2, C.P.C. for the purpose of limitation---High Court in exercise of suo motu revisional jurisdiction set aside judgment and decrees passed in favour of respondent/plaintiff by Trial Court and Lower Appellate Court---Revision was allowed, in circumstances.

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

----S. 3---Limitation---Scope---Provision of S. 3 of Limitation Act, 1908 is mandatory and question of limitation is a statutory provision which cannot be waived---It is not left to the parties to take or not to take an objection that suit is outside the time limit fixed by First Schedule to Limitation Act, 1908---Court must dismiss suit if it has been instituted after period of limitation prescribed for the same by First Schedule to Limitation Act, 1908.

Saifullah Sanjrani, Assistant Advocate General for Petitioners.

Syed Ayaz Zahoor for Respondent.

P L D 2025 Balochistan 149

Before Muhammad Ejaz Swati and Shaukat Ali Rakhshani, JJ

SABIRA ASAD---Petitioner

Versus

SAAD BIN ABDULLAH and another---Respondents

Constitution Petition No. 126 of 2024, decided on 2nd February, 2024.

Elections Act (XXXIII of 2017)---

----Ss.62 & 104(3)---Constitution of Pakistan, Art. 199---Submission/ scrutiny of nomination papers for reserved seats---Powers of Returning Officer of the constituency---Transgression---Invoking constitutional jurisdiction of High Court---Scope---Petitioner (a political party nominated candidate) filed constitutional petition as Returning Officer of her constituency for general seats rejected her nomination papers for reserved seats for women---Validity---Petitioner submitted two nomination papers before Returning Office of relevant constituency at the relevant office, one for general seat for the National Assembly and second for the reserved seat of women for National Assembly from her political party---Record reveals that the nomination papers for the reserved seats for women from her political party were rejected by the said RO---Indisputably, though the said RO was authorized and competent to scrutinize the nomination papers of the candidates from the said constituency for general seats, but had absolutely no authority and power either to accept or reject the nomination papers of a party nominated candidate for the reserved seats as per priority list---Provincial Election Commissioner (PEC) was appointed as Returning Officer for the seats reserved for women and non-Muslims, thus, he (PEC/RO) was competent alone for receipt of nomination papers, scrutiny and decision thereon---In the present case, the petitioner had filed nomination papers for reserved seats for women before the RO of the constituency instead of filing the same before the PEC/RO, which error could have been rectified and corrected by the RO of constituency either by transmitting the nomination papers to the PEC/RO or could have returned the nomination papers to the petitioner to file the same before the competent Returning Officer i.e. (PEC/RO), but the RO of constituency rejected her nomination papers without any lawful authority and jurisdiction, which indeed was required to be rectified and corrected by High Court, while exercising jurisdiction under Art. 199 of the Constitution in order to meet the ends of justice as an aggrieved person cannot be left remediless---High Court declared the order of rejection of the nomination papers null and void and directed the matter to be transmitted to the Provincial Election Commissioner being RO of the reserved seats for women, who after due scrutiny shall render decision thereon forthwith in accordance with law---Consti-tutional petition was allowed accordingly.

Khalid Ahmed Kubdani and Ghulam Mohi-ud-Din Sasoli for Petitioner.

Shehzad Aslam, AD Law and Naseer Ahmed, Senior Personal Assistant ECP for Official Respondents.

P L D 2025 Balochistan 152

Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ

GHULAM MUSTAFA and 2 others---Petitioners

Versus

GHULAM HAIDER and 9 others---Respondents

C. P. No. 629 of 2023, decided on 12th December, 2024.

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

----Ss. 172(2)(ii),172 (2)(v), 172 (2) (vi) & 172(2)(xvi)---Gift-mutation, challenging of---Fraud alleged by the donor---Jurisdiction---Whether revenue authorities/courts or civil court had jurisdiction---Settlement Officer set-aside gift-mutation accepting application of the donor filed by him in his life ('the gift mutation-in-question') which findings were maintained upto the Board of Revenue---Donees (petitioners) challenged said orders---Held: The donor challenged the gift mutation-in-question by seeking its (mutation's) cancellation on the ground of fraud, which was contested by the two petitioners (who were sons of the donor from first wife) thus, resulting in controversial question of facts---Such disputes require adjudication through the presentation of evidence by both parties in support of their respective claims---Importantly, S. 172 of the Land Revenue Act, 1967 ('the Act 1967') assigns certain matters to the jurisdiction of the revenue authority, thereby excluding the jurisdiction of civil court---Revenue authority has a limited scope of inquiry and does not function like a civil court concerning contested matters that necessitate the framing of issues and determination through evidence---Such matters fall solely within the jurisdiction of civil courts---Furthermore, S. 172(2)(xvi) of the Act 1967 leaves the adjudication of plea of fraud to the competence of civil court---In the present case, the revenue authorities (from settlement authority to the Senior Member Board of Revenue) vide impugned orders had decided controversial question of "fraud" in summary proceedings, which was excluded under clause (v) and clause(xvi) of S. 172(2) of the Act 1967 to the extent of first mutation of gift for which they had no jurisdiction---The revenue authority, under clauses (ii), (vi) and (xvi) of S. 172(2) of the Act 1967 was authorized to exercise its powers, which included compelling the discharge of any duties imposed by the Act 1967, or any other enactment for the time being in force, correcting entries in the record of rights, or addressing any claims to set aside on grounds other than "fraud"---High Court set-aside the impugned orders passed by revenue authorities while aggrieved legal heirs of donor (now deceased) were at liberty to seek their remedy before the plenary jurisdiction of the civil court---Constitutional petition was disposed of accordingly.

Abdul Majeed Khan through L.Rs and others v. Ms. Naheem Begum and others 2014 SCMR 1524 ref.

(b) Balochistan Land Revenue Act (XVII of 1967)---

----Ss. 172 (2)(ii),, 172 (2) (vi) & 172(2)(xvi)---Gift-mutation---Challenging gift-mutation on ground other than fraud---Jurisdiction---Whether revenue authorities/courts or civil court had jurisdiction---Settlement Officer set-aside gift-mutation accepting application of the donor (father who contracted two marriages) filed by him in his life ('the gift mutation-in-question') which findings were maintained upto the Board of Revenue---Donees/sons (petitioners) challenged said orders---Held: In the present matter, the contents of gift-in-question remained un-disputed---The revenue authority, under clauses (ii), (vi) and (xvi) of S. 172(2) of the Act 1967 was authorized to exercise its powers, which included compelling the discharge of any duties imposed by the Act 1967, or any other enactment for the time being in force, correcting entries in the record of rights, or addressing any claims to set aside, on grounds other than "fraud"---No illegality had been noticed in the impugned gift-mutation cancelling orders passed by revenue authorities---Constitutional petition was dismissed, in circumstances.

(c) Islamic law---

----Gift---Ingredients---Delivery of possession, absence of---Revocation of gift---Gift-mutation, challenging of---Settlement Officer set-aside gift-mutation accepting application of the donor filed by him in his life ('the gift mutation-in-question') which findings were maintained upto the Board of Revenue---Validity---To constitute a valid gift under Para 149 of Principles of Muhammadan Law, delivery of possession of the subject of the gift by the donor to the donee is one of three essential ingredients (i.e. declaration, acceptance and delivery of possession of gift)---Under Para 167 of Principles of Muhammadan Law, the donor can opt revocation of gift before delivery of possession or where gift property has not been delivered to the donee---In the present case, the recital in the mutation of the gift mutation-in-question did not state that the purported subject matter of the gift was handed over to the donees---Therefore, it could not be concluded that the gift of the property-in-question was delivered to the donees---No illegality had been noticed in the impugned gift-mutation cancelling orders passed by revenue authorities---Constitutional petition was dismissed, in circumstances.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 1417; Mst. Kalsoom Begum v. Peran Ditta and others 2022 SCMR 1352 and Dildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore 2019 SCMR 906 ref.

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

----Arts. 102 & 103---Gift-mutation, challenging of---Delivery of possession, absence of---Revocation of gift---Scope---Documentary evidence, presence of---Oral assertion---Scope and effect---Settlement Officer set-aside gift-mutation accepting application of the donor filed by him in his life ('the gift mutation-in-question') which findings were maintained upto the Board of Revenue---Contention of the petitioners/ donees was that the question whether the gift/land was handed over to the donees required determination through oral evidence---Validity---In the present case, the recital in the mutation of the gift mutation-in-question did not state that the purported subject matter of the gift was handed over to the donees---Article 102 of the Qanun-e-Shahadat, 1984 ('the Order 1984') provides that when the terms of a contract, grant or any deposition of property, have been reduced to the form of a document, no evidence shall be admissible to prove the terms of such contract, grant or other deposition of property or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the relevant provision---Article 102 of the Order, 1984 provides that no oral evidence could be led to contradict the contents of the written document as the same is deemed inadmissible in the law---In essence, the oral evidence cannot outweigh documentary evidence---The documentary evidence that is not objected at the relevant time, would prevail against oral evidence, regardless of how abundant the latter may be---Mere oral assertions are insufficient to rebut documentary evidence, which holds greater weight and credibility---Article 103 of the Order 1984 excludes oral statements made between the parties to any instrument or their representative---The rationale behind this provision is that a written agreement reflects a deliberate and well considered settlement---Furthermore, a party acknowledging a fact in writing is protected from the potential issue of mischief, failure and memory lapses---Once an agreement has been reduced to writing, oral evidence is excluded when proving the terms, as against the terms specifically articulated in writing---In the present case, the gift mutation relied upon by petitioners indicated "non delivery" of the subject gift/land to the donees---The probability of the petitioners to establish their case before the Civil Court by producing oral evidence, in presence of the documentary evidence, would not enhance their case, therefore, impugned orders concerning petitioners were sustained---No illegality had been noticed in the impugned gift-mutation cancelling orders passed by revenue authorities---Constitutional petition was dismissed, in circumstances.

Abdul Ghani and others' case 2011 SCMR 837; Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473; Mst. Baswar Sultan v. Adeeba Alvi 2002 SCMR 326; Bolan Beverages (Pvt.) Limited v. PEPSICO INC and 4 others PLD 2004 SC 860 and Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others 2014 SCMR 1217 ref.

Muhammad Naeem Marri for Petitioners.

Shirjeel Haider for Respondents Nos. 1, 1-a and 1-b.

Alla-ud-Din Kakar, A.A.G. for Official Respondents.

P L D 2025 Balochistan 160

Before Muhammad Aamir Nawaz Rana, J

Syed INAMULLAH---Petitioner

Versus

Syed MUHAMMAD WASEEM and 8 others---Respondents

Election Appeal No. 421 of 2024, decided on 18th October, 2024.

Balochistan Local Government Act (V of 2010)---

----S. 24(1)(c)---Elections Act (XXXIII 2017), S. 39---Local Bodies Election---Seat of Councillor---Eligibility to contest the election---Determination---Disqualification of returned candidate on account of not being enrolled as voter in the electoral roll of the relevant Ward---Application of concept of "Throw Away Votes"---Scope---Election petition filed by the respondent was accepted declaring the appellant as disqualified to contest the election and his notification as returned candidate was set-aside while declaring the respondent as returned candidate---Contention of the appellant was that the Election Tribunal while deciding the matter had ignored the relevant record qua transfer of his vote and respondent could not be declared returned candidate as concept of "Throw Away Vote" was not applicable in such matter---Validity---Voters list was published after announcement of election schedule, thus, under S. 39 of the Elections Act, 2017, no revision, correction or transfer could have been made in the Electoral List--Appellant was voter of Ward-A but in violation of S. 24(1)(c) of the Balochistan Local Government Act, 2010, the appellant contested the election from Ward-B and as such the appellant was rightly disqualified by the Election Tribunal, thus, to the extent of disqualification of appellant, no interference was required by High Court---If the disqualification of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest number of votes---Nomination papers of the appellant were accepted by the Returning Officer without any objection, which proved that the voters were unaware of the disqualification of the appellant, thus, the rule of "Throw Away Votes" could not be invoked by the Election Tribunal---Declaration of respondent as returned candidate was set aside and the election was declared void as a whole with a direction to Election Commission of Pakistan to hold fresh election in accordance with law---Election appeal was partially allowed, in circumstances.

Sh. Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484 rel.

Manzoor Ahmed Shah for Appellant.

Jameel Ahmed Khan Babai for Respondent No. 1.

Shahzad Aslam, Assistant Director (Law), Election Commission of Pakistan (ECP) assisted by Naseer Ahmed, Senior Personal Assistant ECP for Respondents Nos. 2 to 6 and 9.

Nemo for Respondents Nos. 7 and 8.

P L D 2025 Supreme Court 1

Present: Syed Mansoor Ali Shah, Ayesha A. Malik and Aqeel Ahmed Abbasi, JJ

Messrs MUGHALS PAKISTAN (PVT.) LIMITED---Appellant

versus

EMPLOYEES OLD AGE BENEFITS INSTITUTION through Director Law, Lahore and others---Respondents

Civil Appeals Nos. 256 and 257 of 2024 and C.M.As. Nos. 3039 and 3042 of 2024, decided on 6th November, 2024.

(On appeal against the judgment dated 06.01.2024 passed by the Lahore High Court, Lahore in R.F.As. Nos. 43092 and 37623 of 2022).

(a) Alternate Dispute Resolution Act (XX of 2017)---

----S. 2(i)---Punjab Alternate Dispute Resolution Act (XVII of 2019), S. 2(b)---Balochistan Alternate Dispute Resolution Act (XXXI of 2022), S. 2(i)---Khyber Pakhtunkhwa Alternate Dispute Resolution Act (XLVIII of 2020), S. 2(a)---Civil Procedure Code (V of 1908) [as amended by the Code of Civil Procedure (Sindh Amendment) Act, 2018], S. 89-A(1)---Alternative Dispute Resolution ("ADR")---Mediation---Mediation is not merely an alternative to litigation but a complementary and necessary component of the justice system---Significance of mediation stated.

Mediation is evolving as a powerful mechanism for conflict resolution, bridging divides with creativity and fostering harmonious solutions. It is a testament to the potential of dialogue over confrontation. Mediation (and other mechanisms of Alternative Dispute Resolution (ADR)) can be philosophically framed as essential tools to ensure access to justice in a country where millions of cases are pending. This approach aligns with a broader understanding of justice as being not only about achieving outcomes but also about the process itself being fair, efficient, and accessible. Traditional court system is adversarial and often resource-intensive, leading to delays and alienation of marginalized groups. Mediation embodies a collaborative model of justice that prioritizes dialogue and empowerment, ensuring parties are active participants in resolving their disputes. The sheer volume of pending cases often renders justice delayed, and as the saying goes, "Justice delayed is justice denied." Mediation offers a timely and context-sensitive resolution that addresses the substance of disputes without being bogged down by procedural complexities. Philosophically, mediation reflects the relational nature of human beings. It prioritizes restoring relationships, preserving dignity, and finding mutually beneficial solutions over the zero-sum outcomes of litigation. Mediation accommodates the cultural, social, and economic diversity of disputing parties. It aligns with justice as capability enhancing, allowing parties to exercise their agency and reach solutions that reflect their lived realities. Mediation bridges modern legal systems with indigenous practices, thereby strengthening communal harmony while maintaining legal validity.

Mediation must be increasingly seen as a right of the parties within the litigation process. Access to justice includes the right to have disputes resolved in a timely and efficient manner. Mediation, as a faster and cost-effective alternative, satisfies this fundamental aspect of justice. Mediation respects the autonomy of the parties by giving them control over the process and outcome, unlike litigation, where outcomes are imposed by judges. Litigants have the right to avoid the adversarial consequences of litigation, such as financial strain, emotional distress, and reputational harm. Mediation provides a non-confrontational environment that mitigates these risks. Procedural justice emphasizes the fairness of the process, and mediation upholds this by ensuring participation, neutrality, and respect - core elements of a fair process. In contexts where economic inequalities limit access to legal representation, mediation ensures that the justice system remains accessible to the underprivileged. Many societies have strong traditions of community-led dispute resolution. Mediation builds on these traditions, ensuring justice remains culturally relevant. Mediation is at the heart of access to justice. Courts must embrace it as an essential tool for efficient and humane dispute resolution. In conclusion, mediation is not merely an alternative to litigation but a complementary and necessary component of the justice system.

Chief Justice Sundaresh Menon's speech titled "International Mediation and the Role of Courts" at the Supreme Court of Indonesia, November 2023 ref.

The reasons which make mediation a compelling choice for an appropriate avenue to resolve disputes efficiently and effectively, inter alia, include: (i) Cost-effectiveness; mediation incurs lower legal fees and expenses due to shorter and less formal processes; (ii) Time efficiency; resolutions can often be reached much faster through mediation than through court proceedings, which can take years to conclude, (iii) Flexibility; the procedures in mediation are flexible, allowing parties to tailor the specific processes to their specific needs, including choosing their mediator and deciding the rules for the proceedings, (iv) Confidentiality; unlike trials in courts which are generally public, mediation processes are private. This confidentiality can be crucial for preserving personal relationships, protecting trade secrets or avoiding negative publicity, (v) Preservation of relationships; mediation encourages cooperation and communication, which can help maintain or even improve relationships between parties, a key consideration in business context or family disputes, (vi) Control over the outcome; parties have more control over the resolution as they are directly involved in negotiating the settlement, (vii) Expertise; parties can choose an expert in the field relevant to their dispute to act as the mediator, which can lead to more informed decisions and (viii) Reduced hostility; mediation tends to be less adversarial than court litigation, which can reduce tensions and hostility between parties.

The courts should not only encourage mediating more and litigating less but also exhibit a promediation bias which connotes a pre-disposition within the legal system for resolution of disputes through mediation rather than through litigation or other forms of dispute resolution. Such bias does not favor one party over another but rather prioritizes mediation as the preferred method of dispute resolution. It is grounded in the belief that settlements are generally more efficient and satisfactory for all parties involved compared to outcomes determined by a court. Mediation offers the best chance of a solution where both parties leave with dignity and satisfaction, as opposed to the all-or-nothing results of litigation.

Taisei Corporation v. A.M. Construction 2024 SCMR 640; Commissioner Inland Revenue v. RYK Mills 2023 SCMR 1856; National Highway Authority v. Sambu Construction 2023 SCMR 1103; Orient Power Company v. Sui Northern Gas 2021 SCMR 1728; Federation of Pakistan v. Attock Petroleum 2007 SCMR 1095; Waqas Yaqub v. Adeel Yaqub 2024 CLD 990; Faisal Zafar v. Siraj-ud-Din, 2024 CLD 1; Fiaz Hussain Minhas v. SECP, C.O. No. 75025/2022 (unreported); Netherlands Financierings v. Morgah Valley 2024 CLD 685; Strategic Plans v. Punjab Revenue Authority PLD 2024 Lah. 545; Sohail Nisar v. Nadeem Nisar 2024 LHC 1435; Messrs Alstom Power v. Pakistan Water PLD 2007 Lah. 581; Shehzad Arshad v. Pervez Arshad 2024 CLD 1121; Focus Entertainment v. Television Media 2021 CLD 885; Asif S. Sajan v. Rehan Associates PLD 2012 Sindh 388; Messrs U.I.G v. Muhammad Imran Qureshi 2011 CLC 758; Miss Memoona Zainab Kazmi v. Additional District Judge 2023 CLC 207; Imperial Electric Company v. Zhongzing Telecom Pakistan 2019 CLD 609; Cowl v. Plymouth City Council [2001] EWCA Civ 1935 (per Lord Woolf LCJ) and Province of Punjab v. Haroon Construction Company 2024 SCMR 947 ref.

Encouraging mediation aligns with the broader goals of justice systems worldwide: to resolve disputes in a manner that is fair, efficient, and conducive to the longterm well-being of all parties involved.

From a global perspective, the value of mediation as a method of amicably resolving disputes has been recognized in various international legal instruments including the United Nations Convention on International Settlement Agreements Resulting from Mediation, known as, the "Singapore Convention on Mediation", ("Singapore Convention"). The Convention provides a uniform and efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes - akin to the framework that the 1958 New York Convention provides for arbitral awards. To date, the Convention has 57 signatories, while only 12 states have ratified the same. To promote efficiency and align with the principle that 'in the future, it is likely that the traditional trial will be the exception rather than the rule' it is recommended that Pakistan becomes a signatory to the Convention. This will not only reduce the alarming backlog statistics through enhancing faster access to justice but will also serve as a turning point towards a comprehensive and profound transformation of the legal and judicial system.

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

----Ss. 17 & 20---Construction project---Disputes over extension of time and the encashment of Mobilization Advance Guarantees---Alternative Dispute Resolution ("ADR")---Mediation---In the present case the arbitral award passed by a two-member arbitral tribunal was made the Rule of Court by the Civil Court---Appeal was filed against the said judgment by the respondents before the High Court, which was allowed and the unanimous arbitral award was rendered a nullity---Respondents after initially expressing their unease with out of court settlement or "ADR" finally agreed to resolve their dispute through mediation in both the appeals---Respondents, however, reserved their right to expand the scope of their dispute before the mediator, provided both the parties mutually agreed to such a change---Supreme Court disposed of present appeals as being sent out for mediation, and observed that in case mediation or any other mode of ADR was unsuccessful, the parties may approach the Supreme Court and apply for the refixation of present appeals---Appeals were, therefore consigned to the record.

Ahmer Bilal Soofi, Advocate Supreme Court, Syed Ali Imran, Advocate Supreme Court and Sh. Mehmood Ahmed, Advocate-on-Record for Appellants.

Salman Mansoor, Advocate Supreme Court, Mian Shafqat Jan, Advocate Supreme Court, Barrister Khurram Raza, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Sukhan Ilyas Malik, Dy. Dir. Law (EOBI) and Imran Shanwari, CEO PRIMACO for Respondents.

Assisted by Umer A. Ranjha, Judicial Law Clerk.

P L D 2025 Supreme Court 11

Present: Munib Akhtar, Muhammad Ali Mazhar and Ayesha A. Malik, JJ

FEDERAL GOVERNMENT EMPLOYEES HOUSING AUTHORITY through

Director General, Islamabad---Petitioners

Versus

EDNAN SYED and others---Respondents

Civil Petitions Nos. 767 of 2022, 857 to 868 of 2022, 1272 to 1274 of 2022, 1416 of 2022, 6616 of 2021, 4545 to 4549 of 2022, 4665 of 2022 and 4666 of 2022 and C.M.As. Nos.1631 of 2022, 104 of 2023, 2237 to 2248 of 2022 and 3503 of 2024, decided on 20th November, 2024.

(On appeal against the judgments dated 03.02.2022, 20.08.2021 passed by the Islamabad High Court in I.C.A. No. 527 of 2016 and W.Ps. Nos. 3573, 3427, 3428, 3421, 3222, 3145, 3237, 3254, 3893, 3647, 3756 and 3422 of 2021 and 2949 of 2021).

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Courts do not have suo motu jurisdiction and as such the constitutional scheme never intended to confer such powers on the High Courts---High Court cannot assume suo motu jurisdiction by overreaching or overstretching its constitutional limits.

Sadiq Poultry (Pvt.) Ltd. v. Government of Khyber Pakhtunkhwa PLD 2023 SC 236; Mian Irfan Bashir v. Deputy Commissioner, Lahore PLD 2021 SC 571; Raja Muhammad Nadeem v. The State PLD 2020 SC 282; Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority 2018 SCMR 414; Imran Khattak v. Sofia Waqar Khattak 2014 SCMR 122; Mian Muhammad Nawaz Sharif v. Muhammad Habib Wahab Al-Khairi 2000 SCMR 1046; Abdullah Jumani v. Province of Sindh 2024 SCMR 1258 and Akhtar Abbas v. Nayyar Hussain 1982 SCMR 549 ref.

(b) Jurisdiction---

----Principle---It is constitutionally impermissible for the courts to expand and enlarge their jurisdictional domain, which is neither allowed by the Constitution nor by the law.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Judicial review---Scope---High Court cannot grant a relief, which is not even sought in the petition---Gateway to invoke judicial review of the High Court is only when there is an application or appeal by the aggrieved or affected party---In the absence of any such application, the High Court may enter into the domain of judicial overreach, which is the exercise of power without any legal basis and the same falls within the ambit of interference and encroachment on the legislative and executive domain---Consequently, such absolute judicial expansionism offends the principle of separation of powers.

Taufiq Asif v. General (Retd.) Pervez Musharraf PLD 2024 SC 610 and Akhtar Abbas v. Nayyar Hussain 1982 SCMR 549 ref.

(d) Appeal---

----Principle---An appeal is the continuation of the same proceedings that allows the appellate court to consider all those aspects which were even challenged before the forum of the first instance.

(e) Constitution of Pakistan---

----Art. 10A---Fair trial and due process---Right to be heard---'Audi alteram partem', principle of---Principle of 'audi alteram partem' is one of the foundational principles of natural justice---It necessitates the requirement of being heard so that the judicial order reflects the contention of every party before the court---To fulfill the requirements of being heard, it is settled that the relevant party must be issued first a notice and then be allowed a hearing---These two (notice and hearing) are basic pre-requisites, which satisfy the test of being heard as well as fair trial and due process within the ambit of Article 10A of the Constitution.

Provincial Police Officer v. Muhammad Nawaz 2011 SCMR 689 and Karachi Electric Supply Corporation v. Abdul Jabbar Channa 2003 PLC (C.S.) 500 ref.

(f) Judicial review---

----Legislative and executive actions---Constitution does not envision that the courts are bestowed with unfettered powers that can be exercised within the disguise of judicial review---Judicial review of legislative and executive actions is not an unlimited or unbridled authority of the courts but one that is circumscribed or confided by the Constitution and the law.

For the Petitioners/Applicants:

Uzair Karamat Bhandari, Advocate Supreme Court assisted by Ali Uzair Bhandari, Capt. (R.) Zafar Iqbal, DG, FGEHA, Basit Khan, Director Law, Faiz Umer Sial, Dir (Admn.), FGEHA (in C.Ps. Nos. 767 and 857 to 868 of 2022).

Shah Khawar, Advocate Supreme Court, Sh. Mehmood Ahmed, Advocate-on-Record (in C.Ps. Nos. 1272 to 1274 of 2022).

Hafiz Ahsan Ahmed Khokhar, Advocate Supreme Court (in C.Ps. Nos. 6616 of 2021 and 4545 of 2022).

Mian Abdul Rauf, Advocate Supreme Court (in C.Ps. Nos. 4546 and 4666 of 2022 and applicant in C.M.A. No. 5957 of 2022).

Mehmood A. Sheikh, Advocate-on-Record (in C.P. No. 4548 of 2022).

Ch. Ali Muhammad, Advocate Supreme Court (in C.P. No. 4549 of 2022).

For the Federation:

(in all cases)

Ch. Aamir Rehman, Additional Attorney General for Pakistan, Malik Javed Akhtar Wains, Addl. Attorney General for Pakistan, Raja Shafqat Abbasi, D.A.G., Dr. Shahzad Bangash, Secy. H&W and Ashfaq Ghumman, Additional Secretary, Ministry of H&W.

For Respondents Nos. 1, 3 to 11:

(in C. P. No. 767 of 2022, 3, 5

to 13 in C.P. No. 4546 of 2022 and

1, 3 to 11 in C.P.4547 of 2022)

Azid Nafees, Advocate Supreme Court assisted by Bader Iqbal Ch. Advocate.

In C.M.A. No. 4843 of 2024:

Raja Muhammad Farooq, Advocate Supreme Court.

Respondent No.1

(in C.P. No. 859 of 2022)

Asim Shafi, Advocate Supreme Court.

Respondent No.1

(in C.Ps. Nos. 862 and

4665 of 2022)

Barrister Umer Aslam Khan, Advocate Supreme Court.

Respondent No.1

(in C.P. No. 866 of 2022)

Sher Bahadur Khan, Advocate (In-person).

Respondent No.1

(in C.P. No. 4545 of 2022).

Mian Abdul Rauf, Advocate Supreme Court.

Respondent No.1

(in C.P. No. 4546 of 2022)

Ch. Riasat Ali Gondal, Advocate Supreme Court.

Respondent (FGEHA)

(in C.P. No. 4549 of 2022)

Niaz Ahmed Rathore, Advocate Supreme Court.

Applicant

(in C.MA. No. 104 of 2023)

Mrs. Ali Begum Jan, in person.

Respondent No.1

(in C.Ps. Nos. 1272 and 1274 and

C.M.A. No. 4803 of 2022).

Rana Abid Nazir, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record.

Respondents in person

Nasrullah, Khumar Gul, Muhammad Asif and Zafran Ahmad.

In C.M.A. No. 1179 of 2023

Asad Iqbal Siddiqui, Advocate High Court.

In C.P. No. 859 of 2021 and

C.M.A. No. 2239 of 2021.

Najeeb-ur-Rehman Abbasi (in person)

P L D 2025 Supreme Court 24

Present: Shahid Waheed and Irfan Saadat Khan, JJ

MISREE KHAN and others ---Petitioners

Versus

ABDUL GHAFOOR and others---Respondents

C.P.L.A. No. 81-P of 2019, decided on 14th November, 2024.

(Against the order dated 14.12.2018 passed by the Peshawar High Court, Peshawar in F.A.O. No.71-P of 2009).

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

----O. VII, R. 11---Rejection of plaint---Principles---Averments in the plaint must be read as a whole to determine whether it discloses a cause of action or whether the suit is barred under any law---This includes a bar created due to the lapse of the limitation period---At the stage of exercise of power under Order VII, Rule 11, C.P.C., if the averments in the plaint ex-facie do not disclose a cause of action or on a reading thereof, the suit appears to be barred under any law; the plaint can be rejected.

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

----S. 42---Limitation Act (IX of 1908), First Sched., Art. 120---Suit for declaration---Limitation period, commencement of---There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or threat to infringe that right---It implies that the date of accrual of the cause of action, and not the cause of action itself, would be terminus a quo for computing limitation time for a suit for declaration under Article 120 of the Limitation Act, 1908.

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

----Ss. 96, 115 & O.VII, R. 11---Constitution of Pakistan, Art. 199---District Court exercising revisional jurisdiction to issue an order to reject a plaint under Order VII, Rule 11, C.P.C.---Remedy available to the aggrieved party---Constitutional petition before the High Court---Second revision of an order rejecting a plaint under Order VII, Rule 11, C.P.C., by the District Court cannot be pursued by invoking Section 115, C.P.C. before the High Court---Furthermore, although a revisional court's order rejecting a plaint is classified as a decree, it cannot be appealed (before the High Court) under Section 96, C.P.C.---Moreover, a second appeal against such a decree is also not permissible, because this type of appeal can only be made concerning decrees issued by Courts operating in their appellate jurisdiction---Therefore, in such instances where parties feel aggrieved by the revisional order, they may pursue a writ petition under Article 199 of the Constitution---This writ petition must go beyond merely alleging illegality---It must establish that the underlying merits of the case have been adversely impacted and that a party's legal rights have been compromised as a result---This requirement emphasises the need for a meaningful connection between the alleged procedural irregularities and the substantive rights of the parties involved.

Qadir Bakhsh Shah v. Additional District Judge 2004 SCMR 1638; Noor Muhammad v. Sarwar Khan PLD 1985 SC 131; Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322; Hassan Din v. Abdus Salam PLD 1991 SC 65 and Qamar ud Din v. Muhammad Din PLD 2001 SC 518 ref.

Muhammad Asif, Advocate Supreme Court via video link from Peshawar for Petitioners.

Nemo for Respondents.

P L D 2025 Supreme Court 31

Present: Athar Minallah, Musarrat Hilali and Irfan Saadat Khan, JJ

Faqir Syed ANWAR UD DIN deceased through LRs---Petitioners

Versus

Syed RAZA HAIDER and others---Respondents

Civil Petition No. 3210-L of 2023 and Civil Petition No. 5181 of 2023, decided on 22nd April, 2024.

(Against judgment dated 28.09.2023 of the Lahore High Court, Lahore passed in R.S.As. Nos.68 of 2017 and 92 of 2017).

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

----Ss. 8 & 42---Suit for declaration, partition and possession---Person of unsound mind suffering from chronic mental ailments---Property transaction---Onus on beneficiary to prove that transaction was bona fide---Evidence brought on record had established the factum that the plaintiff suffered from mental ailments and that she remained hospitalized from time to time---Question of unsoundness of mind involved questions of fact and it stood proved on the basis of preponderance of evidence and subsequently concurrently affirmed by two competent courts---Defendants had not denied the mental condition of the plaintiff but one of the siblings (defendant No.1) had taken the stance that this medical condition did not exist when the power of attorney was executed in his favour and transactions relating to the two properties were made---However, the defendants could not discharge the onus to this effect and, therefore, the issue was decided against them---Except for defendant No.1 ( in whose favour the purported power of attorney was executed) no other sibling had entered the witness box---Defendant No.1 had admitted that the sale consideration was not paid to the plaintiff, rather, according to his deposition, it was received by defendant No.2---Receipt was also executed by two other siblings---Defendant No.1 himself was a beneficiary of the transfer of the agricultural property while the share in the house was transferred by him pursuant to a power of attorney---Defendant No.1 had made contradictory statements in his deposition regarding the sale of the agricultural land in the name of her mother---Defendant No.1 also failed to bring on record reliable and confidence inspiring evidence to establish that the execution of the power of attorney by a person who suffered from chronic and serious mental ailments and the transactions made on her behalf or attributed to her were bona fide and sustainable---Suit filed by plaintiff through her son as next of friend was rightly decreed---Petitions were dismissed and leave to appeal was declined.

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

----S. 27(b)---Specific performance of contract---Relief against parties and persons claiming under them by subsequent title---In cases involving protection under section 27(b) of the Specific Relief Act 1877 ('Act of 1877') the subsequent vendee who asserts that he is a bona fide purchaser i.e. a transferee for value has to discharge the initial onus---Latter has to discharge the initial onus to the effect that; he had acquired the property for due consideration and thus is a transferee for value; he or she, as the case may be, has to show that the sale was for a price paid to the vendor and not otherwise; there was no dishonesty of purpose of tainted intention to enter into the transaction thereby meaning that the latter had acted in good faith or bonafidely and, lastly, that he/she had taken reasonable care to inquire i.e. had acted as a person of ordinary prudence in making inquiries expected of a purchaser who intends to acquire a good title for the value being paid for.

Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 and Gulzar Ahmed and others v. Ammad Aslam and others 2022 SCMR 1433 ref.

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

----S. 100---Second Appeal---Scope---Concurrent findings are not interfered with under section 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence---Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C.

Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777 Haji Sultan Ahmed through Legal Heirs v. Naeem Raza 1996 SCMR 1729 ref.

Hafiz Muhammad Yousuf, Advocate Supreme Court (in C.P. No. 3210-L of 2023) Raja Imran Aziz, Advocate Supreme Court (in C.P. No. 5181 of 2023) for Petitioners.

Navid Ashiq Alvi, Advocate Supreme Court for Respondents (in both cases).

P L D 2025 Supreme Court 36

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

Mehar BADSHAH---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Civil Petition No. 524-P of 2015, decided on 24th October, 2024.

(a) Constitution of Pakistan---

----Art. 9A---Right to a clean, healthy, and sustainable environment - Deforestation---Adverse effects---Forests, importance of---Forest cover in Pakistan has been rapidly decreasing, suggesting complicity and/or negligence of the Forest Department, which is supposed to protect forests---Deforestation results in unprecedented land-slides and flooding, and the diminishing forest cover is not sufficient to enable the sequestering of the green house gas emissions caused by burning fossils fuels, which exacerbates the effect of climate change, the consequences of which are suffered by the people---Pakistan is amongst the countries most vulnerable to the effects of climate change---However, the Forest Department appears to view forests as a resource to be exploited which was a policy of the former colonizers---Future of the people of Pakistan depends in having adequate forest cover---Existing dwindling forests must be preserved and efforts should be made to stop deforestation---A viable future is dependent on preserving and conserving the environment and adopting sustainable environmental practices---Forests are natural rainfall catchment areas, and they also ensure against flooding and avalanches---Rain water flowing in to the streams and rivers must not be polluted---Unfortunately and regrettably sewage and industrial waste are released into water bodies killing the life bearing quality of water---Effects of deforestation and pollution long outlast lives---Trees are equally important in sequestering green house gases released by burning fossils fuels---Environment has been placed as a Fundamental Right (i.e. Article 9A) in the Constitution and its significance and importance must be brought to bear on everyone and effective preservation measures be taken.

(b) Practice and procedure---

----Every document filed in Court must have name of the person who submits/files it.

(c) Constitution of Pakistan---

----Arts. 9 & 9A---Right to life---Scope---Clean, healthy, and sustainable environment---Life worth living is one having a sustainable environment.

Shah Faisal Ilyas, Additional Advocate-General, Khyber Pakhtunkhwa along with Sajid, Aman, SDFO, Forest Department on Court's Notice for Government of Khyber Pakhtunkhwa.

P L D 2025 Supreme Court 40

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

MUHAMMAD RAJAR---Petitioner

Versus

The STATE through Prosecutor General Sindh and others---Respondents

Criminal Petition No. 165-K of 2022, decided on 14th October, 2024.

(Against the Order dated 06.10.2022 passed by High Court of Sindh, Circuit Court, Hyderabad in Criminal Revision Application No.S-77 of 2022).

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

----S. 200---Direct complaint under section 200, Cr.P.C---Mala fides and ulterior motives of complainant---Perusal of the record demonstrated that prior to filing a direct complaint by the petitioner, an FIR was registered against the present petitioner and other accused persons with the allegations of attacking a police party and security persons deputed by some foreigners and robbing government ammunitions---Thus, the direct complaint appeared to be a deliberate and calculated retaliatory measure in response to the earlier FIR, indicating that it may have been filed with clear mala fide intentions and ulterior motives---In the present case, the material presented by the petitioner in support of the complaint failed to make out a prima facie case---High Court rightly held that this inadequacy of supporting material necessitated that the Trial Court exercised its discretion to dismiss the complaint, thereby preventing the legal system from being burdened with an unsubstantiated claim---Petition was dismissed and leave was refused.

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

----Ss. 200, 201, 202, 203 & 204---Direct complaint under section 200, Cr.P.C.---Inquiry or investigation under Section 202 of the Cr.P.C---Purpose---Factors to be considered by the Court---Provisions of Sections 202, 203, and 204 of the Cr.P.C. require Trial Courts to conduct a thorough examination of the evidence supporting allegations made against individuals---In this context, the Trial Court must consider not only the factual basis for the accusations but also the underlying purpose of bringing those charges forward---This includes evaluating whether there is a legitimate objective behind the allegations or if they serve to unjustly target or harass the accused---Moreover, the Trial Court should assess the possibility of victimization, ensuring that individuals are not subjected to legal actions that could lead to unnecessary distress or humiliation---Careful analysis of the provisions of Sections 201 and 202 of the Cr.P.C. reveals that the purpose of inquiry or investigation under Section 202, Cr.P.C. is to enable the Court to scrutinize allegations thoroughly, with the aim of protecting a person complained against from being summoned to face frivolous accusations---Section 202 of the Cr.P.C is, in fact, an enabling provision that empowers the Court to conduct an effective inquiry into the truthfulness or otherwise of the allegations presented in the complaint---This inquiry serves to help the Court form an opinion as to whether there are sufficient grounds to proceed further---Therefore, the inquiry or investigation under Section 202 of the Cr.P.C is not a futile exercise and must be considered by the Court when deciding whether or not to issue process.

Abdul Muktadar and another v. District and Sessions Judge, Jhang and 2 others 2010 SCMR 194; Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 and Zafar and others v. Umer Hayat and others 2010 SCMR 1816 ref.

Muhammad Yousuf Laghari, Senior Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Saleem Akhtar Buriro, Additional Prosecutor General Sindh for Respondents.

P L D 2025 Supreme Court 47

Present: Yahya Afridi, C.J. and Shahid Bilal Hassan, J

GUL SADEM KHAN---Petitioner

Versus

Mst. HALIMA and others---Respondents

Civil Petition No. 421-P of 2022, decided on 22nd November, 2024.

(Against the judgment dated 14.01.2022 of the Peshawar High Court, Bannu Bench, Bannu passed in Writ Petition No.541-B of 2021).

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

----Ss. 7 & 25---Custody of minor---Determining factors---Welfare of minor---Economic conditions---Scope---Petitioner/father of two minors sons remained unsuccessful in getting their custody---Held, that petitioner was settled abroad and had filed petition under section 25 of Guardians and Wards Act, 1890 through special attorney who appeared as petitioner's witness---Such fact also showed petitioner's lack of affection and love as well as care for the minors---Petitioner neither joined proceedings during pendency of petition before Trial Court nor bothered to appear before Lower Appellate Court---There was nothing on record to suggest that respondent /mother was not taking care of minors in a proper way or that she was not getting them educated so as to make them useful citizens---Respondent /mother of minors did not enter into second marital bond for the sake of her children and welfare of minors was with respondent /mother---Poverty could not be considered a valid ground for disentitling respondent/ mother from custody of minors---Paramount consideration for Court in making order under section 7 of Guardians and Wards Act, 1890 of appointment of guardian of minor is that it should be satisfied that the order is for welfare of minor---Although father is a natural guardian of his minor children, yet court has to be satisfied while appointing father as a guardian that welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly---Supreme Court declined to interfere in judgment passed by High Court---Petition for leave to appeal was dismissed and leave was refused.

Khan Muhammad v. Mst. Surayya Bibi and others 2008 SCMR 480; Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839; Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others 1985 SCMR 1367; Mst. Rubia Jilani v. Zahoor Akhtar Raja and 2 others 1991 SCMR 1834; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Shabana Naz v. Muhammad Saleem 2014 SCMR 343 and Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123 rel.

Haji Muhammad Zahir Shah, Advocate-on-Record assisted by Shah Faisal Najafi, Advocate Supreme Court for Petitioner (via video-link from Peshawar).

Nemo for Respondent.

P L D 2025 Supreme Court 53

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

AURANGZAIB ALAMGIR---Petitioner

Versus

MUHAMMAD SAJID and others---Respondents

Criminal Petition No. 58-K of 2023, decided on 15th October, 2024.

(Against the Order dated 01.03.2023 passed by the High Court of Sindh, Karachi, in Criminal Miscellaneous Application No. 94 of 2022).

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

----Ss. 561-A, 249-A & 265-K---Inherent power of High Court---Scope and principles---Quashing of criminal proceedings---High Court can quash a judicial proceeding pending before any subordinate court under Section 561-A, Cr.P.C., in order to prevent the abuse of the process of that court or otherwise to secure the ends of justice---Expression "abuse of process" used under Section 561-A, Cr.P.C., connotes an unwarranted or irrational use of legal proceedings or process which also includes the presence of ulterior motives for activating the process for unjustified arrest or groundless criminal prosecution---At the same time, this inherent jurisdiction cannot be deemed to be an alternative jurisdiction or additional jurisdiction and cannot be exploited to disrupt or impede the procedural law on the basis of presumptive findings or hyper-technicalities---Instead, it is intended to protect and safeguard the interests of justice and to redress grievances of aggrieved persons, for which no other procedure or remedy is provided in the Cr.P.C---Remedy provided under Section 561-A, Cr.P.C., cannot be construed as an alternate remedy or substitute for an express remedy provided under Section 249-A or 265-K, Cr.P.C., as the case may---Therefore, the ordinary remedy provided under the law cannot be bypassed or circumvented.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Canadian Union of Public Employees v. City of Toronto 2003 SCC 63; (R. v. Power [1994] 1 SCR 601, at p. 616; R. v. Conway, [1989] 1 SCR 1659, at p. 1667 and R. v. Scott, [19901 3 SCR 979, at p. 1007 ref.

(b) Words and phrases---

----Phrase "abuse of process"---Definition provided.

Black's Law Dictionary (Bryan A. Gamer, 9th Edition) at page 11; Words and Phrases (West Publishing Co., Vol. 11 at page 355; Jowitt's Dictionary of Law (John Burke, Vol. 1) at page 16; Aiyar's Judicial Dictionary (1988 10th Edition), at page 10 and Law Lexicon with Legal Maxims (M.C.Desai, J. Vol. 1) at page 17 ref.

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

----Ss. 3 & 5---Criminal Procedure Code (V of 1898), Ss. 561-A & 265-K---Prevention of illegal possession of property---Complaint filed under section 3 of the Illegal Dispossession Act, 2005---Application/ petition for quashing proceedings under the Illegal Dispossession Act, 2005 dismissed by the High Court on the ground that Trial Court had already taken cognizance of the matter---Legality---Impugned order of High Court showed that the main reason for dismissing the quashment petition was that the Trial Court has already taken cognizance, and no other reason had been assigned---It was not the case that the petition was rejected due to the non-availing of an alternate remedy by the petitioner as provided under Section 265-K, Cr.P.C, but the only reason was that the Trial Court had taken cognizance which was neither a lawful justification nor was it persuasive enough to dismiss the quashment petition summarily without considering the grounds raised for the culmination of proceedings in the petition moved under Section 561-A, Cr.P.C., as to whether any prima facie case was made out which actually warranted the prevention of the abuse of process, or otherwise, to secure the ends of justice---Petition was converted into an appeal and allowed; the impugned order of the High Court was set aside and the matter was remanded back to the High Court with the direction to decide the quashment application afresh after issuing notice to the parties.

Shoaib M. Ashraf, Advocate Supreme Court, Mrs. Abida Parveen Channar, Advocate-on-Record Ameerudin, Advocate Supreme Court assisted by Dr. Muhammad Shahrukh, Advocate High Court for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Saleem Akhtar, Additional Prosecutor General, Sindh for Respondent No. 3.

P L D 2025 Supreme Court 60

Present: Munib Akhtar and Athar Minallah, JJ

GHULAM SARWAR through his L.Rs.---Appellant

Versus

PROVINCE OF PUNJAB through District Collector, Lodhran---Respondents

Civil Appeal No.766 of 2021 and C.M.A. No.7807 of 2021, decided on 15th November, 2024.

(Against judgment dated 24.05.2021 of the Lahore High Court, Multan Bench passed in Civil Revision No.431-D of 2007).

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

----Ss. 3 & 5---Appeal filed before the Supreme Court---Appeal time- barred by 22 days---Condonation of delay, application for---Wrongadvise/confusion of counsel not sufficient cause for condonation of delay---In the application seeking condonation of delay it was stated that initially the legal advice received was that a leave petition ought to be filed before the Supreme Court---In the said application in another paragrapgh it was stated that thereafter the legal advice was that an appeal lay as of right---It was this confusion or conflict in legal advice that led to the delay in the filing of the appeal---Wrong legal advice such as appeared to be involved in the present case did not constitute sufficient cause within the meaning of law---Since it was the appellant's own position that an appeal lay as of right with the present appeal being barred by time, the delay could not be condoned---Application seeking condonation of delay was dismissed, with the result that the appeal also stood dismissed.

Khushi Muhammad through LRs and others v Mst. Fazal Bibi and others PLD 2016 SC 872 distinguished.

(b) Precedent---

----Any case, whether of the Supreme Court or of a High Court, that establishes binding precedent turns on facts proved or admitted.

Sh. Zameer Hussain, Advocate Supreme Court for Appellant.

Sanaullah Zahid, Addl. A.G. Punjab for Respondents Nos. 1-3.

P L D 2025 Supreme Court 63

Present: Munib Akhtar, Athar Minallah and Syed Hasan Azhar Rizvi, JJ

ALLAH BAKHSH deceased through L.Rs and others---Petitioners

Versus

MUHAMMAD RIAZ and others---Respondents

Civil Petition No.2565 of 2023, decided on 11th September, 2024.

(Against the Judgment dated 08.03.2023 passed by Lahore High Court in Civil Revision No.20993 of 2021).

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

----Ss. 188 & 214---Powers-of-Attorney Act (VII of 1882), S. 2---Principal-agent relationship---General power of attorney---Transfer of property by the attorney in favour of his sons---Holder of a general power of attorney must obtain special permission from the principal when alienating the principal's property, either in his own favor or in the name of his relatives---Attorney would require prior permission, approval and consent of the principal when he wants to transfer the property in the name of his close relatives.

Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31 and Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 ref.

(b) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Scope---Concurrent findings of Courts below---Normally, the Supreme Court does not interfere in the concurrent findings (of Courts below) unless those are perverse, arbitrary, fanciful or capricious. [p. 66] C

Afrasiab Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents Nos. 1-2.

Hafiz Zaheer Iqbal, Advocate High Court (with permission) for Respondents Nos.3-5.

P L D 2025 Supreme Court 67

Present: Qazi Faez Isa, CJ, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

Civil Appeals Nos. 333 and 334 of 2024

AND

Civil Misc. Application No.2920 of 2024

[Stay application]

AND

Civil Misc. Application No. 5913 of 2024

[Application of PTI for impleadment]

SUNNI ITTEHAD COUNCIL and another---Appellants

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petitions No. 1612 to 1617 of 2024

AND

C.M.A. No.3554 of 2024 in C.P. NIL/2024

[For permission to file and argue]

The SPEAKER, PROVINCIAL ASSEMBLY OF KHYBER PAKHTUNKHWA, PESHAWAR and others---Petitioners/Applicants

Versus

SHAZIA TEHMAS KHAN and others---Respondents

Civil Appeals Nos. 333 and 334 of 2024 and Civil Miscellaneous Applications Nos. 2920, 5913 of 2024 and Civil Petitions Nos. 1612 to 1617 of 2024 and C.M.A. No. 3554 of 2024 in C.P. No. Nil of 2024, decided on 12th July, 2024.

Per Amin-ud-Din Khan and Naeem Akhtar Afghan, JJ. [Minority view]:

(a) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e), 106(3)(c) & 63---Elections Act (XXXIII of 2017), Ss. 66, 104 & 215(5)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf ("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a political party] which was joined by 80 independent returned candidates, who were backed by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf ("PTI") was eligible for the allocation of reserved seats---Reasons for disagreeing with the majority decision in the present case listed.

i. Pakistan Tehreek-e-Insaf ("PTI") was not before the Supreme Court nor before the High Court nor even before the ECP;

ii. The joining of 80 independent returned candidates with Sunni Ittehad Council ("SIC") was never disputed by anyone;

iii. The said 39 plus 41 persons as mentioned in the majority's short order did not come before the Supreme Court nor were they heard. The majority short order decided about their rights or lack thereof without their consent or even hearing them. Their joining of SIC has been undone without such prayer raised by anyone before the Supreme Court, or before the High Court;

iv. Not only the appeals filed by the SIC have been dismissed by the majority order, as no relief has been granted to SIC but independent members who joined the SIC have also been snatched from the SIC and that too without hearing the above said 39 plus 41 persons;

v. Unless Articles 51, 106 and 63 of Constitution are suspended and in their place new articles in consonance with the relief granted through the majority order are inserted in the Constitution, the relief which has been granted to the PTI cannot be granted;

vi. Article 175 of the Constitution has been ignored;

vii. The constitutional limits of jurisdiction under Article 185 of the Constitution have been ignored;

viii. All substantive as well as procedural law with regard to parties to lis have been ignored;

ix. The relief granted to PTI is self-created and has been carved out by the majority, without anyone claiming this relief in these proceedings;

x. Not only SIC has been denied relief claimed by it but all those who have joined it have been taken off and for the rest of the tenure of the National as well as Provincial assemblies. Thus, SIC has been kicked out from the assemblies;

xi. For a specific date i.e. 06.05.2024 the notification of returned candidates for special seats has been quashed, however before that date their notification and acts are held to be valid. It is incomprehensible how can this be done, as it is without any backing of Constitution;

xii. The majority short judgment virtually declares that said 80 persons are not honest and ameen in accordance with Article 62(1)(f) of the Constitution;

xiii. All the returned candidates for the reserved seats of other parties who have been notified were not issued notices and provided an opportunity of hearing;

xiv. Forty-one (41) candidates mentioned in Annexure-B (of the majority short judgment) have been given the choice of joining any other Political Party;

xv. The issue was simply the matter of post general elections directly related to the reserved seats for both women and non-Muslims on the basis of proportional representation system of political parties' lists of candidates under Articles 51 and 106 of the Constitution. The majority's short order in effect created a new parliamentary party in the National Assembly and three Provincial Assemblies and since this related to the pre-election process, it is clearly and unequivocally not an issue before the Supreme Court. In the process of the general elections all events are scheduled and timebound and the same cannot be reversed;

xvi. The judgment of the full Bench of the Peshawar High Court has been set aside by the majority's short order to the extent, that it is or may be inconsistent with the majority's short order. This is incomprehensible as none of the rights which have now been created in favour of PTI by the majority's short order were in issue before the High Court, nor had been adjudicated upon. The High Court had simply dismissed SIC's claim to the reserved seats, which was the lis before the High Court.

If an independent candidate joins a party, though it may be listed as a political party with ECP, it does not make that party entitled for the reserved seats. The joining of independent candidates only enhances the proportion of right in the reserved seats of that party if that party has won seats. Joining of independent candidates with any political party does not create a right in favour of that political party to become eligible for reserved seats only on the basis of the joining of independent candidates.

The majority judgment ignores all rules of procedure, substantive provisions of law and the Constitution. Relief cannot be granted to the PTI as PTI was not before the Court nor tried to become a party before the ECP, High Court and before the Supreme Court nor was claiming the reserved seats, which were in issue in the instant litigation. If the said 39 plus 41 persons take any step on the basis of majority's short judgment, which is not in accordance with the Constitution, they may lose their seats as returned candidates on the basis of violation of the Constitution. Any other constitutional body cannot be asked to take any steps or decisions which are not permissible under the Constitution. If the said 80 persons change their stance on the basis of the majority short judgment, they will be guilty of violating their oath for the members of the National Assembly.

For creating and carving out relief in these proceedings for PTI, the Court would have to travel beyond the jurisdiction conferred by Articles 175 and 185 of the Constitution and would also have to suspend Articles 51, 106 and 63 of the Constitution and section 104 of the Elections Act, 2017 along with the relevant rules. All the rules of procedures of proceedings before the Supreme Court and the Supreme Court Rules, 1980 would also have to be ignored as no party before the Court asked in writing or orally for the relief which has been granted to PTI. Therefore, any affidavit contrary to the provisions of the affidavits already filed will entail the penal consequences of non-seating such members of National Assembly and Provincial Assemblies if he/she files a fresh affidavit in contradiction to his/her previous affidavit and joins any other party. Any order of the Court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the State.

In conclusion, it is clear that the superstructure created by

the majority's short order, does not in any way come within the ambit of the jurisdiction vested in the Supreme Court or in the Constitution.

Per Syed Mansoor Ali Shah, J; Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan, JJ. agreeing; Qazi Faez Isa, CJ., Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ. dissenting. [Majority view]

(b) Constitution of Pakistan---

----Arts. 218 & 187(1)---Election Commission of Pakistan, duty of---Scope---Electoral justice and integrity---Power of the Supreme Court to do complete justice for protection of democracy---Election authorities, as "electoral management bodies", are the "guarantor institutions" of democratic processes and are critical to democratic governance, akin to a "fourth branch of government"---Their constitutional role is to ensure the conduct of elections by providing an equal and fair competitive field for all political entities and protect citizens' rights to vote---As an impartial steward of the electoral process, the Election Commission of Pakistan is not only an administrative body but also a guardian of electoral integrity and democracy's legitimacy---When election authorities engage in actions that undermine these principles, such as unlawfully denying the recognition of a major political party and treating its nominated candidates as independents, they not only compromise the rights of these candidates but also significantly infringe upon the rights of the electorate and corrode their own institutional legitimacy---When the Election Commission errs or makes significant mistakes impacting the electoral process, judicial intervention becomes necessary to rectify them and ensure electoral justice---Electoral justice is vital to protecting political and electoral rights and is intertwined with electoral integrity---Role of the Supreme Court of Pakistan in overseeing electoral integrity is crucial for sustaining public trust in the democratic process, and the Court's power to do "complete justice" is a critical tool in the constitutional arsenal of the Supreme Court, enabling it to prevent democratic backsliding, and protect democracy effectively with a focus on the electorate's rights---Denying electoral justice and compromising electoral integrity would undermine the very legitimacy of democracy.

Tom Ginsburg, 'Democracy Backsliding and the Rule of Law' 44 Ohio University Law Review 351 (2018) ref.

(c) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Election dispute---Judicial inquiry not limited to pleadings of the parties---A case before the Supreme Court involving an election dispute cannot be treated as an ordinary civil case and the judicial inquiry into such a case cannot be limited to the pleadings of the parties.

Elections are a crucial part of the democratic process, and the public has a major stake in ensuring that they are held free and fair, unmarred by corrupt or illegal practices. Therefore, unlike ordinary civil cases, election cases involve substantial public interest. An election dispute is fundamentally different from other civil disputes, as it is not solely a dispute between two contesting parties but a proceeding where the constituency itself is the principal interested party. These cases involve not just the rights of the contesting candidates or political parties but also the rights of the voters, constituencies and the public. Election cases aim to fill public offices by properly qualified and duly elected candidates and to maintain the purity of elections, ensuring that no one takes charge of a public office through flagrant breaches of election laws or corrupt practices. The proceedings in election cases thus have unique characteristics because they serve the interests of the entire constituency, differentiating them from ordinary civil proceedings. This distinction clearly demonstrates the flaw in treating an election case as an ordinary civil case and limiting the judicial inquiry to the pleadings of the parties as it is in adversarial proceedings.

Morton v. Galway [1875] 3 O.M. & H. 19; Aldridge v. Hurst [1876] L.R. 1 C.P. 410; Sreenivasan v. Election Tribunal [1955] 11 E.L.R. 278; Inamati Basappa v. Desai Ayyappa AIR 1958 SC 698; Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851; Dilshad Khan v. Arshad Ali 1999 MLD 2874 and Irshad Hussain v. Ashraf Nagra 2003 YLR 812 ref.

In adjudicating election controversies, courts must therefore play an active role in an inquisitorial manner, defending the rights of the constituency and the values and principles of democracy. They must act as guardians of the fundamental rights of the people against any misuse of power or illegal action in the electoral process.

(d) Constitution of Pakistan---

----Part II, Chap. 1---Fundamental Rights---Progressive, and dynamic interpretation---Fundamental rights guaranteed by 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 socioeconomic and politico-cultural values and ideals of the society, the courts construe the fundamental rights guaranteed by the Constitution with a progressive, liberal and dynamic approach---This approach ensures that the fundamental rights remain a vibrant and effective guarantee of citizens' rights, liberties and freedoms, adapting to the evolving needs and aspirations of society---With this approach, the courts expound the fundamental rights to give them life and substance that are true to the reality of the changing times.

Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(e) Interpretation of statutes---

----Provision entailing penal consequences---Strict construction---It is a cardinal principle of the construction of statutes that any provision entailing penal consequence, whether of criminal law or of civil law, must be construed strictly---This principle of strict construction of penal statutes is also called the principle against doubtful penalisation---It stresses that a person should not be penalised except under clear law and if, in construing the relevant provisions, there appears any reasonable doubt or ambiguity, it should be resolved in favour of the person who would be liable to the penalty---No penalty or penal consequence can be added to the one specified in law by inference or assumption---Penal actions can only be taken on the basis of express and clear provisions of law.

Muhammad Ali v. State Bank of Pakistan 1973 SCMR 140; F. B. Ali v. State PLD 1975 SC 506; M.B. Abbasi v. State 2009 SCMR 808; Zahid Rehman v. State PLD 2015 SC 77; Tahir Naqash v. State PLD 2022 SC 385; PIA Corporation v. Labour Court PLD 1978 SC 239; Federal Land Commission v. Ghulam Qadir 1983 SCMR 867; Siddique Khan v. Abdul Shakur PLD 1984 SC 289; UBL v. Yousuf Dhadhi 1988 SCMR 82; Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263; B.I.S.E. v. Rizwan Rashid 2005 SCMR 728; Tahir Hussain v. Liaqat Ali 2014 SCMR 637; State Bank of Pakistan v. S.E.C.P. PLD 2018 SC 52; Maxwell on the Interpretation of Statutes (12th ed.) pp. 238-240 and Bennion on Statutory Interpretation (7th ed.) pp. 715-717 ref.

(f) Elections Act (XXXIII of 2017)---

----Ss. 215(5), 209 & 210---Constitution of Pakistan, Art. 17(2)---Political party---Failure to conduct intra-party elections---Non-allocation of election symbol---No further penalty beyond the specified non-allocation of an election symbol---It is unequivocal that Section 215(5) of the Elections Act, 2017 prescribes a penal consequence for a political party's failure to comply with the provisions of Section 209 (regarding intra-party elections) or Section 210 (regarding the sources of the party's funds)---The specified penalty of non-allocation of an election symbol curtails the political party's fundamental right to function and operate as a political party-a right implicit in the right to form a political party guaranteed by Article 17(2) of the Constitution---Therefore, Section 215(5) must be construed strictly -- No further penalty or consequence beyond the specified non-allocation of an election symbol can be inferred or assumed from Section 215(5)---Additionally, no other constitutional or statutory right of the political party can be denied on the basis of the non-allocation of an election symbol under this provision.

(g) Election Rules, 2017---

----R. 94, Explanation---Elections Act (XXXIII of 2017), S. 215(5)---Constitution of Pakistan, Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Explanation to Rule 94 of the Election Rules, 2017, vires of---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Explanation to Rule 94 of the Election Rules, 2017 being beyond the scope of Section 215(5) of the Elections Act, 2017 and inconsistent with the provisions of Articles 51(6)(d), 51(6)(e) and 106(3)(c) of the Constitution, was ultra vires the Elections Act, 2017 and the Constitution, thus void and invalid.

Rule 94 of the Election Rules, 2017 provides the procedure for the calculation, allocation and notification of the share of proportional representation of political parties in the seats reserved for women and non-Muslims. Its Explanation stipulates that '[f]or the purpose of this rule, the expression "political party" means a political party to which a symbol has been allocated by the Commission.' By defining a political party in this manner, the Explanation excludes a political party that has not been allotted a symbol by the Commission from being allocated a share of proportional representation in the reserved seats. No such exclusion of a political party, as created by the Explanation to Rule 94, is provided in Articles 51(6)(d), 51(6)(e) and 106(3)(c) of the Constitution, nor is any such consequence of non-allocation of the election symbol provided in Section 215(5) of the Elections Act, 2017 or any other provision of the said Act. In effect, it has introduced an additional penal consequence of declaring a political party ineligible to obtain an election symbol under Section 215(5) of the Elections Act, 2017 and it has also infringed the constitutional right of a political party, conferred by Articles 51(6)(d), 51(6)(e) and 106(3)(c) of the Constitution, to have its due share of proportional representation in the seats reserved for women and non-Muslims on the basis of general seats secured by such a political party. This Explanation has thus clearly gone beyond and against the provisions of the Elections Act, 2017 and the Constitution.

The Explanation to Rule 94 of the Election Rules, 2017 being beyond the scope of Section 215(5) of the Elections Act, 2017 and inconsistent with the provisions of Articles 51(6)(d), 51(6)(e) and 106(3)(c) of the Constitution, is declared ultra vires the Elections Act, 2017 and the Constitution, thus void and invalid.

(h) Elections Act (XXXIII of 2017)---

----Ss. 215(5), 98 & 67(3)---Constitution of Pakistan, Art. 17(2)---Whether a candidate nominated by a political party ineligible to obtain an election symbol be mentioned as an independent candidate in the list of contesting candidates (Form-33), and can such a returned candidate be notified as an independent returned candidate in the Section 98 Notification?---Right to participate in and contest elections as a political party through its nominated candidates is a fundamental right guaranteed by Article 17(2) of the Constitution---This right is not, nor can it be, extinguished by any provision of the Elections Act, 2017 including Section 215(5) thereof---Depriving a political party of participating in and contesting elections through its nominated candidates, destroys the political existence of the party and is tantamount to its political extermination and virtual dissolution, which cannot be done except by the procedure and on the grounds provided in Article 17(2) of the Constitution---Similar would be the position if the candidates nominated by a political party are denied the status of being the candidates of that political party and are mentioned as independent candidates in the list of contesting candidates (Form-33), or such returned candidates are notified as independent returned candidates in the Notification under section 98 of the Elections Act, 2017---Such actions of the Returning Officers and the Election Commission of Pakistan would also be ultra vires Article 17(2) of the Constitution, as they effectively nullify the party's right to participate in and contest elections---Notwithstanding that a political party has been declared ineligible to obtain an election symbol, its nominated candidates cannot be mentioned as independent candidates in the list of contesting candidates (Form 33), despite allotment of different election symbols to them under Section 67(3) of the Elections Act, 2017 nor can they be notified as independent returned candidates in the Section-98 Notification.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(i) Constitution of Pakistan---

----Arts. 51(6)(d) & 51(6)(e) & 106(3)(c)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Parties that contest and win general seats---Article 51(6)(d) of the Constitution refers to political parties that have contested for and won one or more general seats in the National Assembly from the Province concerned, and not to all enlisted political parties---Similarly, Article 51(6)(e) of the Constitution refers to political parties that have contested for and won one or more general seats in the National Assembly from the whole country, i.e., from any of the Provinces or the Federal Capital---Therefore, Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to political parties that have contested for and won general seats and not to all enlisted political parties---Political party which does not win (any) general seats, is not entitled to allocation of the reserved seats.

(j) Constitution of Pakistan---

----Arts.51(6)(d), proviso, 51(6)(e) & 106(3)(c)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Independent candidates---Only political parties, not independent returned candidates, are entitled to the allocation of the reserved seats---Independent returned candidates can only be counted towards the proportional representation (of political parties) if they act in accordance with the proviso to Article 51(6)(d) of the Constitution and join a political party, in which case their seats shall be counted as the seats of the political parties to which they join for the purpose of determining the proportional representation of political parties---For the purpose of allocating reserved seats under Articles 51(6)(d) & 51(6)(e) of the Constitution, the proportional representation of political parties is to be calculated on the basis of total number of general seats won by each political party, including the seats of independent returned candidates who join it, but excluding the seats of other independent returned candidates.

(k) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Election Rules, 2017, R.95(2)---Rule 95(2) of the Elections Rules, 2017, vires of---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---No reserved seat should ordinarily be left vacant---Adopting an interpretation of paragraphs (d) and (e) of Article 51(6) of the Constitution that would result in holding certain reserved seats vacant would lead to a form of disenfranchisement, where the electorate's mandate is not fully realised in terms of gender and minority representation, and thus frustrate the constitutional objective of providing for such reserved seats---Rule 95(2) of the Elections Rules, 2017 which provides that the seats won by independent candidates, other than those who join a political party, shall be excluded for the purpose of determining the share of each political party, is thus found consistent with the constitutional provisions, as it ensures the constitutional objective that no reserved seat should ordinarily remain vacant.

(l) Constitution of Pakistan---

----Arts. 17(2), 19, 51(6)(d) & 51(6)(e) & 106(3)(c)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies---Right of a political party to reserved seats proportionate to the general seats won---Scope---Right to so many of the reserved seats that are proportionate to the general seats won by a political party is an integral part of the right to form a political party, as this right also gives the "life and substance" to the said fundamental right---Therefore, denial of the right to reserved seats proportionate to the general seats won by it would violate the fundamental rights of a political party guaranteed by Article 17(2) of the Constitution as well as the fundamental right to vote of the electorate that have voted for such political party guaranteed by Article 19 of the Constitution.

(m) Administration of justice---

----Wrongful acts/omissions of public functionaries---No person should be made to suffer or be prejudiced by an unlawful act or omission of public functionaries---If any person suffers the loss of any right or benefit because of an unlawful act or omission of a public functionary, he is entitled, by reason of an obligation of justice, to be restored to that right or benefit and put in the same position, insofar as is possible, as he would have been if such unlawful act or omission had not been made by the public functionary.

(n) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to do complete justice---Scope---General power of the Supreme Court under Article 187(1) of the Constitution is to be invoked and exercised by the Court to do complete justice in any case when there is no specific provision of law that covers or addresses the matter or issue involved---Power under Article 187(1) of the Constitution is focused on achieving and prioritizing fairness to ensure complete justice in any case---While doing complete justice in the exercise of its general power under Article 187(1) of the Constitution, the Supreme Court is not handicapped by any technicality or rule of practice or procedure, nor is the exercise of this power by the Court dependent on an application by a party.

Dossani Travels v. Travels Shop PLD 2014 SC 1; Saddaqat Khan v. Collector Land Acquisition PLD 2010 SC 878; Martin Dow Marker Ltd. v. Asadullah Khan 2020 SCMR 2147 and State v. Alif Rehman 2021 SCMR 503 ref.

(o) Constitution of Pakistan---

----Arts. 17(2), 19, 51(6)(d) & 51(6)(e)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies---Case before the Supreme Court regarding dispute over allocation of reserved seats---Candidate for the seat reserved for women in the National Assembly---Not a necessary party to the case---A contesting candidate or a returned candidate to the seats reserved for women or non-Muslims is not a necessary party to a dispute where the matter to be decided is which political party and in what proportion is entitled to the reserved seats---Persons nominated by a political party for reserved seats or elected to such seats do not have a personal right to such seats---It is the right of the electorate guaranteed under Articles 17(2) and 19 of the Constitution, exercisable through political parties, to have proportional representation in the reserved seats, not of the person nominated for or elected to such seats.

(p) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Elections Act (XXXIII of 2017), Ss. 66, 98, 104 & 215(5)---Election Rules, 2017, R. 94, Explanation---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf ("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan for failing to conduct its intra-party election---Whether Pakistan Tehreek-e-Insaf ("PTI")was eligible for the allocation of reserved seats---Held, that lack or denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election---Pakistan Tehreek-e-Insaf ("PTI") was and is a political party, which secured or won general seats in the National and Provincial Assemblies in the General Elections of 2024---Directions issued by the Supreme Court regarding the procedure and methodology for allocation of reserved seats for women and minorities to PTI in the National and Provincial Assemblies stated.

(i) The lack or denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election (whether general or bye) and to field candidates and the Election Commission of Pakistan ("Commission') is under a constitutional duty to act, and construe and apply all statutory provisions, accordingly.

(ii) For the purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of Article 51 ("Article 51 Provisions") and paragraph (c) of clause (3) of Article 106 ("Article 106 Provisions") of the Constitution, the Pakistan Tehreek-e-Insaf ("PTI") was and is a political party, which secured or won (the two terms being interchangeable) general seats in the National and Provincial Assemblies in the General Elections of 2024 as herein after provided.

(iii) During the course of the hearing of the instant appeals, counsel for the Commission placed before the Court a list ("the List") of 80 returned candidates for the National Assembly (now MNAs), setting out in tabular form particulars relating to their election. Counsel made a categorical statement that the Commission stood by the data so provided to the Court. In particular, the List contained three columns marked as follows: (i) "Statement (on nomination form) given in declaration and oath by the person nominated (i.e., 'I belong to')"; (ii) "Certificate of party affiliation under Section 66 of the Elections Act, 2017"; and (iii) "Statutory Declaration/affidavit accompanying section 66 certificate". In the peculiar facts and circumstances of the General Election of 2024, it is declared that out of the aforesaid 80 returned candidates (now MNAs) those (being 39 in all and whose particulars are set out in Annex A to this Order) in respect of whom the Commission has shown "PTI" in any one of the aforesaid columns in the List, were and are the returned candidates whose seats were and have been secured by the PTIwithin the meaning, and for purposes of, para (ii) above in relation to the Article 51 Provisions.

(iv) In the peculiar facts and circumstances of the General Election of 2024, it is further ordered that any of the remaining 41 returned candidates out of the aforesaid 80 (whose particulars are set out in Annex B to this Order) may, within 15 working days of this Order file a statement duly signed and notarized stating that he or she contested the General Election as a candidate of the political party specified therein. If any such statement(s) is/are filed, the Commission shall forthwith but in any case within 7 days thereafter give notice to the political party concerned to file, within 15 working days, a confirmation that the candidate contested the General Election as its candidate. A political party may in any case, at any time after the filing of a statement asaforesaid, of its own motion file its confirmation. If such a statement is filed, and is confirmed by the political party concerned, then the seat secured by such candidate shall be forthwith deemed to be a seat secured by that political party for the purposes of para (ii) above in relation to the Article 51 Provisions. The Commission shall also forthwith issue, and post on its website, a list of the retuned candidates (now MNAs) and seats to which this para applies within 7 days after the last date on which a political party may file its confirmation and shall simultaneously file a compliance report in the Court.

(v) For the purposes of para (ii) of this Order in relation to the Article 51 Provisions, the number of general seats secured by PTI shall be the total of the seats declared in terms of para (iii) and those, if any, to which para (iv)applies. The PTI shall be entitled to reserved seats for women and minorities in the National Assembly accordingly. PTI shall, within 15working days of this Order file its lists of candidates for the said reserved seats and the provisions of the Elections Act, 2017 ("Act") (including in particular S. 104) and the Elections Rules, 2017 ("Rules") shall be applied to such lists in such manner as gives effect to this Order in full measure. The Commission shall, out of the reserved seats for women and minorities in the National Assembly to which para (vii) of this Order applies, notify as elected in terms of the Article 51 Provisions, that number of candidates from the lists filed (or, as the case may be, to be filed) by the PTI as is proportionate to the general seats secured by it in terms of paras (iii) and (iv) of this Order.

(vi) The order of the Election Commission of Pakistan ("Commission") dated 01.03.2024 ("Impugned Order") is declared to be ultra vires the Constitution, without lawful authority and of no legal effect.

(vii) The notifications (of various dates) whereby the persons respectively mentioned therein (being the persons identified in the Election Commission's notification No.F.5(1)/2024-Cord. dated 13.05.2024) have been declared to be returned candidates for reserved seats for women and minorities in the National and Provincial Assemblies are declared to be ultra vires the Constitution, without lawful authority and of no legal effect, and are quashed from 06.05.2024 onwards, being the date an interim order was made by the Court.

(viii) The foregoing paras shall apply mutatis mutandis for purposes of the Article 106 Provisions in relation to PTI (as set out in para (ii) herein above) for the reserved seats for women and minorities in the Khyber Pakhtunkhwa, Punjab and Sindh Provincial Assemblies to which para (vii) of this Order applies. In case the Commission or PTI need any clarification or order so as to give effect to this para in full measure, it shall forthwith apply to the Court by making an appropriate application, which shall be put up before the Judges constituting the majority in chambers for such orders and directions as may be deemed appropriate.

Per Yahya Afridi, J. [Minority view]

(q) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Elections Act (XXXIII of 2017), Ss. 66, 104 & 215(5)---Election Rules, 2017, R. 92---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf ("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a political party] which was joined by 80 independent returned candidates, who were backed by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf ("PTI") was eligible for the allocation of reserved seats---Sunni Ittehad Council does not fulfil the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/allocated reserved seats for women and non-Muslims in the National Assembly or the Provincial Assemblies---However, Pakistan Tehreek-e-Insaf ("PTI") did fulfil the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/allocated reserved seats for women and non-Muslims---Procedure and methodology for allocation of reserved seats for women and minorities to PTI in the National and Provincial Assemblies stated.

A fundamental prerequisite for a political party to qualify for reserved seats is the winning of at least one general seat in the elections. Consequently, the entitlement of a political party to reserved seats is inextricably linked to its success on at least one general seat. Similarly, a political party must win a general seat to benefit from the inclusion of independent candidates, so as to become a part of its numerical strength for the purpose of allocation of reserved seats.

Sunni Ittehad Council ("SIC") is a registered political party, but it did not field any candidate for a seat in the National Assembly or Provincial Assemblies in the General Election, 2024. Thus, having won no seat in the houses, it cannot seek to include the independent returned members of the respective houses to enhance its strength for the allocation of reserved seats within the contemplation of Articles 51 and 106 of the Constitution. Further, SIC had not submitted any list of candidates for reserved seats for women or for non-Muslims within the period fixed by Election Commission of Pakistan ('ECP'), as reflected in the Schedule of Election notified in the official gazette. SIC does not fulfil the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allocated reserved seats for women and non- Muslims in the National Assembly and Provincial Assemblies.

Pakistan Tehreek-e-Insaf ("PTI") fulfils the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/allocated reserved seats for women and non-Muslims, in terms that:

i. A candidate for a seat in the National Assembly or the Provincial Assembly, who in his/her nomination paper has declared on oath to belong to Pakistan Tehreek-e-Insaf ("PTI") and duly submitted a certificate of the same political party confirming that he/she is the nominated candidate of PTI for the respective constituency, shall remain so, and cannot be declared independent, unless he/she submitted a written declaration to the Election Commission of Pakistan or Returning Officer to be treated as the candidate of another political party or as an independent candidate;

ii. A returned candidate to the National Assembly or the Provincial Assembly, who in his/her nomination paper has declared on oath to belong to PTI and duly submitted a certificate of the same political party confirming that he/she is the nominated candidate of PTI for the respective constituency, shall remain so, and this consistent position maintained by a returned candidate throughout the electoral process should be legally recognized by the Election Commission of Pakistan and such returned candidate cannot be treated as the returned candidate of another political party or as an independent returned candidate, and thus, the reserved seats for women and non- Muslims are to be allowed/ allocated to PTI, accordingly;

iii. A candidate nominated by PTI for a constituency of the National Assembly or the Provincial Assembly who, after being declared returned, joined another political party or sought to be treated as independent, raises serious concerns about disregarding the trust reposed in him/her by the voters, thus undermining the will of the people; and

iv. The legal implications, effects and consequences of the determinations made above in paragraphs (ii) and (iii), as well as the actions or inactions of the Election Commission of Pakistan thereon, although deeply concerning, have not been challenged in the present appeals and petitions; and the persons who would be affected or aggrieved are not parties before the Supreme Court. Therefore, issuing definitive directions to the Election Commission of Pakistan qua the allocation of specific number of reserved seats for women and non-Muslims to a political party in the National Assembly and the Provincial Assemblies would not be legally appropriate.

Accordingly, the Election Commission of Pakistan is directed to decide the allocation of reserved seats for women and non- Muslims to political parties in the National Assembly and the Provincial Assemblies in the light of the determinations made hereinabove after providing an opportunity of hearing to the parties concerned, and if required revisit its earlier decisions on the matter.

(r) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to do complete justice---Scope---While the undeniable power of the Supreme Court to do complete justice under Article 187 of the Constitution is recognized, exercising this power in the absence of an aggrieved party directly approaching the Court could set a dangerous and far-reaching precedent---Such a course risks undermining the principles of due process and judicial restraint, potentially leading to an overreach of judicial authority---Exercise of this power must, therefore, be reserved for exceptional circumstances, where there is a clear and compelling need to intervene to bolster the rights of the aggrieved petitioner, and prevent a miscarriage of justice.

Per Jamal Khan Mandokhail, J; Qazi Faez Isa, CJ. agreeing [Minority view]:

(s) Interpretation of Constitution---

----Supreme Court can interpret the Constitution, but it must ensure that words are not read into it nor should it ascribe artificial meaning to commonly understood words---Court must ensure that words are not read into the Constitution and no artificial meaning is to be ascribed to commonly understood words.

(t) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Elections Act (XXXIII of 2017), Ss. 66, 67, 104 & 215(5)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf ("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a political party] which was joined by 80 independent returned candidates, who were backed by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf ("PTI") was eligible for the allocation of reserved seats---Held, that Sunni Ittehad Council ("SIC") did not contest the General Elections of the year 2024, but demands allocation of reserved seats on account of inclusion of independent parliamentarians in it---SIC did not secure a single seat in the National Assembly or any of the Provincial Assemblies nor submitted a list of its candidates for seats reserved for women and non-Muslims---Thus, it is not entitled to any of the reserved seats in the National Assembly and in the Provincial Assemblies---Impugned judgment and the order dated 1 March 2024 of the Election Commission of Pakistan ("ECP") to such extent is upheld---Non-allocation of symbol to a political party, in no way prevents a candidate from filing a declaration about his affiliation with that political party, nor does it prevent such political party from nominating a candidate to contest an election---Impugned judgment of the High Court and the order of the ECP to the extent of the proportional representation distribution of seats amongst the political parties which won and secured seats is also maintained, however, since the ECPcalculated and allocated the seats to the parties by the exclusion of the Pakistan Tehreek-e-Insaf ("PTI") candidates, therefore, to such extent, the impugned judgment of the High Court and the order of the ECP are set aside---A number of candidates had submitted their nomination papers declaring on oath that they belonged to PTI supported by an affiliation certificate of the said party, though some did not submit affiliation certificates of PTI, however, since they stated on oath that they belonged to PTI, and did not contradict themselves, they should be considered to be members of PTI in the National and the Provincial Assemblies---ECP by misinterpreting a judgment of the Supreme Court dated 13 January 2024, which was regarding non-holding intra-party elections in PTI, wrongly mentioned the said candidates of the PTI as independents in Form 33 of the Election Rules---ECP had no authority to declare validly nominated candidates of a political party to be independent candidates---Similarly, a candidate who once declares himself/herself as a candidate of a political party, can not subsequently resile from his/her candidature of a particular party, after the last date of withdrawal of the nomination papers---Neither the PTI nor any candidate affiliated with PTI approached either the Supreme Court before or during the hearing of these proceedings, or the High Court to challenge the decision of the ECP, declaring them as independents---However, in view of the fact that the appeal and the petition are a continuation of election proceedings before the ECP, the Supreme Court can look into the vires of the decision of the ECP in the light of the provisions of Article 51(1)(d) and (e) of the Constitution read with sections 66, 67 and 104 of the Elections Act, 2017 to safeguard the interest of women and non-Muslims---As a consequence whereof, the candidates who had submitted their nomination papers declaring that they belonged to PTI and had not filed a document showing affiliation with another political party before the last date of withdrawal of the nomination papers, should have been treated as the Parliamentary Party of PTI, but the needful was not done by the ECP---Consequently, the PTI as a Parliamentary Party is entitled to the reserved seats---ECP should recalculate and reallocate the reserved seats amongst the political parties, including the PTI, as provided by Article 51(6)(d) and (e) of the Constitution---Candidates who had submitted their nomination papers by 24 December 2023, which was the last date of submission of nomination papers, and had declared them selves either as independent candidates or had left blank the relevant column in the nomination papers/declaration and were elected shall be considered to be independents---All those who joined the SIC are presumed to have done so out of their own free will---None of them claimed to have joined SIC because of any misunderstanding of any judgment, the law, compulsion, coercion or undue influence and it is not for the Supreme Court to presume otherwise---They are now members of SIC---Neither the Constitution nor the Elections Act, 2017 permits the Supreme Court to issue direction or provide an opportunity or additional avenue to them to join another political party and that too, within a period of fifteen days.

(u) Constitution of Pakistan---

----Arts. 51(3), 51(6)(d) & (e), 106(3)(c) & 224(6)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies---Whether reserved seats could be left vacant---Held, that under Article 51(3) of the Constitution, the total number of seats in the National Assembly shall be 326, out of which 60 seats are reserved for women and 10 seats for non-Muslims---Such right of women and non-Muslims has been guaranteed by the Constitution---They shall be elected in accordance with the law through proportional representation system of political parties' list of candidates on the basis of total number of general seats secured by each political party from the Province concerned in the National Assembly and the Provincial Assemblies, as provided by Article 51(6) (d) and (e) of the Constitution---Therefore, they cannot be deprived of this right of theirs by leaving these seats vacant, and all reserved seats must be filled in, as provided by Article 224(6) of the Constitution.

Per Qazi Faez Isa, CJ.;agreeing with Jamal Khan Mandokhail, J. [Minority view]:

(v) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e), 106(3)(c) & 10A---Elections Act (XXXIII of 2017), Ss. 66, 104 & 215(5)---Seats reserved for women and non-Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf ("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a political party] which was joined by 80 independent returned candidates, who were backed by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf ("PTI") was eligible for the allocation of reserved seats---Constitutional violations and illegalities in the majority's short order of 12 July 2024, the majority's detailed judgment of 23 September 2024, the order/clarification of 14 September 2024 and the clarification of 18 October 2024 highlighted.

Present appeals were heard by a thirteen-member Bench of the Supreme Court, comprising of all judges of the Supreme Court. The majority's short order concluded by permitting the Election Commission of Pakistan ('ECP') and Pakistan Tehreek-i-Insaf ('PTI') to, 'apply to the Court by making an appropriate application, which shall be put up before the Judges constituting the majority in chambers for such orders and directions as may be deemed appropriate'. This deviated from how courts have always functioned, was novel and unprecedented.

The majority of eight judges decided to part ways with the Court, comprising of thirteen judges, which had heard the appeals. The majority set up its own virtual court, permitted the making of 'an appropriate application' by the ECP and PTI, and directed that such appropriate application would only be heard by them whilst cloistered in Chambers. In doing this the majority of the Judges effectively legislated, because neither the Constitution nor any law permits what they did. Incidentally no party or counsel during the hearing ever suggested the course of action which the majority adopted, and neither the majority's short order nor the majority's detailed judgment offers an explanation to justify it.

The majority disregarded the precedents of the Supreme Court, and they not only carved out a separate eight-member 'court' from the thirteen-member Court, but also innovated further by not finally concluding the hearing of the appeals, because they permitted appropriate application to be filed, introduced timelines and changed what the Constitution provided. The timelines that were introduced were as under:

(i) 41 returned candidates to file a statement within 15 days;

(ii) Upon receipt of the above statements the ECP to give notice to the political party concerned;

(iii) Then within 15 days the political party to submit its 'confirmation that the candidates contesting the General Elections as its candidates'; and

(iv) The ECP within 7 days to issue and post on its website 'the list of candidates now MNAs'.

Judges may decide or dispose of a case as per their understanding of the Constitution and the law but it is critical that the case must be decided or disposed of. Permitting appropriate application to be filed by the ECP or the PTI meant that the case was not decided or disposed of. This coupled with the stated timelines effectively kept the appeals pending. In civil cases after a judgment is pronounced the decree follows. In constitutional cases too a judgment can be executed, provided it is finally and conclusively decided. The majority's short order and the majority's detailed judgment did not conclude the appeals. The well trodden legal path was abandoned by the majority which created unnecessary and avoidable problems. Since the appeals were not finally decided there was no decision which could be stated to be binding, in terms of Article 189 of the Constitution. Similarly, contempt of court proceedings for any non-compliance of the 'order of the Court', under Article 204 of the Constitution, cannot be initiated. The right of review, which Article 188 of the Constitution grants, was also effectively negated.

The majority's short order was announced on 12 July 2024, following which the Judges had to issue their detailed reasons for the same. Instead something inexplicable happened. A purported order/clarification was uploaded on the Supreme Court's website on 14 September 2024, and this was done without informing the Chief Justice, the other Judges (in the minority), and bypassing the Registrar and the office of the Supreme Court. And, this was done on a Saturday, after the Registrar had left. The majority's order/clarification of 14th September was admittedly passed without first listing the cases, without issuing notices to the parties and without issuance of the requisite notice to the Attorney-General for Pakistan. The title of the 'order' stated - 'In Chambers'. However, not all of the said eight Judges (in majority) were in the Supreme Court premises and some were not even in Islamabad (principal seat of the Supreme Court). By not issuing notices, not granting an opportunity of hearing, and not conducting the hearing in open Court, the well-established rules of natural justice were transgressed, and Article 10A of the Constitution, which gives protection to procedural fairness and has elevated due process and fair trial to the status of a Fundamental Right, was contravened. The mandatory requirements of openness and transparency were also transgressed.

The majority's order/clarification of 14th September was followed by yet another; the majority's clarification of 18th October which, like the earlier one of 14 September 2024, was uploaded on the website of the Supreme Court in similar manner. This was done on Friday, 18 October 2024 at 3.59 pm. This time too the cause list was not issued, parties were not informed, and an opportunity of hearing was not provided. Where and when the Judges (in majority) had met also remains a mystery. The majority's orders/clarifications of 14th September, 2024 and 18th October, 2024 cannot be stated to have been issued by a 'Court'; the forum which issued them was coram non judice. Moreover, such forum did not comply with the rudimentary principles of natural justice, of due process and of fair trial. Therefore, the same do not constitute legal orders, and are of no legal effect. They also cannot be categorized as a 'decision' of the Supreme Court (in terms of Article 189 of the Constitution), resultantly, they need not be followed or acted upon.

In Civil Appeals

For Appellants

(In both Appeals)

Faisal Siddiqui, Advocate Supreme Court, assisted by Ammar Rafique, Advocate along with Ajmal Ghaffar Toor, Advocate Supreme Court, Haider Bin Masud, Advocate

and Sahibzada M. Hamid Raza

(appellant in person)

For Respondent No. 1-ECP

(in both Appeals)

Sikandar Bashir Mohmand, Advocate Supreme Court

assisted by Abdullah Noor

and Hamza Azmat, Advocates

along with M. Arshad, D.G. (Law) ECP and

Ms. Saima Tariq Janjua, D.D. Law (ECP)

For PPP

(In both Appeals)

Farooq H. Naek, Senior Advocate Supreme Court

assisted by Asad Mehmood Abbasi, Advocate Supreme Court, Sheraz Shaukat Rajpar, Advocate and

Syed Qaim Shah, Advocate.

For PML(N)

(In C.A. No. 333/24)

Haris Azmat, Advocate Supreme Court, assisted by Ms. Faiza Asad, Advocate and

Ch. Akhtar Ali, Advocate-on-Record.

For MQM

Nemo.

For Respondent No.5

(in C.A. No. 333/2024)

M. Siddique Awan, Advocate Supreme Court.

For Respondent No. 9

(in C.A. No. 333/24)

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record.

For Respondent No. 11

(in C.A. No. 333/24)

Kamran Murtaza, Senior Advocate Supreme Court.

For Respondents Nos. 15 to 19, 21-22.

(In C.A. No. 333/24)

M. Makhdoom Ali Khan, Senior Advocate Supreme Court, Sarmad Hani, Advocate Supreme Court, Saad Mumtaz Hashmi, Advocate Supreme Court, assisted by Zarar Qadir Shoro, Advocate

along with Yawar Mukhtar, Advocate.

For Respondent No. 20

(In C.A. No. 333/24)

Zulfikar Khalid Maluka, Advocate Supreme Court.

For Respondent No. 9

(In C.A. No. 333/24)

M. Shahzad Shaukat, Advocate Supreme Court.

assisted by Raza ur Rehman, Advocate.

In Civil Petitions

For the Petitioners

(In C.Ps. Nos. 1612-1514/24)

Asad Jan Durrani, Advocate Supreme Court.

along with Malik Khawas, Assistant Law Officer, KPK Assembly

For the Petitioners

(In C.Ps. Nos. 1615-1617)

Shah Faisal Utmankhail, Advocate-General, KP.

Kausar Ali Shah, AAG, KPK and

Zahid Yousaf, Advocate-on-Record.

For Respondent No. 1

(in C.Ps. Nos. 1612 and 1616/24)

Amir Javed, Advocate Supreme Court.

For R-6 (in C.P. 1612/24) and

For R-2 to 5 (in C.P. No. 1616/24)

Shah Khawar, Advocate Supreme Court.

For Respondents Nos. 1 to 6

(In C.Ps. Nos. 1613 and 1617/2024)

Kamran Murtaza, Senior Advocate Supreme Court and

Qari Abdul Rasheed, Advocate Supreme Court.

For Respondents Nos. 1, 2, 3 and 8

(In C.P. No. 1614/24)

Imran Khan, Advocate Supreme Court.

In C.M.As.

For the Applicants:

(In C.M.As. 3554 and 5913/24)

Salman Akram Raja, Advocate Supreme Court, Sameer Khosa, Advocate Supreme Court, assisted by Malik Ghulam Sabir, Ramsa Banuri, Samreen Qureshi and

Hamad Amin, Advocates.

On Court Notice:

For the Federation:

Mansoor Usman Awan, Attorney-General for Pakistan.

(Assisted by: Ms. Maryam Ali Abbasi, Adv.)

along with Malik Javed Iqbal Wains, AAGP.

Raja M. Shafqat Abbasi, D.A.G.

Ms. Maryam Rasheed, Advocate.

For Government of Punjab:

Khalid Ishaq, Advocate-General, Punjab and

Sanaullah Zahid, Additional Advocate-General, Punjab.

For Government of Khyber Pakhtunkhwa:

Shah Faisal Utmankhail, Advocate-General, KP and

Shah Faisal Ilyas, Additional Advocate-General, KP.

For Government of Sindh:

Miran Muhammad Shah, Addl. A.G., Sindh

(through video-link from Karachi)

For Government of Balochistan:

Muhammad Asif Reki, Advocate-General, Balochistan.

(Through video-link from Quetta)

M. Ayaz Swati, Addl. A.G.

Tahir Iqbal Khattak, Additional Advocate-General, Balochistan.

(At Islamabad)

For ICT:

Muhammad Ayyaz Shaukat, A.G., Islamabad.

Research Assistance:

Umer A. Ranjha, Judicial Law Clerk.

P L D 2025 Supreme Court 247

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Malik MAHMOOD AHMAD KHAN---Petitioner

Versus

Malik MOAZAM MAHMOOD and others---Respondents

C.P.L.A. No. 2250-L of 2016, decided on 19th December, 2024.

(Against the order dated 11.05.2016 passed by the Lahore High Court, Lahore in Writ Petition No. 33486 of 2015).

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance allowance for minor---Child justice approach---Duty of Courts---Petitioner/father of minor son was aggrieved of fixing of maintenance allowance by the Courts below---Held, that Courts must approach cases involving children with a dedicated child justice approach, rooted in a legal and moral obligation to protect, nurture, and rehabilitate children, ensuring their rights and well-being within the justice system---Child justice encompasses both children in conflict with law, who require rehabilitative interventions rather than punitive measures---Children in contact with law must be safeguarded and supported throughout judicial processes---As custodians of justice, Courts must adopt a child justice approach that prioritizes the best interests of child, recognizing their vulnerabilities, developmental needs and potential---Such approach demands sensitivity to their circumstances, ensuring access to education, shielding them from exploitation, and fostering an environment conducive to their growth and reintegration into society---Supreme Court declined to interfere in the judgments passed by the Courts below as there was no jurisdictional error, illegality or procedural illegality---Petition for leave to appeal was dismissed and leave to appeal was refused.

Khalid Ikram Khatana, Advocate Supreme Court for Petitioner.

Respondents not represented.

P L D 2025 Supreme Court 251

Present: Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

Raja SHAHZAD AHMED---Petitioner

Versus

INCHARGE BAGGAGE ROUTING PAKISTAN INTERNATIONAL AIRLINE, LAHORE and others---Respondents

C.P.L.A. No.944-L of 2014, decided on 18 November, 2024.

(Against the judgment dated 02.06.2014 passed by Lahore High Court, Lahore in F.A.O. No. 305 of 2014).

Punjab Consumer Protection Act (II of 2005)---

----S.28---Limitation Act (IX of 1908), S. 5---Consumer Court proceedings---Limitation---Condonation of delay---Complaint filed by petitioner/consumer was barred by 90 days---Plea raised by petitioner/consumer was that delay could have been condoned under section 5 of Limitation Act, 1908---Validity---Provision of section 5 of Limitation Act, 1908 was not applicable to the proceedings before Consumer Court---Supreme Court declined to condone the delay in filing of complaint---Petition for leave to appeal was dismissed and leave to appeal was refused.

Muhammad Rafique Shah, Advocate Supreme Court (through Video Link from Lahore) for Petitioner.

Nemo for Respondents.

P L D 2025 Supreme Court 254

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

The STATE through Prosecutor General Punjab, Lahore---Petitioner

Versus

Chaudhry MOHAMMAD KHAN and others---Respondents

Civil Petitions Nos.671-L and 672-L of 2017, decided on 27th September, 2024.

(Against the Order dated 21.12.2016 passed by the Lahore High Court, Multan Bench in Writ Petitions Nos. 15518 and 15634 of 2012).

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

----S. 154---Constitution of Pakistan, Art. 199---Quashing of FIR---Constitutional jurisdiction of the High Court---Scope---Jurisdiction in terms of Article 199 of the Constitution for quashing an FIR can only be exercised in exceptional cases---Exercise of extra-ordinary jurisdiction for quashing an FIR under Article 199 is permissible only in cases when the facts on record unequivocally indicate that no offence can be established against the accused; or if registration of FIR reflects a misuse of legal authority or lacks any sound legal justification because allowing the prosecution to continue under such conditions would constitute an abuse of the process of law, justifying the quashing of the FIR; cases registered without proper authority or in clear violation of established laws must also be quashed to maintain the integrity of the judicial system---However, the court should not invoke this provision if the allegations made by the prosecution establish a prima facie case against the accused---Even if a civil dispute is pending between the parties, FIR cannot be straightaway quashed based on the civil dispute---Criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings can proceed simultaneously.

Ajmeel Khan v. Abdul Rahim and others PLD 2009 SC 102; FIA, Director General FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265; Seema Fareed and others v. The State and another 2008 SCMR 839 and Central Bureau of Investigation and others v. Thommandru Hannah Vijayalakshmi and others AIR 2021 SC 5041 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Factual controversies---High Court, in exercise of its constitutional jurisdiction under Article 199, cannot resolve factual controversies---High Court cannot assume the role of an investigation agency or of a trial Court without recording evidence to deliberate upon the factual controversies involved in the cases in exercise of its constitutional jurisdiction.

Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 246; Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023 and Fida Hussain v. Mst. Saiqa and others 2011 SCMR 1990 ref.

Irfan Zia, Additional Prosecutor General, Punjab for Petitioner (in both cases).

Shakeel Javed, Advocate Supreme Court for Respondent No.1 (in both cases).

P L D 2025 Supreme Court 262

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

Dr. FARYAL MAQSOOD and another---Petitioners

Versus

KHURRAM SHEHZAD DURRANI and others---Respondents

Civil Petitions Nos.308-P and 1388 of 2019, decided on 23rd October, 2024.

(Against judgment dated 03.4.2019 of the Peshawar High Court, Peshawar passed in Writ Petition No. 1341-P of 2016).

(a) Interpretation of contract---

----It is a settled principle of interpreting a contract that a court cannot imply something that is inconsistent with the express terms, and a stipulation not expressed in the written contract can also not be applied merely because it appears to be reasonable to the court.

Housing Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 ref.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(iia)---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Grounds for decree for dissolution of marriage---Taking additional wife in contravention of the provisions of the Dissolution of Muslim Marriages Act, 1939---Repeal of section 13 of Muslim Family Laws Ordinance (VIII of 1961) through the Federal Laws (Revision and Declaration) Ordinance, 1981 did not affect the validity and enforcement of the insertion made in the Dissolution of Muslim Marriages Act, 1939---Therefore, clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939 continues to be one of the valid, effective and subsisting grounds for dissolution of marriage.

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

----S.5, Sched.---Khula through judicial order---Scope---Khula through judicial order is dissolution of marriage by the court/Qazi on the demand of the wife---It authorises the court to dissolve the marriage in an appropriate case against the will or consent of the husband -- However, a court on its own cannot order dissolution of the marriage on the basis of Khula when it has not been sought by the wife either expressly or impliedly.

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

(d) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(iia)---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Family Courts Act (XXXV of 1964), S.5, Sched.---Grounds for decree for dissolution of marriage---Taking additional wife in contravention of the provisions of the Dissolution of Muslim Marriages Act, 1939---Khula---Scope---In the present case when the husband (defendant) took a second wife, he contravened the provisions of the Muslim Family Laws Ordinance, 1961 (Ordinance of 1961) since neither any application was filed nor the permission of the Arbitration Council was sought in accordance with the requirements set out under section 6 of Ordinance of 1961---However, instead of adjudicating this ground, the appellate court had ordered the dissolution of the marriage on the basis of Khula---Appellate court, therefore, fell in error by granting a decree for the dissolution of marriage on the basis of Khula when it was not sought by the wife (plaintiff) nor had she given express or implied consent thereto---High Court had also not recorded any reasons in support of its conclusion to order dissolution of marriage on the ground of cruelty---Appellate court and the High Court fell in error by ordering the dissolution of the marriage between the husband and the wife on the ground of Khula and cruelty respectively---Supreme Court held that the dissolution of the marriage between the husband and the wife was on the basis of the ground described under clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939---Supreme Court declared that the decree of the trial court to the extent of restitution of conjugal rights was not sustainable; that the judgments and decrees to the extent of restitution of conjugal rights and dissolution of the marriage on the ground of Khula or cruelty were illegal and accordingly set aside; that the decrees granted by the Trial Court regarding dower, dowry articles, maintenance and visitation schedule shall, therefore, sustain and were accordingly upheld.

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

(e) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2---Grounds for decree for dissolution of marriage---Cruelty by husband---Cruelty may be mental or physical.

Mst. Tayyeba Ambareen v. Shafqat Ali Kiyani 2023 SCMR 246 ref.

Waseem ud Din Khattak, Advocate Supreme Court (Through Video link Peshawar) for Petitioners (in C. P. No. 308-P of 2019).

Barrister Umer Aslam, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record for Respondent No. 1 (in C. P. No. 308-P of 2019).

Barrister Umer Aslam, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No. 1388 of 2019).

Waseem ud Din Khattak, Advocate Supreme Court (through Video link Peshawar) for Respondent No. 1 (in C.P. No. 1388 of 2019).

P L D 2025 Supreme Court 274

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

In the matter regarding non fixation of the case, CPLA 836-K of 2020, etc.

Crl. O. P. No.1 of 2025, decided on 22nd January, 2025.

Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 2---Constitution of Pakistan, Arts. 5, 190, 191A & 204---Contempt proceedings---Non-fixation of case---Executive and judicial order---Officer of Supreme Court fixed case in question before Constitutional Bench of Supreme Court on the basis of order passed by Committee of Supreme Court constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023, against the order passed by Bench of Supreme Court during Court proceedings---Validity---All Executive and Judicial authorities throughout Pakistan, including officers within the establishment of Supreme Court, are required under Article 190 of the Constitution to act in aid of Supreme Court, meaning in aid of its judicial orders, not administrative orders---Every citizen, including officers within the establishment of Supreme Court, are bound under Article 5 of the Constitution to obey the Constitution and law---Supreme Court issued notices to Attorney General to conduct contempt proceedings against officer of Supreme Court, as well as to assist Supreme Court on questions of law---Proceedings adjourned.

Malik Asad Ali v. Federation of Pakistan 1998 SCMR 15; 1998 SCMR 130; Human Rights Case No. 14959-K of 2018(PLD 2019 SC 183; Muhammad Sajid v. Imran Khan W.P. No. 3061 of 2022; Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; Syed Zafar Ali Shah v. General Pervez Musharaf PLD 2000 SC 869; CJP Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Justice Qazi Faez Isa v. President of Pakistan 2019 SCMR 1875; and Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

In attendance:

Muhammad Salim Khan, Registrar, SCP.

Zulifqar Ahmed, D.R. (Judl.), SCP.

Aamir Rehman, Addl. A.G.P.

Salahuddin Ahmed, Advocate Supreme Court.

Shahid Jamil Khan, Advocate Supreme Court.

Hamid Khan, Senior Advocate Supreme Court.

P L D 2025 Supreme Court 280

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

CRL. O. P.1/2025 IN CPLA 836-K OF 2020, ETC.

(Matter regarding non-fixation of case as per court-order 16.01.2025)

(a) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 2---Constitution of Pakistan, Art. 191A---Partly heard case, fixing of---Committee to constitute Benches---Jurisdiction---Dispute pertained to withdrawing a partly heard case from regular Bench of Supreme Court and fixing the same before Constitutional Bench of Supreme Court---Held, that once a case is assigned to a Bench and that Bench has taken seisin (assumed jurisdiction) of the matter and partly heard it, Chief Justice (of Supreme Court) cannot unilaterally withdraw it and reassign it to another Bench except under judicially recognized circumstances---This practice is firmly rooted in high Constitutional value of judicial independence whereby a Bench enjoys freedom and independence to adjudicate upon a lis it has taken cognizance of---When a Bench is seized of a case and has partly heard it, the matter becomes part of judicial proceedings and the Bench hearing the case assumes exclusive jurisdiction over it---Any interference, whether through withdrawal or reassignment, without judicial justification undermines the principle of judicial independence---Such practice imposes significant limitation on administrative powers of Chief Justice---While the Chief Justice has the authority to regulate formation of Benches and allocate cases as an administrative function, these powers do not extend to withdrawing or transferring part heard case from a Bench that has already assumed jurisdiction---Withdrawal or reassignment is not merely an administrative act but a judicial one---Any such action must either stem from a judicial order passed by the Bench seized of the matter or be supported by express statutory authority if carried out by another Court or authority---Committees constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023 and Article 191A of the Constitution lack authority to withdraw a case that has been partly heard, where cognizance has already been taken by a regular Bench, and transfer it to another Bench unless the Bench itself refers the case to the Committees for its assignment to another Bench for some justifiable reasons---Part heard cases may include those where serious questions of Constitutional law concerning jurisdiction of regular Bench have been framed, some arguments on those questions have been heard and hearing has been adjourned for further arguments---Supreme Court referred the matter to Chief Justice of Pakistan to convene Full Court to deliberate and decide on such serious issue warranting collective and institutional deliberation of all Judges of Supreme Court---Matter was disposed of.

Asad Ali v. Federation of Pakistan 1998 SCMR 15; Asad Ali v. Federation of Pakistan 1998 SCMR 130; Human Rights Case No. 14959-K of 2018 PLD 2019 SC 183; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Fazlul Quader Chowdhry v. Abdul Haque PLD 1963 SC 486; Marbury v. Madison 5 US 137 [1803]; Contempt proceedings against Syed Yousaf Raza Gillani PLD 2012 SC 553; M.Y. Shareef v. Hon'ble Judges of The High Court of Nagpur AIR 1955 SC 19; Zikar v. Government of State of M.P. AIR 1951 Nag 11; M. Ranka v. Hon'ble the Chief Justice (1991) 2 L.W. 225; Jawahar Ram Gupta v. Hon'ble Chief Justice 1996 (27) ALR 557; M. Ranka v. Hon'ble Chief Justice of Tamilnadu High Court, Madras (1994) 2 L.W. 135; Muhammad Imtiyaz v. Muhammad Naeem PLD 2023 SC 306; Raja Amer v. Federation of Pakistan PLJ 2024 SC 114 (2024 SCP 91); PLD 1998 SC 161 and Muhammad Sadiq Leghari, Registrar High Court of Sindh PLD 2002 SC 1033 rel.

(b) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 2---Constitution of Pakistan, Art. 191A---Judicial and administrative orders---Scope---No administrative authority, including Committees constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023 and Article 191A of the Constitution, can by administrative order, undo the effect of a judicial order.

(c) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 2---Constitution of Pakistan, Arts. 191A & 204---Contempt proceedings---Non-fixation of case---Executive and judicial order---Supreme Court initiated contempt proceedings against contemner/ officer of Supreme Court office who fixed case in question before Constitutional Bench of Supreme Court on the basis of order passed by Committee of Supreme Court constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023---Validity---Contemner/ officer of Supreme Court office did not deliberately avoid fixation of cases before the Bench as directed in the Court order---There was no evidence to suggest that contemner/officer of Supreme Court office had any personal interest in the matter or had connived with any of the parties to the case nor did he act with intention of causing damage to any of the parties to the case---There was no indication of mala fide intent in the actions of contemner/officer of Supreme Court office---In absence of any such factors or elements of contumacy, conduct of contemner/officer of Supreme Court office could not be considered contumacious nor it suffered from mala fides requiring contempt proceedings against him---Supreme Court withdrew show cause notice issued against contemner/officer of Supreme Court office---Contempt proceedings were withdrawn.

In attendance:

Mansoor Usman Awan, AGP.

Hamid Khan, Sr. Advocate Supreme Court, Amicus curiae.

Munir A. Malik, Sr. Advocate Supreme Court, Amicus Curiae

(Through Video Link from Karachi)

Kh. Haris Ahmad, Advocate Supreme Court - Amicus curiae.

Muhammad Ahsan Bhoon, Advocate Supreme Court, Amicus curiae

Salahuddin Ahmed, Advocate Supreme Court, Shahid Jamil, Khan, Advocate Supreme Court, Counsel for Respondents (in CPLA 836-K of 2020, etc.)

Nazar Abbas, Addl. Reg. (J), SCP. (The respondent/accused in person)

P L D 2025 Supreme Court 302

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

AHMED ALI TALPUR---Petitioner

Versus

SUB-REGISTRAR LATIFABAD, HYDERABAD and others---Respondents

Civil Petition No. 290-K of 2024, decided on 24th December, 2024.

(On appeal from the Judgment dated 22.01.2024 passed by the High Court of Sindh, Circuit Court Hyderabad in IInd Appeal No.39 of 2023).

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

----O.VII, R. 11---Rejection of plaint---Piecemeal rejection---Multiple reliefs---Principle---Law does not permit piecemeal rejection---If even one prayer in plaint is found to be maintainable, plaint cannot be rejected in parts.

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

----O. VII, R. 11(a)---Subsisting cause of action---Effect---Plaintiff is required to demonstrate not only that a right has been infringed in a manner entitling him to relief but also that at the time of approaching the Court, the right to seek that relief was subsisting.

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

----O. VII, R. 11---Rejection of plaint---Material to be relied upon---Principle---If some material apart from plaint is available on record and admitted by plaintiff, the Court may take such material into consideration---In case of mixed questions of law and fact, correct approach is to allow suit to proceed to written statement and discovery phases, determining the lis either by farming of preliminary issues or through a regular trial with equal opportunities for both parties.

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

----O.VII, R.11---Rejection of plaint---Suo motu powers---Applicability---Application of Order VII, Rule 11, C.P.C. is independent and does not require waiting for filing of written statement---Court may even reject plaint on its own motion as a sense of duty, if it is found to be genuinely hit by any of the disability or infirmity provided in the clauses of Order VII, Rule 11, C.P.C.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for cancellation of document, declaration and injunction---Rejecting of plaint---Oral gift---Concurrent findings of facts by the Courts below, setting aside of---Petitioner/plaintiff claimed to be owner of suit property on the basis of oral gift deed---Trial Court rejected the plaint and the order was maintained by Lower Appellate Court as well as by High Court---Validity---Controversy involved did not support conclusion that petitioner/plaintiff approached Court without cause of action or that the plaint was barred by any law under Order VII, Rule 11, C.P.C.---Approaching of petitioner/plaintiff with clean or unclean hands was irrelevant for rejecting the plaint when triable issues were discernable for proper adjudication---Summary rejection would unjustly render the parties remediless---Purpose of remedy of appeal is to ensure that Court below had decided the lis in accordance with the law and without any error---Where glaring errors, non-reading or misreading of evidence or any legal and jurisdictional issues arise, the stumbling block of doctrine of concurrent findings cannot shield flawed and erroneous decisions from correction---Supreme Court quashed and set aside the order passed by Trial Court rejecting the plaint, which was affirmed by Lower Appellate Court and then by High Court in second appeal---Supreme Court remanded the matter to Trial Court for decision afresh on merits after recording of evidence---Appeal was allowed.

(1838) 4 Myln and Cr 134 C. M. Row, Law of Injunctions, 8th Edition; Cf. Ashwender v. Teinessee Valley Authority, 297 U.S. 288, p. 325; L. Ed. 688 (1936), p. 699; Cf. 62 Harvard Law Review at pp. 875-76 [Ref: Anand 85 Iyer's Commentary on Specific Relief Act, 11th Edition, Page 927 and Al-Tamash Medical Society through Secretary v. Dr. Anwar Ye Bin Ju 2017 MLD 785 ref.

Naeem Suleman, Advocate Supreme Court for Petitioner.

Rafiq Ahmed Kalwar, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record for Respondent No. 4 along with Respondent No.4.

Hakim Ali Shaikh, A.A.G. for Respondents Nos. 1-3.

P L D 2025 Supreme Court 310

Present: Yahya Afridi, CJ and Irfan Saadat Khan, J

Mst. SIDRA HAMEED and others---Applicants

Versus

Syed ABDUL MATEEN---Respondent

Civil Miscellaneous Application No. 100 of 2024, decided on 30th January, 2025.

(Application under section 25-A (2-B) Family Courts Act, 1964).

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

----S. 5---Guardians and Wards Act (VIII of 1890), S. 25---Custody and guardianship of minor---Family Court, jurisdiction of---Scope---Matters of custody and guardianship both are also governed under Family Courts Act, 1964---Family Court is only bound by section 25 of Guardians and Wards Act, 1890 to follow procedure during trail of guardian and custody matters.

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

----S. 25A(2b)---Family suits---Inter-Provincial transfer---Applicant/ mother of minors sought transfer of guardianship proceedings and family appeal pending before Lower Appellate Court at place "I" to place "K" in another province---Held, that guardianship and custody cases which were instituted in Family Court would be treated as proceedings under Family Courts Act, 1964---In absence of any specific provision in Guardians and Wards Act, 1890, regarding transfer of matters from one province to another, guardianship and custody cases could be transferred according to section 25A(2b) of Family Courts Act, 1964---Minors' welfare would follow their mother's residence---It was not necessary for applicant/mother to attach documents proving her residence and minors' enrolment in school at place "K"---Supreme Court transferred the proceedings pending before Courts at place "I" to place "K"---Application was allowed.

Anne Zahra v. Tahir Ali Khilji 2001 SCMR 2000; Muhammad Khalid Karim v. Saadia Yaqub PLD 2012 SC 66; Ihsan-ur-Rehman v. Najma Parveen PLD 1986 SC 14; Sakhawat Ali v. Shui Khelay PLD 1981 SC 454; The State v. Naeemullah Khan 2001 SCMR 1461 and Rabia Ahmad v. Bilal Ejaz 2022 SCMR 733 rel.

Muhammad Habib Ullah Khan, Advocate Supreme Court for Applicants.

Dr. Babar Awan, Sr. Advocate Supreme Court for Respondent.

P L D 2025 Supreme Court 319

Present: Syed Mansoor Ali Shah, Ayesha A. Malik and Aqeel Ahmed Abbasi, JJ

ADIL KHAN BAZAI---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN and another---Respondents

Civil Appeals Nos. 1507 and 1508 of 2024, decided on 12th December, 2024.

(Against the orders dated 21.11.2024 passed by Election Commission of Pakistan in Case No. F.6(28)/2024-Law-III and Case No.F.17(3)/2024-Coord.).

Per Syed Mansoor Ali Shah, J.; Ayesha A. Malik and Aqeel Abbasi, JJ. agreeing:

(a) Constitution of Pakistan---

----Art. 63A---Disqualification due to defection---Word "may"---Effect---Use of word "may" in granting power to Party Head indicates that its exercise is discretionary, not obligatory---Even if a member defaults undergrounds (a) or (b), the Party Head is not obligated to declare defection necessarily and he may choose not to exercise such power---Requirement of providing member concerned an opportunity to show cause as to why such a declaration should not be made against him, underscores that the Party Head must exercise such power justly, fairly and reasonably, rather than whimsically or arbitrarily.

(b) Constitution of Pakistan---

----Art. 63A(1)---Declaration of defection---Principle---Power to make a declaration of defection, under Article 63A(1) of the Constitution has been granted only to Party Head of a political party, not to any other office bearer of the party and that can be exercised only in relation to a member of Parliamentary Party of a political party in the House, not to any other member of the House---Existence of such two facts is a condition precedent for the exercise of power to make declaration of defection against a member of House and for the exercise of jurisdiction by Election Commission to confirm such a declaration.

(c) Jurisdiction---

----Scope---When a tribunal or authority is established by law to exercise jurisdiction over a particular matter, the Legislature defines scope of its power---It may either expressly or by necessary implications tabulate that jurisdiction can only be assumed and exercised if a particular state of facts exists or is shown to exist---In such case, though the Tribunal or authority are obligated to objectively ascertain in the event of a dispute, whether that state of facts exist before exercising jurisdiction over the matter, its decision on the existence of that state of fact i.e. the jurisdictional fact, is not conclusive---Instead, the decision is subject to challenge before and final determination of Civil Courts of plenary jurisdiction, or is subject to correction by Constitutional Courts through judicial review.

Queen v. Commissioner of Income Tax (1888) 21 QB 313 per Lord Esher; M.R.; Keramat Ali v. Muhammad Yunus PLD 1963 SC 191; Jamil Asghar v. The Improvement Trust PLD 1965 SC 698; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Mehr Dad v. Settlement and Rehabilitation Commissioner PLD 1974 SC 193; Hamid Husain v. Govt. of West Pakistan 1974 SCMR 356; Hamida Begum v. Murad Begum PLD 1975 SC 624; Muhammad Hafeez v. Additional Commissioner 1981 SCMR 1171; Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963; Aminullah v. Qalandar Khan 1993 SCMR 2307; Shah Muhammad v. Abdul Rauf 1998 SCMR 1363 and Umar Ikram-Ul-Haque v. Shahida Hasnain 2016 SCMR 2186; S.B.P. and Co. v. Patel Engineering Ltd. AIR 2006 SC 450; Jagdish Prasad v. Ganga Prasad AIR 1959 SC 492; Addanki Tiruvenkata v. State of Andhra Pradesh AIR 1964 SC 807 and Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963 rel.

(d) Constitution of Pakistan---

----Arts. 63A(3) & 63A(4)---Declaration of defection--- Election Commission---Exercise of jurisdiction---Principle---Election Commission has no power to conclusively determine jurisdictional facts but only has power to objectively ascertain existence of jurisdictional facts before exercising jurisdiction conferred upon it under Articles 63A(3) and (4) of the Constitution, for the purpose of determining alleged defection of a member from his political party---Findings of Election Commission on a jurisdictional fact, such as whether member concerned belongs to parliamentary partly of a political party, is not conclusive---Rather, it is subject to correction by Supreme Court as its appellate forum, and ultimately to final determination by a Civil Court of plenary jurisdiction.

(e) Constitution of Pakistan---

----Arts. 63A(1), 63A(2), 63A(3) & 63A(5)---Declaration of defection---Disqualification--- Affidavit of consent---Genuineness--- Appellant/ Member of National Assembly contested election as an independent candidate and after winning the election submitted affidavit of consent to join respondent political party---Party Head of respondent political party invoked defection clause against appellant, and resultantly Election Commission disqualified him---Contention of appellant was that his affidavit of consent was a forged document and he did not give any such consent to join respondent political party---Validity---Appellant was not shown to have ever acted as member of respondent parliamentary party, but had consistently conducted himself as member of another political party---Election Commission should have proceeded on the assumption that appellant was not member of respondent political party---Election Commission's finding on genuineness and validity of consent affidavit were contrary to the weight of the material on record and was legally unsustainable---Appellant was not found to be member of respondent political party and declarations made by Party Head of respondent political party regarding appellant's defection from that party and confirmation thereof by the Commission through orders in question were without jurisdiction---Supreme Court set aside orders passed by Election Commission and declarations made by respondent political party regarding defection of appellant---Supreme Court restored membership of appellant as an independent member and not as member of respondent political party---Appeal was allowed.

Bahadur Khan Bangulzai v. Attaullah Khan Mengal 1999 SCMR 1921; Attaullah Khan Mengal v. Chief Election Commissioner 1999 CLC 1460; Giyan Chand v. Chief Election Commissioner 2000 MLD 709 and Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963 rel.

Ayesha A. Malik, J.; agreeing with Syed Mansoor Ali Shah, J.:

(f) Constitution of Pakistan---

----Arts. 17, 19 & 219---Election Commission of Pakistan---Duties and functions---Constitutional role of Election Commission is the duty to organize and conduct free and fair elections for benefit of citizens who enjoy fundamental right to not only contest elections but also right to vote for candidate of their choice under Article 17(2) of the Constitution---Such fundamental right is also an expression of choice of voters under Article 19 of the Constitution---In exercise of such fundamental rights, which culminate through electoral process and voting, voters are able to choose composition of their government by exercising their choice and ability to participate---Such rights are so integral that their violation results in denial of fundamental rights, such as the right to be protected and treated in accordance with law, the right to life and liberty and inviolability of dignity.

Worker's Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413; Zulfiqar Ali Bhatti v. Election Commission of Pakistan 2024 SCMR 997; Tahir Sadiq v. Faisal Ali 2024 SCMR 775 and Imran Ahmed Khan Niazi v. The State 2024 SCMR 1284 rel.

(g) Constitution of Pakistan---

----Art. 219---Election Commission of Pakistan---Powers---Constitutional duty of Election Commission cannot be considered as an overarching Constitutional power vis-à-vis with other Constitutional provisions and institutions.

(h) Constitution of Pakistan---

----Art. 219---Election Commission of Pakistan---Role---Independence of Election Commission is a fundamental safeguard in democratic system which maintains integrity of elections and ensures that will of people translates into their consent to be governed by elected representatives---This is what gives legitimacy to the government, because it is based on choice of people---This builds public confidence, protects rule of law and protects people from political manipulation---Elections are lifeline to democracy and Election Commission is guarantor of electoral integrity---Independence of Election Commission is fundamental to election process without which very foundation of democracy is undermined---Election Commission should not become subservient to political influences or political engineering rather should remain an impartial custodian of democracy as any leaning of Election Commission in favor of government would compromise legitimacy of political system---At the heart of protecting electoral integrity is the right to vote and exercise of such right by people---Supremacy of vote underscores the idea, that power and legitimacy in a democratic system derives its consent from the governed, which is why an independent Constitutional body is required to ensure that will of the people by way of election is actualized.

Muhammad Sibtain Khan v. Election Commission of Pakistan 2023 SCMR 2165; Imran Ahmed Khan Niazi v. The State 2024 SCMR 1284 and Sunni Ittehad Council v. Election Commission of Pakistan PLD 2024 SC 642 rel.

Taimoor Aslam Khan, Advocate Supreme Court for Appellant (in both cases).

Rana Asad Ullah, Addl. A.G.P., Muhammad Arshad, Spl. Secy. ECP, Khurram Shehzad, D.D. Law, ECP. Ms. Saima Tariq, D.D. Law, ECP and Falak Sher, A.D. Law, ECP. for Respondent No. 1 (ECP) (in both cases).

Barrister Haris Azmat, Advocate Supreme Court for Respondent No.2 (PML-N) (in both cases).

P L D 2025 Supreme Court 339

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Syed MASOOD ALI---Petitioner

Versus

Mst. FEROZA BEGUM and another---Respondents

Civil Petitions Nos. 552-K of 2021 and 1108-K of 2023, decided on 26th December, 2024.

(Against the Judgment dated 06.04.2021 passed by the High Court of Sindh in IInd Appeal No.22 of 2009 and Order dated 17.08.2023 passed by High Court of Sindh in C.P. No.D-3343 of 2023).

(a) Islamic Law---

----Gift to wife---Presumption---In case of gift of immovable property by husband to wife, the fact that husband continues to live in the house gifted or receives rents after the date of gift do not invalidate the gift---Presumption is that rents are collected by husband as a rent collector on behalf of the wife and not on his own accord.

Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466 and Riaz Ullah Khan v. Asghar Ali and 2 others 2004 SCMR 1701 rel.

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

----Ss. 39, 42 & 54---Suit for cancellation of document, declaration and injunction---Registered gift deed---Proof---Petitioner/plaintiff claimed that suit property was not gifted and respondent/defendant failed to prove the gift in her favour---Suit and appeals were concurrently dismissed by all Courts below---Validity---Recital of gift demonstrated donor's intention to divest him of all control over subject matter of gift---This act fulfilled necessary requirement of intention to transfer possession and divest control---There was no evidence on record to suggest that the donor undertook an action indicating intention to withhold possession of gift---High Court elaborately and comprehensively considered all aspects of the matter, legal as well as factual---High Court had rightly declined to interfere in concurrent findings as the same were not perverse, arbitrary, fanciful or capricious---Supreme Court maintained judgment and decree passed by High Court as there was no misreading of evidence or any infirmity or illegality---Petition for leave to appeal was dismissed and leave to appeal was refused.

Babar Anwar v. Muhammad Ashraf and another 2024 SCMR 734; Principles of Mohammedan Law by D.F Mulla; Abid Hussain and others v. Muhammad Yousaf and others PLD 2022 SC 395; Syed Md. Saleem Hashmi v. Syed Abdul Fateh and others AIR 1972 Patna 279; Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Riaz Ullah Khan v. Asghar Ali and 2 others 2004 SCMR 1701; Nawab Mirza Mohammad Sadiq Ali Khan and others v. Nawab Fakr Jahan Begam and others AIR 1932 PC 13; Ameeroonnisa Khatoon v. Abedoonisa Khatoon (1875) L.R. 2 I.A. 87; Ismail and others v. Idrish and others AIR 1974 Patna 54 and Abrar Ahmed and another v. Irshad Ahmed PLD 2014 SC 331 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate and efficacious remedy---Whan an alternative and efficacious remedy is available under ordinary legal framework, Constitutional jurisdiction cannot be invoked to bypass statutory mechanisms in place---Constitutional petition is not intended to substitute ordinary remedies provided under law.

Ghulam Rasool Mangi, Advocate-on-Record and Muhammad Imran Shamsi, Advocate Supreme Court for Petitioner (in both cases).

Nemo for Respondents

P L D 2025 Supreme Court 351

Present: Munib Akhtar, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

OIL AND GAS REGULATORY AUTHORITY, ISLAMABAD and another---Petitioners/Applicants

Versus

GAS AND OIL PAKISTAN LIMITED, LAHORE and another---Respondents

C.R.P. No. 540 of 2023

(For review of judgment dated 07.02.2023 passed by this Court in C.P.L.A. No. 3113 of 2020.)

And

C.M.A.5277/2023

In C.R.P.NIL/2023

In C.P.L.A.3113/2020

(Against order dated 30.09.2020 passed by the Islamabad High Court, Islamabad in W.P. No. 1381 of 2020.)

C.R.P. No. 540 of 2023 and C.M.A. No. 5277 of 2023 in C.R.P. Nil of 2023 in C.P.L.A. No. 3113 of 2020, decided on 14th February, 2025.

(a) Constitution of Pakistan---

----Art. 188---Review of judgment---Question of law---Effect---Sole basis of judgment under review was dismissal of petition for leave to appeal on a question of law---Validity---When decision (more formally, the ratio decidendi) turns solely on a pure question of law and all the more so when that question is exclusively a matter of statutory interpretation, it is not enough for review petitioner to contend that the interpretation is incorrect---To allow such a ground to be taken would be, in effect, to allow review petitioner to reargue the case---Ground for review would have to be that the decision was per incuriam; it was difficult to conceive of any other reviewable ground being available.

(b) Constitution of Pakistan---

----Art. 188---Review of judgment---Non-assailing order of High Court---Petitioner did not assail order passed by High Court---After dismissal of petition for leave to appeal filed by another party, petitioner intended to seek review of that judgment of Supreme Court---Validity---It was not open to a person who was a party to proceedings in High Court and was heard there but chose not to assail the latter's decision in the Supreme Court to then turn around and complain on some other party's leave petition, that the same was dismissed without notice to it---Application was dismissed.

Ch. Hafeez Ullah Yaqub, Advocate Supreme Court for Petitioner (in C.R.P. No. 540 of 2023).

Rehan-ud-Din Khan, Advocate Supreme Court for Applicant (in C.M.A. No. 5277 of 2023).

Ch. Hafeez Ullah Yaqub, Advocate Supreme Court (in C.M.A. No. 5277 of 2023) and Rehan-ud-Din Khan, Advocate Supreme Court (in C.R.P. No. 540 of 2023) for Respondents.

P L D 2025 Supreme Court 354

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

MUHAMMAD DIN---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Population Welfare, Lahore

and others---Respondents

C.P.L.A. No. 2541 of 2023, decided on 12th February, 2025.

(Against the judgment dated 30.03.2023 passed by the Lahore High Court, Lahore in W.P. No.39095/2020).

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

----Ss. 2(h) & 4(4)(ii)---Harassment at workplace---Scope---Petitioner was proceeded departmentally for causing harassment at workplace and was compulsorily retired from service---Validity---Robust framework to combat harassment and promote safe, inclusive work environments has been provided under Protection against Harassment of Women at the Workplace Act, 2010---Effectiveness of such laws depends on strong judicial enforcement---As jurisprudence evolves, Courts must continue to interpret and apply such protections in a manner that upholds human dignity, gender justice and workplace equality---High Court had convincingly answered in its judgment, the contentions of the petitioner---There was no jurisdictional error, illegality or procedural irregularity in the judgment passed by High Court---Supreme Court declined to interfere in the judgment passed by High Court---Petition for leave to appeal was dismissed and leave to appeal was refused.

Catherine A. MacKinnon, Only Words (Harvard University Press, 1993); International Labour Organization, Experiences of Violence and Harassment at Work: A Global First Survey (2022) < https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40dgreports/%40dcomm/documents/publicati on/wcms_863095.pdf> accessed 12 February, 2025; World Economic Forum, Global Gender Gap Report (June 2024), < https://www3.weforum.org/docs/WEF_GGGR_ 2024.pdf> accessed 12 February, 2025; Paula Nicolson, Gender, Power and Organization: A Psychological Perspective on Life at Work (Routledge, 1996); Deborah Rhode, Speaking of Sex: The Denial of Gender Equality (Harvard University Press, 1999); L. Fitzgerald and S. Shullman, 'Sexual Harassment: A Research Analysis and Agenda for the 1990s' Journal of Vocational Behavior, 42(1) (1993); Catherine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (Yale University Press, 1979); 'Enforcement Guidance on Harassment in the Workplace' U.S. Equal Employment Opportunity Commission < https://www.eeoc.gov/laws/guidance/ enforcement-guidance-harassment-workplace>. It addresses how harassment based on race, color, religion, sex, national origin, age, disability, or genetic information is defined under EEOC-enforced statutes and the analysis for determining whether employer liability is established; Anne M. Kelly, Lynn Bowes-Sperry and Emily R. Lean, 'Sexual Harassment at Work: A Decade (Plus) of Progress' Journal of Management, 35(3) (2009); Sumi Cho, Kimberle Williams Crenshaw and Leslie McCall, 'Towards a Field of Intersectionality Studies: Theory, Applications, and Praxis' Signs Journal of Women in Culture and Society, 38:4 (2013); Heather McLaughlin, Christopher Uggen and Amy Blacktone, 'Sexual Harassment, Workplace Authority, and the Paradox of Power, American Sociological Review (Volume 77, Issue 4) (August 2012); Jennifer L. Berdahl, 'Harassment Based on Sex: Protecting Social Status in the Context of Gender Hierarchy' Academy of Management Review (April 2007); Vicki Schultz, 'The Sanitized Workplace' Yale Law Journal (Volume 112, 2003); Uzma Naveed Chaudhry v. Federation of Pakistan PLD 2022 SC 783; Article 1, ILO Violence and Harassment Convention (2019). The Convention entered into force on 25 June 2021 and has been ratified by 39 states; Articles 2 and 11, CEDAW (1979). Pakistan ratified the CEDAW in 1996; Articles 1 and 23, UDHR (1948). Pakistan ratified the UDHR in 1948; Article 7, ICCPR (1966). Pakistan ratified the ICCPR in 2010; Article 7, ICESCR (1966). Pakistan ratified the ICESCR in 2008; Meritor Savings Bank v. Vinson 477 U.S. 57 (1986); Harris v. Forklift System 510 U.S. 17 (1993); Vishaka v. State of Rajasthan AIR 1997 SC 3011; Janzen v. Platy Enterprises [1989] 1 S.C.R. 1252 and Carmichele v. Minister of Safety and Security 2001 (4) SA 938 (CC) rel.

Rashad ul Musawar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Assisted by Umer A. Ranjha, Judicial Law Clerk.

P L D 2025 Supreme Court 364

Present: Munib Akhtar, Athar Minallah and Shahid Waheed, JJ

COMMISSIONER INLAND REVENUE, LAHORE---Petitioner

Versus

Messrs AZAM TEXTILE MILLS LIMITED, LAHORE---Respondent

C.P.L.A. No. 1369-L of 2022, decided on 15th January, 2025.

(Against the order dated 16.03.2022 passed by the Lahore High Court, Lahore in P.T.R. No.260 of 2012).

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

----S. 4---Sale---Connotation---Sale occurs when ownership of goods is transferred to buyer and payment for such goods has been made---Payment must take the form of money, commonly referred to as price of goods---If ownership of goods is exchanged for anything other than money, such transaction cannot be classified as a sale; instead, it would be considered an exchange or barter.

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

----Ss. 112(1), 153(7)(iii), 169 & 177---Amended assessment---Transfer of raw material---Pre-conditions of sale---Taxation officer interpreted transaction concerning transfer of raw materials as a sale and assessed the same under section 169 of Income Tax Ordinance, 2001---Order of Appellate Tribunal Inland Revenue, setting aside amended assessment was maintained by High Court---Validity---Sale of goods as elucidated by section 153 (7) (iii) of Income Tax Ordinance, 2001 encompasses any transaction in which goods are sold, irrespective of whether payment is made in cash or on credit, and is applicable regardless of the existence of a formal written contract---According to such definition, it is mandated that a sale must involve receipt of consideration, which can be either cash or credit---There was absence of such critical element of consideration with respect to transactions in question---Transactions documented in ledgers merely represented a straightforward transfer of raw materials from one entity to another and was devoid of any characteristics of a sale---Tax obligations outlined in section 153 of Income Tax Ordinance, 2001 did not pertain to transfer of raw materials to sister concern---Supreme Court declined to interfere in the judgment passed by High Court---Petition for leave to appeal was dismissed and leave was refused.

Ahmad Pervaiz, Advocate Supreme Court for Petitioner (via video link from Branch Registry Lahore).

Nemo for Respondent.

P L D 2025 Supreme Court 367

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ

MUHAMMAD IRFAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FEROZWALA, DISTRICT SHEIKHUPURA and others---Respondents

Civil Petition No. 3179-L of 2023, decided on 18th February, 2025.

(Against the order dated 21.09.2023 of the Lahore High Court, Lahore passed in Writ Petition No. 61184 of 2023).

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance allowance---Scope---Medical treatment---Petitioner/father of minor contended that law did not identify "medical treatment" under the head of maintenance---Validity---Word 'maintenance' in the context of Muslim family laws, as far as wife and children are concerned, is inclusive of many heads not explained but is not exhaustive---Maintenance cannot be limited by cap and has to be looked into with reference to each case---If medical treatment either for a wife or minor does not fall within the definition of maintenance, then no husband would take either his wife or children for medical treatment and those dependents (under the law) would then be deprived of such maintenance allowance---Maintenance in such context has a wide definition and is inclusive of every possible action for the wellbeing of children and wife, but within means---Medical treatment cannot be scrapped from definition of maintenance and cannot be disregarded as one of the components to be considered as part of maintenance---Supreme Court declined to interfere in the judgment passed by High Court---Petition for leave to appeal was dismissed and leave to appeal was refused.

Azizah Mohd, et al., Muslim Wifes Rights To Maintenance: Husbands Duty To Maintain A Working Wife In Islamic Law (2010) 18 IIUMLJ 103; https://www.researchgate.net/publication/328287539_ MUSLIM_WIFE'S_RIGHTS_TO_MAINTENANCE_H USBAND'S_ DUTY_ TO_ MAINTAIN_ A_ WORKING_ WIFE_ IN_ ISLAMIC_ LAW_ AND_ THE_ LAW_ IN _ MALAYSIA Al-Mubarakpuri, Tuhfat al-Ahwadhi bi Sharh Jamia Altarmidhi, Second Edition, Vol. 4, Maktabat al-Salafiyyah, Medina (1965), p. 326; https://www. kalamullah.com/Books/Hadith/Jami%20at-Tirmidhi%20Vol.%204%20-%201897-2605.pdf.Qudrat Ullah v. Additional District Judge, Renala Khud District Okara and others PLD 2024 SC 581; Haseen Ullah v. Mst. Naheed Begum and others PLD 2022 SC 686 and Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

Ch. Zulfiqar Ali, Advocate Supreme Court for Petitioner (Via video-link from Lahore).

Nemo for Respondents.

P L D 2025 Supreme Court 371

Present: Naeem Akhter Afghan and Shahid Bilal Hassan, JJ

SECRETARY TO GOVERNMENT OF KHYBER PAKHTUNKHWA COMMUNICATION AND WORKS DEPARTMENT, PESHAWAR and others---Petitioners

Versus

Messrs PARCON ASSOCIATE GOVERNMENT CONTRACTORS through Muhammad Haroon and others---Respondents

C.P.L.A. No.694-P of 2024, decided on 17th February, 2025.

(Against the judgment dated 19.07.2024 passed by Peshawar High Court, Peshawar in C.R.No.365-P of 2024)

Arbitration Act (X of 1940)---

----Ss. 14 & 17---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Limitation Act (IX of 1908), Ss. 5 & 14---Condonation of delay---Wrong appellate forum---Petitioner/authorities were aggrieved of award being made rule of the Court, and preferred appeal before High Court but the same was dismissed for lack of pecuniary jurisdiction---Lower Appellate Court and High Court declined to condone the delay caused due to filing of appeal before High Court---Validity---Delay of time in filing of appeal, application or suit may be condoned but subject to plausible and reasonable explanation---One who seeks condonation of delay has to explain each and every day's delay---Petitioner/authorities could not put-forward reasonable and plausible justification/explanation for filing appeal after about two years of passing of judgment and decree by Trial Court---Earlier appeal filed before High Court was not a reasonable justification---Petitioner/ authorities could not claim to be treated in any manner differently from an ordinary litigant---Time consumed in pursuing appeal in wrong forum could not be condoned under section 5 of Limitation Act, 1908---Time spent in pursuing proceedings before wrong appellate forum could not be excluded for the purposes of filing of an appeal---If appeal was barred by time, provisions of section 5 of Limitation Act, 1908, could only be invoked, that too, by showing sufficient cause---Forum of appeal was regulated by jurisdictional value in plaint---In presence of section 18 of West Pakistan Civil Courts Ordinance, 1962 there could be no doubt or complication to determine forum of appeal---Provisions of sections 5 and 14 of Limitation Act, 1908 would come into play only if delay appeared to be condonable because of the petitioners/authorities prosecuting their case with due diligence---Supreme Court declined to interfere in the judgment passed by High Court---Petition for leave to appeal was dismissed and leave to appeal was refused.

Messrs SKB-SNK Joint Venture Contractors through Regional Director v. Water and Power Development Authority and others 2022 SCMR 1615; East Pakistan v. Abdul Hamid Darfi and others 1970 SCMR 558; Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37; Federation of Pakistan v. Niaz Ahmad 1997 SCMR 959; Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355; Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others 2012 SCMR 377; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957; Abdul Ghani v. Mst. Mussarat Rehana 1985 CLC 2529; Government of Pakistan v. Rafi Associates Limited 1985 CLC 2234; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296; Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892; Akhtar Nasir Ahmed v. Province of Punjab through District Collector Gujrat and others PLD 2024 SC 1268; Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Chief Executive Officer NPGCL, Genco-III, TPS, Muzaffargarrah v. Khalid Umar Tariq Imran and others 2024 SCMR 518; Regional Police Officer, Dera Ghazi Khan Region and others v. Riaz Hussain Bukhari 2024 SCMR 1021; Kiramat Khan v. IG, Frontier Corp and others 2023 SCMR 866 and Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 rel.

Shah Faisal Ilyas, A.A.G. Khyber Pakhtunkhwa for Petitioners.

Nemo for Respondents.

P L D 2025 Supreme Court 379

Present: Shahid Waheed, Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ

Syed UZAIR SHAH and others---Appellants

Versus

Mst. SURRIYA BEGUM (late) through LRs and others---Respondents

Civil Appeal No.1779 of 2024, decided on 24th February, 2025.

(Against the judgment dated 04.11.2024 of the Peshawar High Court, Abbottabad Bench passed in Civil Revision No.102-A of 2008).

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Gift---Proof---Declaration before Land Reforms Authorities---Respondent/plaintiff claimed to be owner in possession of suit land on the basis of gift made in her favour by her deceased father---Suit was decreed by Trial Court in favour of respondent/plaintiff but Lower Appellate Court dismissed the same---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court---Validity---At no material stage authorities and/or any sitting tenant disputed declaration made by deceased owner of land that he had gifted 909 acres of land, equivalent to 9,997 Produced Index Units ("PIUs") to his daughter---This was recognition of the gift by Land Reform Authorities that had resulted in deceased landlord escaping resumption of his land beyond 36,000 PIUs in favour of government---Other legal heirs/descendants of deceased land owner who were defendants in the suit had also not challenged such declaration dated 13-04-1959 and/or the document maintained by Land Reforms Authorities under which gift in favour of respondent/ plaintiff had been recognized and accepted---Declaration made by deceased land owner before Land Reforms Authorities was an admission as to the factum of gift in favour of his daughter who was a minor when the declaration was made---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed.

Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99; Muzammil Shah v. Deputy Land Commissioner, Mansehra PLD 2001 Pesh. 92; Syed Mohsin Naqvi v. Federal Land Commission 2010 YLR 3248; Kaneez Bibi v. Sher Muhammad PLD 1991 SC 466 and Riaz Ullah Khan v. Asghar Ali 2004 SCMR 1701 rel.

Syed Amjad Shah, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Appellants.

Tahir Hussain Lughmani, Advocate Supreme Court for Respondents.

P L D 2025 Supreme Court 383

Present: Muhammad Hashim Khan Kakar, Muhammad Shafi Siddiqui and

Ishtiaq Ibrahim, JJ

AMEERUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 198 of 2023, decided on 4th March, 2025.

(Against the order/judgment dated 30.09.2020 passed by the Islamabad High Court, Islamabad, in Crl. A. No. 613 of 2012).

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Re-appraisal of evidence---Ocular account---Visual distance---Limitations of human eye---Benefit of doubt---Accused was convicted under section 302 (b), P.P.C. for qatl-i-amd and sentenced to imprisonment for life on four counts---Validity---In cases involving witness testimony, prosecution must establish credibility and reliability of its witnesses---Distance from which witnesses claimed to have observed the incident with graphic details was critical in assessing truthfulness and ability of their accounts---General rule is that at a distance of 500 meters (half a kilometer), even individuals with excellent visual acuity would struggle to discern specific details of an event, particularly when incident involves rapid moments, or if it occurs in an area that is not well lit or has obstructions that could hinder vision---Eyesight of a man, even under optimal conditions, is not designed for sustained observations of minute details at such a distance---Claim of witnesses was not only a tall claim but also one that was too far-fetched to be accepted by a prudent mind---No independent corroboration to ocular account furnished by three eye-witnesses was produced by the prosecution---Burden of proof laid with prosecution and it was required to prove its case beyond a reasonable doubt---There was reasonable doubt regarding credibility of witnesses, primarily due to physical impossibility of observing incident from the stated distance, given the acknowledged limitations of human vision---There was insufficient evidence to support claims of prosecution regarding witnesses' ability to observe the incident from a distance of half a kilometer---Supreme Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him and acquitted him from all charges ---Appeal was allowed.

A study by Nyman, Lampinen, Antfolk, Korkman, and Santtila (2019) published in Journal of Law and Human Behavior rel.

(b) Criminal trial---

----Eye-witness, evidence of---Evidence disbelieved to the extent of co-accused persons---Effect---If eye-witnesses are disbelieved against some accused persons who were attributed effective roles, then same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration regarding the other accused person.

Iftikhar Hussain v. State 2004 SCMR 1185 rel.

. Fakhar Hayat, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Nemo for the State.

Shaukat Hayat, Advocate Supreme Court for the Complainant.

P L D 2025 Supreme Court 387

Present: Shahid Waheed and Salahuddin Panhwar, JJ

IQBAL ALI KHAN and others---Appellants

Versus

NASEEB ALI KHAN and others---Respondents

C.As. Nos. 44-P and 62-P of 2012, decided on 26th February, 2025.

(Against the judgment dated 28.05.2012 passed by the Peshawar High Court, Bannu Bench in C.R. No. 10-B of 2006).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 123 & 124---Suit for declaration and injunction---Missing person---Proof---Hearsay evidence---Owner of suit land was issueless who had two brothers and one sister---Through sale mutation the owner transferred a portion of his land in favour of defendant/brother---Thereafter the owner had gone missing and remaining suit land was transferred through mutation of inheritance in favour of defendant/brother and defendant/ sister considering him (the owner) dead---Plaintiffs were successors-in-interest of third brother who did not get any share from suit land---Suit filed by plaintiffs was decreed and mutations in question were declared invalid---Validity---Statement of plaintiff could not be relied upon as he was a minor at the time of his father's death, and he had not stated who told him that his father was unaware of the sale---Such statement of plaintiff was treated as mere hearsay---Where original owner did not opt to contest sale mutation while alive, his death could not confer any rights or standing upon his descendants to challenge such sale---Plaintiffs lacked standing, and their claim was barred by time limitations imposed by law---If evidence shows a person was alive within thirty years prior to the date when question of his status arises, there is a presumption that he is still alive---Burden of proof then falls upon the party asserting his death---Such presumption is susceptible to rebuttal under Article 124 of Qanun-e-Shahadat, 1984---If it can be demonstrated that such a person has not been heard of for a period of seven years by those who would naturally have maintained contact with him, the burden of proof then shifts to those claiming the person is still alive---Predecessor-in-interest of plaintiffs predeceased his brother, thus, he had no claim to any inheritance from him---Plaintiffs lacked legal standing necessary to challenge validity of mutation of inheritance as they could not substantiate their claim to any share of inheritance---Supreme Court set aside judgments and decrees passed by the Courts below as none of the Courts below properly appreciated such aspect of the matter, and had misdirected themselves, holding that inheritance mutation was void---Supreme Court declared that both sale mutation and inheritance mutation were valid---Appeal was allowed.

Gauhar Rehman v. Jan Ashbi and another 1990 SCMR 1586; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Mst. Rakhi Bivi v. Rahat Bibi (7.N.W.191 at 192-93); The Hedaya, Page-216; Mazhar Ali and others v. Budh Singh and others (1884) ILR 7 All. 297; Sir John Woodroffe and Amir Ali's "Law of Evidence", 15th Edition (199 1) at PP 672- 673; Goods of Ganesh Das Aurora (deceased) AIR 1926 Cal. 1056; Jeshankar Revashankar v. Bai Divali (1919) 22 Bombay Law Reporter 771; Ramabai and others v. Sarawathi and others AIR 1953 Tra.Co.114; Muhammad Sarwar and another v. Fazal Ahmad and another PLD 1987 SC 1; Lal Hussain v. Mst. Sadiq and another 2001 SCMR 1036 and Perveen Shoukat v. Province of Sindh and others PLD 2019 SC 710 rel.

Altaf Ahmad, Advocate Supreme Court for Appellants (in C.A. No. 44-P of 2012).

Zia ur Rehman Khan, Advocate Supreme Court for Appellants (in C.A. No. 62-P of 2012) via video link from Branch Registry Peshawar.

Altaf Ahmad, Advocate Supreme Court for Respondents (in C.A. No. 62-P of 2012).

Zia ur Rehman Khan, Advocate Supreme Court for Respondents (in C.A. No. 44-P of 2012) via video link from Branch Registry Peshawar.

P L D 2025 Supreme Court 394

Present: Amin-ud-Din Khan, Senior Judge, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan and Shahid Bilal Hassan, JJ

FEDERATION OF PAKISTAN through Revenue Division and others---Petitioners

Versus

DEWAN MOTORS (PVT.) LTD. and others---Respondents

Civil Petitions Nos.836-K to 887-K, 951-K,1056-K,1296-K of 2020 and Civil Petitions Nos.741-K to 743-K, of 2021 and Civil Petition No.165-K of 2022 and Civil Petitions Nos.1143-K to 1173-K of 2024, decided on 28th January, 2025.

(On appeal from the judgments dated 06.08.2020, 15.10.2020, 07.04.2021, 22.02.2021, 05.11.2021, 17.10.2024, 30.10.2024 passed by High Court of Sindh, Karachi in Const. Petitions Nos.D-4658/2018, 1894/2017, 4660, 4684, 4685, 4697, 4696, 4700, 4706 to 4710, 4717, 4718, 4729, 4730, 4734-4740, 4742 to 4745, 4753, 4760,4761, 4763, 4774, 4792, 4793, 4820, 4841, 4857, 4858, 4864, 4870, 4875 to 4878, 4913, 5512, 8584 to 8587/2018, 2317/2019, 4422/2020, 5699/2018, 4423/2020, 2613, 2707, 3293, 3980, 1611, 1701, 2120, 2325, 3130, 3808, 4741, 1611, 1701, 2120, 2325, 3130, 3808, 4741, 4045, 1618, 2302, 2735 to 2737, 2950, 3092, 3093, 3178, 3342, 3423, 3553, 3789, 4003, 8687 and 8688 of 2018).

Per Amin-ud-Din Khan; Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan and Shahid Bilal Hassan, JJ. agreeing.

(a) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2(1) & 2A---Constitution of Pakistan, Arts. 185(3) & 191A(4)---Customs Act (IV of 1969), S. 221A(2)---Fixation of cases---Vires of law---Jurisdiction of Benches---Question for determination was with regard to fixation of Civil Petitions for Leave to Appeal, challenging vires of section 221A(2) of Customs Act, 1969---Petitions in question were inadvertently fixed before Regular Bench of Supreme Court---Constitutional Committee of Supreme Court withdrew petitions in question and fixed the same before Constitutional Bench of Supreme Court---Validity---Civil Petitions for Leave to Appeal in question, under Article 191A(4) of the Constitution, were mistakenly/inadvertently fixed before Regular Bench of Supreme Court and that Bench had assumed jurisdiction without lawful authority---Orders passed by Regular Bench of Supreme Court in Civil Petitions for Leave to Appeal in question were non-est---Committees constituted under Article 191A(4) of the Constitution and under section 2(1) of Supreme Court (Practice and Procedure) Act, 2023 were legal and Constitutional fora to determine as to which Bench of Supreme Court would hear what matters---Exercise of powers and performance of legal and Constitutional functions by both the Committees did not impinge upon judicial functions of any Bench of Supreme Court---Supreme Court directed the office to issue notices to respondents and also to Attorney General for Pakistan and fix the petitions before Constitutional Bench after completing codal formalities.

Per Muhammad Ali Mazhar, J.

(b) Interpretation of Constitution---

----Reading down, principle of---Applicability---Court is duty bound to ascertain and elucidate present day meaning of the Constitution through purposive interpretation, rather than applying doctrine of reading down without purpose.

(c) Maxim---

----A verbis legis non est recedendum---Connotation---Legal maxim "a verbis legis non est recedendum" means that there must be no departure from the words of law---When language of a statute is plain and unambiguous, there can be no assumption that the Legislature made a mistake---No word in statute should be treated as a certain surplusage or rendered ineffective or purposeless if Court is to carry out legislative intent fully and completely.

Hardeep Singh v. State of Punjab (2014) 3 SCC 92; Hamza Rasheed Khan v. Election Appellate Tribunal PLD 2024 SC 1028; 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) rel.

(d) Jurisdiction---

----Object, purpose and scope---Term jurisdiction in legal parlance refers to authority conferred upon Courts by law and the Constitution to adjudicate matters between parties---Jurisdiction of every Court is delineated and established to ensure adherence to law and issuance of legal orders---Transgressing or exceeding boundaries of its jurisdiction and authority annuls and invalidates judgments and orders.

Mian Irfan Bashir v. Deputy Commissioner (D.C.), Lahore PLD 2021 SC 571 rel.

(e) Constitution of Pakistan---

----Art. 209(8)---Code of Conduct for Judges of Supreme Court and High Courts---Provision of Article 209(8) of the Constitution implies complete submission to the Constitution and under it to the law.

(f) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2(1) & 2A---Constitution of Pakistan, Arts. 185(3) & 191A(4)---Customs Act (IV of 1969), S. 221A(2)---Fixation of cases---Vires of law---Jurisdiction of Benches---Question for determination was with regard to fixation of Civil Petitions for Leave to Appeal, challenging vires of section 221 A (2) of Customs Act, 1969---Petitions in question were inadvertently fixed before Regular Bench of Supreme Court---Constitutional Committee of Supreme Court withdrew the petition in question and fixed before Constitutional Bench of Supreme Court---Validity---Committee under section 2 of Supreme Court (Practice and Procedure) Act, 2023 is responsible for handling and fixing cases before Regular Benches of Supreme Court, other than those falling within Article 191A(3) of the Constitution---Committee under section 2A of Supreme Court (Practice and Procedure) Act, 2023 has been vested with jurisdiction to determine whether a case falls within Article 191A (3) of the Constitution, if it does, it should be heard by Constitutional Bench and if not, it may be referred to the Committee constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023 for fixation and disposal by another Bench of Supreme Court---Both Committees are provided for under the provisions of Supreme Court (Practice and Procedure) Act, 2023---Second Committee is also protected under Article 191A(4) of the Constitution, a recognition not accorded to the First Committee---Supreme Court directed Registrar of Supreme Court that in order to provide effective administrative and sectoral support, he/she must take all reasonable precautions to prevent mistakes or oversight in case fixation---Supreme Court further directed that concerned branch/officials should be sensitized about the nitty-gritty of Article 191A of the Constitution so that they would not commit any such mistake or misadventure in future---Constitutional Bench of Supreme Court had rightly recalled orders passed by Regular Bench of Supreme Court as the same were without jurisdiction---On recalling such orders, the superstructure built thereon also collapsed and any proceedings taken, orders passed or actions made in pursuance of the orders in question had lost their status and effect.

Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Fazlul Quader Chowdhry v. Abdul Haque PLD 1963 SC 486; Marbury v. Madison 5 US 137 [1803]; Secrest v. Galloway Co., 30 N.W. 2d 793, 797, 239 Iowa 168; Rupert Cross & J.W. Harris, Precedent in English Law 149 (4th ed. 1991); Black's Law Dictionary (Ninth Edition); C.C.K. Allen in Law in the Making (Page No. 246); Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Justice Qazi Faez Isa and others v. President of Pakistan PLD 2022 SC 119; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and Rehmatullah v. Saleh Khan 2007 SCMR 729 rel.

Mirza Nasar Ahmad, Advocate Supreme Court, Muhammad Iqbal Raja, Advocate Supreme Court, Muhammad Khalil Dogar, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Petitioners (via video link from Karachi).

Mansoor Awan, A.G.P. On Court's Notice.

Salahuddin Ahmed, Advocate Supreme Court, Shahid Jameel Khan, Advocate Supreme Court, Imran Iqbal Khan, Advocate Supreme Court, Haider Waheed, Advocate Supreme Court, Rashid Anwer, Advocate Supreme Court, Ghulam Hyder Shaikh, Advocate Supreme Court for Respondents (via video link from Karachi).

P L D 2025 Supreme Court 421

Present: Shahid Waheed, Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ

SULTAN MAHMOOD and another---Appellants

Versus

MUNIR AHMAD---Respondent

Civil Appeal No. 550-L of 2009 and C.M.A. No. 2063-L of 2016, decided on 25th February, 2025.

(On appeal from the order dated 10. 06.2009 of the Lahore High Court, Lahore passed in C.R.No.545/2008).

Oaths Act (X of 1873)---

----Ss. 8 & 9---Civil Procedure Code (V of 1908), O.IX, R.13---Qanun-e-Shahadat (10 of 1984), Art. 163---Specific Relief Act (I of 1877), Ss. 8, 12 & 42---Suit for possession, specific performance of agreement to sell and declaration---Special oath, administering of---Stage of suit---Proceedings for setting aside ex-parte decree---Suit filed by respondent/plaintiff was decreed ex-parte and appellants/defendants during proceedings to set aside ex-parte decree offered for special oath---Trial Court dismissed application for setting aside of decree and on the basis of special oath decided the suit in favour of respondent/plaintiff---Validity---Offer of special oath was triggered when application under Order IX, Rule 13, C.P.C. for setting aside ex-parte order was fixed for evidence of the respondent/plaintiff, while partial evidence of appellants/defendants in such regard had already been recorded---It was at such stage when the offer was made---If at all special oath could have been offered, it could only be to the extent of deciding pending application under Order IX, Rule 13, C.P.C.---Procedure required in terms of Article 163 of Qanun-e-Shahadat, 1984 read with sections 8 and 9 of Oaths Act, 1873 did not contemplate a decision of dispute which had already been rendered ex-parte---Decision on oath is one of the prescribed ways of disposal but at the same time Courts are bound to handle such cases with great care---Ex-parte judgment and decree was a past and closed transaction and it could only be opened once application under Order IX, Rule 13, C.P.C. could have been allowed and not otherwise---Corpus before Trial Court was a miscellaneous application and not the main suit---Judge in Chambers of High Court in exercise of revisional jurisdiction exceeded its jurisdiction, when Lower Appellate Court had exercised its jurisdiction properly---Revisional Court misread powers conveyed to the attorney which had not enabled the attorney to propose offer on a special oath---Supreme Court set aside judgment passed by Judge in Chambers of High Court and restored that of Lower Appellate Court, which was incorrectly set aside---Appeal was allowed.

Muhammad Ali v. Muhammad Aslam and others PLD 1990 SC 841 rel.

Malik Matee Ullah, Advocate Supreme Court for Appellants (in C.A. No. 550-L of 2009).

Nemo for the Applicant (in C.M.A. No. 2063-L of 2016).

Nemo for Respondent.

P L D 2025 Supreme Court 425

Present: Musarrat Hilali, Salahuddin Panhwar and Ishtiaq Ibrahim, JJ

MUHAMMAD KHAN alias MITHU---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 34 of 2023 out of SCJP No. 285 of 2017, decided on 17th February, 2025.

(Against the judgment dated 02.10.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.241-J of 2009 and Murder Reference No. 256 of 2009)

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

----S. 302(b)---Limitation Act (IX of 1908), S. 5---Pakistan Prisons Rules, 1978, Rr. 90 & 91---Constitution of Pakistan, Art. 185(3)---Non-filing of appeal---Condonation of delay---Jail authorities, responsibility of---Petitioner was convicted and sentenced to death on three counts and no Jail Appeal was filed by him despite being in jail for more than thirteen years before filing of appeal before Supreme Court---Validity---Superintendent of Jail should have obtained and forwarded appeal as he was under obligation to facilitate petitioner/convict in filing of appeal within the period of limitation as prescribed under Rule 91 of Pakistan Prisons Rules, 1978---Technicalities should not hamper Court of justice---Powers regarding condonation under section 5 of Limitation Act, 1908 should be liberally exercised to ensure administration of justice in its true spirit---Supreme Court condoned the delay of more than thirteen years caused in filing of Jail Appeal against death sentence on three counts---Application was allowed.

Muhammad Bakhsh alias Muhammadi v. The State 1985 SCMR 72; Muhammad Nawaz v. The State PLD 2002 SC 287 and Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 rel.

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

----S.302 (b)---Qatl-i-amd---Reappraisal of evidence---Triple murder---Death sentence on three counts---Principle of expectancy of life---Motive not proved---Plea of substitution---Accused was convicted and sentenced to death on three counts for committing triple murder---Plea raised by accused was that it was a blind murder---Validity---Both the eye-witnesses had plausibly explained their presence with deceased at the spot at the time of occurrence---Presence of complainant with three deceased out of whom one was his brother and remaining two were his wife and daughter respectively, was quite natural and appealable---In villages such close relatives do associate and accompany each other to market/bazaar for purchase of household articles---Substitution of real culprits, especially in cases where eye-witnesses lost their kith and kins before their own eyes was a rare phenomenon---Once motive is set up by prosecution, but thereafter fails to prove the same, then prosecution must suffer the consequences and not the defense---Supreme Court declined to interfere in conviction of accused recorded by two Courts below under section 302(b), P.P.C. but converted death sentence into imprisonment for life on three counts as prosecution failed to prove motive and there were minor discrepancies in evidence coupled with long incarceration of accused, since his arrest including his period in death cell---Appeal was dismissed.

Allah Ditta v. The State PLD 2002 SC 52; Muhammad Iqbal v. The State PLD 2001 SC 222; Asfandiyar v. The State and others 2021 SCMR 2009; Muhammad Abbas and another v. The State 2023 SCMR 487; Azhar Hussain and another v. The State and others 2022 SCMR 1907; Shamsher Ahmad and another v. The State and others 2022 SCMR 1931; Aman Ullah v. The State 2023 SCMR 723; Imran Mehmood v. The State 2023 SCMR 795; Amir Muhammad Khan v. The State 2023 SCMR 566; Taiamal Hussain Shah v. The State and another 2022 SCMR 1567; Liaqat Ali and another v. The State and others 2021 SCMR 780; Najaf Ali Shah v. The State 2021 SCMR 736; Khalid Mehmood and others v. The State and others 2021 SCMR 810; Ansar Ahmad Khan Barki's case 1993 SCMR 1660 and Falak Sher's case 1999 SCMR 2432 rel.

(c) Criminal trial---

----Evidence---Ocular evidence and medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence---Ocular account alone is sufficient to sustain conviction of an accused.

Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 rel.

Rizwan Ejaz, Advocate Supreme Court for Appellant.

Azhar Iqbal, Advocate Supreme Court for Complainant.

Irfan Zia, APG for the State.

P L D 2025 Supreme Court 434

Present: Yahya Afridi, C.J. and Shahid Waheed, J

MUSHTAQ and others---Petitioner

Versus

Mst. FATIMA and others---Respondents

C.P.L.A. No. 559-P of 2024, decided on 31st January, 2025.

(Against the judgment dated 15.04.2024 passed by the Peshawar High Court, Peshawar in W.P. No. 1056-P of 2023).

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Art. 79---Financial liability document---Proof---Failure to produce two attesting witnesses---Principle---At least two attesting witnesses have been mandated under Article 79 of Qanun-e-Shahadat, 1984, who must be produced to establish execution of financial documents or those about future obligations---In matters of family law such as dower, such requirement is exempted under section 17 of Family Courts Act, 1964---Family Court's jurisdiction leans towards an inquisitorial approach designed to encourage amicable settlements while maintaining a focus on financial context---Evidentiary requirements to prove existence and validity of a financial deed are significantly less stringent than those encountered in traditional civil litigation.

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

----Ss. 5 & 17---Suit for recovery of dower amount---Dower deed---Proof---Suit was filed by respondent/plaintiff who was widow of deceased brother of petitioners/defendants, to recover her articles as per dower deed---Suit and appeal filed by respondent/plaintiff were dismissed by Trial Court and Lower Appellate Court respectively for not producing two attesting witnesses---High Court in exercise of Constitutional jurisdiction decreed the suit in favour of respondent/ plaintiff---Validity---To meet burden of proof regarding execution of dower deed duly attested by two witnesses, it was sufficient for respondent/plaintiff to present original document (dower deed) during Court proceedings and one of two attesting witnesses, along with the testimony from persons who were present at the time of its execution---Statement of such witnesses not only confirmed execution of dower deed but also provided relevant context or information surrounding its execution---Respondent/plaintiff had successfully proved execution of dower deed and once execution of dower deed was proved, non-rebuttable presumption had arisen regarding amount of dower specified in that document---Such presumption held significant legal weight as it confirmed agreed-upon financial settlement between both the parties---Supreme Court declined to interfere in judgment passed by High Court as it had acted appropriately in revisiting matters and ensuring that principles of law were correctly applied---Petition for leave to appeal was dismissed and leave was refused.

Kishori Lal v. Chunni Lal 31 All 116 and Mahunt Shatrugan Das v. Bawa Sham Das and others AIR 1938 PC 59 rel.

(c) Constitution of Pakistan---

----Art. 199(1)(a)(ii)---Family cases---Authority of High Court to over turn decisions of Family Court or Fist Appellate Court---Writ of certiorari---Scope---Where a Family Court or First Appellate Court has reached a conclusion that stems from a clear misinterpretation of statutory provision, or has acted in ignorance or disregard of law, or based its judgment on legally unsound reasoning, such erroneous conclusions are subject to correction through an order of certiorari as outlined in Article 199(1)(a)(ii) of the Constitution.

Muhammad Asif, Advocate Supreme Court (via video link from Branch Registry Peshawar) for Petitioner.

Obaidullah Anwar, Advocate Supreme Court (via video link from Branch Registry Peshawar for Respondent No.1.

P L D 2025 Supreme Court 440

Present: Amin-ud-Din Khan, Senior Judge, Jamal Khan Mandokhail, Naeem Akhter Afghan, Shakeel Ahmad and Aamer Farooq, JJ

SENIOR JOINT DIRECTOR FOREIGN EXCHANGE OPERATIONS DIVISION SBP---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No. 1477 of 2023, decided on 20th March, 2025.

(Against the order of the Lahore High Court, Lahore dated 01.02.2023 passed in W.P. No. 36748 of 2022).

Per Jamal Khan Mandokhail, J.; Amin-ud-Din Khan, Naeem Akhter Afghan, Shakeel Ahmad and Aamer Farooq, JJ., agreeing

(a) Constitution of Pakistan---

----Art. 10A---Right to fair trial and due process of law---Right of appeal---Imposing of unreasonable conditions---Effect---Unreasonable conditions attached to an appeal would likely be ones that are not justified, disproportionate or infringe upon fundamental rights or legal process---Unreasonable condition can make it impossible or unfairly difficult to exercise the right to appeal.

(b) Foreign Exchange Regulation Act (VII of 1947)---

----S. 23-C(4)---Adjudication Proceedings and Appeal Rules, 1998, R.8---Constitution of Pakistan, Art. 10A---Right of appeal---Condition of deposit of penalty amount---Petitioner/Authority was aggrieved of setting aside of provisions of section 23-C(4) of Foreign Exchange Regulation Act, 1947 and Rule 8 of Adjudication Proceedings and Appeal Rules, 1998 by High Court declaring them as unconstitutional---Validity---Directing a party to deposit total amount of subject matter, before admission of his appeal is unreasonable, resulting into preventing that party from exercising its right of appeal, which violates its fundamental right of fair trial and due process, guaranteed by Article 10A of the Constitution---Such condition may not only deprive a party from its fundamental right of challenging a decision of executive authority before an independent and impartial higher forum but may also give a license to powerful executive to misuse its authority---Condition of depositing of fine amount imposed by section 23-C(4) of Foreign Exchange Regulation Act, 1947 is so excessive and unreasonable that it would amount to denial of right to appeal, which violates Article 10A of the Constitution, hence, it cannot sustain---Supreme Court declined to interfere in the impugned judgment passed by High Court as there was no illegality, irregularity or jurisdictional defect in the judgment---Petition for leave to appeal was dismissed and leave to appeal was refused.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Federation of Pakistan's case PLD 1988 SC 202; Ministry of Defense's case PLD 1989 SC 6 and Messrs Eastern Rice Syndicate's case PLD 1959 SC (Pak) 364 rel.

Per Shakeel Ahmed, J.:

(c) Legislation---

----Legislature, powers of---Scope---Legislature is sovereign within its domain of law-making but such sovereignty is not unfettered---Legislature cannot enact any provision whatsoever which is inconsistent with, or violative of fundamental rights enshrined in the Constitution---Any such provision must be tested on the touchstone of Constitutionality and struck down if found to be inconsistent with fundamental rights.

(d) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 23-C(4) & 23J---Adjudication Proceedings and Appeal Rules, 1998, R.8---Constitution of Pakistan, Art. 10A---Right of appeal---Condition of deposit of penalty amount---Petitioner/Authority was aggrieved of setting aside of provisions of section 23-C (4) of Foreign Exchange Regulation Act, 1947 and Rule 8 of Adjudication Proceedings and Appeal Rules, 1998 by High Court declaring them as unconstitutional---Validity---Full mechanism for the recovery of sums due to the Government has been provided in section 23J of Foreign Exchange Regulation Act, 1947---In the light of such enforcement measures already available to the State, imposition of additional precondition of depositing penalty amount or furnishing security equivalent thereto under section 23-C(4) of Foreign Exchange Regulation Act, 1947 at appellate stage is wholly disproportionate and oppressive and does not serve to further any legitimate Governmental interest that is not already safeguarded under section 23-J of Foreign Exchange Regulation Act, 1947---Provisions of section 23-C(4) of Foreign Exchange Regulation Act, 1947, as well as Rule 8 of Adjudication Proceedings and Appeal Rules, 1988, which mandate a financial precondition for filing an appeal, constitute an unreasonable and unconstitutional restriction on the fundamental right of access to justice---Such provision disproportionately affects individuals with limited financials means, effectively denying them the opportunity to challenge adverse decisions---High Court had rightly declared section 23-C(4) of Foreign Exchange Regulation Act, 1947, as well as Rule 8 of Adjudication Proceedings and Appeal Rules, 1988, (to the extent that said Rule makes the receipt of an appeal subject to compliance with section 23-C(4) of Foreign Exchange Regulation Act, 1947), as unconstitutional/ultra vires of the Constitution and had rightly struck down the provisions---Petition for leave to appeal was dismissed and leave to appeal was refused.

Shaikh Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501; Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G PLD 1991 SC 368; Surah An-Nisa (4:59); Federation of Pakistan v. Public at Large PLD 1988 SC 202; Pakistan v. General Public PLD 1989 SC 6; Messrs Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore PLD 1996 Lah. 672 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

Faisal Siddiqui, Advocate Supreme Court and Dr. Muhammad Usman, Advocate-on-Record for Petitioner.

Rana Asadullah Khan, Addl. AGP for Respondent No. 1

Waqas Ahmad Mir, Advocate Supreme Court for Respondent No. 8.

Respondents Nos. 2-7 not represented.

P L D 2025 Supreme Court 449

Present: Munib Akhtar and Syed Hasan Azhar Rizvi ,JJ

SIKANDAR AHMED GHOURI---Petitioner

Versus

Syed RAFAT ABBAS JAFFERI and others---Respondents

Civil Petition No. 1220-K of 2022, decided on 21st March, 2025.

(Against the judgment dated 14.09.2022 passed by High Court of Sindh in C.P. No. D-2363 of 2009).

(a) Co-operative Societies Act (VII of 1925)---

----S. 54---Registrar---Jurisdiction---Not all disputes arising between a society and its members, officers, or employees fall within the ambit of section 54 of Co-operative Societies Act, 1925.

(b) Co-operative Societies Act (VII of 1925)---

----S. 54---Registrar---Powers---Jurisdiction of Civil Court---Powers of Registrar can in no case exceed the powers of Civil Courts under Civil Procedure Code, 1908.

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

----Ss. 42 & 54---Co-operative Societies Act (VII of 1925), S.54---Suit for declaration and injunction---Ownership right, determination of---Phrase "touching the business of the society"---Registrar, jurisdiction of---Dispute between the parties was with regard to ownership of suit property---Predecessor-in-interest of respondent filed suit which was decreed in his favour---Petitioner/defendant sought ex-parte award in his favour by invoking jurisdiction of Registrar Co-operative Societies---Award in favour of petitioner/defendant was set aside by High Court---Validity---Award made by Registrar was void, as dispute between parties was not "touching the business of the society" within the meaning of section 54 of Co-operative Societies Act, 1925---Registrar had no authority to determine title or ownership of disputed property when valid judgment passed by a competent Court of law was already in existence and no appeal had been preferred by petitioner/defendant---Requirement that dispute must be one "touching the business of the society" goes to the very root of the jurisdiction of Registrar or the arbitrators acting under section 54 of Co-operative Societies Act, 1925---Award by Registrar under Co-operative Societies Act, 1925 could not directly or indirectly adversely affect or overrule a civil Court's judgment and decree---Arbitration proceedings were initiated in a manner that contravened established legal principles, and award passed therein could not override a final judicial determination by a competent civil Court---High Court was justified in setting aside arbitration award and subsequent lease deed executed in favour of petitioner/defendant---Supreme Court declined to interfere in judgment passed by High Court which was well-reasoned and had considered all material aspects of the case---Petition for leave to appeal was dismissed and leave to appeal was refused.

Ghulam Moin-ul-Haq Gillani v. Province of Punjab and others 2021 CLC 1286; Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain and others (1969) (1) SCR 887; Defence Housing Authority Lahore v. Builders and Developers (Pvt.) Ltd. 2015 SCMR 1799 and The National Co-Operative Consumers' Federation Ltd., New Delhi v. Delhi Administration, Delhi and others AIR 1971 Delhi 141 ref.

Syed Shahenshah Hussain, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

P L D 2025 Supreme Court 461

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

MUHAMMAD SAJID---Petitioner

Versus

Mst. SHAMSA ASGHAR and others---Respondents

C.P.L.A. No. 3284-L of 2022, decided on 15th April, 2025.

(Against the order dated 17.10.2022 passed by the Lahore High Court, Lahore in W.P. No. 63770 of 2022).

Dowry and Bridal Gifts (Restriction) Act (XLII of 1976)---

----Ss. 2(a), 2(e) & 5---Family Courts Act (XXXV of 1964), S.5---Gifts and presents---Recovery---Bride and groom, proprietary status of---Suit for recovery of dowery and maintenance---Appellant/groom was aggrieved of judgments and decrees passed by the Courts below without distinguishing dowry articles and presents---Validity---All property given to bride as dowry, bridal gifts, or presents vests absolutely in her---Use of the phrase "shall vest absolutely" confers exclusive and unqualified proprietary rights upon bride, thereby barring any adverse claim by husband or his relatives---Subsequent part "and her interest in property however derived shall hereafter not be restrictive, conditional or limited" acts as a safeguard to protect bride's proprietary autonomy from customary or familial encumbrances---Such absolute vesting of rights in the bride remains unaffected by any subsequent separation or divorce, thereby reinforcing her enduring and independent entitlement to such property---Legislative intent underpinning section 5 of Dowry and Bridal Gifts (Restriction) Act, 1976 is to secure independent proprietary status of bride and to shield her from dispossession, particularly in the event of marital breakdown--- Purposive interpretation of provision of section 5 of Dowry and Bridal Gifts (Restriction) Act, 1976 necessarily confines the scope of recoverable property to that which is demonstrably intended for the bride---Accordingly, items gifted to the groom or his relatives, unless clearly shown to be intended for the bridge's use or held in trust for her benefit, fall outside the protective ambit of Dowry and Bridal Gifts (Restriction) Act, 1976---Consequently, presents given to groom's family cannot be claimed by bride under Dowry and Bridal Gifts (Restriction) Act, 1976 unless it is clearly established that those were intended solely for her use or benefit---List provided by respondent/ bride showed that certain items, given to the family of appellant/groom, fell outside the scope of dowry and bridal gifts and were passed as "presents", as defined under Dowry and Bridal Gifts (Restriction) Act, 1976---Such items could not be decreed in favour of respondent/bride---Supreme Court modified the judgment passed by High Court to exclude such items, while the suit decreed in favour of respondent/bride to the extent of remaining items was maintained---Appeal was allowed.

Fawad Ishaq v. Mrs. Mahreen Mansoor PLD 2020 SC 269; Dawlance United Refrigeration v. Muhammad Asim PLD 2016 Lahore 425; Muhammad Arshad v. Additional District Judge 2015 CLC 463; Mussarat Iqbal Niazi v. Judge, Family Court 2013 CLC 276; Abdul Sattar v. Chairman Railways 2011 YLR 1033; Gul Sher v. Maryam Sultana 2011 YLR 1000; Najeeb Ullah v. Makhdoom Akhtar 2009 YLR 1823; Shahnaz Begum v. Muhammad Shafi PLD 2004 Lahore 290; Ghulam Rasool v. Judge, Family Court 1991 CLC 1696; Masud Sarwar v. Farah Deeba 1988 CLC 1546; Muhammad Khalid Karim v. Saadia Yaqoob PLD 2012 SC 66; Syed Mukhtar Hussain v. Saba Imtiaz PLD 2011 SC 260; Ejaz Naseem v. Fareeha Ahmad 2009 SCMR 484; Muhammad Akram v. Hajra Bibi PLD 2007 Lah. 515; Taimoor Aslam Satti v. Alia Bibi 2016 YLR 765; Shamim Akhtar v. District Judge 2016 MLD 242; Nomail Zia v. Adnan Riaz 2014 CLC 87; Article 23. Provision as to property. Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. See Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Article 24. Protection of property rights. (1) No person shall be deprived of his property save in accordance with law. (2) ... (3) ... (4) ...See Farhan Aslam v. Nuzba Shaheen 2021 SCMR 179; Article 25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law; (2) There shall be no discrimination on the basis of sex; (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. See Government of Khyber Pakhtunkhwa v. Syed Sadiq Shah 2021 SCMR 747; Article 35. Protection of family. The State shall protect the marriage, the family, the mother and the child. See Farhan Aslam v. Nuzba Shaheen 2021 SCMR 179 and Haseen Ullah v. Naheed Begum PLD 2022 SC 686 rel.

Ch. Zulfiqar Ali Dhudi, Advocate Supreme Court for Petitioner (through V.L. Lahore Registry).

Maqsood ul Haq, Advocate Supreme Court for Respondents.

Assisted by: Umer A. Ranjha, Judicial Law Clerk.

P L D 2025 Supreme Court 469

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Shakeel Ahmad, JJ

AZIZ AHMAD and others---Petitioners

Versus

Mst. MUSARAT---Respondent

C.P.L.A. No. 181 of 2023, decided on 9th April, 2025.

(Against the judgment dated 31.10.2022 passed by the Peshawar High Court, Mingora Bench in Civil Revision No. 371-M of 2020).

Succession Act (XXXIX of 1925)---

----S. 372---Muslim Family Laws Ordinance (VIII of 1961), S. 7(3)---Three divorces in one sitting---Divorce, finality of---Death of husband during Iddah period---Respondent/widow of deceased was deprived in succession certificate issued by Trial Court on the ground that she had been divorced by her husband---High Court set aside the judgment passed by Trial Court and declared respondent as widow of deceased who had died during the period of Iddah---Validity---Legislative intent in section 7(3) of Muslim Family Laws Ordinance, 1961 is to discourage hasty divorces requiring a cooling-off period which is consistent with Islamic principles---Far from being repugnant to the Islamic Injunctions, provision of section 7(3) of Muslim Family Laws Ordinance, 1961 is in harmony with the Quranic commandment found in Surah Al Baqrah, which enjoins a period of waiting and reflection before the finality of divorce---Islam has permitted dissolution of marriage in cases of necessity---This is a course strongly discouraged and disapproved in principle and the Quran prescribes a structured procedure for when divorce becomes final and absolute, which necessarily includes observance of Iddah, that is, a waiting period a woman must observe following the death of her spouse or a divorce---Iddah is not merely symbolic but serves a substantive purpose, for it allows for reflection, potential reconciliation and possible retraction of pronouncement of divorce---Recognizing Talaq-e-Biddat as immediately effective undermines such essential safeguard, depriving husband of opportunity to revisit a hasty decision and standing in clear conflict with the Quranic injunctions governing sanctity and dissolution of marriage---Written talaq pronounced by deceased husband had not become final in accordance with the injunctions of the Holy Quran nor did it fully comply with the mandatory statutory period under section 7(3) of Muslim Family Laws Ordinance, 1961---Respondent continued to remain lawful widow of her deceased husband and was entitled to inherit his estate---Supreme Court declined to interfere in judgment passed by High Court---Petition for leave to appeal was dismissed and leave to appeal was refused.

Surah Al Baqra (2:226-232) and Sura -Al-Talaq (65:1) and Mst. Rehmat Bibi v. Mst. Sharifan Bibi and others 1988 SCMR 1812 rel.

Asghar Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondent.

P L D 2025 Supreme Court 478

Present: Muhammad Hashim Khan Kakar and Ishtiaq Ibrahim, JJ

ALTAF HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.876 of 2022, decided on 23rd April, 2025.

(Against the Order/judgment dated 27-05-2022 passed by the High Court of Balochistan, Quetta in Crl. Revision (T) No. 5 of 2022).

(a) Balochistan Sea Fisheries Ordinance (IX of 1971)---

----Ss. 3 & 9---Constitution of Pakistan, Art. 185 (3)---Illicit fishing---Constructive knowledge, principle of---Applicability---Fishing trawler, confiscation of---Petitioner sought release of his trawler and other fishing equipment on the plea that illegal fishing activity was done by his employees without his knowledge---Validity---Despite assertion of ignorance by petitioner, there was overwhelming evidence of illicit fishing on his vessel and the same was insufficient to absolve him of liability---Even if petitioner did not possess actual knowledge of certain facts or information, he was presumed to be aware of them as proprietor of the trawler---Such presumption was based on the fact that information was reasonably accessible to him and that he should have been aware of the facts in the light of his position, duty and circumstances---Petitioner was responsible for illegal actions of his employees as proprietor of trawler as a result of his failure to conduct reasonable background checks---Constructive knowledge was a critical legal principle that guaranteed accountability by assuming knowledge in a situation where it was reasonable to anticipate awareness---Petitioner did not file any application for release of trawler in question on superdari at trial stage, and likely was awaiting the outcome of trial at that time---Petition for leave to appeal was dismissed and leave to appeal was refused.

(b) Maxim---

----Qui sentit commodum, debet et sentire onus---Meaning---He who derives a benefit ought also to bear a burden.

Raja Muhammad Farooq, Advocate Supreme Court for Petitioner.

Syed Pervaiz Bukhari, State Counsel.

P L D 2025 Supreme Court 482

Present: Amin-ud-Din Khan, Senior Judge, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan and Shahid Bilal Hassan, JJ

I.C.A. No. 5/2023 in C.P. 24/2023 and C.M.A. No. 10534/2023

SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. and others

Versus

Justice (R) JAWWAD S. KHAWAJA and others

I.C.A. No. 6/2023 in C.P. No. 24/2023 and C.M.A. No. 10535/2023

The PROVINCE OF PUNJAB through Secretary Punjab, Lahore

Versus

JAWWAD S.KHAWAJA and others

I.C.A. No. 10/2023 in C.P. No. 26/2023 and C.M.A. No. 10536/2023

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

Versus

KARAMAT ALI and others

I.C.A. No. 11/2023 in C.P. No. 30/2023 and C.M.A. No. 10537/2023

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

Versus

SUPREME COURT BAR ASSOCIATION OF PAKISTAN, through Secretary, Islamabad and others

I.C.A. No. 12/2023 in C.P. No. 35/2023 and C.M.A. No. 10538/2023

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

Versus

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through Secretary, Islamabad and others

I.C.A. No. 13/2023 in C.P. No. 27/2023 and C.M.A. No. 10539/2023

The FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad

Versus

ZAMAN KHAN VARDAG and others

I.C.A. No. 14/2023 in C.P. No. 24/2023 and C.M.A. No. 10540/2023

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

Versus

JAWWAD S. KHAWAJA and others

I.C.A. No. 15/2023 in C.P. No. 35/2023 and C.M.A. No. 10541/2023

The PROVINCE OF BALOCHISTAN through Chief Secretary Services and General Administration Department Quetta

Versus

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its Secretary, Islamabad and others

I.C.A. No. 16/2023 in C.P. No. 26/2023 and C.M.A.

No. 10542/2023 and C.M.A. No. 597/2024

The PROVINCE OF BALOCHISTAN through Chief Secretary Services and General Administration Department Quetta

Versus

KARAMAT ALI and others

I.C.A. No. 17/2023 in C.P. No. 24/2023 and C.M.A. No. 10543/2023

The PROVINCE OF BALOCHISTAN through Chief Secretary Services and General Administration Department Quetta

Versus

JAWWAD S.KHAWAJA and others

I.C.A. No. 18/2023 in C.P. No. 30/2023 and C.M.A. No. 10544/2023

The PROVINCE OF BALOCHISTAN through Chief Secretary Services and General Administration Department Quetta

Versus

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its Secretary, Islamabad and others

I.C.A. No. 19/2023 in C.P. No. 25/2023 and C.M.A. No. 10545/2023

The PROVINCE OF BALOCHISTAN through Chief Secretary Services and General Administration Department Quetta

Versus

AITZAZ AHSAN and others

I.C.A. No. 20/2023 in C.P. No. 25/2023 and C.M.A. No. 10546/2023

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi

Versus

AITZAZ AHSAN and others

I.C.A. No. 21/2023 in C.P. No. 28/2023 and C.M.A. No. 10547/2023

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi

Versus

JUNAID RAZZAQ and others

I.C.A. No. 22/2023 in C.P. No. 25/2023 and C.M.A. No. 10548/2023

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad

Versus

AITZAZ AHSAN and others

I.C.A. No. 23/2023 in C.P. No. 30/2023 and C.M.A. No. 10549/2023

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad

Versus

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its Secretary, Islamabad and others

I.C.A. No. 24/2023 in C.P. No. 26/2023 and C.M.A. No. 10550/2023

and C.M.A. No. 598/2024

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad

Versus

KARAMAT ALI and others

I.C.A. No. 25/2023 in C.P.28/2023 and C.M.A. No. 10551/2023

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad

Versus

JUNAID RAZZAQ and others

I.C.A. No. 5/2023 in C.P. 24/2023 and C.M.A. No. 10534/2023 (and other connected cases), decided on 7th May, 2025.

Per Amin-ud Din Khan, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan, JJ; Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ. dissenting

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

----Ss. 2(1)(d)(i), (ii) & 59(4)---International Covenant on Civil and Political Rights (ICCPR), Art. 14(5)---Constitution of Pakistan, Art.8(5)---Supreme Court Practice and Procedure Act (XVII of 2023), S. 5---Intra Court Appeal---Court Martial of civilians, vires of---Matter pertained to occurrence of 09-05-2023, whereby followers of a political party ransacked/attacked military installations situated in cantonment areas in different cities of Pakistan---Supreme Court in exercise of jurisdiction under Article 184(3) of the Constitution declared the provisions of sections 2 (1) (d) (i), (ii) & 59(4) of Pakistan Army Act, 1952 ultra vires the Constitution and of no legal effect---Validity---Attack on Corps Commander House, Lahore rendered the command dysfunctional for at least 4 to 5 hours creating a highly dangerous situation---All fundamental rights enshrined and envisaged under the Constitution were subject to reasonable restrictions imposed by law---Peaceful assembly, association or public demonstration/protest within the bounds and precincts of reasonable restriction imposed by law is not prohibited as long as it is without violating or breaking the law or taking the law in one's hands---Constitutional Bench of Supreme Court restored the provisions of Pakistan Army Act, 1952, that were struck down by means of judgment passed by Supreme Court in original proceedings---Constitutional Bench of Supreme Court sensitized the need of legislative changes, which would also be compliant to the requirements laid down under International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving Constitutional and societal norms in existing legal framework---Constitutional Bench of Supreme Court referred the matter to Government/Parliament for considering and making necessary amendments/legislation in Pakistan Army Act, 1952 and allied Rules in order to provide an independent right of appeal in High Court against conviction awarded to persons by Court Martial/Military Courts under the provisions of sections 2(1) (d) (i), (ii) & 59 (4) of Pakistan Army Act, 1952---Intra Court Appeal was allowed. [Majority view]

Col. (R) Muhammad Akram v. Federation of Pakistan

through Secretary Ministry of Defence, Rawalpindi and another PLD 2009 FSC 36 and Jurist Foundation v. Federal Government PLD 2020 SC 1 ref.

(b) Constitution of Pakistan---

----Art. 10A---Due process of law and fair trial---Right of appeal---Scope---Independent right of appeal before an independent forum is also a basic limb of doctrine of due process and right to a fair trial, as enshrined under Article 10A of the Constitution.

Brig. (Retd.) F. B. Ali's case PLD 1975 SC 506; Shahida Zahir Abbasi's case PLD 1996 SC 632 and District Bar Rawalpindi's case PLD 2015 SC 401 rel.

(c) Constitution of Pakistan---

----Art. 10A---Due process of law and fair trial---Applicability---Provisions merely accentuating right to a fair trial and due process in any statute and its actual application and proper implementation during trial are two distinct features and situations---If an independent right of appeal is provided in High Court for challenging original order or internal departmental appellate order of conviction, then High Court in exercise of its appellate jurisdiction as conferred under the provisions of Criminal Procedure Code, 1898, may examine whether an appeal and fair opportunity to defend the charges was afforded to the convict; whether sufficient evidence was available to substantiate the charges; and whether proper procedure in trial was followed in letter and spirit.

Per Jamal Khan Mandokhail and Naeem Akhter Afghan, JJ. dissenting. [Minority view]

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

----Ss. 2(1)(d)(i), (ii) & 59(4)---International Covenant on Civil and Political Rights (ICCPR), Art. 14 (5)---Constitution of Pakistan, Arts. 2A, 8(3)(a), 9, 10, 10A, 19A, 25, 175(3), 227(1) & 245---Supreme Court Practice and Procedure Act (XVII of 2023), S. 5---Intra Court Appeal---Court Martial of civilians, vires of---Matter pertained to occurrence of 09-05-2023, whereby followers of a political party ransacked/attacked military installations situated in cantonment areas in different cities of Pakistan---Supreme Court in exercise of jurisdiction under Article 184(3) of the Constitution, declared the provisions of sections 2(1)(d)(i), (ii) & 59(4) of Pakistan Army Act, 1952 ultra vires the Constitution and of no legal effect---Validity---The Pakistan Army Act, 1952 ('PAA') is a disciplinary statute, relates to members of the Armed Forces, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution'), hence, does not offer fundamental rights to persons under the military discipline---To the contrary, clause (d) added to subsection (1) of section 2 of the PAA relates to persons not otherwise subject to the PAA ('Civilians')---It does not relate to members of the Armed Forces, nor serves the aforesaid purpose, as provided by sub-clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, it does not qualify for exemption from fundamental rights, hence, cannot be retained as part of the PAA---Article 175 of the Constitution provides the establishment and jurisdiction of courts---It requires that in order to fully secure the independence of judiciary, it must be separated from executive in all respects---The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution cannot prosecute the civilians---The trial of civilians by courts martial offends the fundamental principle of independence of judiciary, fundamental rights of security of person, safeguard as to arrest and detention, fair trial and due process, right to information, equality of citizens and Injunctions of Islam, as guaranteed by Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution, respectively---Denial of right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum is also violative of fundamental right of fair trial and due process---The trial of civilians by courts martial presided over by active military officers, is violative of the recognized covenants of the United Nations Human Rights Commission ('UNHRC') as well as the International Covenant on Civil and Political Rights, 1966 ('ICCPR') and treaties, to which Pakistan is a signatory---The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution---Convictions and sentences awarded to civilians by Courts Martial for the occurrence of 09-05-2023 were without jurisdiction and were set aside---Accused under custody were to be treated as under-trial prisoners and their cases would be transferred to concerned Courts of competent jurisdiction for trial---Upon receipt of cases, the concerned Courts should proceed with their trials expeditiously and decide the same at the earliest in accordance with law---Persons who had completed/undergone their sentences or had been acquitted of the charge by Courts Martial or Forum of Appeal under Pakistan Army Act, 1952, would have the effect of their discharge under section 169 Cr.P.C.---Intra Court Appeal was dismissed. [Minority view]

For Appellant(s)/Applicant(s)

For Federation of

Pakistan through Ministry of Law:

Mansoor Usman Awan, A.G.P.

Ch. Aamir Rehman, Addl. A.G.P.

Raja Muhammad Shafqat Abbasi, D.A.G.

Anis Muhammad Shahzad, Advocate-on-Record.

Jawaid Masood Tahir Bhatti, Advocate-on-Record.

Dr. Nazakat Ali Bhand, Asst Solicitor, Ministry of Law and Hasan Mehmood, Legislative Advisor Ministry of Law (in I.C.As. Nos. 10 to 14 and 22 to 25 of 2023)

For Ministry of Defence:

Khawaja Haris Ahmad, Senior Advocate Supreme Court

Assisted by Miss Zaynib Chaudhry, Advocate and Hamza Khalid, LLB (Hons).

Brig. (R) Falak Naz, Legal Advisor, Ministry of Defence.

Lt. Col. Zahid Hussain, LO, Ministry of Defence.

Lt. Col. Muhammad Ali, LO, Ministry of Defence (in I.C.As. Nos.20 and 21/2023).

For Province of Balochistan:

Sikandar Bashir Mohmand, Advocate Supreme Court.

M. Ayaz Khan Swati, Addl.A.G. Balochistan.

Tariq Aziz, Advocate-on-Record.

Assisted by Messrs Abdullah Noor, Advocate Hamza Azmat Khan, Advocate, Barrister Khizer Hayat Khan, Barrister Imran Khan

and Muhammad Arsal Kamran Advocate (in I.C.As. Nos. 15 to 19 of 2023).

For Shuhada Forum Balochistan:

Shumail Butt, Advocate Supreme Court. (through video link from Peshawar).

Mehmood A. Sheikh, Advocate-on-Record (in I.C.A. No. 5 of 2023).

For Province of Punjab:

Wasim Mumtaz Malik, Addl. A.G. Punjab and Sanaullah Zahid, Addl. A.G., Punjab (in I.C.A. No.6/2023)

For Government of Sindh:

Saifullah, Addl. AG, Sindh and Sibtain Mehmood, Addl.A.G. Sindh (Via video link, Karachi).

For the Respondents:

For Justice (R)

Jawwad S. Khawaja:

Khwaja Ahmad Hosain, Advocate Supreme Court, Assisted

by Ms. Rida Hosain, Advocate (in I.C.As. Nos. 5, 6, 14 and 17 of 2023).

For Lahore High Court

Bar and Lahore Bar Associations:

Hamid Khan, Senior Advocate Supreme Court.

Muhammad Waqar Rana, Advocate Supreme Court.

Ajmal Ghaffar Toor, Advocate Supreme Court.

Syed Rifaqat Husain Shah, Advocate-on-Record (in I.C.As. Nos. 5, 6, 11, 15 and 20 of 2023).

For Ch. Aitzaz Ahsan:

Sardar Muhammad Latif Khan Khosa, Sr. Advocate Supreme Court.

Barrister Ch. Aitzaz Ahsan, Sr. Advocate Supreme Court.

Shahbaz Khan Khosa, Advocate Supreme Court.

Assisted by Barrister Zunaira Fayyaz, Sozain Jehan, Ghulam Murtaza Malik, Syed Mehmood ul Hassan Gilani and Usman Zakir Abbasi, Advocates (in I.C.As. Nos. 19, 20 and 22 of 2023).

For Junaid Razzaq:

Salman Akram Raja, Advocate Supreme Court.

Assisted by Asad Rahim Khan, Malik Ahsan Mehmood, Atira Ikram, Raja Hamza Anwar, Wyena Qureshi, Minahil Fatima, M. Ali Talib, Muhammad Shakeel Mughal, Muhammad Hamza Aslam, Sardar Ahsan Raza and Malik Ghulam Sabir, Advocates (in I.C.As. Nos.21 and 25 of 2023).

For Karamat Ali, etc.:

Faisal Siddiqui, Advocate Supreme Court (in I.C.As. Nos. 10, 16 and 24 of 2023).

For Imran Khan Niazi:

Uzair Karamat Bhandari, Advocate Supreme Court.

Dr. Usman Mirza, Advocate-on-Record.

Assisted by Ali Uzair Bhandari, Advocate (in I.C.As. Nos. 19, 20 and 22 of 2023).

For Aamir Sabir:

Abid S. Zuberi, Advocate Supreme Court.

Ms. Bushra Qamar, Advocate Supreme Court.

Assisted by Amna Khalili, Saif Shahid and Ashar Khan, Advocates.

Muqtedir Akhtar Shabbir, Advocate Supreme Court (via video link from Lahore) (in I.C.A. No. 12 of 2023).

Zaman Khan Vardag, Advocate Supreme Court, in-person (via video link from Lahore) (in person in I.C.A. No. 13 of 2023).

For Supreme Court Bar

Association:

Mian Rauf Atta, Advocate Supreme Court/President and Muhammad Aurangzeb Khan, Advocate Supreme Court/Acting Secretary.

Voluntarily appeard:

Hafeez Ullah Khan Niazi, In-person. (father of one of the convicts.)

For Province of KPK:

Shah Faisal Ilyas, Addl.A.G. Khyber Pakhtunkhwa.

Dates of hearings: 9th, 10th, 12th and 13th December 2024, 7th to 10th, 13th to 17th, 28th to 31st January, 3rd, 4th, 10th to 13th and 18th to 20th, 24th to 27th February, 3rd to 6th, 10th to 13th March, 7th to 9th, 14th to 18th and 28th, April and 5th May, 2025.

SHORT ORDER

The aforesaid Intra Court Appeals (ICA) have been brought under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 to challenge the judgment dated 23.10.2023 passed by the learned Bench of this Court in Constitution Petition Nos.24, 25, 26, 27, 28 and 30 of 2023, filed under Article 184 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), whereby the Court, by majority (4 to 1), declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) and (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. It was further declared that the trials of civilians/accused (around 103 persons) 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 the 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. However, Mr. Justice Yahya Afridi (present CJP) recorded his dissent to the majority judgment and abstained from declaring clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) and (ii)) and subsection (4) of Section 59 of the said Act, ultra vires the Constitution. On the other hand, he concurred and joined with the other members of the Bench that the accused persons, 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 laws.

1. After providing extensive opportunity of hearing to all concerned and for reasons to be recorded later, subject to augmentation and explication in detail, the aforesaid ICA(s) are allowed by majority of 5 (comprising J. Amin-ud-Din Khan, J. Muhammad Ali Mazhar, J. Syed Hasan Azhar Rizvi, J. Musarrat Hilali, and J. Shahid Bilal Hassan) in the following terms:

i. The impugned judgment is set aside and as a consequence thereof, sub-clauses (i) and (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 and subsection (4) of Section 59 of the Pakistan Army Act, 1952 are restored. With due deference to the impugned judgment, such provisions in our view could not be declared ultra vires on the anvil or bedrock of sub-article (5) of Article 8 of the Constitution which only provides that the rights conferred by the said Chapter (Fundamental Rights) shall not be suspended except as expressly provided by the Constitution, thus it does

not control or preponderate upon the rigors of sub-article (3) of the said Article. There was, in fact, no question with regard to the suspension of any fundamental right involved within the sphere of influence or realm of Article 233 of the Constitution.

ii. According to statistics shared by the learned AGP during the course of his arguments, 39 military installations, Army works/ establishments at various places (23 in Punjab, 08 in KPK, 07 in Sindh and 01 in Balochistan) including GHQ, Core Commander House, Lahore (which is also a camp office), Mianwali Air Base, and ISI Offices/set up in Sargodha, Faisalabad, and Rawalpindi were targeted/ attacked on 09.05.2023. He further argued that all attacks were made by design and occurred on one and the same day, within a span of 4 to 6 hours, across the country. According to him, these incidents left an indelible mark and represented the darkest moments in the nation's history. As a result of these events, several First Information Reports (FIRs) were lodged at various Police Stations. He further argued that on account of dereliction of duty, stern disciplinary actions were also taken against several army officials. Additionally, the attack on the Corps Commander House, Lahore, rendered the command dysfunctional for at least 4 to 5 hours, creating a highly dangerous situation. All fundamental rights enshrined and envisaged under the Constitution are subject to reasonable restrictions imposed by the law. Peaceful assembly, association, or public demonstration/ protest within the bounds and precincts of reasonable restrictions imposed by the law is not prohibited but without violating or breaking the law, or taking the law in one's hands.

iii. The learned counsel representing the respondents never refuted or denied the factum of such incidents but they candidly and forthrightly argued, from beginning to end, that though the accused/ convicts have committed offences, they should be tried by Anti-Terrorism Courts and not through Court Martial or by Military Courts, as this violates the right to a fair trial as envisioned under Article 10-A of the Constitution, and under sub-article (3) of Article 175 of the Constitution, Military Courts cannot exercise judicial functions in the cases of civilians (the argument with regard to the applicability of sub-article (3) of Article 175 of the Constitution was also raised in the original proceedings but not approved or accepted in the majority impugned judgment). Whereas, the learned counsel for the appellants maintained that due to the striking down of the law in question, no action can be taken even against the hardcore criminals and terrorists involved in the attacks on army installations and/or against the martyrdom of innocent civilians and personnel of the armed forces and even in the present situation, no action can be taken in the national security and interest against the persons accused of espionage or spies of enemy countries for the offences mentioned in sub-clause (ii) of clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952.

iv. No doubt, all such miscreants, lawbreakers, and perpetrators of such incidents are liable to be punished on proving their guilt, subject to right of appeal against their conviction. An independent right of appeal before an independent forum is also a basic limb of the doctrine of due process and the right to a fair trial, as enshrined and envisioned under Article 10-A of the Constitution. Various provisions were vigorously highlighted by the learned counsel for the appellants to demonstrate that under the Pakistan Army Act, 1952 ("Army Act"), and the Rules framed thereunder, the right to a fair trial and due process is fully protected and safeguarded and the process of trial under the Army Act is compliant with the recognized principles of criminal justice as held in the cases of Brig. (Retd.) F. B. Ali (PLD 1975 SC 506), Shahida Zahir Abbasi (PLD 1996 SC 632), and the judgment rendered in the case of District Bar Rawalpindi (PLD 2015 SC 401). It was further averred that clause 2(d) was inserted into the Army Act vide Section 2 of the Defence Services Laws Amendment Ordinance, 1967, which is protected under Article 268 of the Constitution. The learned AGP also asserted that the right to a fair trial, as enshrined under Article 10-A of the Constitution, and due process of law, was available to all such accused persons of the 9th and 10th May incidents, despite the exactitudes of Article 8 (3) of the Constitution.

v. In the case of Shahida Zahir Abbasi (supra), it was held that "the rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person (... ) the procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case". Likewise, the judgment in plurality rendered in the District Bar Association case (supra) held with reference to Article 8 of the Constitution that the "Court Martial are constituted and established under the Pakistan Army Act, 1952, and jurisdiction thereupon is also conferred by the said Act. Their existence and validity is acknowledged and accepted by the Constitution in so far as they deal with the members of the Armed Forces and other persons subject to the said Act. This has not been disputed before us". In the same case, the plurality judgment also refers to the case of Col. (R) Muhammad Akram v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and another (PLD 2009 FSC 36), where the "provisions of the Pakistan Army Act were scrutinized by the Federal Shariat Court ( ... ) and generally passed muster".

vi. In our view, the provisions merely accentuating the right to a fair trial and due process in any statute and its actual application and proper implementation during the trial are two distinct features and situations. If an independent right of appeal is provided in the High Court for challenging the original order or internal departmental appellate order of conviction, then obviously, the High Court in exercise of its appellate jurisdiction as conferred under the provisions of the Code of Criminal Procedure, 1898, may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges, and whether proper procedure in the trial was followed in letter and spirit.

vii. It is expansively evident from the impugned judgment, including the additional note, that during the original proceedings, the learned AGP, time and again, requested for time to seek instructions from the government on whether an independent right of appeal may be provided to the persons not otherwise subject to the Army Act, who are accused of the offences of (i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or (ii) having committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923 as provided under clause (d) of Section 2(1) of Army Act, and even in the concluding session on 5th May, 2025, the learned AGP reiterated that if this Constitutional Bench refers the matter to the Government/ Parliament to amend the law and create a window of an independent right of appeal over and above the provision of appeal already provided under Section 133-B of the Pakistan Army Act, 1952, that will be respected and considered seriously. In support of this contention, he also cited the judgment of this Court rendered in the case of Jurist Foundation v. Federal Government (PLD 2020 SC 1).

viii. While restoring the provisions of Army Act, that were struck down by means of the impugned judgment in the original proceedings before this Court, we, in unison, sensitize the need of legislative changes, which will also be compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework. Therefore, the matter is referred to the Government/ Parliament for considering and making necessary amendments/ legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days in order to provide an independent right of appeal in the High Court against the conviction awarded to the persons by the Court Martial/ Military Courts under sub-clauses (i) and (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952.

ix. Subject to clause (viii) of this Short Order, the limitation period for filing an appeal by the convicts against their conviction before the High Courts shall be reckoned and applied from the date of notifying the amendments under the Pakistan Army Act, 1952, and their conviction shall be subject to the final outcome/ decision in appeal by the High Court.

x. All pending Civil Misc. Applications are also disposed of accordingly.

xi. It is clarified that the individual cases/writ petitions, if pending or filed in the High Courts for challenging the vires of orders passed by the Anti-Terrorism Courts, allowing the transfer of case/custody of any accused to the Military Court for trial, shall be decided by such Courts on its own merits.

xii. Office is directed to transmit the copy of this Short Order

to the learned Attorney General, Secretary General National Assembly, Secretary Ministry of Law and Justice, Secretary Ministry of Defence, and Secretary Law and Justice Commission, Government of Pakistan, for ensuring

compliance.

Sd/-

Senior Judge

Sd/- Sd/-

Judge Judge

Sd/- Sd/-

P L D 2025 Supreme Court 499

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ

MUHAMMAD NASEER BUTT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

C.P.L.A. No.3519 of 2021, decided on 6th May, 2025.

(Against the order dated 19.04.2021 of the Lahore High Court, Lahore passed in W.P. No.62232 of 2020).

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Alternative Dispute Resolution Act (XX of 2017), Ss. 2(i) & 3---ADR Mediation Accreditation (Eligibility) Rules, 2023---Mediation Practice Direction (Civil) Rules, 2023 (issued by Islamabad High Court)---Suit for recovery of maintenance allowance---Referring dispute for mediation---Object, purpose and scope---Petitioner was aggrieved of enhancement of maintenance allowance of respondents by High Court---Supreme Court referred the matter for mediation through Accredited Mediator---Held: Mediation is not merely an alternative to litigation; it is a paradigm shift in dispute resolution built on principles of collaboration, confidentiality and party autonomy---Mediation offers a non-adversarial framework that empowers parties to shape outcome of their own disputes, guided by a neutral facilitator rather than through judicial determination---Benefits of mediation are manifold, which reduce costs associated with protracted legal battles, alleviates burden on Courts and ensures quicker resolution of disputes---Confidential nature of mediation protects privacy of parties and its informal setting encourages honest communication and problem-solving---Flexibility of process allows parties to explore creative, interest-based solutions that a Court of law may not be empowered to grant---Supreme Court appreciated benefits of mediation which were remarkably evident in the present case; what years of litigation could not resolve, mediation achieved within weeks---This procedure reinforced the principle that the earlier a dispute was channeled through mediation, the greater the potential for cost and time savings, reduced emotional strain, and restored relationships---Supreme Court recommended the Courts to embrace a pro-mediation ethos, particularly at initial stages of litigation---Judges and lawyers must be sensitized to identify cases fit for mediation and facilitate their referral in a timely manner---Litigants, likewise, should be encouraged to consider mediation and other methods of alternative dispute resolution as a first resort, rather than a last recourse---Supreme Court directed Family Court to draw decree in terms of the settlement agreement---Appeal was disposed of.

Barrister Haris Azmat, Advocate Supreme Court for Petitioner.

Ch. Zafar Ullah, Advocate Supreme Court for Respondents (via video link (Lahore)) for Respondents Nos.3 and 4.

P L D 2025 Supreme Court 502

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Shahid Bilal Hassan, JJ

HIDAYAT KHAN and others---Petitioners

Versus

Mst. NASREEN and others---Respondents

C.P.L.A.No.287-P of 2025, decided on 24th April, 2025.

(Against the order dated 04.02.2025 passed in C.R. No.342

of 2022 with C.M. No. 1069 of 2022 by Peshawar High Court, Peshawar).

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

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.123---Registration Act (XVI of 1908), S. 49---Suit for declaration and injunction---Unregistered gift deed---Proof---Failure to take possession---Concurrent findings of facts by Courts below---Petitioners/plaintiffs claimed to be owners of suit property on the basis of gift deed made by their predecessor-in-interest and had assailed mutation of inheritance---Suit and appeal filed by petitioners/plaintiffs were dismissed by Trial Court and Lower Appellate Court---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees---Validity---Gift in question was conditional because possession was not delivered to petitioners/plaintiffs---Donor had retained possession during his lifetime, meaning thereby that one of the ingredientsof a valid gift was missing---When a document creates a future obligation(s) or right(s), it has to be compulsorily registered and when position remains otherwise, such document does not confer any right(s) in view of command of section 49 of the Registration Act, 1908 read with section 123 of the Transfer of Property Act, 1882---High Court had rightly construed law on the subject in such regard and when

such document, creating future obligation(s) and right(s) was executed, the same, when challenged, was required to be proved by producing two marginal witnesses as per mandate of Article 79 of Qanun-e-Shahadat, 1984---Such proof was lacking in the present case as none of petitioners/plaintiffs produced witnesses in witness box for identification of their signature---Concurrent findings of facts recorded by Trial Court and Lower Appellate Court were rightly upheld by High Court in exercise of revisional jurisdiction under section 115, C.P.C.---Supreme Court declined to interfere in the matter---Petition for leave to appeal was dismissed and leave to appeal was refused.

Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64; Mst. Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Islam ud Din (deceased) through L.Rs. and others v. Mst. Noor Jahan (deceased) through L.Rs. and others 2016 SCMR 986; Phull Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Ibrahim Kamal v. Mst. Malooka Bibi and others 2012 SCMR 1; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 20 10 SCMR 1370; Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Government of Khyber Pakhtunkhwa through Chief Secretary Civil Secretariat, Peshawar and others v. Shah Faisal Wahab and others 2023 SCMR 1642; Mst. Tahira Samina and others v. Javed Saeed Tariq and others 2024 SCMR 24; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Khalida Idrees and others v. Anas Farooq Chaudhary and others PLD 2018 Lah. 819; Mst. Rasheeda Bibi v. Mukhtar Ahmad and others 2008 SCMR 1384; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602; Rehmat Noor v. Zulqarnain 2023 SCMR 1645; Syed Ahmad v. Ali Akbar and others 2021 SCMR 743; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Saddaruddin (since deceased) through L.Rs. v. Sultan Khan (since deceased) through L.Rs. and others 2021 SCMR 642; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her L.Rs. and others 2021 SCMR 73; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 S.C. 338; Jubilee General Insurance Co. Ltd. Karachi v. Ravi Steel Company, Lahore PLD 2020 S.C. 324; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Naveed Akram and others v. Muhammad Anwar 2018 SCMR 1095; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1360; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Mst. Brikhna v. Faiz Ullah Khan and others 2020 SCMR 1681; Fazal Ellahi (deceased) through its Legal Heirs v. Mst. Zainab Bibi 2019 SCMR 1930; Ghulam Sarwar (deceased) through L.Rs. and others 2019 SCMR 567; Muhammad Ishaq v. Muhammad Shafiq and 9 others 2007 SCMR 1773; Haji Muhammad Anwar v. Muhammad Ahmed and others 2007 SCMR 1961; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Mst. Janntan and others v. Mst. Taggi through L.Rs. and others PLD 2006 SC 322; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Muhammad Ihsaq and another v. Mst. Gazala Riaz and 8 others 1997 SCMR 974; Mst. Noor Fatima and another v. Begum Bibi and another 1990 SCMR 629; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Mohammad Boota (deceased) through L.Rs., and others v. Mst. Fatima daughter of Gohar Ali and others 2023 SCMR 1901; Noor Din (deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Syed Kausar Ali Shah and others v. Syed Farhat

Hussain Shah and others 2022 SCMR 1558; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajdad v. Provincial Government through Secretary Board of Revenue, Government of Balochistan, Quetta and others 2020 SCMR 2046; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862; Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364;

Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal and another 2012 SCMR 1860; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Muhammad Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Farzana Zia and others v. Mst. Saadia Andaleeb 2024 SCMR 916 rel.

(b) Islamic law---

----Hiba gift---Reason for gifting property---Onus to prove on donee---Donee has to plead and prove as to what were the circumstances and incidents that the propositus, despite being a Muslim, proceeded to deprive his legal heirs/sons and gifted out his property to donee---Proving of such facts is necessary and sine qua non for a valid gift.

Manzoor Khan Khalil, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

P L D 2025 Supreme Court 510

Present: Athar Minallah, Malik Shahzad Ahmad Khan and Shakeel Ahmad, JJ

ABID HUSSAIN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 131 and 132 of 2023, decided on 12th March, 2025.

(Against the judgment dated 29.10.2020 passed by the High Court of Sindh at Karachi in Criminal Appeal No. D-217 of 2019 and Confirmation Case No. 03 of 2019).

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Setting wife on fire---Cold blooded murder---Quantum of sentence---Doctrine of "rarest of rare"---Applicability---Accused was convicted for qatl-i-amd and sentenced to death---Validity---Motive attributed to accused was deceased's opposition to his intention of selling the house, which stood proved on record---It is a matter of common experience that domestic disputes over property frequently arise in our society---Resorting to such a brutal act of setting one's spouse on fire reflected violent disposition of accused and pointed towards premeditation---Established motive, when read in conjunction with brutal and deliberate manner in which offence was committed, left no room for doubt that murder of deceased was preplanned and intentional---Crime committed by accused was extremely heinous---Under the doctrine of "rarest of rare", death sentence may be imposed where the offence is exceptionally brutal, shocking to the collective conscience of society and where there exists a compelling need for deterrence---Offence was of the most brutal nature, wherein accused was found guilty of cold-blooded murder of his own wife, mother of his children, that too within the confines of their matrimonial home and in the presence of their young children---Supreme Court declined to extend any leniency to accused and maintained conviction and death sentence awarded to accused---Appeal was dismissed.

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

----Ss. 302(b) & 34---Qatl-i-amd and abetment---Re-appraisal of evidence---Abetment---Proof---Principal accused murdered his wife by setting her on fire and he was sentenced to death---Accused was alleged to have abetted the principal accused in committing murder of his wife---Courts below convicted the accused for qatl-i-amd and sentenced him to imprisonment for life--- Validity---Record neither established presence of accused at the time of occurrence nor had any specific role been assigned to him in the crime report lodged by investigating officer---Prosecution failed to prove involvement of accused or his nexus with alleged offence---Supreme Court set aside conviction and sentence awarded to accused by the Courts below and he was acquitted of the charge---Appeal was allowed.

Syed Rifaqat Hussain Shah, Advocate Supreme Court for Appellant (in both cases).

Siraj Ali Khan, Addl. PG, Sindh for the State.

Complainant in-person (via VL from Karachi)

P L D 2025 Supreme Court 516

Present: Muhammad Ali Mazhar, Naeem Akhter Afghan, Shahid Bilal Hassan, Salahuddin Panhwar and Shakeel Ahmad, JJ.

JUSTICE MOHSIN AKHTAR KAYANI, JUDGE and others---Petitioners

Versus

The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD

and others---Respondents

Constitution Petitions Nos. 22, 20, 25 to 28 and 30 of 2025, decided on 19th June, 2025.

(Constitutional Petitions under Article 184(3) of the Constitution for declaring Notification No. F.10(2)/2024-A.II dated 1st February 2025 regarding Transfer of Judges to Islamabad High Court as Illegal and Unconstitutional).

AND

C.M.A.2136/2025 IN C.P.22/2025 and

C.M.A.2137/2025 IN C.P.20/2025 and

C.M.A.2138/2025 IN C.P.26/2025 and

C.M.A.2139/2025 IN C.P.27/2025 and

C.M.A.2047/2025 IN C.P.28/2025

(Stay applications)

Per Muhammad Ali Mazhar, Shahid Bilal Hassan and Salahuddin Panhwar, JJ.; Naeem Akhter Afghan and Shakeel Ahmad, JJ. dissenting. [Majority view]

(a) Constitution of Pakistan---

----Arts. 175A, 184(3), 200(1) & 200(2)---Islamabad High Court Act (XVII of 2010), S. 3---Judges from Lahore High Court, Sindh High Court and Balochistan High Court transferred to Islamabad High Court by the President of Pakistan under Article 200(1) of the Constitution---Dispute over seniority between the transferred judges and judges that already existed prior to the transfer---Whether transfer of a Judge of the High Court to another High Court by the President amounted to a fresh appointment?---Held: Powers of the President of Pakistan under Sub-article (1) of Article 200 of the Constitution for the transfer of a Judge of the High Court from one High Court to another High Court and the provisions contained under Article 175A of the Constitution for appointment of Judges to the Supreme Court, High Courts, and the Federal Shariat Court by the Judicial Commission of Pakistan ("JCP") are two distinct provisions dealing with different situations and niceties---Neither do they overlap nor override each other---Article 200 of the Constitution is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and stand alone provision dealing with the transfer of judges of a High Court (permanently or temporarily) and not the appointment of judges, which assignment has been incontrovertibly conferred to the JCP autonomously in terms of Article 175A of the Constitution---Transfer of a judge by the President of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment---Furthermore, the powers of transfer conferred to the President by none other than the framers of the Constitution cannot be questioned on the anvil or ground that if the posts were vacant in the Islamabad High Court, then why they were not filled up by JCP through fresh appointments---Transfer from one High Court to another High Court can only be made within the sanctioned strength, which can only be regarded as a mere transfer and does not amount to raising the sanctioned strength of a particular High Court---Section 3 of the Islamabad High Court Act, 2010 is only germane to the appointment of judges and does not, in any way, mean that a judge can only join the Islamabad High Court through a fresh appointment and not by way of a transfer or, in other words, that Article 200 does not apply to the Islamabad High Court, which interpretation would be against the exactitudes of the Constitution---Neither can Section 3 of the said Act supersede/override a constitutional mandate, nor can it control, nullify, or rescind the powers of transfer that are vested in the President of Pakistan under Article 200 of the Constitution---Thus, for all intents and purposes the transfer of judges by the President of Pakistan, by means of the impugned Notification No. F.10 (2)/2024-A.II, dated 1st February 2025 ("Notification") was within the framework of the Constitution and cannot be declared ultra vires---There was no All Pakistan Cadre/unified or combined seniority list of High Court judges for determining their seniority at the time of transfer, therefore, the terms and conditions of transfer (permanently or temporary) including seniority should have been taken up and mentioned by the President of Pakistan at the time of issuing the Notification of transfer in terms of Article 200 of the Constitution---Supreme Court partially remanded the matter to the President of Pakistan, without upsetting the Notification of transfer, to determine the seniority after examining/vetting the service record of the transferee judges as soon as possible, including the question of whether the transfer was on a permanent or temporary basis---Supreme Court directed that till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges was determined by the President of Pakistan by means of notification/ order, the Judge already holding the office of Acting Chief Justice of the Islamabad High Court, would continue to perform as the Acting Chief Justice of the Islamabad High Court---Constitutional petitions were disposed of accordingly along with the applications. [Majority view]

(b) Constitution of Pakistan---

----Art. 200---Transfer of High Court judges from one High Court to another---Powers of the President of Pakistan---Scope---Exercise of the powers of transfer by the President of Pakistan under Article 200 of the Constitution is not unregulated or unfettered---It is structured on a four tier formula which expounds that no judge shall be transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts---It means that if at the very initial stage, a judge intended to be transferred from one High Court to another High Court refuses the offer/proposal, then obviously the matter ends forthwith---Even in the case of consent, the transfer shall be subject to consultation with two Chief Justices of the High Courts and the Chief Justice of Pakistan, as the paterfamilias of judiciary, who may, during the consultation process, pragmatically ruminate the pros and cons germane to the transfer proposal, including the aspect of public interest, if any---Hence, for all intents and purposes, it is reverberated beyond any shadow of doubt that before exercising the power of transfer, certain inbuilt procedures and mechanisms have to be followed in letter and spirit and the decision, or the right of refusal or primacy, is within the sphere and realm of judiciary and not within the domain of executives---Therefore, it does not in any case compromise the independence of the judiciary for the discernable reason that the decision to accept or reject is exclusively within the hands of the judiciary.

Per Naeem Akhter Afghan, J. dissenting; Shakeel Ahmad, J. agreeing. [Minority view]

(c) Constitution of Pakistan---

----Arts. 2A, 4, 25, 175A, 184(3), 200(1) & 200(2)---Islamabad High Court Act (XVII of 2010), S. 3---Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024, R. 6---Judges from Lahore High Court, Sindh High Court and Balochistan High Court transferred to Islamabad High Court by the President of Pakistan under Article 200(1) of the Constitution---Dispute over seniority between the transferred judges and judges that already existed prior to the transfer---Whether transfer of a Judge of the High Court to another High Court by the President of Pakistan was a temporary appointment?---Held: Three Judges in question who had been transferred to Islamabad High Court (IHC) had been transferred by the President vide impugned notification on permanent basis---Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a Judge of a High Court from one High Court to another High Court, but provide for transfer of a Judge of a High Court from one High Court to another High Court for a period i.e. on temporary basis---Permanent transfer of three Judges to IHC had been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution---It had offended Article 175A of the Constitution and had made the same redundant---Process for permanent transfer of three Judges to IHC suffered from concealment of relevant and material facts from the transferee Judges, from the Chief Justices of the Islamabad High Court (IHC), Lahore High Court (LHC), Sindh High Court (SHC), Balochistan High Court (BHC) and from the Chief Justice of Pakistan (CJP)---Process for permanent transfer of three Judges to IHC was also lacking meaningful, purposive and consensus oriented consultation with the Chief Justices of IHC, LHC, SHC, BHC and CJP on all the relevant issues---Process for permanent transfer of three Judges to IHC had been completed in an unnecessary haste, and suffered from mala fide in facts as well as mala fide in law---Transfer had not been made by the President in the public interest---While transferring the three Judges to IHC on permanent basis, the President had failed to apply his independent mind with an objective opinion---Object of proportionate representation of all the Provinces in IHC could have conveniently been achieved by making fresh appointment of Judges from the Provinces by the Judicial Commission of Pakistan (JCP) under Article 175A of the Constitution as Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 binds/mandates the Members of the JCP to ensure proper diversity in terms of region as well as gender and religion, subject to the prescribed criteria---Transfer of Judges in the present case was violative of Articles 2A, 4 and 25 of the Constitution and it had undermined the independence of judiciary, due process and principle of equality---Impugned Notification No.F.10(2)/2024-A.II dated 1st February 2025 issued by the Secretary, Ministry of Law and Justice, Government of Pakistan, whereby in exercise of powers conferred by Clause (1) of Article 200 of the Constitution, the President of Pakistan had transferred one Judge each from the Lahore High Court, High Court of Sindh and High Court of Balochistan to Islamabad High Court, was declared null and void and of no legal effect---Constitutional petitions were allowed. [Minority view]

(d) Constitution of Pakistan---

----Art. 200---Transfer of High Court judges from one High Court to another---Powers of the President of Pakistan---Scope---Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected---According to the doctrine of harmonious construction, while interpreting Clause (1) and Clause (2) of Article 200 of the Constitution, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity.

(e) Administration of justice---

----If a case can be decided on other or narrower grounds, the court will abstain from deciding a larger constitutional question than what is necessary for the determination of the case.

"Treatise on constitutional limitations" by Cooley pages 159 to 186; "Constitutional Law of India" Vol-I by H.M. Seervai, pages 260 to 262; "Fundamental Law of Pakistan" by the late Mr. A.K. Brohi, pages 562 to 592; "Judicial Review of Public Actions" Vol-I by Mr. Justice Fazal Karim, pages 488 to 492 and Lahore Development Authority v. Imrana Tiwana 2015 SCMR 1739 ref.

(f) Constitution of Pakistan---

---Arts. 175A & 200---Transfer/appointment of Judges of the Superior Courts---No role of intelligence agencies---Intelligence agencies, including Inter-Services Intelligence (ISI), have no role under the Constitution for appointment or transfer of Judges---Being subordinate to the Executive, the intelligence agencies, including ISI, cannot override the Executive, the Judiciary, the Constitutional bodies and the Constitutional office holders.

For the Petitioners:

Muneer A. Malik, Senior Advocate Supreme Court

Salahuddin Ahmed, Advocate Supreme Court

Syed Rifaqat Hussain Shah, Advocate-on-Record

(in C.P. No. 22 of 2025) assisted by Ms. Zainab Janjua and Ms. Faaiza Qazi, Advocates.

Idrees Ashraf Malik, Advocate Supreme Court

Raja Muqsit Nawaz Khan, Advocate Supreme Court

(in C.Ps. Nos. 20 and 25 of 2025)

Hamid Khan, Senior Advocate Supreme Court

Waqar Rana, Advocate Supreme Court

Ajmal Ghaffar Toor, Advocate Supreme Court

(in C.Ps. Nos. 26 and 27 of 2025)

Faisal Siddiqi, Advocate Supreme Court

Riasat Ali Azad, Advocate Supreme Court

Anis Muhammad Shahzad, Advocate-on-Record

Assisted by M. Ammar Rafique and Sikandar Naeem Qazi, Advocate (in C.Ps. Nos. 28 and 30 of 2025).

For the Respondents:

For the Federation, the

President of Pakistan

Registrar SCP and Secretary JCP

Mansoor Usman Awan, A.G.P.

Ch. Aamir Rehman, Addl. A.G.P.

Raja Shafqat Mehmood Abbasi, D.A.G.

Muhammad Amir Malik, Advocate-on-Record

Assisted by: Mr.Hasan Mehmood, Legislative Advisor, Ministry of Law, Ms. Mariyam Ali Abbasi and Saad Javed Satti, Advocates.

For Province of Punjab:

Muhammad Amjad Pervaiz, A.G.

Waseem Mumtaz Malik, Addl. A.G.

Rao Muhammad Aurangzeb, Asstt. A.G.

Assisted by: Muhammad Adil Chattha, Sr.Consultant

For Province of Sindh:

Suresh Kumar, Addl. A.G.

Sibtain Mehmood, Addl. A.G. and

Barrister Zeeshan Adhi, Addl. A.G.

For Province of KPK:

Shah Faisal Ilyas, Addl. A.G.

For Province of

Balochistan:

Muhammad Ayaz Swati, Addl. A.G. and

Tahir Iqbal Khattak, Addl. A.G.

For ICT:

Ayyaz Shaukat, A.G. and

Dr. Mirza Muhammad Usman, Advocate-on-Record

For the Registrar LHC:

M. Shahid Latif Khan, Dy. Registrar

For the Registrar PHC:

Wajid Ali Khan, Director (Regulations)

(via video link from Peshawar)

For the Registrar HCS:

Sohail Muhammad Laghari, Registrar

(via video link from Karachi)

For the Registrar IHC:

M. Asif Iqbal, Dy. Registrar

For the Transferee Judges:

Nemo.

Dates of hearing: 14th, 17th, 22nd, 29th, 30th April; 07th, 08th, 14th, 15th, 19th, 20th, 21st, 23rd, 26th, 27th, 29th May and 16th June to 19th June, 2025.

SHORT ORDER

By majority of 3 to 2, comprising Justice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar, the aforesaid Constitution Petitions are disposed of in the following terms, subject to amplification in detail:

1. The powers of the President of Pakistan under Sub-Article (1) of Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") for the transfer of a Judge of the High Court from one High Court to another High Court and the provisions contained under Article 175A of the Constitution for appointment of Judges to the Supreme Court, High Courts, and the Federal Shariat Court by the Judicial Commission of Pakistan ("JCP") are two distinct provisions dealing with different situations and niceties. Neither do they overlap nor override each other. The transfer of a judge by the President of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment. Furthermore, the powers of transfer conferred to the President by none other than the framers of the Constitution cannot be questioned on the anvil or ground that if the posts were vacant in the Islamabad High Court, then why they were not filled up by JCP through fresh appointments. One more important facet that cannot be lost sight of is that the transfer from one High Court to another High Court can only be made within the sanctioned strength, which can only be regarded as a mere transfer and does not amount to raising the sanctioned strength of a particular High Court.

2. In all fairness, if it is presumed that all posts should be filled by the JCP alone through fresh appointments, then such interpretation or state of mind, in our view, would not only go against the manifest intention of the framers of the Constitution but will also amount to negating or making redundant the substratum and existence of Article 200 of the Constitution; which Article is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and standalone provision dealing with the transfer of judges of a High Court (permanently or temporarily) and not the appointment of judges, which assignment has been incontrovertibly conferred to the JCP autonomously in terms of Article 175A of the Constitution.

3. As far as Section 3 of the Islamabad High Court Act, 2010, is concerned, it only divulges that the Islamabad High Court shall consist of a Chief Justice and twelve other judges to be appointed from the provinces and other territories of Pakistan in accordance with the Constitution. In our considered view, this provision is only germane to the appointment of judges and does not, in any way, mean that a judge can only join the Islamabad High Court through a fresh appointment and not by way of a transfer or, in other words, that Article 200 does not apply to the Islamabad High Court, which interpretation would be against the exactitudes of the Constitution. Neither can Section 3 of the aforesaid Act supersede/ override a constitutional mandate, nor can it control, nullify, or rescind the powers of transfer that are vested in the President of Pakistan under Article 200 of the Constitution.

4. Nevertheless, the exercise of the powers of transfer by the President of Pakistan under Article 200 of the Constitution is not unregulated or unfettered. It is structured on a four tier formula which expounds that no judge shall be transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts. What does this mean? If at the very initial stage, a judge intended to be transferred from one High Court to another High Court refuses the offer/proposal, then obviously the matter ends forthwith. Even in the case of consent, the transfer shall be subject to consultation with two Chief Justices of the High Courts and the Chief Justice of Pakistan, as the paterfamilias of judiciary, who may, during the consultation process, pragmatically ruminate the pros and cons germane to the transfer proposal, including the aspect of public interest, if any. Hence, for all intents and purposes, it is reverberated beyond any shadow of doubt that before exercising the power of transfer, certain inbuilt procedures and mechanisms have to be followed in letter and spirit and the decision, or the right of refusal or primacy, is within the sphere and realm of judiciary and not within the domain of executives. Therefore, it does not in any case compromise the independence of the judiciary for the discernable reason that the decision to accept or reject is exclusively within the hands of the judiciary.

5. Thus, for all intents and purposes, the transfer of judges by the President of Pakistan, by means of the impugned Notification No. F.10 (2)/2024-A.II, dated 1st February 2025 ("Notification") is within the framework of the Constitution and cannot be declared ultra vires.

6. We are sanguine that in normal circumstances, the decision on inter se seniority disputes or disagreements amongst the judges of a High Court are within the domain of the Chief Justice of that High Court, at the administrative side, but here the matter relates to the transfer of judges from other High Courts to the Islamabad High Court. Thus, the seniority issue is not exactly inter se seniority within the existing strength of judges of one and the same High Court, prior to bringing forth the transfer of three judges under Article 200 of the Constitution, but is somewhat cropped up between the transferee judges and the judges that already existed prior to the transfer. At this juncture, it is also pertinent to mention that there is no All Pakistan Cadre/unified or combined seniority list of High Court judges for determining their seniority at the time of transfer. Therefore, in our view, the terms and conditions of transfer (permanently or temporary) including seniority should have been taken up and mentioned by the President of Pakistan at the time of issuing the Notification of transfer in terms of Article 200 of the Constitution.

7. As a result of the above discussion, we partially remand the matter to the President of Pakistan, without upsetting the Notification of transfer, to determine the seniority after examining/ vetting the service record of the transferee judges as soon as possible, including the question of whether the transfer is on a permanent or temporary basis.

8. Till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges is determined by the President of Pakistan by means of notification/ order, Mr. Justice Sardar Muhammad Sarfraz Dogar, already holding the office of Acting Chief Justice of the Islamabad High Court, will continue to perform as the Acting Chief Justice of the Islamabad High Court.

1. All Civil Misc. Applications are also disposed of accordingly.

Sd/-

Judge

Sd/- Sd/-

P L D 2025 Supreme Court 529

Present: Syed Mansoor Ali Shah and Athar Minallah, JJ

ZAHIDA PARVEEN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education, Civil Secretariat, Peshawar and others---Respondents

C.P.L.A. No. 566-P/2024, decided on 17th March, 2025.

(Against the impugned judgment dated 03.06.2024 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in S.A. No. 1959 of 2023).

(a) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10(4)---Constitution of Pakistan, Arts. 14, 25 & 27---Compassionate appointment---Married daughter of deceased civil servant---Discrimination---Principle of intelligible differentia---Appellant was daughter of deceased civil servant and was appointed under Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---Appointment of appellant was terminated after she contracted marriage---Validity---Reasonable classification must be founded on intelligible differentia and must bear rational nexus to the object sought to be achieved by law---Exclusion of married daughters, despite Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, itself is inclusive and silence on marital status lacks any rational basis---No intelligible differentia is discernible between a married son and a married daughter that would justify such exclusion in light of the underlying purpose of Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, which is to provide compassionate economic relief to bereaved family of a deceased or incapacitated civil servant---Such arbitrary classification is not only unreasonable but plainly unconstitutional, offending the guarantees of equality (Article 25), non-discrimination in public service (Article 27), and the right to dignity (Article 14)---Such act of authorities had undermined expectations of deceased civil servants whose families were assured of lawful security under the compassionate appointment framework---Supreme Court declared clarification of authorities and letter dated 28-04-2023, whereby married daughters were excluded from compassionate appointment under Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, to be discriminatory, ultra vires, issued without lawful authority, and incompatible with Constitutional guarantees and international legal obligations---Supreme Court directed respondent/authorities to restore appointment of appellant with all back-benefits and set aside judgment passed by Service Tribunal---Supreme Court reaffirmed that all judicial and administrative authorities bear a Constitutional responsibility to adopt gender-sensitive and gender-neutral language; that this was not a mere formality but reflected a substantive commitment to the values of dignity, equality, and autonomy guaranteed to all citizens under Articles 14, 25, and 27 of the Constitution---Supreme Court observed that the Judiciary must lead by example, ensuring that the words used to interpret and apply law did not themselves had become instruments of exclusion---Appeal was allowed.

S.G.G. Edgar, Craies on Statute Law (Universal Law Publishing Co, 7th Edition, 1971); Muhammad Nadeem Arif v. IG Police, Punjab 2011 SCMR 408; Federal Public Service Commission v. Altaf Hussain 2015 SCMR 581; Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630; Province of Punjab v. Kanwal Rashid 2021 SCMR 730; Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910; Union of India v. Majji Jangammayya AIR 1977 SC 757; B.N. Nagarajan v. State of Karnataka AIR 1979 SC 1676; P.D. Aggarwal v. State of U.P. AIR 1987 SC 1976; Union of India v. Arun Kumar Roy AIR 1986 SC 737; State of Madhya Pradesh v. GS Dall AIR 1991 SC 772; JAC of Airlines Pilots Association v. DG, Civil Aviation AIR 2011 SC 2220; N S Bindra, Interpretation of Statutes (LexisNexis, 13th Edition, 2022); Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Federation of Pakistan v. Shuja Sharif 2023 SCMR 129; Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691; Syed Azam Shah v. Federation of Pakistan 2022 SCMR 201; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Meenakshi Dubey v. Madhya Pradesh AIR 2020 MP 60; Smt. Bhuvaneshwari V. Puranik v. State of Karnataka AIR 2020 Kar. 2303; Superintendent of Police v. Ijaz Aslam 2024 SCMR 1831; Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SMCR 527; Pakistan Peoples Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574; Dr. Vijaya Manohar v. Kashi Rao AIR 1987 SC 1100; Sir William Blackstone in William Blackstone, Commentaries on the Laws of England, Book The First: Chapter the Fifteenth: Of Husband and Wife (Oxford Press) defines coverture as, "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquires by the marriage; E. H. Deering, 'Coverture and Lasting Effects of Gender Inequality: An Analysis through Equal Protection Jurisprudence' Washington University Jurisprudence Review (Volume 16, Issue 2, 2024); Reed v. Reed 404 U.S. 71 (1971); Frontiero v. Ricardson 411 U.S. 677 (1973); Kirchberg v. Feenstra 450 U.S. 455 (1981); Bombay Labour Union v. Messrs International Franchises AIR 1966 SC 942; C. B. Muthamma v. Union of India AIR 1979 SC 1868; Air India v. Nargesh Meerza AIR 1981 SC 1829; Joseph Shine v. Union of India AIR 2018 SC 4898; Murdoch v. Murdoch [1975] 1 SCR 423; Bhe v. Magistrate Khayelitsha 2005 (1) SA 580 (CC); International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social, and Cultural Rights (1966). Pakistan ratified ICCPR in 2010 and ICESCR in 2008 and Pakistan ratified the CEDAW on 3 December, 1996; CEDAW Committee, General Recommendation No. 33 on Women's Access to Justice, UN Doc. CEDAW/C/GC/33 (2015) https://digitallibrary.un.org/record/ 807253/files/CEDAW_C_GC_33-EN.pdf?ln=en accessed 23 March, 2025; Martha Albertson Fineman, The Autonomy of Myth: A Theory of Dependency (The New Press, 2005); bell hooks, Feminism is for Everybody: Passionate Politics (South End Press, 2000). She chose to write her name in lowercase to de-emphasize her personal identity and draw attention to her work and message, rather than herself; Simone de Beauvoir, The Second Sex (translated by H.M. Parshley) (Jonathan Cape, 1953); In existentialist terms (drawing on Jean-Paul Sartre, a French philosopher), the "other" means being objectified, excluded from subjectivity, and treated as something less than fully human, especially in social, cultural, and legal systems; Simone de Beauvoir, The Second Sex (translated by H.M. Parshley) (Jonathan Cape, 1953); General Post Office, Islamabad and others v. Muhammad Jalal PLD 2024

SC 1276; Paragraph 25 of the judgment provides that "it is clarified

that the instant judgment shall not affect the appointments already

made of the widow/widower, wife/husband or child of deceased or retired civil servants"; Zarai Taraqiati Bank v. Sarfraz Khan Jadoon 2021 SCMR 1305; Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956; According to the Merriam-Webster Dictionary, the term "liability" connotes "the quality or state of being liable" or "one that acts as a disadvantage"; Paragraph 7 of the impugned judgment rel.

(b) Islamic law---

----Women rights over their earnings---Scope---Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status---Any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to egalitarian spirit of Islamic law.

Surah An-Nisa (4:7): "For men is a share of what the

parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much-a share ordained rel.

Rehman Ullah, Advocate Supreme Court for Petitioner (through V.L. Peshawar Registry).

Shah Faisal Ilyas, A.A.G. Khyber Pakhtunkhwa along with Ms. Sabra Parween, DEO (F) Karak for Respondents.

Assisted by: Umer A. Ranjha, Judicial Law Clerk.

P L D 2025 Supreme Court 541

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Shakeel Ahmad, JJ

ASJAD ULLAH---Petitioner

Versus

Mst. ASIA BANO and others---Respondents

Civil Petition No. 3920 of 2024, decided on 22nd April, 2025.

(Against the judgment dated 01.07.2024 passed by the Lahore High Court, Lahore in W.P. No. 6032 of 2020).

Per Syed Hasan Azhar Rizvi, J; Shakeel Ahmad, J. agreeing; Musarrat Hilali, J. dissenting---

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

----S. 12---Custody of minor---Remarriage of mother---Effect---Mere fact of mother's remarriage does not ipso facto disentitle her from the custody of minor.

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

----S.12---Suit for custody of minor daughter---Remarriage of mother---Welfare of minor---Determination---Petitioner/father of minor daughter was aggrieved of concurrent findings of facts by all Courts below disentitling him from the custody of his minor daughter which was with respondent/mother---Plea raised by petitioner was that mother was not entitled to the custody as after divorce she had remarried a person falling in prohibitory degree to the minor---Validity---Petitioner was residing abroad and merely two months after his marriage with respondent, he returned abroad while respondent stayed in Pakistan---Petitioner pronounced divorce upon respondent while residing abroad---Petitioner had neither seen his minor daughter since her birth nor made any effort to meet her---He did not return to Pakistan to pursue custody of minor instead filed application for custody after his arrival in Pakistan due to demise of his father---Petition and subsequent appeal were filed through his attorney, who represented him in the proceedings---Petitioner did not appear personally in either trial or Lower Appellate Court or in Constitutional petition---Application for custody was not motivated by affection or concern for the minor instead it was a retaliatory measure in response to the suit instituted by respondent for recovery of dowry articles and maintenance---There was no evidence on record to suggest that respondent failed in her duty to properly care for the minor or to provide her with proper education and upbringing---Minor was about 13 years of age, she had never seen her father, who had been residing outside Pakistan since before her birth---Throughout her life, she had developed a strong emotional attachment with her mother, who was her sole source of love, care, guidance, and financial support---Petitioner, as the father, had never made any attempt to contribute towards minor's educational expenses, nor had he inquired about her schooling or well-being---Minor was receiving quality education in a reputable private school and had consistently been securing top positions in her class, which reflected her academic excellence, proper upbringing, and stable environment---At such delicate and formative stage of adolescence, when emotional security, proper moral upbringing, and a strong educational foundation are of paramount importance for minor's future growth and development, any unwarranted disturbance or change in environment of minor would likely cause irreversible harm to minor's personality and career---It was imperative for welfare, betterment and best interests of the minor, that her custody remain with her mother---Supreme Court declined to interfere in judgment passed by High Court which was well-reasoned and had considered all material aspects of the case---Petitioner failed to point out any illegality or infirmity in concurrent findings of the Courts below---Petition for leave to appeal was dismissed and leave to appeal was refused. [Majority view]

Khan Muhammad v. Mst. Surayya Bibi and others 2008 SCMR 480; Rahimullah Choudhary v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305; Feroze Begum v. Muhammad Hussain 1978 SCMR 299; Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839; Tahira v. Additional District Judge, Rawalpindi and others 1990 SCMR 852; Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin and another 1995 SCMR 1206; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123; Mst. Shahista Naz v. Muhammad Naeem Ahmed and another 2004 SCMR 990; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 and Sardar Hussain and others v. Mst. Parveen Umer PLD 2004 SC 357 rel.

Per Musarrat Hilali, J (dissenting) [Minority view]---

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

----S. 12---Constitution of Pakistan, Art. 185(3)---Suit for custody of minor daughter---Remarriage of mother---Welfare of minor---Determination---Petitioner/father of minor daughter was aggrieved of concurrent findings of facts by all Courts below disentitling him from the custody of his minor daughter which was with respondent/mother---Plea raised by petitioner was that mother was not entitled to the custody as after divorce she had remarried a person falling in prohibitory degree to the minor---Validity---Petitioner was biological father of the minor who had sought custody of his minor daughter residing with her maternal grand-mother---Respondent had already remarried and was settled abroad whereas petitioner had not remarried---Given the sensitive nature of custody matters and paramount importance of welfare of minor, assertions raised by petitioner, though not determinative at present stage of proceedings before Supreme Court, merited issuance of notice, which would have enabled a more comprehensive assessment of the matter---Father holds a position of vital importance in a child's life, offering not only emotional stability but also social identity and support within our societal structure---Petition did not merit dismissal without issuance of notice to respondent.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioner along with petitioner in-person.

Nemo for Respondents.

P L D 2025 Supreme Court 557

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Shakeel Ahmad, JJ

The STATE through P.G. Punjab, Lahore---Petitioner

Versus

JUDGE ATC NO. 1, RAWALPINDI and others---Respondents

Criminal Petitions Nos. 809, 810, 813 and 792 of 2024, decided on 7th April, 2025.

(Against the order dated 13.06.2024 of the Lahore High Court, Lahore passed in T.As. Nos. 30073, 28372, 28362 and 28373 of 2024).

Constitution of Pakistan---

----Art. 203---Chief Justice of High Court---Observations---State functionaries were aggrieved of observations made by Chief Justice of Lahore High Court against them in judgment pertaining to transfer of a criminal case from one Court to the other Court---Validity---Chief Justice of High Court acted within his Constitutional authority under Article 203 of the Constitution to supervise proceedings of subordinate Courts, including Anti-Terrorism Courts---In the light of dismissal of reference against Presiding Judge by Administrative Judge due to insufficient grounds, the Chief Justice was fully justified in not taking further action on the transfer application, which lacked merit and was based solely on a reference that lacked compelling evidence---Chief Justice of a High Court in a province is the patris familias of judiciary within that province---Any inaction on the part of Chief Justice of High Court, in response to any such like complaint of a judicial officer would be contrary to his Constitutional obligations under Article 203 of the Constitution---Observations in question were not to be regarded as determinative or conclusive in any subsequent forum and any future assessment of their conduct should be made independently, on its own merits, strictly in accordance with the law---Petition for leave to appeal was disposed of accordingly.

Mehram Ali's case PLD 1998 SC 1445 rel.

Syed Zulfiqar Abbas Naqvi, Special Prosecutor, assisted by Mudassar Hussain Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in all cases).

Respondents Not represented (in all cases).

P L D 2025 Supreme Court 560

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

SHAHBAZ LATIF---Petitioner

Versus

DIG, PAKISTAN RAILWAYS HEADQUARTERS OFFICE, LAHORE and others---Respondents

C.P.L.A. No. 2646 of 2023, decided on 19th May, 2025.

(Against the judgment dated 11.04.2023 passed by the Federal Service Tribunal, Islamabad in Appeal No. 970(R)CS of 2019).

(a) Civil service---

----Considerable length of service---Appointment later found to have been procured through misrepresentation---Dismissal from service---Retrospective recovery of salary---Scope---Petitioner, after rendering services for fifteen years, was dismissed on account of defect in his initial appointment, and salaries received by him were also held recoverable---Validity---Though a public employment secured through misrepresentation or tampered credentials is void ab initio and confers no vested right upon the appointee, nonetheless, the issue of retrospective salary recovery for services rendered over a significant period engages broader principles of fairness, equity, and administrative accountability---In the present case, after fifteen years of continuous and uninterrupted service of petitioner, the Department initiated an inquiry into educational credentials of the petitioner---There is no material on record to show that the petitioner deliberately concealed or suppressed his academic record during this time or resisted verification---On the contrary, service of the petitioner was accepted, utilized, and remunerated without demur or objection---Petitioner had indeed discharged all assigned responsibilities without lapse---In such circumstances, the employer having accepted and benefited from fifteen years of unblemished service cannot now seek restitution of benefits already consumed---Principles of equity, good conscience, and public interest dictate that in the absence of fraud or dishonest conduct by the employee, retrospective recovery of wages is unjust---The recovery of salary for services lawfully and diligently performed is impermissible, notwithstanding defects in the initial appointment---Thus, the order for recovery in the present case is arbitrary, excessive, and in clear violation of equitable principles---Supreme Court set-aside the impugned judgment to the extent of recovery of salary from the petitioner, however, the petitioner's dismissal from service, on account of ineligibility at the time of appointment, would remain intact---Petition was converted into an appeal and was partially allowed accordingly.

Shams ur Rehman v. Military Accountant General, Rawalpindi 2020 SCMR 188 and Engineer in Chief v. Jalaluddin PLD 1992 SC 207 ref.

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

----S. 70---Employment---Considerable length of service---Appointment later found to have been procured through misrepresentation---Dismissal from service---Retrospective recovery of salary---Scope---Doctrine of quantum meruit---Petitioner, after rendering services for fifteen years, was dismissed on account of defect in his initial appointment, and salaries received by him were also held recoverable---Validity---In the present case, the doctrine of quantum meruit finds clear and compelling application---This equitable principle permits reasonable compensation for services rendered where one party has knowingly accepted and benefited from the work of another, even in the absence of a valid or enforceable contract---For over fifteen years, the petitioner continuously performed duties that fulfilled institutional needs and was compensated accordingly---To retrospectively invalidate such remuneration despite the employer's full knowledge and acceptance of the services rendered would be contrary to the fundamental tenet that no person should unjustly enrich themselves at the expense of another---In the present case, it was the employer/ Department that stood to benefit unjustly---Said principle finds statutory recognition under Section 70 of the Contract Act, 1872---Therefore, even where an employment / appointment is found to be irregular, if the employee has continuously and faithfully discharged official functions and the employer has enjoyed the resulting benefit over a significant period, the doctrine of quantum meruit furnishes both a moral and legal basis to preclude retrospective recovery of salary---Labors that is not donated but knowingly accepted must be compensated regardless of technical infirmities in the appointment process---The recovery of salary for services lawfully and diligently performed is impermissible, notwithstanding defects in the initial appointment---Thus, the order for recovery in the present case was arbitrary, excessive, and in clear violation of equitable principles---Supreme Court set-aside the impugned judgment to the extent of recovery of salary from the petitioner, however, the petitioner's dismissal from service, on account of ineligibility at the time of appointment, would remain intact---Petition was converted into an appeal and was partially allowed accordingly.

Craven-Ellis v. Cannons Ltd (1936) 2 KB 403 and Benedetti v. Sawiris [2013] UKSC 50 ref.

(c) Employment---

----Doctrine of quantum meruit---Scope---The doctrine of quantum meruit, literally meaning "as much as he has earned" or "as much as he deserves" and is a foundational principle of equity and restitution in both common law and civil law jurisdictions---Said principle enables a party to claim reasonable compensation for services rendered or work performed, even where a contract is void, unenforceable, or otherwise defective---The doctrine rests not merely on contractual notions, but on the broader equitable premise that a person who has received and retained a benefit should not be allowed to do so without paying reasonable compensation, particularly where the services were not intended to be gratuitous; which creates an implied obligation in law, akin to a quasi-contract, compelling restitution where unjust enrichment would otherwise result.

State of West Bengal v. Messrs B.K. Mondal and Sons AIR 1962 SC 779 ref.

(d) Civil service---

-----Doctrine of administrative acquiescence---Scope---Considerable length of service---Appointment later found to have been procured through misrepresentation---Dismissal from service---Retrospective recovery of salary---Scope---Petitioner, after rendering services for fifteen years, was dismissed on account of defect in his initial appointment, and salaries received by him were also held recoverable---Validity---The doctrine of administrative acquiescence rooted in principles of equity and fairness, which (doctrine) is based on the idea that if a person, observing another about to perform an act that might infringe upon their rights, remains silent in circumstances where an objection might have prevented the act, they may later be estopped from objecting---Transposed to public law, it implies that prolonged inaction or silence by a public authority, particularly where it had the duty and opportunity to act may amount to institutional acquiescence---In such cases, the authority's delay in enforcing its rights or correcting an irregularity can defeat retrospective punitive action, especially where the individual affected has acted in good faith and to the authority's benefit throughout---The prolonged inaction by the department, its failure to undertake any meaningful verification or scrutiny of the petitioner's appointment for fifteen years amounted to institutional negligence---Significantly, it was only after the passage of fifteen years that the department initiated an inquiry into the petitioner's appointment---Said belated action, without any intervening misconduct by the petitioner, underscored that the lapse lies entirely with the department---Administrative silence over such an extended period, particularly where it results in the receipt and acceptance of services, may amount to acquiescence and estop the department from seeking retrospective punitive measures---Petitioner could not be faulted for the department's own dereliction of its gatekeeping responsibilities---While the eventual termination of service due to irregular appointment may be legally sustainable, the direction for recovery of fifteen years' salary without any allegation or proof of fraud or mala fide intent on the part of the petitioner was manifestly disproportionate, inequitable, and legally untenable---The recovery of salary for services lawfully and diligently performed was impermissible, notwithstanding defects in the initial appointment---Thus, the order for recovery in the present case was arbitrary, excessive, and in clear violation of equitable principles---Supreme Court set-aside the impugned judgment to the extent of recovery of salary from the petitioner, however, the petitioner's dismissal from service, on account of ineligibility at the time of appointment, would remain intact---Petition was converted into an appeal and was partially allowed accordingly.

Ramsden v. Dyson (1866) LR 1 HL 129; Sardar Ali Khan v. State Bank of Pakistan 2022 SCMR 1454 and Market Committee, Multan v. Additional Commissioner (Consolidation) Multan 2023 SCMR 1683 ref.

Misbah Gulnar Sharif, Advocate Supreme Court for Petitioner.

Imran Masood, Advocate Supreme Court for Respondents. (Through V.L. Lahore Registry) Mian Ghulam Hussain, Advocate Supreme Court.

Assisted by: Umer A. Ranjha, Judicial Law Clerk, Supreme Court of Pakistan

P L D 2025 Supreme Court 567

Present: Irfan Saadat Khan and Muhammad Shafi Siddiqui, JJ

MUHAMMAD AZAM and others---Appellants

Versus

MUHAMMAD AIJAZ---Respondent

Civil Appeal No.99-K of 2022, decided on 17th March, 2025.

(Against the Order dated passed by High Court of Sindh, Karachi in IInd Appeal No.18 of 2019).

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

----Ss. 100 & 101---Second Appeal---Maxim "interest reipublicae ut sit finis litium" (it concerns the state that there be an end to litigation)---Applicability---Provisions restricting grounds that may be taken in second appeal are based on public policy expressed in the maxim "interest reipublicae ut sit finis litium" (it concerns the state that there be an end to litigation)---Conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained---No Court has power to add or enlarge the grounds, so as to determine a question merely on an equitable ground if they come in conflict with them or ignore the provisions of law.

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

----S. 12---Civil Procedure Code (V of 1908), S. 100---Second appeal---Suit for specific performance---Judgment at variance---Findings of facts--- Preference--- Suit filed by respondent/plaintiff was decreed in his favour by Trial Court but Lower Appellate Court allowed appeal of petitioners/defendants and dismissed the suit---High Court while disposing of Second Appeal, decreed the suit in favour of respondent/plaintiff---Validity---If findings of facts reached by Lower Appellate Court are at variance with those of Trial Court, the former are to ordinarily prevail although it would not possess the same value or sanctity as that of a concurrent finding---Such findings by Lower Appellate Court are immune from interference in Second Appeal provided they have passed the test prescribed under section 100, C.P.C.---Findings of two Courts cannot be subjected to a Second Appeal, even if erroneous---In the present case judgment passed in Second Appeal was nothing but a replacement by High Court of its own view in an attempt to do equity which was not permissible under section 100, C.P.C.---Second Appeal could not operate as a regular First Appeal under section 96 C.P.C.---Supreme Court set aside judgment and decree passed by High Court in exercise of Second Appeal and restored that of Lower Appellate Court, as it was an interference and was neither justified nor required---Specific performance was only a discretionary relief and such discretion was lawfully exercised by Lower Appellate Court---Appeal was allowed.

District Council Sialkot v. Nazir Ahmed Khan 2001 SCMR 1641 and Mir Abdullah v. Muhammad Ali 1977 SCMR 280 rel.

Muhammad Aqil, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants.

Muhammad Saleem Ansari, Advocate High Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Respondent.

P L D 2025 Supreme Court 572

Present: Yahya Afridi, C.J. and Shahid Waheed, J

MUHAMMAD SHAKEEL and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and others---Respondents

C.P.L.A. No. 4582 of 2023, decided on 14th February, 2025.

(Against the judgment dated 31.10.2023 passed by the Lahore High Court, Lahore in W.P. No.68599 of 2022).

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

----O. I, R.10---Joinder and non-joinder of necessary and proper party---Object, purpose and scope---If a person deemed necessary to a suit is not joined as a party, this situation is referred to as non-joinder---All persons must be joined as defendants against whom any right to relief is alleged to exist---Necessary party is the person in whose absence no effective order can be passed at all---Proper party is the person in whose absence effective order can be made but whose presence is necessary for a complete and final decision on a question involved in proceedings.

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

----S. 2 (d)---Word "party"---Connotation---Word "party"as defined in section 2(d) of Family Courts Act, 1964, includes any person whose presence as such is considered necessary for a proper decision of the dispute---To ensure presence of real defendant, power is also given to Family Court to add such a person as a party to the dispute---As such the definition is liberal and extensive and is not confined only to spouses rather, it gives a right and the prerogative to choose and implead in a suit as defendant, the person against whom relief is sought.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Muhammad Arif v. District and Sessions Judge, Sialkot 2011 SCMR 1591 rel.

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

----S. 5, Sched.---Recovery of dowery articles---Joinder of parties other than spouses---Petitioners/defendants were brother and wife of ex-husband of respondent/plaintiff---Suit for recovery of dowery articles was decreed by Family Court against petitioners/defendants---Judgment and decree was maintained by Lower Appellate Court and High Court---Validity---Jurisdiction of Family Court is not contingent upon identities of individuals or persons involved; instead, it is fundamentally defined by nature of subject matter presented in suit---Any dispute that pertains to the categories outlined in the schedule of Family Courts Act, 1964 can be brought to Family Court, regardless of who the parties are---Such broad approach is designed to ensure that a diverse array of family-related disputes - ranging from matrimonial issues to child custody arrangements, can be addressed in a specialized forum tailored to handle sensitive familial matters---Legislation does not specify particular individuals or persons who possess exclusive right to initiate or defend actions in Family Court---Petitioners/defendants failed to bring forth any witnesses who could confirm return of dowry articles in their presence---Petitioners/ defendants were obligated to return dowry articles in question and a decree was issued in favour of respondent/plaintiff---Petitioners/ defendants failed to point out any irregularities or errors in proceedings of Family Court or any discernible errors in law that High Court could have the authority to address in its Constitutional jurisdiction---Supreme Court declined to interfere in concurrent judgments and decrees passed by the Courts below---Petition for leave to appeal was dismissed and leave to appeal was refused.

East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663; Muhammad Arif v. District and Sessions Judge, Sialkot 2011 SCMR 1591; Quinn v. Leathem 1901 AC 495; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361 ref.

Fawad Ishaq v. Mst. Mehreen Mansoor PLD 2020 SC 269 distinguished.

(d) Precedent---

----Generalizing of judgment---Principle---Legal case holds authority solely concerning specific issues it addresses and the conclusions it reaches---Judgment cannot be generalized beyond its context, as it is only applicable to the situation at hand and does not serve as a precedent for matters that lie outside its explicit scope.

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

----S. 5---Constitution of Pakistan, Art. 199(1)(a)(ii)---Family disputes---Writ of certiorari---Scope---High Court can issue an order of certiorari to rectify jurisdictional errors committed by subordinate Courts in family law matters---Such errors can arise when Family Courts or First Appellate Courts issue decisions without jurisdiction, in excess of jurisdiction, or fail to exercise their jurisdiction altogether---Certiorari order is applicable when Family Court or First Appellate Court acts in an illegal or improper manner while exercising its jurisdiction---This includes situations where Court makes determinations without providing an affected party opportunity to be heard or where procedural methods employed contravene fundamental principles of natural justice---It is crucial to recognize that High Court's jurisdiction to issue certiorari is fundamentally supervisory, meaning, it does not possess authority to function as an appellate body---Such supervisory role imposes clear limitations: specifically, it prohibits High Court from reevaluating or questioning factual findings made by subordinate Courts based on their assessment of evidence---High Court does not engage in reviewing or re-weighing evidence that underlies decisions made by Family Court or First Appellate Court---Instead, it may only nullify a decision it finds to be beyond jurisdiction or grossly erroneous without imposing its own conclusions in place of those reached by lower Courts---Certiorari orders can be granted solely when a clear error of law is evident on the face of record; however, this does not extend to addressing errors of fact, regardless of their severity.

Mrs. Shireen Imran, Advocate Supreme Court for Petitioners.

Tauseef Ejaz Malik, Advocate Supreme Court via video link from Branch Registry Lahore for Respondents

P L D 2025 Supreme Court 582

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

ISHFAQ AHMED ---Petitioner

Versus

MUSHTAQ AHMED and others---Respondents

C.P.L.A. No. 1010-L of 2022, decided on 13th March, 2025.

(Against the impugned judgment dated 24.03.2022 passed by the Lahore High Court, Lahore in W.P. No. 75382 of 2021).

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 19---Ejectment of tenant---Striking off defence---Petitioner/ landlord was aggrieved of judgment passed by High Court setting aside eviction order passed against respondent/tenant to vacate rented premises---Validity---Oral testimonies and documentary evidence produced by petitioner/landlord remained unchallenged, as right of respondent/tenant to cross-examine petitioner's/landlord's witnesses was struck off and that order attained finality, having remained unchallenged by respondent/tenant---In absence of any rebuttal or cross-examination, evidence led by petitioner/landlord stood uncontro-verted---Material on record conclusively established that petitioner/ landlord was lawful owner of the property---Rent proceedings, by their very nature, are summary in character and are intended to ensure swift and efficient resolution of landlord-tenant disputes, particularly in cases of default, so as to safeguard landlord's Constitutionally protected right to property---Petitioner/landlord remained embroiled in litigation for over seven years merely to recover possession of his property---Course of delay ran counter to the foundational objectives of rent legislation and summary adjudication---Such undue delays not only eroded Constitutional rights of property owners but had also given rise to broader economic and social justice concerns---For landlords, prolonged litigation entails financial strain, loss of rental income, and an inability to utilize their property for productive purposes, which can hinder economic growth---Conversely, tenants facing eviction proceedings often live in uncertainty, which can affect their social and economic stability---A just legal system must, therefore, ensure an equitable balance between rights of landlords and tenants, a balance that is fundamentally disrupted when cases are permitted to stagnate in judicial pipeline---Supreme Court set aside judgment passed by High Court and restored that of Lower Appellate Court, which had rightly upheld the claim of petitioner/landlord---Supreme Court directed respondent/tenant to vacate property in question within two months---Appeal was allowed.

(b) Constitution of Pakistan---

----Art. 10A---Right to fair trial and due process of law---Artificial Intelligence (AI), use of---Principle---Right to a fair trial before a competent, independent, and impartial judge is a fundamental principle of due process---AI must not overshadow the core guarantee of judicial autonomy--- While AI has potential to improve consistency and efficiency in legal processes, it also carries risk of introducing biases and limiting judicial discretion---Fairness and transparency must apply equally to AI-assisted rulings---Though AI may enhance efficiency and consistency, it cannot replicate normative judgment, ethical reflection, or contextual sensitivity essential to the act of judging---Dignity of judicial role lies not in mechanical generation of outcomes but in deliberative process of reasoning, listening, and responding a task that remains inherently and irreducibly human---Judicial reasoning involves not only logic but also humanity and it requires attentiveness, moral courage, and the ability to question unjust laws or outdated precedents---By contrast, AI operates within the constraints of existing data and lacks creative imagination and jurisprudential foresight necessary to develop new legal doctrines or safeguard emergent rights---Comparative jurisdictions have cautiously explored AI-assisted adjudication.

Article 10 provides: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. Article 37(d) provides: The State shall ensure inexpensive and expeditious justice. John Varghese, 'Artificial Intelligence Assisted Judicial Processes - A Primer' SSRN < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5056102 > accessed 8 April 2025; Adrian Zuckerman, 'Artificial Intelligence in the Administration of Justice' in The Civil Procedure Rules at 20 (Oxford University Press, 2020) and Yadong Cui, Artificial Intelligence and Judicial Modernization (Springer, 2020). J Juan David Gutiérrez, 'ChatGPT in Colombian Courts: Why We Need to Have a Conversation About the Digital Literacy of the Judiciary' (23 February 2023) Verfassungsblog https://verfassungsblog.de/colombian-chatgpt/ accessed 6 April 2025. 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AM (a juvenile) judgment dated 29.03.2023 <https://courtingthelaw.com/wp-content/ uploads/ChatGPT-4-Abdul-Moaiz-v-State.-FIR-No. - 15-2023.-Offence-376iii-51 1-P.S-Bhagat..-allowed.-29.03.2023.pdf> accessed 28 March 2025; AI-driven methodologies, including machine learning ("ML") algorithms, generative AI ("GenAI"), predictive modelling and advanced text analytics, e.g., natural language processing ("NLP"); Joely Williamson, 'The Rise of AI in Legal Practice: Opportunities, Challenges, & Ethical Considerations' (21 March 2025) Colo Tech LJ https://ctlj.colorado.edu/?p=1297 accessed 6 April 2025; LexisNexis, 'The Power of Artificial Intelligence in Legal Research' (6 November 2023) https://www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/the-power-of-artificialintelligence-in-legal - https://www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/the-power-of-artificialintelligence-in-legal- research accessed 6 April 2025; This includes the NLP, ML, and Large-Scale Data Analytics; Thomson Reuters, 'Westlaw: Legal Research Platforms' https://legal.thomsonreuters.com/en/westlaw accessed 29 March 2025; Thomson Reuters, 'Westlaw Expert Materials' https://legal. thomsonreuters.com/en/products/westlaw/expert-materials accessed 29 March 2025; Thomson Reuters, 'Compare Westlaw Plans' https://legal.thomsonreuters.com/en/westlaw/plans-andpricing accessed 29 March 2025; Thomson Reuters, 'Westlaw Editorial Enhancements' https://legal.thomsonreuters.com/en/products/westlaw/expert - https://legal.thomsonreuters.com/en/products/westlaw/expert- materials accessed 29 March 2025. 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(c) Administration of justice---

----Alternate Dispute Resolution---Mediation---Artificial Intelligence (AI), use of---Principle---AI lacks ability to feel emotional tenor, to de-escalate tension between parties, or to recognize the power of silence in a negotiation---AI also cannot build trust across the table through empathy, qualities essential to successful mediation---This is where human mediators continue to hold the advantage---AI may be able to streamline many facets of legal practice, it cannot replicate deeply human process of mediation, where the emphasis is on understanding, negotiating, and resolving conflicts through human interaction---Mediation is emerging as the future power player in dispute resolution.

Muhammad Shahzar Ilahi, 'Most Lawyers I Know Will be Irrelevant in 10 Years' < https://www.linkedin.com/posts/muhammad-shahzar-ilahi-44352b8b_most-lawyers-i-know-will-be-irrelevant-inactivity-7315385896659255296-PzHY/?utm_source=share&utm_medium= member_ios&rcm = ACoAABMfGrMBX_wunGlxSCmC6vWI765cPtD D2rI> accessed 9 April 2025; Sir Robert Buckland, 'AI, Judges and Judgment: Setting the Scene' M-RCBG Associate Working Paper No. 220, Harvard Kennedy School (November, 2023) and PhD Researcher in AI and Law, University of Buckingham (U.K.) rel.

Moeen Ahmed, Advocate High Court with special permission for Petitioner (through V.L. Lahore Registry).

Khalid Jamil, Advocate Supreme Court for Respondents (through V.L. Lahore Registry).

P L D 2025 Supreme Court 612

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Mst. PARVEEN ARA---Appellant

Versus

MUHAMMAD HANIF and others---Respondents

Civil Appeal No. 47-K of 2021, decided on 7th March, 2025.

(On appeal from against order dated 07.04.2021 passed by the High Court of Sindh, Karachi in C.P. No. S-107 of 2013).

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

----S. 15-A---Limitation Act (IX of 1908), First Sched., Art. 181---Restoration of possession---Limitation---Principle of laches---Applicability---Grievance of appellant/tenant was that after seeking her ejectment from the premises on basis of personal need, the respondent/landlord did not utilize it for his bona fide personal need---Rent Controller allowed the application of appellant/tenant and ordered to restore possession to her but Lower Appellate Court and High Court declined to interfere in the ejectment order---Validity---Tenant cannot be given an unlimited period of time to apply under section 15-A of Sindh Rented Premises Ordinance, 1979---Period of one year cannot be construed as a period of limitation for tenant to apply but such right cannot be extended indefinitely at the leisure of tenant---Such application should be preferred within a reasonable period of time and it is for Rent Controller to decide whether the application is hit by laches rather than applying limitation period as provided under residuary Article 181 of First Schedule to the Limitation Act, 1908---Supreme Court directed to restore possession of premises to appellant/tenant and set aside the orders passed by High Court and Lower Appellate Court---Appeal was allowed.

Words and Phrases (West Publishing Co.) Vol. 18A, (Permanent Edition, Pages 84-85); Stroud's Judicial Dictionary, John S. James, (Volume 2, page 1172); Law Terms and Phrases (Judicially Interpreted, Sardar Muhammad Iqbal Khan Mokal) Page 416; Venkataramaiya's Law Lexicon and Legal Maxims [2nd Edition, Page 942 (1986)]; Oxford. Dictionary of Law [Elizabeth A. martin 2022 Ed.], Page 328; Merriam Webster. Merriam Webster. [https://www.merriam-webster.com/ dictionary/good%20faith]; Legal Information Institute [Cornell Law School] [https://www.law.cornell.edu/wex/good faith]; Abdul Ghaffar and others v. Mst. Mumtaz PLD 1976 SC 572; Ali Muhammad

and another v. Fazal Hussain and others 1983 SCMR 1239; Allah

Dino v. Muhammad Shah 2001 SCMR 286; The Canara Bank Ltd. v. The Warden Insurance Co. Ltd. AIR 1935 Bombay 35; Ali

Muhammad and another v. Fazal Hussain and others 1983 SCMR

1239; Collector of Customs (Appraisement) v. Messrs Saleem

Adaya, Karachi PLD 1999 Karachi 76; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Haji Hussain Haji Dawood

through LRs and others v. M.Y. Kherati 2002 SCMR 343; Abdul Ghaffar v Mumtaz PLD 1982 SC 88; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Rahim Jan v. Securities Exchange Commission of Pakistan 2002 SCMR 1303; The Rule of Law. (2010 Edition); Dr. Mobashir Hassan and others v. Federation of Pakistan PLD 2010 SC 265; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923; Pakistan Burmah Shell Ltd. v. Mrs. Nasreen Irshad 85 others 1989 SCMR 1892 and Abdus Sattar Molla v. Crown PLD 1958 FC 145 ref.

(b) Interpretation of statutes---

----General and special law---Scope---Specific or detailed provisions of a legal instrument should prevail over more general or conflicting provisions---When provision of a general law and special law addresses same issue or matter, the general law is impliedly repealed to the extent that the special law applies---In determining whether a statute is special or general, the focal point of consideration should principally and fundamentally be the subject matter---In the exigency of deciphering the Legislative intent or in case of conflict, the rule of harmonious construction can be adopted to interpret both co-existing provisions in a manner that gives effect to both without rendering either ineffectual or out of order.

(c) Maxim---

----Fiat justitia ruat caelum---Meaning---Let justice be done though heavens fall.

(d) Maxim---

----Ex debito justitiae---Meaning---Doctrine of ex debito justitiae refers to remedies to which a person is entitled to as of right, as opposed to a remedy which is discretionary---Such maxim applies to remedies that a Court is bound to give when they are claimed, as distinct from those that it has discretion to grant, where it is the foremost duty of Court to do complete justice.

(e) Administration of justice---

----Continuing wrong, doctrine of---Scope---If law is violated, the wrongdoer is continuously liable for penalty envisioned under law---Quintessence of continuing wrong is an act which triggers a continuing source of injury but the Courts should not be fervent or zealous to hold continuing wrong or default unless the language of statute or its provision clearly expresses such intention of legislature, or the nature of such injury is considered continuing, or it is based on a recurring cause of action.

(f) Maxim---

----Expressio unius est exlusio alterius---Connotation---Expressio unius est exlusio alterius denotes that to express or include one thing implies the exclusion of the other or of the alternative, keeping in mind that if a law or contract explicitly mentions one thing it is assumed that other things are not included.

(g) Maxim---

----Ex visceribus actus----Connotation---Phrase ex visceribus actus deciphers the principle that every section/clause of a statute should be construed with reference to the context and other clauses of the Act, so as to make a consistent enactment of the whole statute or series of statutes relating to the subject matter.

(h) Maxim---

----Ut res magis valeat quam pereat---Connotation---Principle of giving effect to the matter rather than having it fail.

Appellant in person.

Badar Alam, Advocate Supreme Court assisted by Kashif Badar, Advocate for Respondents Nos. 1-3.

Iftikhar Javed Qazi, Advocate Supreme Court Amicus Curiae.

P L D 2025 Supreme Court 633

Present: Shahid Waheed, Irfan Saadat Khan and Aqeel Ahmed Abbasi, JJ

DIRECTORATE OF INTELLIGENCE AND INVESTIGATION-FBR, through Director and others---Petitioners

Versus

TAJ INTERNATIONAL (PVT.) LTD. and others---Respondents

Civil Appeals Nos. 350 to 698 of 2016, 424, 511, 512, 673, 1183 and 1184 of 2020, Civil Petition for Leave to Appeal No. 1066 of 2018, Criminal Appeal No. 177 of 2019 and C.M.A. No. 12231 of 2021, decided on 4th December, 2024.

(Against the judgments/order dated 19.09.2013, 20.03.2014, 02.04.2015, 07.04.2015, 16.03.2015, 26.07.2016, 18.10.2017 and 11.12.2018 of the Lahore High Court, Lahore, High Court of Sindh, Karachi, Peshawar High Court, Peshawar and Islamabad High Court, Islamabad passed in Writ Petitions Nos. 5047/2012, 17743/2012, 11294/2012, 27865/2011, 21612/2012, 873/2011, 28231/2012, 10852/ 2012, 11297/2012, 10698/2012, 2726/2011, 18221/2012, 10456/2012, 9652/2012, 11519/2012, 22738/2011, 11455/2012, 7918/2012, 6743/ 2012, 20298/2011, 18058/2011,27422/2011, 26489/2011, 9020/2011, 12384/2012, 10908/2011, 7029/2011, 18029/2012, 10330/2012, 8256/ 2011, 9654/2012, 11268/2012, 27863/2011, 21725/2011, 15927/2011, 417/2012, 9736/2012, 5634/2012, 6794/2012, 25182/2011, 11746/2012, 12568/2011, 27864/2011, 9048/2012, 20261/2012, 10838/2012, 14436/ 2011, 9324/2012, 11555/2012, 418/2012, 11030/2012, 20160/2012, 9616/ 2012, 11745/2012, 5048/2012, 21611/2012, 15791/2012, 10688/2012, 7188/2012, 8695/2011, 17106/2012, 9936/2012, 26855/2011, 5381/ 2012, 25622/2012, 9017/2012, 9017/2012, 8402/2012, 10246/2012, 26857/2011, 25623/2012, 9655/2011, 9107/2012, 10499/2012, 9653/ 2012, 15281/2012, 17286/2012, 11921/2012, 9570/2012, 8257/2011, 15660/2012, 15470/2012, 9104/2012, 14136/2012, 11922/2012, 9354/ 2011, 13991/2012, 29671/2011, 15179/2012, 6391/2012, 18098/2012, 10330/2012, 9019/2011, 6848/2011, 10331/2012, 10331/2012, 16754/ 2012, 16997/2012, 887/2012, 6878/2013, 5300/2012, 9086/2012, 5334/ 2014, 7802/2011, 7895/2011, 8190/2012, 21449/2013, 9742/2012, 9742/2012, 11665/2012, 11021/2012, 21884/2013, 7686/2011, 21671/ 2012, 8568/2012, 10674/2011, 13721/2011, 9047/2012, 9087/2012, 13721/2011, 9651/2012, 11298/2012, 12159/2011, 18521/2011, 5885/ 2012, 22737/2011, 6572/2013, 15471/2012, 22075/2012, 10598/2012, 19218/2012, 8926/2011, 7670/2012, 20657/2012, 17332/2012, 26554/ 2010, 3173/2012, 19219/2012, 7877/2012, 20297/2011, 10341/2012, 6001/2012, 8740/2012, 13969/2012, 7917/2012, 24736/ 2012, 24736/2012, 11923/2012, 17447/2012, 9614/2012, 19673/2012, 20658/2012, 8271/2012, 6547/2013, 5246/2013, 5139/2013, 9041/2011, 19862/2011, 31741/2012, 8359/2011, 9157/2012, 9355/2013, 8226/ 2012, 9500/2012, 14205/2012, 20657/2012, 22447/2012, 8786/2012, 17447/2012, 8191/2012, 20657/2012, 11268/2012, 7648/2012, 19674/ 2012, 11300/2012, 11744/2012, 8848/2012, 11027/2012, 15251/2012, 8494/2012, 20922/2012, 8492/2012, 20674/2012, 9506/2012, 8943/ 2012, 9047/2012, 7658/2012, 9872/2012, 9512/2012, 8270/2012, 9504/ 2012, 7514/2012, 9503/2012, 9505/2012, 9505/2012, 12631/2012, 9113/2012, 9616/2012, 9615/2012, 9876/2012, 17918/2012, 26440/ 2012, 11137/2012, 14874/2012, 13838/2012, 11138/2012, 9166/2012, 6572/2013, 11544/2012, 888/2013, 888/2013, 13426/2012, 367/2013, 14784/2012, 14784/2012, 13805/2013, 368/2013, 5450/2013, 9255/ 2012, 16622/2011, 9486/2012, 16328/2012, 13577/2012, 27742/2012, 9158/2012, 11020/2012, 16810/12, 16811/12, 16812/12, 16813/12, 7657/2012, 10926/2012, 14784/2012, 17815/2012, 18758/2012, 25801/ 2012, 5109/2013, 5138/2013, 6412/2013, 8994/2012, 12461/2012, 22571/2012, 6572/2013, 20452/2013, 17589/2012, 5450/2013, 132/ 2013, 7074/2013, 22231/2013, Const. P.D-2273/2011, C.P.D-814/2012, 21438/2013, 21440/2013, 21440/2013, 26815/2012, 9920/2012, 22594/ 2012, 29753/2012, 21439/2013, 9873/2012, 12160/2011, 29411/2012, 18015/2011, 27352/2012, 11296/2012, 8154/2011, 1082/2012, 29563/ 2012, 11666/2012, 7406/2011, 20004/2012, 16607/2011, 9656/2011, 58/2013, 26568/2010, 109/2013, 22908/2013, 9045/2012, 11359/2011, 15800/2012, 2941/2012, 1110/2013, 9219/2011, 12493/2012, 20092/ 2012, 7056/2013, 29603/2012, 28912/2012, 8647/2011, 27866/2011, 110/2013, 23251/2010, 5333/2012, 9018/2011, 28142/2012, 26856/ 2011, 57/2013, 11256/2011, 12153/2011, 4580/2011, 9118/2011, 711/2013, 2145/2013, 5049/2012, 4478/2010, 2379/2012, 1985/2012, 19644/2011, 1043/2012, 11343/ 2011, 61/2013, 21441/2013, 4439/2010, 29751/2012, 11972/2012, 23402/ 2012, 29582/2011, 19107/2011, 59/2013, 27266/2011, 27803/2012, 10498/2012, 13031/2012, 1686/ 2012, 60/2013, 9423/2012, 7695/2012, 13657/2011, 8015/2012, 12670/ 2012, 4440/2010, 4440/2010, 26814/ 2012, 21770/2013, 17671/2013, 10935/2012, 26555/2010, 27578/2012, 24686/2011, 29653/2012, 6795/ 2012, 26769/2010, 12104/2012, 1879/ 2013, 6230/2012, 1076/2012, 1400/2011, 7315/2013, 34364/2015, 33510/ 2015, 45696/2017 and Cr.A.134/2017).

(a) Sales Tax Act (VII of 1990)---

----Ss. 3, 11 & 37-A---Recovery of sales tax---Power to arrest and prosecute---Principle---Authorities were aggrieved of quashing of FIRs by High Court registered against respondents/taxpayer for initiating criminal proceedings without determination of tax liabilities---Validity---Criminal penalties are linked with "tax loss" or "amount of tax involved and tax due"---Instead of providing for imprisonment or fine (ordinarily a certain sum of money) or both as punishment, "fine" under Sales Tax Act, 1990 requires taxpayer to pay the "tax loss" or "amount of tax involved and tax due," thereby indirectly criminalizing, recovery of "tax due"---Measure of sentence is linked with "amount or loss of tax involved and tax due" and prima facie, cannot be imposed unless there is some determination or duly assessed tax liability of sales tax due through the processes of assessment for adjudication as per law---Such linkage, uses the tool of imposition of penalty as a mode of recovery of tax---Criminalization under Sales Tax Act, 1990 goes beyond the pale of retribution and deterrence and is principally focused on recovery of tax---Without investigative audit or issuance of show cause notice or providing opportunity to explain the matters, registration of FIR, initiation of criminal proceeding and arrest of registered person was without jurisdiction and lawful authority---Prosecution was to follow adjudication and assessment of tax under section 11 of Sales Tax Act, 1990 therefore, pre-trial steps including arrest and detention could not be given effect to unless tax liability of taxpayer was determined in accordance with law---Supreme Court declined to interfere in judgments/orders passed by High Court---Appeal was dismissed.

Pakistan Accumulator (Pvt.) Ltd. v. Federation of Pakistan Writ Petition No.1076-P of 2012; Taj International (Pvt.) Ltd. v. FBR 2014 PTD 1807; Directorate of Intelligence and Investigation, FBR v. Naeem Ahmed Siddiqui Criminal Appeal No. 177 of 2019; Messrs F. M. Textile and others v. FBR 2017 PTD 1875; Taj International (Pvt.) Ltd. v. FBR and others 2014 PTD 1807; Waseem Ahmed and another v. Federation of Pakistan 2014 PTD 1734; D. G. Khan Cement Company Ltd. and others v. Federation of Pakistan and others 2004 SCMR 456 and Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81 rel.

(b) Sales Tax Act (VII of 1990)---

----Ss. 33 & 37-A---Constitution of Pakistan, Arts. 4 & 10A---Recovery of sales tax---Criminal proceedings, initiation of---Pre-requisites---Two pre requisites for invoking provisions of sections 33 and 37-A of Sales Tax Act, 1990 are: dependence of fine on the "amount or loss of tax involved" and window of compoundability which is available to taxpayer, who can pay the "amount of tax due along with such default surcharge and penalty as determined under the provisions of Sales Tax Act, 1990"---If such purpose is simple retribution and deterrence, then there is no need to make the fine dependent with the amount or loss of tax involved---If fine under criminal prosecution is to be dependent with amount or loss of tax, such a criminal construct must be prefaced with mandatory requirement of assessment of tax through civil adjudication provided under section 11 of Sales Tax Act, 1990---This precondition is the minimum Constitutional requirement to ensure fair trial and due process under Articles 4 and 10-A of the Constitution.

(c) Sales Tax Act (VII of 1990)---

----Ss. 2 (37), 3, 11, 33 & 37A---Assessment of tax---Offences and penalties---Criminal proceedings---Principle---Perusal of Section 37A of Sales Tax Act, 1990 shows that if such provisions are allowed to be invoked independently without any reference to the other relevant provisions of Sales Tax Act, 1990 including section 2(37) "tax fraud", section 3 "Scope of Tax", section 11 "Assessment of tax" and section 33 "Offences and Penalties", the same would be in violation of substantial provisions relating to charge of sales tax and assessment of sales tax, as it would give unbridled powers to officials of sales tax to initiate criminal prosecution against a registered person or any person within the supply chain, including registration of FIR and arrest, even without creating a lawful demand under the law---Such interpretation in respect of provisions of section 37-A of Sales Tax Act, 1990 would make the provisions of Sales Tax Act, 1990 redundant, whereas, redundancy cannot be attributed to legislation.

Zaheer Ahmed v. Directorate General of Intelligence and Investigation-IR and 4 others 2015 PTD 349 and Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. 2005 SCMR 1166 rel.

(d) Tax---

----Imposing of tax---Principle---Under modern democratic system of Government, which is run by elected representative of people under their respective Constitutions, unbridled powers and authority to impose tax arbitrarily, without having any rationale or reasonableness, is now being regulated under the Constitutional restraints, whereby taxes are to be imposed reasonably, without discrimination and in such a manner that those may not encroach upon fundamental rights of a person as guaranteed under the Constitution.

For the Appellant(s)/Petitioner(s)/Applicant(s)

Salman Akram Raja, Advocate Supreme Court

along with Dr. Ishtiaq Ahmed Khan, DG (Law) FBR

Aqeel A. Sidduqui, DG I&I-IR

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court

Muhammad Umer Riaz, Advocate Supreme Court

(via video link from Lahore)

Izhar ul Haq, Advocate Supreme Court

(via video link from Lahore)

Dr. Farhat Zafar, Advocate Supreme Court

(in C.A. No. 600/2016)

For the Respondent(s)

Syed Ali Zafar, Advocate Supreme Court

Nadeem Mehmood Mian, Advocate Supreme Court

assisted by Huriya Fatima, Advocate High Court

Sh. Zafar ul Islam, ASC along with

Tanveer Ahmad, Advocate Supreme Court

Ch. Ishtiaq Ahmad, Advocate Supreme Court

Muhammad Idris, Advocate Supreme Court

Syed Rifaqat Hussain Shah, Advocate-on-Record

Sh. Mehmood Ahmad, Advocate-on-Record

Ali Sibtain Fazli, Advocate Supreme Court

along with Hasham Ahmad, Advocate Supreme Court

(associated by Isa Ahmed, Advocate)

Abdul Bari Rashid, Advocate Supreme Court

Ch. Munir Sadiq, Advocate Supreme Court

Dr. Farhat Zafar Advocate Supreme Court

Babar Bilak, ASC and

Syed Tauqeer Bukhari, Advocate Supreme Court

Muhammad Munir Paracha Advocate Supreme Court

Qazi Isaac Ali, Advocate Supreme Court

For the Respondent(s) through Branch Registry Lahore

Imtiaz Rashid Siddiqui, Advocate Supreme Court

along with Shehryar Kasuri, Advocate Supreme Court

Shahbaz Butt, Advocate Supreme Court

Shahid Baig, Advocate Supreme Court

Haroon Duggal, Advocate Supreme Court

Saood Nasrullah, Advocate Supreme Court

Ch. Muhammad Ali, Advocate Supreme Court

Tahir Munir Malik, Advocate Supreme Court

Ibrar Ahmad Advocate Supreme Court

Rana Munir Hussain, Advocate Supreme Court

Muhammad Ajmal Khan, Advocate Supreme Court

Mian Ashiq Hussain, Advocate Supreme Court

Ms. Tabinda Islam, Advocate Supreme Court

Hassan Kamran Bashir, Advocate Supreme Court

Assisted by:

Ms. Zainab Bashir, Judicial Law Clerk, Supreme Court of Pakistan.

P L D 2025 Supreme Court 662

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD IMRAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 374 of 2024.

(Compromise)

in/and Criminal Petition No. 725 of 2023.

(Against the judgment dated 17.05.2023 of the Lahore High Court, Bahawalpur Bench in Criminal Appeal No.452 of 2019).

Criminal Miscellaneous Application No. 374 of 2024 in/and Criminal Petition No. 725 of 2023, decided on 26th June, 2024

Per Malik Shahzad Ahmad Khan, J.; Jamal Khan Mandokhail, J. agreeing; Ayesha A. Malik, J. dissenting.

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

----Ss. 376, 449 & 496-B---Rape, trespassing and fornication---Re-appraisal of evidence---Converting of offence---Absence of resistance marks---Accused was convicted by Trial Court for commission of rape with complainant and was sentenced to imprisonment of ten years---High Court maintained conviction and sentence awarded by Trial Court---Validity---Accused was empty handed at the time of occurrence---Female who was not a consenting party would offer very strong resistance in a case of attempt to commit rape with her by a male---No mark of violence was noted on the entire body of complainant by Medical Officer at the time of her medical examination---Allegation of forcibly removing clothes (shalwar) of complainant was not corroborated with recovery of any torn clothes of complainant, who was a consenting party---Ingredients of offence of rape punishable under section 376, P.P.C. were not attracted, rather it was a case of fornication (zina with consent) punishable under section 496-B, P.P.C.---On determining it to be a case of fornication punishable under section 496-B, P.P.C., the complainant was also liable to be proceeded against and punished as accused of the offence of illicit intercourse with consent but she was not challaned by police and no charge of fornication under section 496-B,P.P.C. was framed against her by Trial Court, therefore, she had no opportunity to defend herself---Supreme Court did not find it appropriate to punish the complainant without providing her opportunity of defence---Supreme Court set aside conviction and sentence awarded to accused under section 376, P.P.C. and convicted him under section 496-B, P.P.C., sentencing him to imprisonment for five years---Appeal was allowed accordingly. [Majority View]

Per Ayesha A. Malik, J dissenting

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

----Ss. 376, 449 & 496-B---Constitution of Pakistan, Arts. 9 & 14---Rape, trespassing and fornication---Re-appraisal of evidence---Right to life, dignity and privacy---Converting of offence---Absence of resistance marks---Accused was convicted by Trial Court for commission of rape with complainant and was sentenced to imprisonment of ten years---High Court maintained conviction and sentence awarded by Trial Court---Validity---Constitution specifically deals with preserving, protecting and promoting rights of women, which are clearly violated in gender-based violence cases---Provision of Article 9 of the Constitution protects right to life and Article 14 of the Constitution grants inviolable right to dignity as well as the right to privacy---In cases of rape, there is a gross violation of right to life, dignity and privacy---State is responsible for ensuring that essential and required steps are taken to protect women from such crimes and also to protect them from gender stereotyping which undermines a woman's ability to enjoy her basic fundamental rights---Gender stereotyping should not undermine rule of law---Act of rape has serious consequences as it deprives a woman of her right to life and her right to dignity and privacy which includes the right to mental and physical integrity---Every woman is entitled to respect for her life, her integrity and security of her person---No woman should be stigmatized simply because she has availed her right to access to justice and reported a heinous crime against her person and body---Accused in his statement under section 342, Cr.P.C. denied prosecution's case and had specifically taken the plea that complainant wanted to marry him and on his refusal, she managed to register a fake case against him---Accused neither appeared as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defense---There was no consensual intercourse between accused and complainant---Accused did not specifically raise the defense that he was involved with her and had consensual intercourse---Offense under section 496-B, P.P.C. was not made out---Supreme Court declined to interfere in conviction and sentence awarded to accused by two Court below---Appeal was dismissed. [Minority View]

Ali Haider v. Jameel Hussain PLD 2021 SC 362; Salman Akram Raja v. Government of Punjab 2013 SCMR 203;Megan Alderden et al., Prosecutor's Perspectives on Biological Evidence and Injury Evidence in Sexual Assault Cases, 31 JOURNAL OF INTERPERSONAL VIOLENCE 7-8 (2021). < https://doi.org/10.1177/0886260518778259>; Habibullah v. The State 2011 SCMR 1665; Shakeel v. The State PLD 2010 SC 47; Muhammad Aslam v. The State 2023 SCMR 397; The State of Punjab v. Gurmit Singh AIR 1996 SC 1393; Atif Zareef v. the State PLD 2021 SC 550; Zahid v. The State 2020 SCMR 590; Hamid Khan v. The State 1981 SCMR 448 and Muhammad Ashraf v. The State 1997 PCr.LJ 1351 rel.

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

----S. 496-B---Constitution of Pakistan, Arts. 9 & 14---Fornication---Pre-conditions---Consent---Proof---Right to life, dignity and privacy---Essential ingredient of fornication is establishment by way of evidence of the fact that it was a willful intercourse between the parties---It is essential that for the purposes of fornication consent be established---Consent means an unequivocal voluntary agreement with the woman by words, gestures or any form of verbal or non-verbal communication, which communicates her willingness to participate in the sexual act---Consent goes to the very root of right to dignity under Article 9 of the Constitution because in a case of rape where she states that there is no consent then to impute consent, that too without evidence of the same, undermines dignity and right to privacy of a woman---Without any evidence on the fact of consent or willingness, offence of fornication cannot be made out---Consent has to be established and it cannot be assumed.

Agha Nayyar Latif Awan, Advocate Supreme Court for Applicant/Petitioner.

Irfan Zia, Addl. P.G. Punjab for the State.

P L D 2025 Supreme Court 679

Present: Shahid Waheed, Salahuddin Panhwar and Aamer Farooq, JJ

AMMAR BASHIR---Appellant

Versus

IRFAN SHAFI KHOKHAR and others---Respondents

C.A. No. 202/2025, decided on 9th May, 2025.

(Against the judgment dated 28.01.2025 passed by the Lahore High Court, Lahore (Election Tribunal) in Election Petition No.22232 of 2024).

Elections Act (XXXIII of 2017)---

----Ss. 143, 144 & 155---Civil Procedure Code (V of 1908), O. VI, R. 15---Appeal---Election petition---Verification process---Absence of deponent---Phrase "declared on oath before me" on rubber stamp of Oath Commissioner---Effect---Appellant was aggrieved of dismissal of his election petition wherein election of respondent/returned candidate was assailed---Objection to election petition was appellant's failure to comply with verification procedures mandated by Order VI, Rule 15, C.P.C. which was a fundamental requirement as stipulated in section 144(4) of Elections Act, 2017---Validity---There were significant discrepancies in rubber stamp affixed by the Oath Commissioner regarding presence of appellant during the verification process---Appellant was not physically present at the time the verification occurred, primarily because he was not identified by any person nor by his Computerized National Identity Card---Stamp failed to provide clarity on the specific location and circumstances under which the oath was administered, thereby raising further questions about validity of proceedings---Phrase "declared on oath before me," inscribed in the stamp, lacked necessary specificity and was inherently ambiguous---Rubber stamp did not clarify what specific declaration was made under oath, nor did it confirm whether contents of verification were indeed presented as sworn testimony before Oath Commissioner---Such ambiguity fundamentally undermined assurance required for proper attestation of verification---Verification of election petition did not adhere to legal standards set forth by Supreme Court---Election Tribunal had thoroughly examined the election petition and reached a well-founded decision to reject the same---Supreme Court declined to interfere with the order passed by Election Tribunal---Appeal was dismissed.

Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600;

Inayatullah v. Syed Khursheed Ahmed Shah 2014 SCMR 1477;

Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC

396; Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid

Mehmood Sargana and others 2015 SCMR 1585; Feroze Ahmed

Jamali v. Masroor Ahmad Khan Jatoi and others 2016 SCMR

750; Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani 2016

SCMR 722; Malik Umar Aslam v. Sumera Malik PLD 2007 SC

362 and Zia Ur Rehman v. Syed Ahmed. Hussain 2014 SCMR 1015

rel.

Barrister Tassaduq Hanif, Advocate Supreme Court for Applicant.

Yasir Ali Raja, Director Law and Zaheer Abbas, AD Law for ECP.

P L D 2025 Supreme Court 685

Present: Sardar Tariq Masood and Mazhar Alam Khan Miankhail, JJ

IFTIKHAR ALI ABBASI and others---Petitioners

Versus

GHULAM QADIR and others---Respondents

Civil Petition No.182 of 2025, decided on 13th May, 2025.

(Against the order dated 13.11.2024, passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No.190-D of 2022).

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

----S.8---Civil Procedure Code (V of 1908), Ss.2(12), 11, O.XX, R. 12 & O. XLI, R.27---Suit for recovery of possession and mesne profit---Mesne profit, determination and award of---Res judicata, applicability of---Production of additional evidence at appellate stage---Validity---Respondents, being owner of suit property on the strength of registered sale deeds, filed suit for possession and mesne profit by alleging that present petitioners had illegally and unlawfully occupied their property---The suit of the respondents after recording of evidence was decreed by the Trial Court and the said decree was maintained by the appellate court and the High Court by dismissing their appeal and civil revision respectively---Trial Court while granting decree in favour of respondents refused the plea to the extent of mesne profit, whereas, appellate court while allowing cross objections of respondents awarded mesne profit to the respondents---Through the present petition before the Supreme Court merits of the case were not argued on behalf of the petitioners, instead three points were raised; i.e. (i) Mesne profit, (ii) Res judicata; (iii) Refusal of additional documents by appellate court---This simply meant that ownership of respondents was out of question and possession of petitioners over the suit property was established to be illegal and unlawful---Question requiring consideration by the Supreme Court was as to "when ownership and the possession of the suit property by respondents went un-rebutted, what legal strength and force would have been left in such points?---Held: With regards to the grant of mesne profit, no hard and fast mechanism/rules could be made and the criteria for determining the quantum of mesne profit was subject to inquiry if the Trial Court so directed---The quantum of award of mesne profit would depend on case to case basis---With regards to the contention that Single Judge of High Court in Chambers did not give any findings despite taking a specific ground in civil revision, same was misconceived, as at the time of hearing what was argued before the court was reproduced in the impugned order which meant that this plea was not argued before the court at the time of hearing---Moreover, petitioners did not even take any specific ground qua mesne profit in the present petition before the Supreme Court which amounted to an acceptance of all findings on the said question by the petitioners---With regards to applicability of section 11, C.P.C., petitioners did not place any material before the court in support of that argument so it could not be proved that there had been a previous decided matter between the parties qua the suit property---With respect to production of additional evidence at appellate stage, the perusal of application reflected that no particulars and details of documents to be produced as additional evidence had been given by the petitioners---Moreover, it has been settled law that production of additional evidence cannot be claimed as a matter of right and mere vague application would not suffice the purpose of an application under Rule 27 of Order XLI, C.P.C., therefore, such contention of the petitioners had no force either---Petitioners failed to establish their nexus with the suit property---Present petition was meritless and same was dismissed and leave refused.

(b) Pleadings---

----A party cannot be allowed to argue a new ground, which is not raised in the memo of petition, unless specifically permitted by court to argue.

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

----Arts.117 & 120---Plea---Scope---Merely alleging a specific plea cannot legally be considered as sufficient unless proved on the record.

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

----O.XLI, R.27---Production of additional evidence at appellate stage---Scope---It cannot be claimed as a matter of right and it is for the court to decide whether any document to be produced or any witness to be examined to enable the court to pronounce the judgment or for any other substantial cause and also when the court from whose decree the appeal is preferred has refused to admit such additional evidence and for allowing such evidence to be recorded, the court has to record reasons for such permission.

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

----O.XLI, R.27---Appellate Court---Deciding application for additional evidence before deciding the appeal, requirement of---Exception---Appellate court would be duty bound to decide the said application one way or the other but in case if it fails to do so, in peculiar circumstances of a case, no fruitful purpose would be achieved by sending the case back to appellate court for decision of that application by setting aside all the judgments and decrees especially when a party has failed to prove any nexus with the suit property and justify its possession over it.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

P L D 2025 Supreme Court 691

Present: Shahid Bilal Hassan and Aamer Farooq, JJ

MUHAMMAD ARIF TARAR and another---Petitioners

Versus

MATLOOB AHMAD WARRAICH and others---Respondents

C.P.L.A. No.746-L of 2025, decided on 12th June, 2025.

(Against judgment dated 11.03.2025 passed in W.P. No. 30953 of 2024 by Lahore High Court, Lahore).

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Amendment in pleadings, seeking of---Inordinate delay in seeking amendment of pleadings---Scope---Belated amendments introducing new factual assertions, without credible justification and likely to prejudice the opposing party, cannot be permitted under Order VI, Rule 17, C.P.C.---Facts in brevity were that the petitioners (vendees) filed a suit for specific performance against the respondent (vendor), concerning an alleged oral agreement to sell an immoveable property---The respondent (vendor) denied the agreement, and during the pendency of the trial, after seeking multiple adjournments for evidence, the petitioner (vendee) filed an application under Order VI, Rule 17, C.P.C. seeking to amend the plaint by inserting the specific location where oral agreement was made, i.e. "in the drawing room of the same house"---The Trial Court dismissed the amendment application, but the revision was allowed by the revisional court---The respondent (vendor) successfully challenged this before the High Court, whereby, order passed in revision was set aside---The petitioners (vendees) then filed a present CPLA before the Supreme Court---Core question requiring determination was as to "whether a party can be permitted to amend its pleadings under Order VI, Rule 17 C.P.C. to introduce a new factual assertion, central to the controversy, after an inordinate delay of ten years, without adequate justification, and in a manner that potentially prejudices the opposing party"---Held: Petitioner sought to amend a factual assertion specifically relating to the 'alleged place' where the oral agreement was made, after a delay of ten years---Such a request raised serious questions about the bona fides of the petitioners/vendees---Amendment in this case was a direct attempt to support and fortify a disputed fact, central to the dispute over the existence of the alleged agreement i.e. its location---The petitioners' amendment was sought after a decade of pendency, and multiple adjournments, all the while failing to lead evidence---The attempt to insert a significant factual detail relating to the alleged oral agreement, namely the location of its execution, after such an extended lapse of time could not be viewed as a benign clarification---Instead, it appeared to be an effort to recalibrate the factual matrix of the petitioners' case in light of the trial's trajectory---The proposed amendment had the effect of adding a key factual detail long after the other side had committed to a line of defence based on the original version of events---The petitioners' conduct did not merit the equitable indulgence contemplated under Order VI, Rule 17, C.P.C.---High Court's decision to disallow the amendment was legally sound and did not warrant interference---Petition being meritless was accordingly dismissed and leave to appeal was refused.

Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824; Dausa and others v. Province of the Punjab and others 2016 SCMR 1621; Secretary to Government of West Pakistan v. Kazi Abdul Kafil PLD 1978 SC 242; Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

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

----O. VI, R. 17---Amendment in pleadings---Inordinate delay in seeking amendment---Scope---Court is empowered to allow a party to amend their pleadings, particularly where such an amendment is necessary to determine the real issue in controversy between the parties and the power can be exercised by the court, at any time, during the pendency of such proceedings and even after the passage of the decree at the appellate stage or at the stage of revision in the highest Court---While it is true that the courts are empowered under Order VI, Rule 17 of C.P.C. to permit amendment "at any stage of the proceeding" this discretion is to be exercised with caution and only in furtherance of justice---Although the rule ibid is to be construed liberally, certain guardrails must be strictly observed---An amendment cannot be allowed if it alters the nature of the suit, seeks to withdraw admissions previously made, is tainted with mala fide intent, causes prejudice to the opposite party, or is designed to overcome evidentiary contradictions or prior judicial determinations---Courts must be vigilant in evaluating the motive behind the request, the stage at which it is brought and its impact on the rights of the opposite party---Where an amendment is sought after an inordinate delay, without adequate explanation, the delay itself, though not conclusive, becomes a weighty factor---An amendment of such a nature, introduced after the close of pleadings and during the trial phase, is likely to prejudice the opposing party by shifting the nature or focus of the controversy---An amendment should not be allowed where it alters the litigation landscape in a way that disadvantages the opposing party who relied upon the original pleading in the conduct of their case.

Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824; Abaid Ullah Malik v. Additional District Judge, Mianwali and others PLD 2013 SC 239; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Secretary to Government of West Pakistan v. Kazi Abdul Kafil PLD 1978 SC 242 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

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

----O.VI, R.17---Amendment in pleadings---Scope---Pleadings frame the boundaries of a party's case and the parties are bound to lead evidence in line with them---A party is not permitted to go beyond its pleadings and cannot lead or rely upon evidence that is inconsistent with what has been pleaded; even if such evidence is brought on record, it must be ignored---In this context, any belated amendment that introduces a new factual assertion must be examined with heightened scrutiny---The timing of the amendment request must, therefore, be viewed not in isolation, but in the context of its potential to disturb the procedural fairness and substantive rights of the opposing party.

Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698; Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

Muhammad Saleem, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

P L D 2025 Supreme Court 698

Present: Naeem Akhter Afghan, Muhammad Shafi Siddiqui and Shakeel Ahmad, JJ

DISTRICT OFFICER FRONTIER CONSTABULARY, HAYATABAD, PESHAWAR---Petitioner

Versus

Haji AMIR BADSHAH and others---Respondents

C.P.L.A. No. 2478 of 2024, decided on 23rd April, 2025.

(Against the judgment dated 06.05.2024 passed by the Peshawar High Court, Peshawar in F.A.O. No.129-P of 2023).

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

----S. 48---Execution proceedings---Principle of merger of decree---Scope---When a Superior Court passes a judgment in appeal, irrespective of the fact whether it was set aside or modified or affirmed, the decree of Lower Court merges with that of the Appellate Court.

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

----S. 48---Limitation Act (IX of 1908), First Sched., Art. 181---Execution proceedings---Principle of merger---Respondent/decree holder filed fresh execution petition following judgment and decree passed by Appellate Court---Executing Court dismissed fresh execution petition as barred by time but High Court allowed the same on the principle of merger---Validity---Starting point of limitation of fresh Execution Petition, subsequent to first one, was the date of final judgment of final Court of Appeal---By applying principle of merger, judgment and decree of Trial Court merged with that of Appellate Court---It was the latter decree which was operative and executable, therefore, High Court rightly treated fresh application for execution of appellate decree as filed within limitation under section 48 C.P.C. and not under Article 181 of Limitation Act, 1908---Fresh Execution Petition filed by respondent subsequent to the first one was well within limitation, as it fell within six years after the decree of Appellate Court's judgment---Bar of limitation under Article 181 of Limitation Act, 1908 did not apply due to specific application of section 48 C.P.C. and the principle of merger---Supreme Court declined to interfere in the order passed by High Court as there was no illegality, irregularity or jurisdictional defect in it---Petition for leave to appeal was dismissed and leave to appeal was refused.

Sahibzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358; Maluvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nasrullah Khan's case PLD 2013 SC 478; Commissioner of Income-Tax, Bombay v. Messrs Amritlal Bhogilal and Company AIR 1958 SC 868; Kunhayammed and others v. State of Kerala and another AIR 2000 SC 2587 and Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and others AIR 1963 SC 1124 rel.

Farman Ullah Khattak, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

P L D 2025 Supreme Court 706

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ

PAKISTAN RAILWAYS through Chief Controller of Purchase, Pakistan Railways, Lahore---Petitioner

Versus

CRRC ZIYANG CO. LIMITED, LAHORE---Respondent

C.P.L.A. No.813-L of 2024, decided on 29th April, 2025.

(Against judgment dated 04.03.2024 of the Lahore High Court, Lahore passed in C.R. No.79723 of 2022).

Arbitration Act (X of 1940)---

----Ss. 14, 17, 30, 33 & 39---Contract Act (IX of 1872), S. 74---Arbitration---Award made rule of Court---Objections against award---Trial Court inviting evidence without deciding the objections ---Dispute between the parties arose and was related to a contract executed on 01.11.2017 and was referred to arbitration by a two-member arbitral tribunal, which rendered the award on 02.07.2021---On 07.07.2021, the arbitrators filed the award before the Civil Court---On 01.09.2021, the petitioner filed objections for setting aside the said award---On 23.11.2022, Civil Court framed the issues and required the parties to submit the list of witnesses for the production of evidence---Said orders were assailed before the High Court by filing a revision petition, which was allowed by setting aside the orders dated 23.11.2022 passed by the Civil Court and case was remanded to the Civil Court for decision afresh on the basis of available record---Validity---Arbitrators were entitled to regulate their own procedure and were not governed by the strict procedure prescribed by the C.P.C. and the rules regarding evidence contained in the Qanun-e-Shahadat, 1984---Arbitrators decided the disputes based on evidence presented during arbitration proceedings---Arbitrators were under no obligation to frame issues as provided in the C.P.C.---Court recorded fresh evidence, disregarding the procedural safeguards in arbitration, such as the arbitrator's exclusive jurisdiction to assess evidence and apply the law---Said fact might lead to inconsistent outcomes and procedural unfairness---If the Court frames issues and records evidence after objections to an award were filed, parties might use this as an opportunity to re-litigate the entire dispute, leading to multiple proceedings on the same issues besides undermining both the legislative intent and the integrity of the arbitral process---Said multiplicity undermined the arbitrator's role in providing a one-time binding decision---Possibility of a trial after the award has been filed in Court creates uncertainty about the finality and enforceability of awards, that discourages the parties from opting for arbitration, defeating the legislative intent to promote arbitration as a preferred mode of dispute resolution---Framing of issues, recording of evidence and hearing arguments post the filing of the award in the Court is bound to increase litigation costs for parties and add to the already heavy workload of Courts---Said fact again defeats the purpose of arbitration as an economical and efficient alternative dispute resolution mechanism---Recording of evidence and conducting a trial effectively converts the Court into an appellate or fact-finding forum, which would be contrary to the statutory scheme envisaged by the Act, 1940---In the case in hand, the sole reason given by the Civil Court for framing the issues was that the contentions raised through the objections formed a factual controversy, which could not be determined without the recording of evidence---Perusal of the issues framed by the Civil Court showed that they were generalized in nature, they lacked specificity and the necessity for framing such issues could not be discovered in the impugned order---Therefore, the High Court did not commit any illegality by setting aside the order dated 23.11.2022 and remanding the matter to the Civil Court with the direction to decide the petitioner's objections to the award dated 02.07.2021 on the basis of the available record---Leave to appeal was declined and the petition was consequently dismissed.

Messrs Joint Ventures Kocks K.G./RIST v. Federation of Pakistan PLD 1996 SC 108; Pakistan Steel Mills Corporation v. Mustafa Sons (Pvt.) Ltd. PLD 2003 SC 301; Mian Corporation v. Lever Brothers of Pakistan Ltd. PLD 2006 SC 169; Federation of Pakistan v. Joint Ventures Kocks K.G./RIST PLD 2011 SC 506; Gerry's International v. Aeroflot Russian Airlines 2018 SCMR 662 and Chairman, WAPDA v. Messrs Syed Bhais Private Limited 2011 CLC 841 rel.

Jawad Mahmood Pasha, Advocate Supreme Court along with Amin Gondal and Asim Tasneem, DCPs (all via video link (Lahore)) for Petitioner.

Syed Tassadaq Mustafa Naqvi, Advocate High Court for Respondent.

P L D 2025 Supreme Court 713

Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ

FEDERAL PUBLIC SERVICE COMMISSION through its Secretary, Islamabad---Petitioner

Versus

KASHIF MUSTAFA and others---Respondents

C.R.P No. 292 of 2024 in C.P.L.A. No. 4449 of 2021, decided on 8th May, 2025.

(For review of order dated 14.09.2023 passed by this Court in C.P.L.A. No. 4449 of 2021).

(a) Constitution of Pakistan---

----Art.188---Law Reforms Ordinance (XII of 1972), S.3(2)---Supreme Court Rules, 1980, O. XXVIII, R.3---Review petition before the Supreme Court---Filing of frivolous petitions by public functionaries in order to insulate themselves, practice of---Supreme Court deprecated such practice by imposing costs---Review petition before the Supreme Court was barred by 204 days and sufficient cause was disclosed for condonation of delay---Nevertheless, the judgment of the High Court challenged in earlier round before the Supreme Court merely held that Intra-Court Appeal filed by the petitioner-institution before the High Court was not maintainable in terms of section 3(2) of the Law Reforms Ordinance, 1972 as an appeal was provided under the Federal Public Service Commission Ordinance, 1977 against the original order---This conclusion was upheld by Supreme Court through the impugned order under review---Supreme Court noted with grave concern that present petition, filed by a statutory institution, was not only legally untenable and devoid of merit, but also reflective of a deeper, disturbing culture of risk-averse governance---The conduct of public officers of resorting to filing petitions before the highest court of the land merely in order to insulate themselves from accountability was deprecated in the strongest terms---Courts are not to be approached mechanically or defensively, especially by those entrusted with public functions and legal stewardship---To mark Supreme Court's disapproval and to deter the continuation of irresponsible and obstructive practices by public bodies, exemplary cost of Rs.100,000/-was imposed on the petitioner-institution under Order XXVIII, Rule 3 of Supreme Court Rules, 1980 as the review petition was not only vexatious, frivolous and squandered valuable time of the court but was also reflective of institutional abdication and poor governance---Petition was dismissed, in circumstances.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Intra Court Appeal---Maintainability---If a law dealing with original proceedings offers a remedy of appeal, revision, or review, then the right to file Intra Court Appeal (ICA) before the High Court is barred---It is immaterial whether the aggrieved person actually availed the remedy or not, what matters is the legal availability of such remedy under the law.

Syed Asif Raza v. Pakistan International Airlines PLD 2001 SC 182 rel.

(c) Public functionaries---

----Filing of frivolous petitions by public functionaries in order to insulate themselves---Supreme Court deprecated such practice---While the right to access to courts is a cornerstone of the Constitutional framework, it is not an unqualified or limitless right---Such access must be exercised with responsibility and in a manner that upholds the dignity and finality of judicial proceedings---When public institutions initiate repetitive and meritless petitions they erode the integrity of the judicial process---Frivolous litigation not only clogs judicial dockets but also drains public resources and delays justice for genuine litigants---This become more concerning when such frivolous claims are filed by government or public statutory functionaries, who are expected to act with higher responsibility and to protect, rather than squander, public resources and judicial time---When public bodies initiate litigation, they do so not as private litigants pursuing personal interests, but as custodians of the law and fiduciaries of the public interest and they are under an onerous obligation to act fairly, responsibly, and in accordance with the Constitution--- Public statutory functionaries should exercise greater legal discipline and internal scrutiny before invoking the jurisdiction of the Supreme Court.

District Education Officer (Female) Charsadda v. Miss Sonia Begum 2025 SCP 160 (SCP citation); Javed Hameed v. Aman Ullah 2024 SCMR 89; Lutfullah Virk v. Muhammad Aslam Sheikh PLD 2024 SC 887 and Zakir Mehmood v. Secretary, Ministry of Defence 2023 SCMR 960 rel.

Rana Asadullah Khan, Addl. AGP for Petitioner.

Shehryar Kasuri for Respondents.

Assisted by: Umer A. Ranjha, Judicial Law Clerk, Supreme Court of Pakistan.

P L D 2025 Supreme Court 718

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ

KHURSHED ALI KHAN---Petitioner

Versus

MUHAMMAD AYUB and others---Respondents

Civil Petition No. 3875 of 2024, decided on 8th May, 2025.

(Against the order dated 20.06.2024 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in C.R No.266-M/ 2024).

Civil Procedure Code (V of 1908)---

----O.IX, Rr.8 & 9---Dismissal of a suit for non-prosecution when the case was fixed for recording of evidence---Discretion of court to dismiss suit once ripe for hearing---Settlement of issues, effect of---The moment issues are framed in a suit, it becomes ripe for hearing---Distinction between pre-issues and post-issues proceedings stated---The petitioner filed civil suit wherein issues were framed and when the case was fixed for recording evidence, it was adjourned due to the absence of the defendants---However, on next date, though respondents/ defendants Nos. 1 to 7 were present, the petitioner failed to appear, resulting in dismissal of the suit for non-prosecution---Subsequently, the petitioner filed an application for restoration, citing his father's illness as the reason for absence---The application was dismissed for failure to justify the delay or providing sufficient cause---An appeal against this decision was also dismissed by the district court, subsequently, the petitioner then approached the Supreme Court---Held: In the suit the issues were framed and the moment issues were framed, the suit became ripe for hearing---Notwithstanding the listed applications on the fateful day, the suit was also listed for hearing as the issues had been framed and case was adjourned for evidence of petitioner/plaintiff---The argument that suit was not ripe for hearing or that it should not have been dismissed for non- prosecution and/or at the most the application fixed could have been dismissed, was not convincing---It was well within the discretion of court to dismiss the suit if it was ripe for hearing i.e. after settlement of issues---There was, however, a distinction between date of hearing of suit and date of appearance of parties before settlement of issuesand the later could not be at par with date of hearing which was not the case in the present matter---Leave to appeal was declined and the petition was dismissed, in circumstances.

Asghar Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Respondents not represented.

P L D 2025 Supreme Court 720

Present: Syed Mansoor Ali Shah, A.C.J., Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ

DISTRICT EDUCATION OFFICER (FEMALE), CHARSADDA and others---Petitioners

Versus

SONIA BEGUM and 5 others---Respondents

C.R.P. No. 5/2023 in C.P.L.A. No. 448-P/2017 and C.R.P. No. 6/2023 in C.P.L.A. No. 651-P/2019 and C.R.P. No. 7/2023 in C.P.L.A. No. 655-P/2019 and C.R.P. No. 8/2023 in C.P.L.A. No. 658-P/2019 and C.R.P. No. 9/2023 in C.P.L.A. No. 666-P/2019 and C.P.L.A No. 402-P of 2023, decided on 25th April, 2025.

(Against the judgment dated 29.09.2022 passed by this Court).

C.P.L.A No. 402-P of 2023

(Against the judgment dated 17.03.2023 passed by the Peshawar High Court, Peshawar in W.P. No. 4180-P of 2022).

Per Syed Mansoor Ali Shah, J; Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ. agreeing.

(a) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S. 3---Constitution of Pakistan, Art. 188---Supreme Court Rules, 1980, O.XXVI & O.XXVIII, R.3---Civil Procedure Code (V of 1908), S. 114---Review jurisdiction---Scope---Appointment, posting and transfer---Imposing of costs---Petitioner sought review of judgment passed by Supreme Court with regard to determination of place of residence for employment purposes---Validity---Power of review, as articulated in Article 188 of the Constitution and governed by Supreme Court Rules, 1980 ('Rules') and C.P.C. is not an open invitation to revisit judgments merely on the basis of dissatisfaction with the outcome---It is a limited jurisdiction, exercised with great caution and circumspection---Conditions for filing a review petition are specifically enumerated and they do not extend to re-arguing points of law or fact that have already been conclusively determined---Petitioner did not disclose any new or important evidence nor pointed any error that was apparent on the face of record---Issues raised by petitioner were mere reiteration of arguments that had already been considered and rejected by Supreme Court---Supreme Court declined to review its earlier judgment, as there was no ground made out for review and petitions were frivolous and vexatious---Supreme Court imposed cost under Order XXVIII, Rule 3 of Supreme Court Rules, 1980 upon petitioner for squandering valuable time of Supreme Court---Review petition was dismissed.

District Education Officer (Female) Charsadda and others v. Sonia Begum and others 2023 SCMR 217; Justice Qazi Faez Isa v. President of Pakistan PLD 2022 SC 119; Messrs Habib and Co. v. Muslim Commercial Bank PLD 2020 SC 227; Engineers Study Forum v. Federation of Pakistan 2016 SCMR 1961; Government of Pun jab v. Aamir Zahoor-ul-Haq PLD 2016 SC 421; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049; Mehdi Hassan v. Province of Punjab 2007 SCMR 755; Anwar Husain v. Province of East Pakistan PLD 1961 Dacca 155; Ghulam Murtaza v. Abdul Salam Sheikh 2010 SCMR 1883; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049; Abdul Rauf v. Qutab Khan 2006 SCMR 1574; Nawabzada Muhammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 355; Pakistan International Airlines v. Inayat Rasool 2004 SCMR 1737; Noor Hassan Awan v. Muhammad Ashraf 2001 SCMR 367; Kalsoom Malik v. Assistant Commissioner 1996 SCMR 710; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Inter Quest Informatics Services v. Commissioner of Income Tax 2025 SCMR 257; Mukhtar Mai v. Abdul Khaliq 2019 SCMR 1302; Zakaria Ghani v. Muhammad Ikhlaq Memon PLD 2016 SC 229; Jamshoro Joint Venture v. Khawaja Muhammad Asif 2014 SCMR 1858; Suja A Thomas, 'Frivolous Cases' (2010) 59(2) DePaul Law Review 633; Cooter and Gell v. Hartmax Corp 496 U.S. 384 (1990); Wormer. 765 F.2d 86 (7th Cir. 1985); Cropper v. Smith (1884) 25 Ch D 700 (affirmed in Prince Abdulaziz v. Apex Global Management Ltd 120141 UKSC 64); De Cruz Lee v. Lee 2015 ONSC 2012; Irmya v. Mijovick 2016 ONSC 5276; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Sanford Levinson. 'Frivolous Cases: Do Lawyers Really Know Anything at All?' (1986) 24(2) Usgoode Hall LJ 353; Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust 2012 (1) See 455; Bakht Biland Khan v. Zahid Khan PLD 2024 SC 1273; S.M. Sohail v. Sitara Kabir-ud-Din PLD 2009 SC 397; Lutfullah Virk v. Muhammad Aslam Sheikh PLD 2024 SC 887; National Highway Authority. Islamabad v. Messrs Sambu Construction 2023 SCMR 1103; Capital Development Authority v. Ahmed Murtaza 2023 SCMR 61; Javed Hameed v. Aman Ullah 2024 SCMR 89;

Zakir Mehmood v. Secretary, Ministry of Defence 2023 SCMR 960; Pirbhai v. Singh 2011 ONSC 1366; Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1; Pandurang Vithal Kevne v. Bharat Sanchar 2024 1NSC 1051 and Ashok Kumar Mittal v. Ram Kumar Gupta (2009) 2 SCC 656 rel.

(b) Supreme Court Rules, 1980---

----O.XXVIII, R.3---Civil Procedure Code (V of 1908), Ss. 35 & 35A---Costs, imposing of---Object, purpose and scope---Consistent imposition of meaningful and proportionate costs rooted in statutory authority, judicial discipline and Constitutional imperatives is essential to deter abuse of process and restore procedural integrity.

Per Muhammad Ali Mazhar, J. agreeing

(c) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Civil Procedure Code (V of 1908), S. 114---Review jurisdiction---Scope---Every judgement rendered by Court of law is presumed to be a solemn and conclusive determination of all points arising out of the lis---Irregularities if any which have no significant effect or impact on outcome would not be sufficient to warrant review---If incongruity or ambiguity is of such a nature as to transmute the course of action from being one in aid of justice to a process of injustice then a review decision may be instituted for redressal to demonstrate error if it is found floating conspicuously on the surface of the record---Mere desire for rehearing of the matter cannot constitute sufficient ground for the grant of review which by its very nature cannot be equated with the right or remedy of appeal---Sanctity and finality of judicial determinations must not be compromised by mere persistence of litigants or mechanical issuance of advocate certificates---Review jurisdiction is not a fall back for unsuccessful litigants to reopen a lis but a narrowly confined judicial tool intended to correct palpable and consequential mistakes.

(d) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Civil Procedure Code (V of 1908), S. 114---Review---Phrase "error apparent on the face of record"---Scope---Orders based on an erroneous assumption of material facts or those made without adverting to a provision of law or reflecting departure from undisputed construction of law and the Constitution may amount to an error apparent on the face of the record and can be rectified.

Commissioner Inland Revenue Z-III, Corporate Regional Tax Office, Tax House, Karachi v. Messrs MSC Switzerland Geneva and others 2023 SCMR 1011 = 2023 SCP 150 rel.

Shah Faisal Ilyas, Addl. AG, KPK for Petitioners.

Nemo for Respondents.

Umer A. Ranjha, Judicial Law Clerk and Ms. Uzma Zahoor, Research Officer, Supreme Court of Pakistan.

P L D 2025 Supreme Court 737

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, decided on 5th July, 2024.

(Reference by the President of Islamic Republic of Pakistan under Article 186 of the Constitution).

Per Qazi Faez Isa, CJ.; Sardar Tariq Masood, Amin-ud-Din Khan, Jamal Khan Mandokhail, Musarrat Hilali and Muhammad Ali Mazhar, JJ. agreeing; Syed Mansoor Ali Shah, Yahya Afridi and Syed Hasan Azhar Rizvi, JJ. partially agreeing with the majority opinion with their own reasons.

(a) Constitution of Pakistan---

----Art.186---Reference by the President under Article 186 of the Constitution---Judge of Supreme Court, who was part of the Bench which heard the Reference, signing the short opinion/order but retiring before the detailed reasons released and signed---Held: Judges who retire before signing the detailed reasons could do so after their retirement---It is commonsensical that, if a Judge has already signed a written opinion/short order, but then retires, he can sign/give the detailed reasons post-retirement---This also prevents the unnecessary wastage of public resources and Court time, which would happen if the Bench was to be reconstituted (after the retirement of a Judge) and the entire matter heard again.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2016 SC 61 ref.

(b) 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)---Conviction and execution of death sentence awarded to Zulfiqar Ali Bhutto---Advisory jurisdiction of the Supreme Court under Article 186 of the Constitution---Scope---Supreme Court clarified that it was not hearing a petition, an appeal or a review petition---Neither the Constitution nor the law provides a mechanism whereby Mr. Bhutto's conviction could be set aside---Mr. Bhutto's conviction attained finality after the dismissal of his review petition by the Supreme Court---In its advisory jurisdiction under Article 186 of the Constitution, the Supreme Court cannot undo the decision (of Mr. Bhutto's conviction).

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

----Ss. 411-A & 526---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(2)(b)---Trial by the High Court---Scope---Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Cr.P.C permittrials to be conducted by the High Court, but these provisions do not provide for a High Court to conduct a murder trial. [Majority view]

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

----S. 302(b)---Qatl-i-amd---Motive---Scope---In criminal cases the prosecution need not set up a motive but if it elects to do so and then fails to establish it the prosecution suffers its consequences---Motive's absence, or failure to establish it is also consequential in a murder case in which the guilt of the offender is established but the asserted motive is not---In such cases the accused invariably is not given capital punishment, but instead imprisonment for life.

Hakim Ali v. State 1971 SCMR 432 and Habibullah v. State PLD 1969 SC 127 ref.

(e) Constitution of Pakistan---

----Arts. 4,9, 10A, 66(1) & 186---Penal Code (XLV of 1860), Ss. 302, 307, 120B & 109---Criminal Procedure Code (V of 1898), S. 376---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 ("Mr. Bhutto") by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Requirements of due process and fair trial not met---Legal heirs of deceaseddid not object to or challenge closure of (initial) investigation by the Magistrate---Investigation was reopened andtransferred to Federal Investgation Agency (FIA) immediately after General Zia-ul-Haq's coup d'etat overthrowing Mr. Bhutto's government---Significantly, no judicial order was issued directing that the investigation be reopened or the crime reinvestigated by the FIA---In the post coup investigation interim investigation report (challan) was submitted, and in addition to section 302 (murder) of the Pakistan Penal Code, 1860 ('P.P.C.') and section 307 (attempt to murder) mentioned in the FIR, sections 120B (criminal conspiracy to commit an offence) and 109 (abetment of an offence) were added---Acting Chief Justice ('ACJ') of the Lahore High Court transferred the case to the Lahore High Court for trial despite the fact that the Sessions Judge, Lahore had already taken cognizance of the case---This was done by the 'ACJ' without issuing notices to Mr. Bhutto and to the other accused, without providing them an opportunity of a hearing and without enabling them to acquire legal representation---Mr. Bhutto had appointed General Zia-ul-Haq as the Army Chief who by his actions of 5 July 1977 (i.e. coup d'état) had clearly violated Article 6 of the Constitution and committed the offence of high treason, the prescribed punishment for which is imprisonment for life or death---General Zia, therefore had a motive to proceed against Mr. Bhutto, because had he not done so, Mr. Bhutto may have proceeded against him for committing high treason---By conducting the murder trial itself, the High Court made redundant a number of provisions of the Constitution and Chapter XXVII of the Code of Criminal Procedure, 1898 ("the Code")---Section 376 of the Code requiring the confirmation of death sentences was violated and this inalienable right was contravened---Since the trial was conducted by the High Court itself, Mr. Bhutto and the other accused were deprived of one right of appeal, which Articles 4(1) and 9 of the Constitution guaranteed---Foremost basis for the conviction of Mr. Bhutto was the testimony of an accused, who turned approver, namely, the then Director-General of the Federal Security Force ('FSF')---After the coup d'etat of 5 July 1977 approver was arrested, nominated as an accused and pleaded that he would make disclosure of the crime, provided he was pardoned---His plea was accepted and he was made an approver---Crime was committed three years earlier and approver's conscience remained dormant and only awoke when he was arrested---Approver's credibility was accepted and he was believed without demur by the Trial and Appellate Courts---However, there were a number of factors which prudence should have alerted and shown that he was self-serving, self-preserving, morally bankrupt, and a false witness---Furthermore, confessions must be voluntary and must not have been obtained by fear of prejudice or hope or advantage---If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary---With regard to the three offences attracting death sentences, section 302, P.P.C. (murder), section 307 PPC (attempted murder) and section 111, P.P.C. (abetment), there was no direct or circumstantial evidence against Mr. Bhutto---Spent bullet casings, ejected from the firearm(s) that were used in the attack, didnot match any of the weapons in use of the FSF---Trial Court proceeded on an incorrect assumption that the motive stood established, even though the facts did not suggest this---Proceedings of the National Assembly were also relied upon by the Courts for establishing motive, which was not permissible [Article 66(1) of the Constitution]---Mr. Bhutto's enmity with the complainant was cited by the complainant as the motive, however, it was not even considered that such enmity could equally be a reason to falsely implicate Mr. Bhutto---First reporting of the crime to the police was by complainant's brother, however, the FIR was not registered when he reported the crime, nor was he cited as the informant/complainant in the FIR when it was registered---Surprisingly, complainant's brother was also not produced as a witness---All the six co-accused were arrested after General Zia's coup d'etat and the imposition of Martial Law, and all of them had confessed to the crime---This remarkable coincidence was not considered by the Trial Court or the Appellate Court to be unusual nor was it ever considered whether these confessions could have been induced---Two of the accused were pardoned and made approvers---Acting Chief Justice, who headed the Bench of the Lahore High Court which had convicted Mr. Bhutto, and the Chief Justice of the Supreme Court who headed the Bench which had upheld the conviction, both assumed their offices in somewhat unusual circumstances giving rise to justifiable misgivings---Bias was on display in a number of paragraphs of the Trial Court's (High Court's) judgment---Gratis observations were made which had absolutely nothing to do with the case before the Court---Manner in which the trial was conducted was antithetical to a fair trial and due process---Trial Court (High Court), which had tried and convicted Mr. Bhutto, and the Appellate Court (Supreme Court), which had dismissed his appeal, were operating when there was no constitutional rule in the country and one man's (General Zia-ul-Haq's) will and whim became legislation and his person had replaced the entire democratic order----Major constitutional and legal lapses that had occurred during the trial, appeal and review stage with respect to requirements of fair trial and due process stated.

Abul A'la Moudoodi v. Government of West Pakistan PLD 1964 SC 673; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Ibrahim v King, (1975) 3 All ER 175; Muhammad Amjad v. State PLD 2003 SC 704; Dhani Bakhsh v. State PLD 1975 SC 187; Hakim Ali v. State 1971 SCMR 432 and Habibullah v. State PLD 1969 SC 127 ref.

Per Syed Mansoor Ali Shah, J.; partially agreeing with Qazi Faez Isa, CJ.with his own reasons

(f) Constitution of Pakistan---

----Art. 186---Advisory jurisdiction of the Supreme Court under Article 186 of the Constitution---Scope---In its advisory jurisdiction, the Supreme Court cannot undertake a fact-finding inquiry, adjudicate a lis between parties or review its judgment rendered in its adjudicatory jurisdiction.

Reference No. 1 of 2012 PLD 2013 SC 279; Cauvery Water Disputes Tribunal's case AIR 1992 SC 522; Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84; Reference No. 1 of 1988 PLD 1989 SC 75 and Special Reference No.1 of 1955 PLD 1955 FC 435 ref.

(g) Criminal trial---

----Political trials---Scope and purpose---Around the world, authoritarian regimes use "political trials" to legitimize their seizures of power, delegitimize opponents and consolidate authority---A political trial is one whose disposition-the determination of guilt or innocence, followed by punishment-depends primarily on the accused's professed attitudes and activities in relation to the ruling regime---In such trials, the legal process is not employed to ensure justice or minimize errors but rather to discredit and punish political opponents---These trials often rely heavily on statements obtained during investigations from former allies or associates of the accused, who may be coerced or induced to turn against the accused---Such evidence, which would usually hold limited weight in a fair trial, becomes a convenient basis for conviction in a political trial, supporting the alleged criminality of the accused---Political trials thus serve as a potent and notorious "judicial tool" for authoritarian regimes, aimed at suppressing political resistance and eliminating opposition---These trials frequently violate due process and fair trial requirements to produce politically desirable outcomes.

Fiona Shen-Bayh, Undue Process: Persecution and Punishment in Autocratic Courts, (2022); Raymond Suttner, Political Trials and the Legal Process, (1985) and Anthony Pereira, Persecution and Farce: The Origins and Transformation of Brazil's Political Trials, 1964- 1979, (1998) ref.

(h) Administration of justice---

----"Transitional justice"---Scope and purpose---In post-authoritarian regimes, "transitional justice" forms a crucial part of the transition from repressive authoritarianism to constitutional democracy---It involves uncovering the crimes of former authoritarian rulers and holding them accountable for past human rights violations, including unlawful detentions, imprisonments and politically motivated trials---Transitional justice, however, is not about vengeance or retribution but about a principled approach to healing and justice---Courts globally have affirmed that they must address the demands of victims for truth and justice while laying the foundation for societal reconciliation and systemic transformation---This dual focus on accountability and restoration is what sets transitional justice apart from ordinary judicial processes---Transitional justice, therefore, encompasses a set of methods through which states that have experienced fundamental human rights violations seek to distance themselves from that past and move forward in a manner consistent with the need for justice for those who have suffered from these violations---These methods of transitional justice include truth and reconciliation commissions and the criminal prosecution of former authoritarian rulers---Furthermore, holding both executive and judicial institutions accountable for their actions during the period of authoritarian repression, as well as exonerating past victims of state repression and miscarriages of justice, is essential for facilitating the transition of these state institutions toward greater respect for, and promotion of, the rule of law and fundamental human rights---Transitional justice encompasses broader mechanisms, including revisiting flawed judicial decisions made during authoritarian regimes through compromising due process and fair trial requirements---This process helps restore fairness and legitimacy in the legal system---By revisiting and rendering opinions on the fairness and legitimacy of such decisions, the Court delivers justice to affected individuals and sends a powerful message: judicial complicity with authoritarianism will not be shielded from scrutiny---This approach reinforces judicial independence, ensures accountability for regime-orchestrated injustices, and establishes a precedent for discrediting flawed judicial decisions rendered under oppressive regimes---Such actions underscore the judiciary's commitment to constitutional principles, reminding past and future judges of their duties and the need to resist authoritarian pressure---Ultimately, this helps safeguard democracy, the rule of law and human rights.

Juan Méndez, Constitutionalism and Transitional Justice, (2012); Vinjamuri and Snyder, Law and Politics in Transitional Justice, (2015); Hakeem Yusuf, Transitional Justice, Judicial Accountability and the Rule of Law, (2010); General (R) Pervez Musharraf v. Federation of Pakistan PLD 2024 SC 497; Taufiq Asif v. General (R) Pervez Musharraf PLD 2024 SC 610; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 789 and Nawaz Sharif v. State PLD 2009 SC 814 ref.

(i) Constitution of Pakistan---

----Arts. 4, 9, 10A & 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)---'Political trial'---Victim of 'judicial murder'---Murder trial of Zulfiqar Ali Bhutto ("Mr. Bhutto") by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Requirements of due process and fair trial not met---Violations of procedural due process and fair trial requirements stated.

The murder trial of Mr. Zulfiqar Ali Bhutto, a former Prime Minister of Pakistan, serves as a classic example of a political trial, illustrating how such trials can be manipulated to advance authoritarian designs. Bhutto's trial effectively served as a potent and notorious "judicial tool" for strengthening General Zia's authoritarian regime, aimed at suppressing political resistance, eliminating opposition and ensuring the consolidation of power. It helped to entrench the repressive military authoritarian regime under which it was conducted. Instead of independent, substantive evidence, the prosecution relied heavily on confessional statements given by, or procured from, Bhutto's former associates-accomplices turned approvers.

Likewise, several violations of procedural due process and fair trial requirements were committed to achieve politically desirable outcomes. These included the unauthorized reinvestigation of the case, which had previously been closed by an order of the Magistrate concerned; the surreptitious and unlawful transfer of the investigation from the regular investigating agency (Provincial Police) to the Federal Investigation Agency; the transfer of the trial from the regular Trial Court (Sessions Court) to the High Court without adherence to legal requirements; the unjustified cancellation of bail previously granted to Bhutto by a Single Bench of the Lahore High Court; the determination of Bhutto's recusal application by judges other than the one whose recusal was sought, without addressing the instances cited to demonstrate the bias and prejudice of the judge (Justice Maulvi Mushtaq); the composition of the trial and appellate court benches, both of which were headed by judges (Justice Maulvi Mushtaq and Justice Anwar-ul-Haq) who harboured personal grievances against Bhutto due to being passed over for appointments as Chief Justice of their respective courts-the Lahore High Court (Trial Court) and the Supreme Court (appellate court); and the unwarranted reconstitution of the appellate court bench from nine judges to seven judges. It is an established principle that justice must not only be done but must also manifestly and undoubtedly be seen to be done. The infringement of this fundamental principle also constitutes a violation of due process and fair trial requirements. Because of these glaring violations, Bhutto is rightly regarded as the victim of "unfair judicial proceedings" and "legalized political murder"-also referred to as "judicial murder". Both the obvious procedural irregularities and illegalities in the reinvestigation and trial, as well as the biased composition of the trial and appellate court benches, rendered the verdict illegitimate and undermined the independence and impartiality of the superior courts (High Courts and the Supreme Court) for years to come.

Rex v. Sussex Justices [1924] 1 KB 256; Ramsey Clark, Injustice against Bhutto in 2 Courts, (1979) and Ian Talbot, Pakistan: A Modern History, (1998) and Paula Newberg, Judging the State: Courts and Constitutional Politics in Pakistan, (1995) ref.

The Constitution and the law provide no mechanism to set aside the judgment by which Bhutto was convicted and sentenced, as that judgment attained finality following the dismissal of the review petition by the Supreme Court. Furthermore, in its advisory jurisdiction under Article 186 of the Constitution, the Supreme Court lacks the authority to reappraise the evidence or overturn a final decision. However, after carefully examining the record of the reinvestigation and trial proceedings, the Supreme Court concluded-and so stated- that the trial proceedings in the Lahore High Court and the appellate proceedings in the Supreme Court of Pakistan did not meet the requirements of the Fundamental Right to a fair trial and due process as enshrined in Articles 4 and 9 of the Constitution, which were later reinforced as a separate and independent Fundamental Right under Article 10A of the Constitution. Supreme Court's expression of this opinion reflects a commitment to confront past missteps and fallibilities during an authoritarian regime with humility, embodying a spirit of self-accountability and underscoring our dedication to ensuring that transitional justice shall be served with unwavering integrity and fidelity to the Constitution and the law.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Jubilee Insurance v. NBP PLD 1999 SC 1126; Nadeem Anwar v. NAB PLD 2008 SC 645 and Riaz-Ul-Haq v. Federation of Pakistan PLD 2013 SC 501 ref.

Per Yahya Afridi, J.; agreeing with Syed Hasan Azhar Rizvi, J. and partially agreeing with Qazi Faez Isa, CJ.

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

----Ss. 411-A & 526---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(2)(b)---Trial by the High Court---Scope---Observation in the majority opinion authored by the Chief Justice (Qazi Faez Isa, J.), that Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Code of Criminal Procedure, 1898 do not permit the High Court to conduct a murder trial - is untenable, as it is founded on a misconception of these provisions. [Minority view]

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

----S. 376 & Chapt. XXVII---Death sentence---Confirmation by the High Court---Scope---Chapter XXVII of the Code of Criminal Procedure, 1898 does not extend to death sentences passed by the High Court in the exercise of its original criminal jurisdiction---These provisions do not necessitate confirmation of such sentences or lead to the forfeiture of the right of appeal. [Minority view]

Per Syed Hasan Azhar Rizvi J.; partially agreeing with Qazi Faez Isa, CJ. with his own reasons

(l) Judgment---

----Additional/supplementary notes or opinions of Judges in a case---Significance---It is the hallmark of a robust judicial system to allow for the expression of supplementary views that may fortify the decision's legal foundation and contribute to the richness of our legal tradition.

(m) Constitution of Pakistan---

----Arts. 4, 9, 10A & 186---Penal Code (XLV of 1860), Ss. 302, 307, 120B & 109---Criminal Procedure Code (V of 1898), S. 526---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 ("Mr. Bhutto") by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Requirements of due process and fair trial not met---Biased and impartial conduct of the Acting Chief Justice of the High Court towards Mr. Bhutto---Non-observance of prescribed procedure under the Code of Criminal Procedure, 1898 ('Cr.P.C.') by the High Court---Proceedings of the trial held in-camera without any justification---Necessary material to prepare defence effectively not provided---Denial of right to defend---Discrepancies and irregularities in the testimony of the approver---Lack of corroboration of evidence provided by the approver---Evidence of material witnesses full of contradictions, improvements and improbabilities---Motive remaining unproved---Negative report of ballistics experts---Major constitutional and legal lapses that undermined the proceedings of trial of Mr. Bhutto before the High Court as well as the appeal filed by him before the Supreme Court stated.

Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51 ref.

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

----Art. 129, Illustration (b)---Approver, evidence of---Principles---Testimony of an approver is to be scrutinized with care and caution---Court should be doubly sure that his (approver's) evidence is corroborated in material particulars by reliable evidence---Principles for appreciating the evidence of an approver listed.

Following are principles for appreciating the evidence of an approver:

(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.

(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.

(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.

(iv) That though the confession of a co-accused cannot be made the foundation of conviction but it may be used in support of other evidence.

(v) That the confession of a co-accused is evidence of a weak character.

(vi) That under Islamic jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence.

(vii) That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession.

(viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(ix) That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.

Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983 ref.

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

----Ss. 411-A & 526---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(2)(b)---Trial by the High Court---Scope---Observation in the majority opinion authored by the Chief Justice (Qazi Faez Isa, J.), that "Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Code of Criminal Procedure, 1898 do permit trial to be conducted by the High Court, but these provisions do not provide for a High Court to conduct a murder trial"---His Lordship opined that such observation in the majority opinion was untenable under the law being based on a misconception and incorrect understanding of the true meaning and purpose of Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Cr.P.C. [Minority view]

Raja Khurram Ali Khan and another v. Tayyaba Bibi and another 2019 YLR 98 and Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 ref.

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

----Ss. 374, 375, 376, 377 & Chapt. XXVII---Death sentence---Confirmation by the High Court---Scope---On a reference for the confirmation of the sentence of death, the High Court is required to proceed in accordance with sections 375 and 376, Cr.P.C. and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Trial Court is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person---When the High Court passes a sentence of death in its original criminal jurisdiction, Chapter XXVII of Cr.P.C. becomes redundant and inoperative---Chapter XXVII of the Cr.P.C does not extend to death sentences passed by the High Court in the exercise of its original criminal jurisdiction---These provisions do not necessitate confirmation of such sentences or lead to the forfeiture of the right of appeal. [Minority view]

Per Muhammad Ali Mazhar J.; agreeing with Qazi Faez Isa, C.J. with his own reasons

(q) Constitution of Pakistan---

----Art. 186---Advisory jurisdiction of the Supreme Court under Article 186 of the Constitution---Scope---While the opinion rendered by the Supreme Court under its advisory jurisdiction may not be binding, it carries significant credence and persuasive value---It is rendered after much deliberation, thoughtfulness, and appreciation of the questions forwarded by the President consistent with the constitutional obligations and judicial propriety---Such opinions ought to be respected with due weight and esteem by all organs of the State---However, concomitantly, questions transmitted for opinion in the reference should not be ambiguous, indeterminate, or inexplicable to avoid the possibility of the Supreme Court returning the reference unanswered.

Reference No. 2 of 2005 PLD 2005 SC 873 ref.

(r) Constitution of Pakistan---

----Arts. 4, 9, 10A & 186---Penal Code (XLV of 1860), Ss. 302, 307, 120B & 109---Criminal Procedure Code (V of 1898), S. 526---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 ("Mr. Bhutto") by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Requirements of due process and fair trial not met---Violation of principles of natural justice---Reinvestigation in a closed case ordered mechanically without identifying lapses in the first investigation---Transfer of case from Sessions Court to the High Court by the then Acting Chief Justice of High Court with malice and without notice to accused persons---Personal bias and preconceived notions of Judges sitting on the Bench of the Trial Court (High Court)---Evidence of approver not corroborated by reliable evidence---One right of appeal lost/forfeited due to trial in the High Court---Appellate court (Supreme Court) failing to consider mitigating circumstances---Detailed reasons for failure to ensure a fair trial and due process stated.

Rex v. Sussex Justices (1924) 1 KB 256; Ms. Benazir Bhutto v. The President of Pakistan 1992 SCMR 140; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; President v. Shaukat Ali PLD 1971 SC 585; Government of NWFP v. Dr. Hussain Ahmed Haroon 2003 SCMR 104; Asif Ali Zardari v. The State PLD 2001 SC 568; State of Puniab v. Davinder Pal Singh Bhullar AIR 2012 SC 364; Gullavalli Negeswararao etc. v. The State of Andhra Pradesh and others AIR 1959 SC 1376; Ranjit Thakur v. Union of India and others AIR 1987 SC 2386; Bhajan Lai, Chief Minister, Haryana v. Messrs Jindal Strips Ltd. and others (1994) 6 SCC 19; Justice P.D. Dinakaran v. Hon'ble Judges Inquiry Committee (2011) 8 SCC 380; A.K. Kraipak v. Union of India AIR 1970 SC 150; Davidson v. Scottish Ministers (2004) UKHL 34; Webb and Hay v. R (1993) HCA 30; R v. Sussex Justices, ex parte McCarthy (1923) All ER 233; R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) (1999) 1 All ER 577; Taylor and another v. Lawrence and another (2002) EWCA Civ 90; Junaid Wazir v. Superintendent of Police 2024 SCMR 181; Federation of Pakistan v. Zahid Malik 2023 SCMR 603; Usman Ghani v. The Chief Post Master, GPO Karachi 2022 SCMR 745; Capital Development Authority v. Shabir Hussain 2022 SCMR 627; Raja Muhammad Shahid v. The Inspector General of Police 2023 SCMR 1135; Muhammad Yaseen v. Province of Sindh 2024 PLC (C.S.) 111; Government of Balochistan v. Ghulam Rasool 2024 SCMR 1155 and Inspector General of Police, Quetta v. Fida Muhammad 2022 SCMR 1583 ref.

(s) Constitution of Pakistan---

----Arts. 4, 9, 10A & 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)---One of the questions framed by the Supreme Court in the Presidential Reference was 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-Nepal, 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---His Lordship observed that no opinion was rendered by the Supreme Court for this question, which was left unanswered for the valid reason that no assistance was provided---Since the question on the doctrine of repentance was framed with reference to various verses of the Holy Quran, forming substantial segment of the Presidential Reference, it should not remain untouched or unanswered---The unresolved question is why the question regarding the doctrine of repentance was framed by the Supreme Court?---Who had to or has to repent for the unfair and biased trial?---Was it the departed souls who tried the case in the High Court? ; or those who heard the appeal and review? ; or the bench that entertained and framed the question? ;or the bench members who rendered their opinion years after the Reference was instituted?---Supreme Court unanimously noted various lapses and biases in the High Court's murder trial, ultimately concluding that the proceedings of the trial by the Lahore High Court and the appeal by the Supreme Court failed to meet the constitutional requirements of a fair trial and due process enshrined in Articles 4, 9, and later guaranteed as a separate and independent fundamental right under Article 10A of the Constitution---Not only it demonstrates some sought of remorse though not explicitly articulated but it also implies a recognition of repentance for the failure to ensure a fair trial and due process, even as this question of the Presidential Reference remains unanswered or undecided. [Minority view]

In Attendance:

On behalf of the 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. AG.

Hassan Akbar, Advocate-General, Sindh

assisted by Qazi M. Bashir, Addl. AG.

Amir Javed, Advocate-General, Khyber Pakhtunkhwa, assisted by

Sultan Mazhar Sher Khan, Addl. AG.

Asif Reki, Advocate-General, Balochistan

assisted by M. Ayaz Swati, Addl. AG.

On behalf of the LRs of the

late Zulfiqar Ali Bhutto:

Farooq H. Naek, Sr. Advocate Supreme Court, assisted by

Iftikhar Shah and Sheraz Shaukat Rajpar, Advocates.

(representing grandson Bilawal Bhutto Zardari)

Mian Raza Rabbani, Advocate Supreme Court, assisted by

Zeeshan Abdullah, Advocate.

(representing daughter Ms. Sanam Bhutto and grandchildren Ms. Bakhtawar Bhutto and Ms. Aseefa Bhutto)

Zahid F. Ibrahim, Advocate Supreme Court, assisted by

Altamash Arab, Advocate.

(representing grandchildren Ms. Fatima Bhutto and Zulfiqar Ali Bhutto)

Amici Curiae:

Manzoor Ahmad Malik, Hon'ble former Judge, assisted by Ansar Nawaz Mirza, Advocate Supreme Court, Haider Rasul Mirza, 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.

For 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

Qazi Faez Isa, CJ.

Background

1. The Federal Cabinet1 headed by the Prime Minister decided to file a reference under Article 186 of the Constitution of the Islamic Republic of Pakistan ('the Constitution') 'in respect of the proceedings of the judicial process in the case of trial Shaheed Zulfiqar Ali Bhutto, former Prime Minister' ('Mr. Bhutto'), and the Prime Minister advised2 the President of Pakistan ('the President') to file the reference. Resultantly, the President submitted a reference to the Supreme Court,3 which was numbered as Reference No. 1 of 2011 ('the Reference').

Seeking the Opinion of the Supreme Court

1. Article 186 of the Constitution, pursuant to which the Reference was filed, states that:

'186. (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.'

Questions Formulated for Opinion

1. The following questions for the opinion of the Court were formulated:

'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?

1. 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?

2. 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?

3. Whether the decision in the case of murder trial against Shaheed Zulfiqar Ali Bhutto fulfills 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:

(a) Sura Al-Nisa: verses 17 & 18

Sura Al-Baqara: verses 159, 160 and 222 Sura Al-Maida: verse 39

Sura Al-Aaraaf: verse 153

Sura Al-Nehal verse 119

Sura Al-Taha: verse 82

as well as

(b) Sunan Ibn-e-Maaja, Chapter 171, Hadith No. 395

What are effects and consequences of doctrine Re: Repentance

1. 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?'

Larger Bench

1. The Supreme Court4 ordered that a larger Bench should be constituted to hear the Reference. Resultantly a larger Bench, comprising of the Chief Justice and eight Judges, was constituted, and it last heard the Reference on 12 November 2012; the Reference was not fixed in Court for eleven years. All the members of this Court who were hearing the Reference have retired.

Rehearing of the Reference

1. The Reference was again fixed in Court for hearing on 12 December 2023. This Court noted that, 'A number of other presidential references, filed later under Article 186, of the Constitution, were taken up for hearing and decided by this Court,5 but this Presidential Reference remains pending, it merits determination as early as possible.' It would be appropriate to reproduce the following paragraphs from the order passed on 12 December 2023:

'2. Learned Mr. Farooq H. Naek referred to an application (C.M.A. No.8622/2018) filed on behalf of Mr. Bilawal Bhutto Zardari, the grandson of the late Mr. Bhutto and states he wants to be represented herein. We are informed that there is only one surviving daughter of the late Mr. Bhutto and he has eight grandchildren. The application is allowed and learned Mr. Naek may represent Mr. Bilawal Bhutto Zardari and assist this Court. If Mr. Bhutto's daughter and any of his grandchildren also want to be represented they may engage counsel. Mr. Naek states that he has also filed an application (CMA No. 10492/2023) seeking live telecast of these proceedings, however, the committee constituted in this regard had before filing of the application already made requisite arrangements and recommended that the Presidential Reference be broadcast, and proceedings are being broadcast,6 therefore, this application has become infructuous and is disposed of.

3. Learned Mr. Naek refers to the report of Justice Shafi-ur-Rehman, who was then a Judge of the Lahore High Court, regarding the investigation into the murder of Mr. Mohammad Ahmed Khan, the father of the complainant, Mr. Ahmed Raza Khan Kasuri. He requested that he be provided its copy. A Tribunal of inquiry was constituted by the Government of Punjab in exercise of its powers conferred by section 3 of the West Pakistan Tribunals of Inquiry Ordinance, 1969.7 The Report of the Tribunal is dated 22 February 1975 and comprises of 30 pages, and is mentioned in the judgment of the Lahore High Court8 and also in the appeal therefrom.9

4. The learned Attorney-General for Pakistan ('AG') was asked whether any of the successive Presidents or the Federal Government sought to withdraw the Presidential Reference or wants to do so now, and the learned AG stated that this was not done nor is this sought to be done now.

5. Learned AG was asked to read the Presidential Reference, which he did. He also read some of the orders of this Court, including order dated 21 April 201110 which formulated questions for the opinion of this Court. A number of amici curiae were appointed, some of whom have passed away and others we are told are indisposed. Learned Mr. Ali Ahmed Kurd, an amicus appointed by this Court, states that he will be rendering assistance. We are also informed that learned Mr. Makhdoom Ali Khan, another amicus appointed by this Court, will also be rendering assistance. Notice had also been issued to the Supreme Court Bar Association ('SCBA') and the late Ms. Asma Jahangir represented SCBA; if SCBA want to be represented before this Court they may nominate a counsel to assist us. We also appoint learned Messrs Khalid Javed Khan, Salahuddin Ahmed and Zahid F. Ebrahim as amici curiae. Mr. Yasser Kureshi, an academic working at Oxford University, United Kingdom, and Ms. Reema Omer of the International Commission of Jurists are also appointed as amici curiae. They are appointed to particularly attend to the constitutional and legal aspects of the matter.

6. The first and foremost constitutional and legal points, in addition to those recorded in order dated 21 April 2011, that require consideration are:

(1) Whether the Presidential Reference is maintainable under Article 186 of the Constitution;

(2) 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;

(3) 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

(4) Were certain judge(s) removed from the trial and/or hearing the appeal to secure a particular result.

7. If the aforesaid aspect is successfully attended to then we will need to consider the trial and appeal which will require expertise in criminal law and procedure. Justice Manzoor Ahmed Malik, former Judge of the Supreme Court, and Justice Assadullah Khan Chamkani, a former Judge of the Peshawar High Court, have vast experience and we want to benefit from their knowledge in this regard, therefore, they are appointed as amici curiae, who may either submit a written brief and/or address us in person. We note that learned Mr. Khawaja Haris Ahmed was the Advocate-General, Punjab and was associated with the Presidential Reference when it was earlier heard and is also a criminal law expert, therefore, he is also appointed as amicus curiae to assist with the criminal law and procedure.

8. With regard to the criminal law aspects the learned amici curiae may assist on the following:

(1) If, and when, can a murder trial be conducted by the High Court, and to cite local and international precedents;

(2) Was the murder-trial being conducted by the High Court objected to, and if it was, how was the objection attended to;

(3) The consequences, if any, of departing from the usual mode of trial;

(4) The admissibility or otherwise of a confessional statement of an approver and to what extent can it be used against a co-accused;

(5) Was there any legal bias, and if so its effects; and

(6) 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.

9. The Presidential Reference refers to an interview, which we are told was given to Mr. Iftikhar Ahmed of Geo television by Justice Nasim Hassan Shah, who was on the Bench of the Supreme Court which decided the appeal and review11. Mr. Ahmed Raza Kasuri also refers to his application (C.M.A. No. 5788/2011) and states that he has filed extracts from a book written by the same learned Judge - Constitution, Law and Pakistan Affairs. Mr. Naek states that Justice Dorab Patel had also given an interview about the case.

10. Office is directed to send copies of the Presidential Reference, all orders and the Report of the Tribunal to the learned amici curiae who may attend to the questions noted above, in order dated 21 April 2011 and in the Presidential Reference. The learned amici may submit their respective written opinions on all or any of the said matters, and on any other aspect which they consider relevant, by Friday, 5 January 2024.'

1. We heard this Reference on 8 January, 20, 26, 27 and 28 February and 4 March 2024. On 6 March 2024 we announced our Opinion under Article 186 of the Constitution which read as follows:

'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.'12 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.

2. 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.

1. 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.

4. 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:

(a) 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 (b) Sunan Ibn-e-Maaja, Chapter 171, Hadith No. 395.

What are effects and consequences of doctrine - Re: Repentance

Opinion

We were not rendered any assistance on this question, therefore, it would be inappropriate to render an opinion.'

Retirement of Senior Puisne Judge Sardar Tariq Masood

1. Sardar Tariq Masood, J was the senior puisne judge when the Reference was heard and the above opinion was rendered, however, he retired on 10 March 2024. It is commonsensical that, if a Judge has already signed a written opinion/short order, but then retires, he can sign/give the detailed reasons post-retirement. This also prevents the unnecessary wastage of public resources and Court time, which would happen if the Bench was to be reconstituted (after the retirement of a Judge) and the entire matter heard again. A Supreme Court Bench comprising of thirteen Judges13 held that Judges who had retired before signing the detailed reasons could do so after their retirement.

Facts of the case

1. On 11 November 1974 at 12.30 am Mr. Muhammad Ahmad Khan ('Mr. Khan'), his wife, his wife's sister and his son Mr. Ahmad Raza Kasuri ('Mr. Kasuri') were returning home after having attended a wedding in a car driven by Mr. Kasuri when it was fired upon and a bullet struck Mr. Khan in the head, which resulted in his death. The FIR14 was registered on the written complaint of Mr. Kasuri ('the Complainant'), who stated that he suspected that he (and not his father) was the intended target because he was vociferously opposed to the government party (Pakistan Peoples Party) of Mr. Bhutto. Attributing motive to Mr. Bhutto, he stated that Mr. Bhutto had addressed him in the National Assembly (of which both were members - MNAs) saying that he (Mr. Kasuri) had exhausted his patience (' ') and that he (Mr. Bhutto) had said that he had had enough of Mr. Kasuri (' ').

Police Investigation of the Crime

1. The Police commenced its investigation15 of the crime but the perpetrators could not be unearthed. Therefore, the Senior Superintendent of Police ('SSP') transferred the investigation to a specialized investigation unit, that is, to the Crime Investigation Agency ('CIA').16 However, the CIA also failed to trace the criminals, and after nine and a half months submitted its report recommending the closure of the investigation.17

Closing the Investigation

1. The Police could not make any progress in discovering those who had committed the crime which had killed Mr. Khan. The CIA too drew a blank. Therefore, a report was prepared by Inspector Abdul Hameed of CIA, Lahore which was also signed on 19 March 1976 by the Deputy Superintendent of Police ('DSP'), Ichhra Circle, Lahore within the limits of which the crime was committed, and on 24 April 1976 by the Superintendent of Police ('SP'), Cantonment, Lahore, recommending that the investigation be closed. The Magistrate ordered the closure of the investigation on 3 May 1976. Neither Mr. Kasuri, nor the other legal heirs of the late Mr. Khan, nor anyone else objected to the closure of the investigation. The Magistrate's order closing the investigation was never challenged.

Tribunal of Inquiry

1. The Government of Punjab appointed a Judge of the Lahore High Court as the Tribunal18 to inquire into:

'NOTIFICATION

The 13th November 1974

No. SOG-III-6-309/74 - Whereas the Government of the Punjab is of the opinion that it is necessary to appoint a Tribunal for the purpose of making an inquiry into the incident which took place at Shadman-Shah Jamal Round-about, nearly four furlongs to the north of P. S. Ichhra, Lahore on the night between 10th and 11th November, 1974 at 12-30 a.m. (night):

Now, therefore, in exercise of the powers conferred on him by Section 3 of the West Pakistan Tribunals of Inquiry Ordinance, 1969 (Ordinance II of 1969), the Governor of the Punjab is pleased to appoint Mr. Justice Shafi-ur-Rehman, Judge, Lahore High Court as the Tribunal.

2. The terms of reference of the Tribunal shall be-

(i) To inquire into the incident which took place on the night between 10th and 11th November, 1974 at Shadman-Shah Jamal Round-about, nearly four furlongs to the north of P. S. Ichhra, Lahore leading to the death of Nawabzada Muhammad Ahmed Khan, resident of 130-J, Model Town, Lahore, father of Mr. Ahmed Raza Khan Qasuri, MNA, in which connection FIR No. 402/74 was recorded on 11th November 1974 at P. S. Ichhra, Lahore

(ii) To examine the investigations conducted by the Police in the case and give such directions as may be appropriate.

3. The Tribunal will finalize the inquiry and submit his report within one month.

F. K. BANDIAL

Chief Secretary.'

1. The Tribunal submitted Report of the Tribunal on 22 February 1975, which found that:

'15. The only motive mentioned in the FIR accounting for the occurrence is the affiliations and the political activities of the complainant, Mr. Ahmed Reza Khan Kasuri, and the extreme exasperation and dislike for him of the Prime Minister publicly expressed on the floor of the National Assembly. In explaining the mention of such a motive in the FIR the complainant made it clear that it does not necessarily mean that he was subjected to this and the precedent attacks directly at the bidding of the Prime Minister or that the attack was organized by someone in Government or Party. He said that on political differences, whatever their nature or extent, such a public condemnation by the Prime Minister, who happens to be, for the time being, the repository and source of all political and governmental powers, could prompt a die-hard, an over enthusiastic person, or a trigger happy individual, in the government or outside, of the party or not, to accomplish his extermination from the scene.'

The Tribunal issued the following directions:

'36. In short, the directions that I propose giving to the investigating agency are the following:-

(i) A more thorough and expert examination of the spot.

(ii) Preservation of property connected with the crime, already recovered or recoverable from the spot.

(iii) Expert examination of all the recovered articles together, with a view to narrow down the class of weapon used in the commission of the crime.

(iv) Natural witnesses to the occurrence i.e. residents of the area, invitees at the house of Bashir Shah, the Patrol Parties to be subjected to more purposive interrogation particularly for ascertaining the number of shots fired, number of weapons used and the suspects.

(v) The surviving occupants of the car should have been profitably interrogated on certain aspects of the investigation.

(vi) The material witnesses in the case and the suspects to be fully protected against physical harm.'

However, nothing was unearthed about the perpetrator(s) of the crime.

5 July 1977

1. The Chief of Army Staff, General Mohammad Zia-ul-Haq, overthrew the democratic order and imposed martial law on 5 July 1977. The investigation of the murder of Mr. Khan on 11 November 1974, which was closed on 3 May 1976, was reopened on the verbal orders of the Director of the Federal Investigation Agency ('FIA').19 The prosecution never explained how and why an investigation into a thirty-two month old case, which was closed fourteen months earlier, was reopened. It was also not explained how and why the investigation was transferred to the FIA. Both of these actions (the reopening of the investigation and its transfer to FIA) were taken immediately after General Zia-ul-Haq's coup d'etat overthrowing Mr. Bhutto's government. The case was resurrected.20

Post Coup Investigation

1. The interim investigation report (challan) was submitted on 11 September 1977.21 In addition to section 302 (murder) of the Pakistan Penal Code, 1860 ('P.P.C.') and section 307 (attempt to murder) mentioned in the FIR were added, sections 120B (criminal conspiracy to commit an offence) and 109 (abetment of an offence). The following seven persons were nominated in the interim investigation report to having conspired to murder Mr. Kasuri and for the murder of Mr. Khan:

Mr. Bhutto, Prime Minister

(Sheikh) Masood Mahmood, Director-General FSF

Mian Muhammad Abbas, Director FSF

Mr. Ghulam Hussain, Inspector FSF

Mr. Ghulam Mustafa, Inspector FSF

Mr. Arshad Iqbal, Sub-Inspector FSF

(Rana) Iftikhar Ahmad, Assistant Sub-Inspector FSF

However, in the final investigation report (challan) dated 18 September 1977 Masood Mahmood and Mian Muhammad Abbas were shown as approvers.

Transfer of case to the Lahore High Court

1. A murder case under section 302, P.P.C. can only be tried by a Court of Session. Therefore, the investigation report, which was submitted to the Magistrate, was forwarded to the Sessions Judge, Lahore on 12 September 1977. After receipt of the report the trial would have commenced. However, on the very next day (13 September 1977) the case (Criminal Original No.60/77, titled State v. Z. A. Bhutto) came up before Justice Mushtaq Hussain, the Acting Chief Justice ('ACJ'), who the very same day ordered that, 'In view of submissions made in the petition the case is transferred to this Court for trial.' This was done despite the fact that the Sessions Judge, Lahore had already on 12 September 1977 taken cognizance of the case. It is inexplicable how then the case was listed for hearing before the ACJ. Criminal Original No.60/77 is untraceable, therefore, it cannot be ascertained what was recorded therein, and what had necessitated its immediate fixation in the High Court, and before Justice Mushtaq Hussain. The record (which is available), however, shows that Justice Mushtaq Hussain immediately and on the same day 13 September 1977 granted the said petition, by passing the following order:

'In view of the submissions made in the petition the case is transferred to this Court for trial. It shall be heard by a Full Bench consisting of

1. Myself

2. Zakiuddin Pal

3. M.S.H. Qureshi

4. Sheikh Aftab Hussain and

5. Malik Gulbaz Khan, JJ.

To be heard on 24.9.1977.

Maulvi Mushtaq Hussain

ACTING CHIEF JUSTICE'

Commencement of the Trial

1. On 24 September 1977 the trial of Mr. Bhutto and of the other co-accused commenced. The High Court ordered that the evidence be summoned, however, even though the accused were present in Court, the charge was not framed against them. The charge was also not framed on the next date, that is, on 3 October 1977. Framing of charge is a mandatory requirement,22 and only after it is framed can a trial commence. The charge was finally framed on 11 October 1977 when all the accused pleaded not guilty. From 11 October 1977 to 25 February 1978 the High Court (acting as the Trial Court) recorded the statements of forty-one prosecution witnesses (PWs) and of four defence witnesses (DWs). On 2 March 1978 judgment was reserved and it was announced on 18 March 1978. Mr. Bhutto was convicted for the following offences of the PPC: (a) section 120-B and sentenced to five years rigorous imprisonment, (b) section 302 read with sections 301 and 111 and sentenced to death and (c) under section 307 read with section 109 and sentenced to seven years rigorous imprisonment for each offence.

Appeal and Review

1. Mr. Bhutto appealed his conviction before the Supreme Court,23 but his appeal was dismissed on 6 February 1979 by a majority of four to three.24 A review petition25 seeking review of the Judgment dismissing Mr. Bhutto's criminal appeal was filed, but it was unanimously dismissed on 24 March 1979.

Death Warrant and Execution

1. Mr. Bhutto's 'Warrant of Execution on Sentence of Death' ('the death warrant') was signed by Mushtaq Hussain, J, who by now had become the Chief Justice of the Lahore High Court. The death warrant concluded in the following words: 'Given under my hand and the seal of the Court this 25th day of March 1979', and it directed the Superintendent District Jail at Rawalpindi to execute the sentence on 'the Second day of April 1979'. The execution date was later changed to 'the Fourth day of April 1979'. Mr. Bhutto was executed and the Superintendent District Jail Rawalpindi issued a certificate stating that he was 'hanged by the neck till he was dead at Rawalpindi on Wednesday the 4th day of April, 1979; that the body remained suspended for a full hour and was not taken down until life was ascertained by a medical officer to be extinct...'.

The Constitutional scope of this matter

1. We want to clarify, and emphasize, that we are not hearing a petition, an appeal or a review petition. Neither the Constitution nor the law provides a mechanism whereby Mr. Bhutto's conviction could be set aside. Mr. Bhutto's conviction attained finality after the dismissal of the review petition by the Supreme Court. In our advisory jurisdiction, under Article 186 of the Constitution, the decision cannot be undone.

Detailed Reasons

1. With regard to the conviction and sentence of Mr. Bhutto, on 6 March 2024 we had recorded that, 'in our detailed reasons, we shall identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process'. The following are the detailed reasons.

Reopening of the Investigation

1. The investigation of the murderous attack that took place on 11 November 1974 was undertaken by the Police, however, as no progress could be made it was transferred to the CIA, but still the perpetrator(s) could not be discovered. A Tribunal comprising of a High Court Judge was then constituted who issued certain directions but it did not help in unearthing the criminal(s). The recommendation to close the investigation was then made, which was accepted by the Magistrate and the investigation was officially closed on 3 May 1976. No one objected to the closure of the investigation. No application was submitted to reopen the investigation, and no Court ordered that the investigation be reopened. The complainant, who was a lawyer of some standing, also did not object to the closure of the investigation nor did he take the objection that its closure was premature.

2. Within a few days of General Zia's take over those, who were made the accused, were arrested, the crime, which was declared to be untraced and the investigation of which had been closed, was reopened (without authorization) and FIA re-investigated it (without aurthorization). Everyone who was made a co-accused with Mr. Bhutto had surprisingly confessed to the crime. And, the High Court unilaterally and without hearing the accused elected to itself conduct a murder trial, which was wholly unprecedented. Mr. Bhutto had appointed General Zia-ul-Haq as the Army Chief26 who by his actions of 5 July 1977 had clearly violated Article 6 of the Constitution and committed the offence of high treason, the prescribed punishment for which is imprisonment for life or death. General Zia, therefore had a motive to proceed against Mr. Bhutto, because had he not done so, Mr. Bhutto may have proceeded against him for committing high treason.

Reinvestigation by FIA

1. The Federal Investigation Agency Act, 1974 ('the FIA Act') constituted the FIA, and empowered the FIA to investigate the offences listed in the Schedule to the FIA Act, but it does not permit the reinvestigation of a crime which has already been investigated by the Police and the investigation whereof was ordered to be closed. Significantly, no judicial order was issued directing that the investigation be reopened or the crime reinvestigated by the FIA. The FIA had received the case file on 8 August 1977, but it had already commenced reinvestigation on 24 July 1977, as per case diary recorded by Abdul Khaliq, Deputy Director, FIA. This suggests that there was a preconceived objective. This transgression escaped the attention of the Trial Court Judges and also of the majority of the Appellate Court Judges.

Transfer of Case to the High Court

1. The reinvestigation report was submitted to the Sessions Judge, Lahore27 on 12 September 1977 who sought a report from the Public Prosecutor. However, the very next day (on 13 September 1977) the case was placed before a single Judge of the Lahore High Court, namely, Justice Mushtaq Hussain, who did something most unusual. Without issuing notices to Mr. Bhutto and to the other accused, without providing them an opportunity of a hearing and without enabling them to acquire legal representation, he ordered that, 'In view of the submissions made in the petition the case is transferred to this Court for trial.'

2. Section 526 of the Code of Criminal Procedure, 1898 ('the Code') empowers the High Court to transfer a criminal case to itself if: (a) a fair trial is not possible, (b) the case involves some questions of law of unusual difficulty, (c) if the place in or near which any offence has been committed needs to be viewed, (d) it will be to the general convenience of the parties or witnesses or (e) to secure the ends of justice. However, Justice Mushtaq Hussain, ACJ did not cite any reason, let alone any of those mentioned in the law necessitating the transfer of case to the High Court and for it to conduct the trial itself.

Prejudice Caused to the Accused/Convict

1. A murder trial is conducted by a Court of Session.28 Appeal against conviction lies before the High Court.29 Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Code permit trials to be conducted by the High Court, but these provisions do not provide for a High Court to conduct a murder trial. There was not a single precedent of a High Court conducting a murder trial. Mr. Bhutto's murder trial by the High Court made history; never before nor since has this happened. In other countries of the Indian subcontinent, where there are similar legal provisions, a High Court has never conducted a murder trial.

2. By conducting the murder trial itself, the High Court made redundant a number of provisions of the Constitution and Chapter XXVII of the Code. Section 374 requires that every sentence of death is required to be confirmed by the High Court; a vitally important safeguard against faulty convictions and hasty hangings. The sentence of death which is confirmed by the High Court must also be signed by two judges.30 When a sentence of death is passed, the High Court to which the matter is sent for confirmation of the conviction and sentence is also empowered to pass any other sentence warranted by law or acquit the accused person.31 In this case the trial was conducted by the High Court as the Trial Court, therefore, the death sentences passed by the Trial Court had to be confirmed by the Appellate Court. The mandatory requirement of section 376 of the Code, reproduced hereunder, was not complied with:

'Power of High Court to confirm sentences or annul conviction: In any case submitted under Section 374 the High Court:

(a) may confirm the sentence, or pass any other sentence warranted by law; or

(b) may annul the conviction and convict the accused of any offence of which the Sessions Court might have convicted him or order a new trial on the same or an amended charge; or

(c) may acquit the accused person;

Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.'

1. If for argument's sake it be accepted that the High Court could have conducted a murder trial, this it then did as a Trial Court, and as death sentences were passed these had to be confirmed by submitting the case to the High Court. Any two Judges of the High Court, who had not conducted the trial, could have done so in terms of section 376 of the Code. But, this was not done. Without confirming the sentences of death they could not have been executed. The Code, and its section 376, which provides essential protection to those sentenced to death, was enacted in 1898, but this provision has only once been disregarded, which was in this case.

Constitutional Safeguards were Disregarded

1. The Constitution mandates that, 'To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.'32 And, 'In particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.'33 The law (section 376 of the Code) requiring the confirmation of death sentences was violated and this inalienable right was contravened. Article 9 of the Constitution stipulates that, 'No person shall be deprived of life or liberty save in accordance with law,' and this fundamental right too was violated, regrettably, by those mandated to ensure the laws compliance.

Right of appeal lost

1. An appeal against the conviction and sentence of a Court of Session lies to the High Court.34 However, since the trial was conducted by the High Court itself, Mr. Bhutto and the other accused were deprived of one right of appeal. Article 4(1) of the Constitution which requires that all be treated in accordance with law, and Article 9 of the Constitution which prohibits anyone to be deprived of life save in accordance with law were vitiated. The convicts were deprived of one right of appeal, which Articles 4(1) and 9 guaranteed, and these rights can not be undone or disregarded, even during the proclamation of emergency.35

Right to Fair Trial and Due Process

1. The right to due process and a fair trial is part of the jurisprudence of Pakistan. These rights subsisted even before 'the right to fair trial and due process' were specifically incorporated in the Constitution, through Article 10A in the year 2010 as Fundamental Rights.36 In the case of Abul A'la Moudoodi v. Government of West Pakistan37 a five-Member Bench of the Supreme Court had stated (in 1964) that the necessity of due process 'is an element of justice which forms part of the British Common Law', that is inherited by Pakistan. In the case of Benazir Bhutto v. Federation of Pakistan38 (1988) the Fundamental Right to life (Article 9 of the Constitution) was held, by an eleven-Member Bench of the Supreme Court, to include access to justice, which incorporates fair trial and due process:

'The right of "access to justice to all" is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of "due process of law". The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term "due process of law" has been summarised as follows:

"(1) He shall have due notice of proceedings which affect his rights.

(2) He shall be given reasonable opportunity to defend.

(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and

(4) That it is a Court of competent jurisdiction."

It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved.'

The above principle was reiterated (in 1993) in the case of Government of Balochistan v. Azizullah Memon:39

'The right of access to justice is internationally well-recognised human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Criminal Political Rights40 recognize the right of fair trial by an independent and impartial Tribunal established by law.'

'The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation.'

Al-Jehad Trust v. Federation of Pakistan41 was decided by a five-Member Bench (in 1996) and it reiterated the earlier (1994) decision in the case of Government of Sindh v. Sharaf Faridi,42 in which the due process of law requirement had been stressed.43

In the above mentioned cases, and in many others recording similar opinions, the jurisprudence of fair trial and due process stood established as a fundamental right well before the insertion of Article 10A44 in the Constitution in 2010. The safeguards to ensure that an accused is fairly and justly treated and that essential requirements of a fair trial and due process are met were disregarded in the case of Mr. Bhutto.

Basis of Conviction

1. The foremost basis for the conviction of Mr. Bhutto was the testimony of an accused, who turned approver, namely, (Sheikh) Masood Mahmood, the then Director-General of the Federal Security Force ('FSF'). After the coup d'etat of 5 July 1977 Masood Mahmood was arrested, nominated as an accused and pleaded that he would make disclosure of the crime, provided he is pardoned. His plea was accepted and he was made an approver.45

Masood Mahmood the Approver

1. After Masood Mahmood's arrest he wrote to the District Magistrate, Lahore on 7 September 1977, stating he had, 'simply carried out orders of the former Prime Minister of Pakistan, Mr. Zulfiqar Ali Bhutto, to cause the death of Mr. Ahmad Raza Kasuri.' And, 'in case I am granted pardon... I would be able to disclose material facts regarding the conspiracy leading to the murder...'. He did so because, to use his own words, 'the commission of this heinous crime has haunted my conscience.' Incarceration had revived his flagging conscience. The crime was committed three years earlier and Masood Mahmood's conscience remained dormant and only awoke when he was arrested. A conscience which first wanted to secure a pardon for himself. A conscience which considered that to order an assassination was 'simply' a matter of 'carrying out orders', as was stated by this most senior police officer. The Additional District Magistrate accepted Masood Mahmood's plea on 14 September 1977, seven days after he had written to him offering 'to disclose material facts.'

Statement of Masood Mahmood

1. Masood Mahmood was made an approver on 14 September 1977, and his statement was recorded the same day. He waxed eloquent and most of what he said was irrelevant. The first four pages mention the various positions that he had held and how he reached grade 21. 'My selection to the Indian Police was made against a war reserved vacancy as I had served briefly in the Royal Indian Air Force.' And, 'I resumed duty on 18th September 1948 as Assistant Superintendent Police.' This was followed by saying that Prime Minister Mr. Bhutto had sent for him on 12 April 1974, had praised him and noted the 'good work' he had done and acknowledged his 'established reputation for integrity, honesty and hard work.' It is questionable whether integrity and honesty would be the qualities to look for in a henchman. Masood Mahmood stated that after an hour of Mr. Bhutto persuading him he condescended to 'take-over as D.G. (FSF) to re-organise and train the force.' He then proceeded to reveal his vulnerability, stating that his ex-colleague Saeed Ahmad Khan, Chief Security Officer of the Prime Minister, and his Assistant, Abdul Hamid Bajwa, told him that if he did not do as Mr. Bhutto asked, 'your wife and children may see no more of you.' Saeed Ahmed Khan was not produced as a witness and Abdul Hamid Bajwa had died, therefore, anything allegedly said by them constituted hearsay. Masood Mahmood then disclosed his cowardice, stating that Mr. Bhutto had told him, 'You do not want Waqar chasing you ... ?' Waqar was also not produced as a witness. Another name which Masood Mahmood dropped was of M. R. Welch, Director FSF in Quetta, who he 'instructed to take care of him [Mr. Kasuri] if possible in Quetta'. Masood Mahmood stated 'that Mian Abbas had previously been asked under his orders through Mr. Haq Nawaz Tiwana do away with Ahmad Raza Kasuri. He directed me to tell Mian Abbas to get on with the job and tell Mian Abbas to produce either Ahmad Raza Kasuri's dead-body or his body totally bandaged all over.' Mian Muhammad Abbas, however, retracted his statement before the Trial Court and Haq Nawaz Tiwana, the previous Director-General of FSF, was not produced to testify. Masood Mahmood stated that Mr. Bhutto had wanted Mr. Kasuri to be killed for quite some time and had already directed Mian Abbas to do so, but to no effect. However, only when Masood Mahmood directed him to do so was Mr. Kasuri fired upon, which instead killed Mr. Khan.

Masood Mahmood Defiance of the Prohibition to Kill

1. Masood Mahmood put himself forward as a man having faith ( ) in God and knew that ordering someone's murder was 'against the dictates of God', but since he was given 'specific orders' from Mr. Bhutto he became 'instrumental in defying God Almighty (May He forgive me) for taking a valuable human life.' The reason cited by Masood Mahmood for defying God was his marital status - 'I would have chucked the job and walked down on the street, had I been a bachelor.'

Masood Mahmood's Credibility

1. Masood Mahmood's credibility was accepted and he was believed without demur by the Trial and Appellate Courts. However, there were a number of factors which prudence should have alerted and shown that he was self-serving, self-preserving, morally bankrupt, and a false witness:

(1) Masood Mahmood testified that Mr. Bhutto had appointed him as the Director General of FSF because of his integrity and honesty, but would those be the qualities that would be sought in one appointed to fulfill a criminal agenda and carry out nefarious activities.

(2) Masood Mahmood stated that 'his father and the deceased were great friends' yet he had no qualms to order the assassination of the son of his father's great friend.

(3) Mr. Bhutto had already instructed Mian Muhammad Abbas to assassinate Mr. Kasuri, according to Masood Mahmood, therefore, it is inexplicable why he would then also tell Masood Mahmood to do so.

(4) Masood Mahmood stated that Mian Muhammad Abbas did not follow Mr. Bhutto's directions to kill Mr. Kasuri, but offered no explanation why he disobeyed and suffered no consequences for such disobedience.

(5) However, Masood Mahmood's orders were followed by Mian Muhammad Abbas, who had earlier disobeyed the Prime Minister.

(6) As stated by Masood Mahmood it was acceptable to Mr. Bhutto if Mr. Kasuri was given a thorough beating yet he directed that Mr. Kasuri be killed.

(7) In ordering an assassination, and not a beating, Masood Mahmood alone would be responsible for it.

(8) Masood Mahmood stated that the following were complicit and were informed about the conspiracy to kill Mr. Kasuri: (1) Haq Nawaz Tiwana, the first Director-General of FSF, (2) Mian Muhammad Abbas, Director FSF, (3) M. R. Welch, Director FSF, Quetta, (4) Saeed Ahmed Khan, Prime Minister's Chief Security Officer, (5) Abdul Hamid Bajwa, Assistant Chief Security Officer and (6) himself. This number of persons knowing about a heinous conspiracy showed complete recklessness and disregard of detection, which any reasonable person would find hard to accept.

(9) The conspiracy theory put forward by Masood Mahmood was believed without a shred of supporting evidence.

(10) After Mr. Khan's murder Masood Mahmood continued to hold the position of DG of FSF, however, he was never again asked by Mr. Bhutto to do anything nefarious, let alone to kill. Did this mean that Mr. Bhutto had only one enemy, and the FSF comprising of thousands of personnel, was established for this sole purpose.

(11) Masood Mahmood secured his freedom and a passage out of the country by sacrificing Mr. Bhutto. A prudent person would be alerted to the conduct of such a person, yet Masood Mahmood's credibility was not questioned by those whose judicial duty it was to satisfy themselves of it.

Conscience and Convenience

1. Masood Mahmood repeatedly referred to his conscience. 'My conscience haunted me' and 'that this action [murder] would be against my conscience.' However, his conscience, lay dormant throughout his tenure as the Director-General of the FSF; it surfaced when he had spent only a few days in custody, and, his resurgent conscience was premised on first extricating himself and securing for himself a pardon. His convenience and safety trumped his conscience, which begs the question, was he truthful or an opportunist? Confessions must be voluntary and must not have 'been obtained from him by fear of prejudice or hope or advantage'.46 And, 'If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary'.47 It must be 'ensure[d] that the confessional statement should be absolutely free from the slightest tinge or taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary'.48 Masood Mahmood obtained for himself freedom from captivity by his self-serving statement. Masood Mahmood melodramatically put forward his faith by overlooking Islam's most fundamental teaching, and prohibition: to kill a human, and that killing one person was like the killing of all of humanity and saving one person was like the saving of all of humanity.49 This type of person the Federal Court had perceptively categorized as 'a moral wretch'.50

Lack of Evidence

1. With regard to the three offences attracting death sentences, section 302 (murder), section 307 (attempted murder) and section 111 (abetment), there was no direct evidence against Mr. Bhutto, there wasn't even circumstantial evidence, which would exclude any reasonable hypothesis of innocence. The entire prosecution case was built on the statements of Masood Mahmood and Mian Muhammad Abbas, however, Mian Muhammad Abbas retracted his confession and testified to the contrary. Haq Nawaz Tiwana and Abdul Hamid Bajwa had died. M. R. Welch and Saeed Ahmed Khan, without being made approvers, were produced as prosecution witnesses.

Negative Forensic Report

1. The spent bullet casings, ejected from the firearm(s) that were used in the attack, did not match any of the weapons in use of the FSF. The prosecution contended that they were substituted, but without producing any positive evidence to substantiate this. Nonetheless, this contention of the prosecution was accepted, and it was further presumed that the purported substitution was done at the behest of Mr. Bhutto.

Unsubstantiated Inferences

1. Certain notings in some file/document, statedly made by Abdul Ahad, DSP, and Abdul Hamid Bajwa (exhibits 3/2-A and 3/2-A/ 1), were brought on record. And, Mr. Bhutto was sought to be implicated by relying on them purely on the basis of assumptions and his 'subsequent conduct', without stating what this was and how it incriminated him. The Trial Court held that, 'These documents corroborate the evidence of these witnesses on this point,' but without stating the said point. The judgment follows this with another vague sentence - 'These documents further show that the principal accused as well as P. W. 3 agreed to this suggestion', without expounding on what was this suggestion and to what had they agreed. Neither Abdul Ahad nor Abdul Hamid Bajwa were produced as witnesses (Abdul Hamid Bajwa had died), therefore, they could not be subjected to cross-examination. Extraordinary effort was made to draw arbitrary connections, derive meanings therefrom

and then use them against the accused. This eroded the fundamental principle of establishing guilt beyond reasonable doubt. The manner in which the trial was conducted was antithetical to a fair trial and due process.

Motive - Corroboration

1. Section 114 of the Evidence Act, 187251 in its illustration (b) states, 'that an accomplice is unworthy of credit, unless he is corroborated in material particulars.' In criminal jurisprudence it is well settled that motive cannot corroborate an approver's testimony.52 However, the Trial Court was of the opinion that motive could be used as corroboration as expressed in paragraph 584 of its judgment, comprising of 627 paragraphs. Respectfully, it was also incorrect to say that, 'The principle laid down is not so wide', which was in complete negation of the said statutory provision. Only in paragraph 584 of the judgment was there a fleeting reference to motive yet the Trial Court proceeded on an incorrect assumption that the motive stood established, even though the facts did not suggest this.

2. The Appellate Court's majority judgment,53 which comprised of 963 paragraphs, probably the longest judgment in any criminal case, upheld the High Court's judgment. The majority of the Judges of the Appellate Court took an even more novel approach, by first holding that the four co-accused and two approvers were not accomplices but witnesses, and then holding (on this entirely incorrect assumption) that they did not require corroboration. Corroboration of accomplices was categorized as an artificial requirement. 'Without introducing an artificial requirement of corroboration of his evidence by applying the rule contained in illustration (b) to section 114 of the Evidence Act.' Disregarding a statutory provision and declaring it to be an artificial requirement did not behove judges, and all the more so when the object of the law is to prevent wrong convictions.

The Asserted Motive - Constitutional Protection

1. The motive cited by Mr. Kasuri for targeting him was his political differences with Mr. Bhutto. Mr. Kasuri cited Mr. Bhutto's speech of 3 June 1974 in the National Assembly and the exchange of words between them as the motive for the crime. Other speeches in the National Assembly were also referred to, and relied upon, to support motive. The proceedings of the National Assembly were also relied upon by the Courts. This was not permissible. The Constitution stipulates that, 'no member shall be liable to any proceedings in any court in respect of anything said'54 in Parliament. This constitutional provision, and protection accorded to the Members of Parliament, was not even considered.

2. Mr. Kasuri stated that he was an opponent of Mr. Bhutto yet whatever he said was believed. The possibility of others having a motive, which were mentioned in Report of the Tribunal was not explored. Mr. Khan was shot at and died; the investigators also did not consider the possibility that Mr. Khan may have been the intended target. There were also two ladies in the ill-fated car but, surprisingly, neither of them, nor any of the other children of Mr. Khan were examined to consider whether someone else may have had a motive. Mr. Bhutto's enmity with Mr. Kasuri was cited by Mr. Kasuri as the motive, however, it was not even considered that such enmity could equally be a reason to falsely implicate Mr. Bhutto.

Did Mr. Bhutto or Mr. Kasuri have Motive?

1. The entire prosecution case was premised on the motive which Mr. Kasuri asserted. However, this at best was an expression of suspicion; he could not say that he had personal knowledge of any specific conspiracy on Mr. Bhutto's part. When Mr. Kasuri testified in Court he undermined his own credibility, and consequently the suspicion he harboured that Mr. Bhutto was behind the attack. Mr. Kasuri had successfully contested on the Pakistan Peoples Party ('PPP') ticket from Kasur (NA 63) in the general elections held in 1970. He stated that Mr. Bhutto had 'suspended my primary membership of PPP' on 2 May 1971. And the very next day, 'On 3.5.1971, in a Press Conference I floated my own group in the PPP, which was known all over the country as PPP (Raza Progressive Group).' Mr. Kasuri stated that he then 'made a temporary peace with Mr. Bhutto as a matter of political strategy... in the year 1972.' But, 'Immediately after the lifting of the Martial Law on 21st April, 1972, I showed my teeth against Mr. Bhutto and revived my old role of criticising him both outside and inside the National Assembly of Pakistan.' He continued, 'Mr. Bhutto formally expelled me from the PPP in October, 1972. In June, 1973 I joined Tehrik-I-Istiqlal and I rejoined PPP on 6th April 1976. I joined the PPP because of instinct of self-preservation, because I knew I was a marked man.' The inconsistencies in Mr. Kasuri's testimony abound.

2. Mr. Kasuri attributed the killing of his father to Mr. Bhutto but had no qualms applying to him for a PPP ticket to contest the 1977 general elections - 'I did apply for a PPP ticket for election to the National Assembly this year, ... The ticket was not awarded.' Surely, self-preservation could not be a reason for applying for a PPP ticket in the coming elections. Mr. Kasuri was confronted in cross-examination with his letter (P.W. 1/ 19) through which he had requested for an interview with Mr. Bhutto, and he stated, 'This request for seeking an interview pertains to the period from 8th of January to 30th of January, 1977, because in this period the tickets had to be decided and I was seeking an interview in relation to that.'

Motive Vitiated by Mr. Kasuri

1. Mr. Kasuri undermined his own narrative and credibility. He rejoined the PPP, headed by Mr. Bhutto, who he had earlier accused for the murderous attack on him, but which had killed his father. Mr. Kasuri tried to resolve this contradiction by saying that he did so for self-preservation. This explanation is difficult to accept, because it would mean that when his father was killed in 1974 he had acted bravely and nominated the Prime Minister for conspiracy and murder but later cowardice awashed over him. It is inexplicable why he would solicit the PPP ticket from the nominated accused after the murder of his father. The justification he offered was irreconcilable and unbelievable. It was imperative for the Trial Court to have scrutinized Mr. Kasuri's vacillating explanations and for the Appellate Court to have analyzed his recorded testimony in this regard, but unfortunately this was not done. The entire prosecution case was premised on Mr. Bhutto having the motive to have Mr. Kasuri killed. A motive which Mr. Kasuri himself vitiated.

2. The Trial Court and the Appellate Court gave credence to the motive theory, however, Mr. Kasuri's testimony could be equally treated to be that of a person wanting to settle personal scores. His testimony had created more than reasonable doubt about the alleged motive and it was equally suggestive of his animus towards Mr. Bhutto and to falsely implicate him. The prosecution is required to establish the guilt of an accused beyond reasonable doubt, which in the case of Mr. Bhutto with regard to motive, the attendant conspiracy and resultant killing it had not done.

Failure to Establish Motive

1. The matter of motive in this case, unlike other criminal cases, was very significant also because of the charge of conspiracy. It is also well established that in criminal cases the prosecution need not set up a motive but if it elects to do so and then fails to establish it the prosecution suffers its consequences.55 The motive's absence, or failure to establish it is also consequential in a murder case in which the guilt of the offender is established but the asserted motive is not. In such cases the accused invariably is not given capital punishment, but instead imprisonment for life.56

Either Kill or Beat Mr. Kasuri

1. Masood Mahmood had confessed, and testified in Court, that Mr. Bhutto wanted one of two outcomes; either that Mr. Kasuri is killed or that he be severely beaten up. In his confessional statement57 Masood Mahmood said, 'He [Mr. Bhutto] then ordered me to tell Mian Abbas to get on with it and produce either Ahmed Raza Kasuri dead body or his body totally bandaged all over...'. And, that, 'After giving orders to Mian Abbas I carried on normal work....' In his testimony (recorded before the five-Member Trial Court) he said, 'The Prime Minister went on to instruct me that I should ask Mian Muhammad Abbas to get on with the job and to produce the dead body of Mr. Ahmed Raza Kasuri or his body bandaged all over.' And, 'I repeated to [Mian Muhammad Abbas] him the orders of the then Prime Minister verbatim.' He did not disclose the orders that he gave to Mian Abbas. Masood Mahmood (in following Mr. Bhutto's stated orders) could have elected to direct that Mr. Kasuri be given a severe beating, however, he presumably elected to order that he be killed. This aspect neither the Trial Court nor the Appellate Court considered. Therefore, Masood Mahmood, and not Mr. Bhutto, would be liable for the killing.

First Information Report - FIR

1. The crime was first reported to the police, not by Mr. Kasuri, but by his brother, as Mr. Kasuri himself stated. 'My brother, Maj. Ali Raza rang up S. S.P. [Senior Superintendent of Police] Lahore and told him about this incident on the telephone. S. S.P., Lahore at that time was Mr. Asghar Khan, who after, receiving this message on the telephone arrived in the hospital ... along with others. A large contingent of Police also arrived on various kinds of vehicles.' S.S.P. Lahore (PW 12) also confirmed that the crime was first reported by 'Major Ali Raza son of Nawab Muhammad Khan Kasuri, after midnight.' Major Ali Raza, who first informed the police, was also in the hospital when the police reached it. However, the FIR did not mention Major Ali Raza as the informant and the FIR's complainant.

2. Mr. Kasuri submitted a written complaint after almost three hours had elapsed since the crime, in which he mentioned Mr. Bhutto. The FIR was registered at 3.45 am on 11 November 1974 which showed Mr. Kasuri (and not his brother) as the informant/ complainant.

3. Section 154 of the Code requires that when information of a cognizable offence is given to the police it is required to be recorded by the officer in charge of the concerned police station. The categorization of reporting of a crime and reducing it into writing as the first information report (FIR), as its name suggests, is the very first information of a cognizable crime received by the police. An important object of the FIR, which courts consider, is that the crime was promptly reported to the police without retrospection and embellishment.

4. The first reporting of the crime to the police was by Major Ali Raza, however, the FIR was not registered when he reported the crime, nor was he cited as the informant/complainant in the FIR when it was registered. Surprisingly, Major Ali Raza was also not produced as a witness. This glaring anomaly went unnoticed by the Trial Court as well as by the majority of the Appellate Court. On its own this may be inconsequential but since the courts had categorized Mr. Kasuri as the informant, had assumed that the FIR was promptly recorded, without Mr. Kasuri having had time to embellish it and to falsely implicate Mr. Bhutto, and the prosecution had alleged that there was a conspiracy by basing it on the contents of the FIR, all of which the courts had unquestioningly accepted, it became most significant. This was yet another aspect showing that the law and the constitutional safeguards to ensure a fair trial had been disregarded.

The Co-accused

1. All the six co-accused were arrested after General Zia's takeover and the imposition of Martial Law, and all of them had confessed to the crime. This remarkable coincidence neither the Trial Court nor the Appellate Court considered to be unusual nor was it ever considered whether these confessions could have been induced. Two of the accused were pardoned and made approvers. One retracted his confession before the Trial Court but reiterated it before the Appellate Court. The remaining three co-accused did not even engage a counsel and the Trial Court appointed a counsel (at State expense) to represent all three of them, however, their counsel58 at every juncture wanted to implicate, rather than extricate, his clients and was at pains to reinforce the prosecution case to prove Mr. Bhutto's guilt and thus of his own clients. It was the duty of the counsel, and of the Trial Court, to explain to these three co-accused that to abide by the command of a superior is not a defence to the charge of murder, but this was not done.

Supreme Court Bench Reconstituted

1. Nine Judges commenced hearing the appeal filed by Mr. Bhutto,59 and heard it till 30 July 1978, where-after seven Judges heard it on 21 August 1978 and they announced their judgment on 6 February 1979. One of the nine Judges was Qaiser Khan, J who had retired on 30 July 1978, on his sixty-fifth birthday.60 The Constitution envisages that an ad hoc Judge may be appointed within three years of his retirement,61 but he was not appointed, despite having heard the appeal; the appellant's request in this regard was not heeded. Another Judge, Waheeduddin Ahmed, J, fell ill when the appeal was in its final stages of hearing and required about six weeks to recuperate, but rather than adjourning the case and awaiting for him to resume work the appeal was heard and was concluded in his absence. Considering that the appellant had been convicted and was incarcerated it is not understandable why Qaiser Khan, J was not appointed as an adhoc Judge after his retirement nor why the Appellate Court could not wait for Waheeduddin Ahmed, J to rejoin the Bench. This may have been inconsequential if the Appellate Court's decision was unanimous, but when four Judges had upheld the conviction and three had acquitted Mr. Bhutto it was a matter of great concern.

President's Power to Grant Pardon

1. Fazal Ellahi Chaudhry was elected as the first President of Pakistan under the new Constitution.62 General Zia-ul-Haq took over the office of President on 16 September 1978, without being elected to it. The Constitution grants to the President the power to pardon, remit, suspend or commute any sentence passed by any court.63 President Fazal Ellahi Chaudhry had (on his own volition) written to General Zia-ul-Haq 'spelling out extrajudicial considerations which would weigh with the Executive in taking a decision in this matter.'64 However, the High Court took inexplicable umbrage with Mr. Bhutto's counsel referring to this letter. 'In these circumstances, the introduction of this letter in the present proceedings is nothing but an attempt to politicise the matter... We deprecate such an attempt.'65 What, however, is of significance is that Mr. Bhutto was not dealt with in accordance with Article 45 of the Constitution, despite the reasons mentioned by President Fazal Ellahi Chaudhry in his letter. This was yet another transgression of due process, and to enjoy the protection of law and to be treated in accordance with law.66

Judges who Headed the Benches

1. Justice Mushtaq Hussain, in his capacity as the Acting Chief Justice, headed the Bench of the Lahore High Court which had convicted Mr. Bhutto, and Justice Anwarul Haq was the Chief Justice of the Supreme Court and headed the Bench which had upheld the conviction. The assumption of offices by both these Judges was somewhat unusual.

(a) Lahore High Court: Justice Mushtaq Hussain was appointed as the Acting Chief Justice of the Lahore High Court on 13 July 1977, when Justice Aslam Riaz Hussain was holding the position of the Chief Justice of the Lahore High Court. However, Chief Justice Aslam Riaz Hussain was appointed as the Acting Governor of Punjab, and had relinquished the position of the Chief Justice of the Lahore High Court on 16 July 1977, and on the same day administered oath to Justice Mushtaq Hussain as the Acting Chief Justice of the Lahore High Court. The Chief Justice of the Lahore High Court became the Acting Governor of Punjab, who gave oath to an Acting Chief Justice who continued in his acting position for six months; he was given oath as Chief Justice on 16 January 1978. The Constitution does not permit the constitutional office of the Chief Justice to be kept vacant for such a long duration. A High Court consists of a Chief Justice and Judges67 and an Acting Chief Justice is appointed temporarily and only under certain circumstances.68 An Acting Chief Justice, who later was made the Chief Justice, had transferred a murder case to the High Court and had himself presided over the trial, which under the aforesaid circumstances gave rise to justifiable misgivings.

(b) Supreme Court: Justice Muhammad Yaqub Ali was the Chief Justice of Pakistan who, 'relinquished charge of the office of Chief Justice of Pakistan' on 22 September 1977. A Judge retires or may resign.69 Relinquishment of charge is alien to the Constitution. General Zia-ul-Haq, promulgated Martial Law Order 6 of 197770 which compelled Justice Muhammad Yaqub Ali to relinquish the office of Chief Justice of Pakistan and enabled the appointment of another. Consequently, Justice Anwarul Haq was appointed as the Chief Justice of Pakistan on 23 September 1977, 'In pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf ... .' The General who had overthrown the democratic order, cast aside the Constitution, pushed aside the Chief Justice of Pakistan and appointed another in his place, one who presided over the Bench which had heard Mr. Bhutto's appeal. And, crucially, Prime Minister Mr. Bhutto was deposed by General Zia-ul-Haq, who had appointed himself as the President of Pakistan by issuing President's Succession Order 1978.71 These are the facts, historical irony notwith-standing.

Bias of Justice Mushtaq Hussain

1. Mr. Bhutto had repeatedly claimed that Justice Mushtaq Hussain, who was the Acting Chief Justice (later Chief Justice) of the Lahore High Court, was prejudiced against him and was motivated by bias, and that he should not conduct the trial, let alone head the Bench conducting the trial, but this objection was cast aside by the Court.

2. The mere allegation or apprehension of prejudice or bias is not sufficient to sustain it. There must be something tangible and credible which exhibits bias. However, where there is bias it corrodes impartiality, and impartiality is necessary for correct decision-making and also to engender the acceptance of decisions. 'It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'72

3. Martial law was imposed on 5 July 1977 and Mr. Bhutto was arrested on 3 September 1977, in a three year old criminal case which had been closed as untraced. Despite having been granted bail by the High Court Mr. Bhutto was arrested on 16 September 1977 under Martial Law Order No. 12.73 Mr. Bhutto had obtained bail on 13 September 1977 on the very same day (13 September 1977) Justice Mushtaq Hussain constituted a Bench headed by himself to try Mr. Bhutto and also himself heard the petition seeking cancellation of his bail.

4. The five-Member Bench constituted by Justice Mushtaq Hussain issued a show cause notice on 21 September 1977 to Mr. Bhutto, and gave him all of two days to state why the bail granted to him by the High Court should not be cancelled. The show cause notice also paradoxically directed him to appear before the five-Member Bench on 24 September 1977 despite the fact that Mr. Bhutto was incarcerated. On 21 September 1977 Mr. Bhutto challenged the transfer of the case to the High Court by Justice Mushtaq Hussain and placing it before a Bench which he headed.

5. Mr. Bhutto submitted a petition before the Supreme Court stating that Justice Mushtaq Hussain was prejudicial towards him and also had a bias against him. On 24 September 1977 the Supreme Court dismissed the application stating that the same should first be filed before the Trial Court.

6. Mr. Bhutto, pursuant to the Supreme Court order, filed applications seeking Justice Mushtaq Hussain's recusal on a number of grounds, including that: (1) Justice Mushtaq Hussain 'was prejudiced and partial against the Pakistan Peoples Party' and in this regard his statements (published in newspapers) were referred to. (2) The application seeking cancellation of bail, which was granted on 13 September 1977 by K.M.A. Samdani, J of the High Court, was placed before a five-Member Trial Court, constituted by Justice Mushtaq Hussain, and bail was cancelled on 8 October 1977, which could not be done by the Trial Court (because bail had been granted by the High Court), and that too without giving sufficient notice. (3) Upon acceptance of the office of Chief Election Commissioner Justice Mushtaq Hussain ceased to be Acting Chief Justice/Chief Justice because the Constitution stipulated that the Chief Election Commissioner could not hold another office.74 (4) Specific instances of prejudicial conduct and bias during the conduct of the case were also mentioned. (5) The transfer of the trial from the Court of Session to the High Court, without notice to the accused, further confirmed the prejudice and the bias of Justice Mushtaq Hussain. (6) Private complaint case, on the same facts, was fixed for hearing before a Bench of the High Court,75 however, Justice Mushtaq Hussain got it placed before the Bench he constituted and headed. (7) And, that Justice Mushtaq Hussain had not taken the oath prescribed under the Constitution but one crafted by the Chief Martial Law Administrator, therefore, he could not be considered to be the Acting Chief Justice or the Chief Justice of the Lahore High Court under the Constitution.

Bias of Trial Court

1. The five-Member Trial Court Bench unanimously dismissed the applications76 filed by Mr. Bhutto. Request for recusal of a Judge is to be attended by the Judge whose recusal is sought. However, the Bench gave detailed findings on the objections which had been raised by Mr. Bhutto with regard to Justice Mushtaq Hussain. Justice Aftab Hussain77 wrote the order through which Mr. Bhutto's applications (seeking recusal) were dismissed. Justice Mushtaq Hussain simply wrote two words - 'I agree' - on the order. The Hon'ble Judges signing this order justified taking oath under Martial Law78 (and not under the Constitution) because if they did not do so 'it will lead to the result that there is no superior Court in Pakistan.' The expression of such nihilism was wholly unjustified, and unnecessary when attending to a request for the recusal of a Judge. The Judges forgot that 'Obedience to the Constitution' was their 'basic obligation', like it is of every person in Pakistan.79 And, that they had also taken the oath to 'preserve, protect and defend the Constitution.'80 Such anomie expressed by the Judges undermined the Constitution, and the necessity to abide by it. The order had a devastating effect on citizens and the body politic. Inculcating acceptance of autocratic rule and making it difficult to shake off the yolk of servitude.

2. The order dated 9 October 1977 also gave a definite finding with regard to Justice Mushtaq Hussain simultaneously holding the offices of Acting Chief Justice and of the Chief Election Commissioner by staggeringly extraordinary reasoning - 'The Acting Chief Justice cannot be said to have been appointed as Chief Election Commissioner under the Constitution. His appointment is regulated by Election Commission of Order, 1977 (President's Post Proclamation Order 4 of 1977).' The applicable constitutional provisions with regard to the Chief Election Commissioner81 were disregarded in preference to the proclamation of one man, who had assumed power unconstitutionally. Incongruity mocked when the Chief Election Commissioner could not even ensure that the stated 'forthcoming General Elections' were held, for which he was chosen and given the office of the Chief Election Commissioner. Scorching irony replaced unconvincing reasoning.

3. With regard to Justice Mushtaq Hussain's transfer of the trial from the Court of Session to the High Court, without issuing notice to Mr. Bhutto, the order disregarded the age old wisdom that a party is entitled to an opportunity of a hearing.82 It held that, 'No such notice was required in the present case.' This flagrantly disregarded the due process principle which is firmly embedded in our jurisprudence.

4. Mr. Bhutto's objection to the assumption of jurisdiction by the five-Member Bench and also that of the complaint case (filed by Mr. Kasuri) after it was listed for hearing before 'a Division Bench consisting of K.M.A. Samdani, J and Mazharul Haq, J' was brushed aside by expressing surprise. 'It looks rather strange that the accused petitioner should prefer to be tried by a Bench of two Judges and not a larger Bench of five Judges bound by their oath of office to impart justice without fear or favour.' The learned Judges of the Trial Court referred to their oath, but forgot that they had also taken one under General Zia-ul-Haq's dispensation. In any event the two Judges of the Division Bench were as bound by their oath of office to impart justice as were the five. Stressing that they were bound by their oath and to state that the 'constitution of such a Bench [of five Judges] should inspire more confidence rather than create any apprehension in the mind of any party' was quite unnecessary.83 In any event, and with hindsight, the apprehension of Mr. Bhutto proved to be correct.

5. In Justice Mushtaq Hussain transferring the trial to the High Court, taking away the pending complaint case from the Division Bench of the High Court and fixing it before the Trial Court, which he himself headed, was extraordinary. The law was not followed and settled methodology departed from.

6. Bias was on display in a number of paragraphs of the Trial Court judgment. Gratis observations were made which had absolutely nothing to do with the case before the Court, which was, whether Mr. Bhutto had conspired to order the assassination of Mr. Kasuri. Extraneous paragraphs were written to dishonour and disgrace Mr. Bhutto by five Hon'ble Judges who deemed it necessary to state that, before Mr. Bhutto sought 'election to the office of the Chief Executive of the Federation he would order his own life in accordance with the injunctions and teachings of Holy Qur'an and Sunnah.' The priggish sanctimony, with respect, did not stop here. The moralizing continued:

'Before undertaking to observe the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam he should inculcate these qualities in himself. Before a person embarks upon swearing to strive to preserve the Islamic ideology he would bring himself to believe in that ideology and test his firmness in that belief. Before presuming his ability to guarantee to the citizens the enjoyment of the protection of law and their treatment in accordance with law he would be a believer and a true adherent of law. He would consider himself to be as much subject to law as he would wish others to be. A person who considers the Constitution and the law as the handmaid of his polity is neither qualified to be elected to the high office of the Prime Minister nor can ever be true to his Oath.'

1. Mr. Bhutto was neither on trial for corruption nor for violating the Constitution, however, the Hon'ble Judges made gratuitous remarks about these matters too. And, he 'treat[ed] the Constitution and the law as a source of unlimited power for himself which may satisfy his own inane craving for self-aggrandisement and perpetuation of his rule. Such a person, in all probabilities, would destroy the very basis of the Constitution and the law which he is sworn to uphold.' Such pontification, however, overlooked the overthrow of the constitutional order and democratic rule on 5 July 1977, and of the unabated and continuous savagery of the Constitution.

2. Another discordant note in the order of the Hon'ble Judges of the Trial Court was expounding the virtues of equality:

'Islam does not believe in the creation of privileged classes. It believes in the equality before law of all - ruler and governed alike. It is opposed to all types of class distinction. Even the Caliph, the King, the Prime Minister or the President, by whatever name the ruler may be called, is as much subject to the law of the land as any ordinary citizen.'

But no attention was paid to the exceptionalism, and untouchability of General Zia-ul-Haq, the Chief Martial Law Administrator, who had gathered, in himself, all the powers of an absolute monarch.

1. The Appellate Court could not stomach the aforesaid 'gratuitous observations in paragraphs 610 to 611 of its judgment regarding the personal beliefs of the appellant, delivering a sermon as to the mode of conduct prescribed by Islam for a Muslim ruler.' The Appellate Court, however, considered that justice would be served if these paragraphs were expunged from the judgment of the Trial Court.84 It overlooked what was glaringly obvious - the self-expressed prejudice and bias of the Trial Court.

Adulation and Praise for a Dictator

1. The Trial Court, which had tried and convicted Mr. Bhutto, and the Appellate Court, which had dismissed his appeal, were operating when there was no constitutional rule in the country and one man's will (and whim) became legislation and his person had replaced the entire democratic order. Unfortunately, the Chief Martial Law Administrator was adulated in another case.85 He was stated to have 'stepped in to save the country.'86 The expression of such incredulous admiration undermined the credibility of the Appellate Court. Was it not obvious that General Zia-ul-Haq would be the direct beneficiary of a guilty verdict. If Mr. Bhutto was acquitted he may have proceeded to prosecute General Zia-ul-Haq for the crime of high treason. General Zia-ul-Haq's personal survival depended on Mr. Bhutto being found guilty. The continuation of usurped power required Mr. Bhutto to be convicted.

People's Mandate

1. General Zia-ul-Haq's unconstitutional act was 'construed in the nature of a mandate from the people of Pakistan.'87 It was not at all necessary, nor desirable, to state how popular he was. It was not for the Supreme Court to measure populism, nor what it entailed.

Absence of Fair Trial and Due Process

1. The Supreme Court, including the three Hon'ble Judges of the Supreme Court who acquitted Mr. Bhutto,88 had also declared, 'that the Fundamental Rights stand validly suspended since 5th of July 1977.'89 Therefore, and admittedly, the trial was conducted and the appeal heard without Mr. Bhutto having the constitutional protection of the Fundamental Rights and other rights guaranteed in the Constitution. Any single one of the aforesaid noted transgressions may have vitiated the trial and the conviction, however, cumulatively they destroyed any semblance of due process and fair trial, and revealed that innocent men were rushed to the gallows.

The Courts

1. The Trial and Appellate Courts, which conducted the trial and heard the appeal, were not true courts under the Constitution. The country was captive to Martial Law and so too were its courts. When Judges take oath of allegiance to dictators, the courts are no longer of the people.

2. In conclusion we want to acknowledge the assistance provided by all the learned counsel and by the learned amici. However, the painstaking work undertaken by our retired colleague, Justice Manzoor Ahmad Malik, and by his team deserves special mention. The expertise, the depth of knowledge and insightfulness of criminal jurisprudence provided by Justice Manzoor Ahmad Malik was most valuable and helpful.

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Justice Qazi Faez Isa, CJ.

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Justice Sardar Tariq Masood, J.

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Justice Syed Mansoor Ali Shah, J.

I will be attaching my additional note.

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Justice Yahya Afridi, J.

I will be attaching my additional note.

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Justice Amin-ud-Din Khan, J.

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Justice Jamal Khan Mandokhail, J.

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Justice Muhammad Ali Mazhar, J.

I will contribute my opinion also in support of opinion dated 6.3.2024.

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Justice Syed Hasan Azhar Rizvi, J.

I will attach my separate additional note in support of our opinion dated 6.3.2024.

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Justice Musarrat Hilali, J.

SYED MANSOOR ALI SHAH, J.---In the short opinion dated 6 March 2024, we unanimously opined that '[i]n its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case'. Furthermore, it was observed that '[t]he advisory jurisdiction under Article 186 of the Constitution requires this Court to render an opinion on any question of law of public importance referred by the President', and that in the present Reference, 'the question of law, in essence, is whether the requirements of due process and fair trial were complied with in the urder 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)'. The reason for so restricting the scope of inquiry in the present Reference was grounded in the settled jurisprudence on the advisory jurisdiction of this Court, which holds that in its advisory jurisdiction, this Court cannot undertake a fact-finding inquiry, adjudicate a lis between parties or review its judgment rendered in its adjudicatory jurisdiction.1

1. I have gone through the detailed opinion authored by the Chief Justice and find that certain discussions and observations made therein, in my view, verge on reappraisal of the evidence in a case that has already been finally decided by this Court in its adjudicatory jurisdiction, thus going beyond the scope of inquiry set in the short opinion. With respect, I find myself unable to associate with such discussions and observations. Therefore, I add this note to briefly underscore the violations of the fundamental right to procedural due process and fair trial that occurred in the murder trial of Mr. Bhutto, as per the question of law taken up and answered in the short opinion. The facts forming the background of the present Presidential Reference and the questions of law referred to this Court for its advisory opinion have been comprehensively mentioned and discussed in the detailed opinion authored by the Chief Justice, and therefore, need no reiteration. While addressing the said violations of procedural due process and fair trial, I have drawn support from the theoretical framework of "transitional justice", which is employed to remedy the injustice caused by "political trials."

2. Around the world, authoritarian regimes use "political trials", writes Shen-Bayh,2 to legitimize their seizures of power, delegitimize opponents and consolidate authority. A political trial is one whose disposition-the determination of guilt or innocence, followed by punishment---depends primarily on the accused's professed attitudes and activities in relation to the ruling regime.3 In such trials, the legal process is not employed to ensure justice or minimize errors but rather to discredit and punish political opponents. These trials often rely heavily on statements obtained during investigations from former allies or associates of the accused, who may be coerced or induced to turn against the accused. Such evidence, which would usually hold limited weight in a fair trial, becomes a convenient basis for conviction in a political trial, supporting the alleged criminality of the accused. Political trials thus serve as a potent and notorious "judicial tool" for authoritarian regimes, aimed at suppressing political resistance and eliminating opposition.4 These trials frequently violate due process and fair trial requirements to produce politically desirable outcomes.

3. In post-authoritarian regimes, "transitional justice" forms a crucial part of the transition from repressive authoritarianism to constitutional democracy. It involves uncovering the crimes of former authoritarian rulers and holding them accountable for past human rights violations, including unlawful detentions, imprisonments and politically motivated trials. Transitional justice, however, is not about vengeance or retribution but about a principled approach to healing and justice. Courts globally have affirmed that they must address the demands of victims for truth and justice while laying the foundation for societal reconciliation and systemic transformation. This dual focus on accountability and restoration is what sets transitional justice apart from ordinary judicial processes. Transitional justice, therefore, encompasses a set of methods through which states that have experienced fundamental human rights violations seek to distance themselves from that past and move forward in a manner consistent with the need for justice for those who have suffered from these violations.5 These methods of transitional justice include truth and reconciliation commissions and the criminal prosecution of former authoritarian rulers.6 Furthermore, holding both executive and judicial institutions accountable for their actions during the period of authoritarian repression, as well as exonerating past victims of state repression and miscarriages of justice, is essential for facilitating the transition of these state institutions toward greater respect for, and promotion of, the rule of law and fundamental human rights.7

4. Transitional justice serves as a vital tool for addressing injustices perpetrated under authoritarian regimes. It encompasses broader mechanisms, including revisiting flawed judicial decisions made during such regimes through compromising due process and fair trial requirements. This process helps restore fairness and legitimacy in the legal system. By revisiting and rendering opinions on the fairness and legitimacy of such decisions, the Court delivers justice to affected individuals and sends a powerful message: judicial complicity with authoritarianism will not be shielded from scrutiny. This approach reinforces judicial independence, ensures accountability for regime-orchestrated injustices, and establishes a precedent for discrediting flawed judicial decisions rendered under oppressive regimes. Such actions underscore the judiciary's commitment to constitutional principles, reminding past and future judges of their duties and the need to resist authoritarian pressure. Ultimately, this helps safeguard democracy, the rule of law and human rights.8

5. The silent application of transitional justice in Pakistan, aside from the present Reference, can also be found in several notable cases. These include the case upholding the conviction and sentence of General Pervez Musharraf,9 the case of the Sindh High Court Bar Association,10 which declared the proclamation of emergency and promulgation of PCO by General Pervez Musharraf unconstitutional, and the case of Nawaz Sharif,11 another former Prime Minister of Pakistan, which reversed his conviction in the Army Chief's Aircraft Hijacking case. These cases demonstrate the importance of ensuring accountability for both executive and judicial officeholders for their actions during periods of authoritarian rule. They also serve as a reminder that transitional justice will remain a vital tool in addressing any future instances of authoritarianism and political trials.

6. The murder trial of Mr. Zulfiqar Ali Bhutto, a former Prime Minister of Pakistan, serves as a classic example of a political trial, illustrating how such trials can be manipulated to advance authoritarian designs. Bhutto's trial effectively served as a potent and notorious "judicial tool" for strengthening General Zia's authoritarian regime, aimed at suppressing political resistance, eliminating opposition and ensuring the consolidation of power. It helped to entrench the repressive military authoritarian regime under which it was conducted. Instead of independent, substantive evidence, the prosecution relied heavily on confessional statements given by, or procured from, Bhutto's former associates-accomplices turned approvers.

7. Likewise, several violations of procedural due process and fair trial requirements were committed to achieve politically desirable outcomes. These included the unauthorized reinvestigation of the case, which had previously been closed by an order of the Magistrate concerned; the surreptitious and unlawful transfer of the investigation from the regular investigating agency (Provincial Police) to the Federal Investigation Agency; the transfer of the trial from the regular trial court (Sessions Court) to the High Court without adherence to legal requirements; the unjustified cancellation of bail previously granted to Bhutto by a Single Bench of the Lahore High Court; the determination of Bhutto's recusal application by judges other than the one whose recusal was sought, without addressing the instances cited to demonstrate the bias and prejudice of the judge (Justice Maulvi Mushtaq); the composition of the trial and appellate court benches, both of which were headed by judges (Justice Maulvi Mushtaq and Justice Anwar-ul-Haq) who harboured personal grievances against Bhutto due to being passed over for appointments as Chief Justice of their respective courts-the Lahore High Court (trial court) and the Supreme Court (appellate court); and the unwarranted reconstitution of the appellate court bench from nine judges to seven judges. It is an established principle that justice must not only be done but must also manifestly and undoubtedly be seen to be done.12 The infringement of this fundamental principle also constitutes a violation of due process and fair trial requirements. Because of these glaring violations, Bhutto is rightly regarded as the victim of "unfair judicial proceedings" and "legalized political murder"---also referred to as "judicial murder".13 Both the obvious procedural irregularities and illegalities in the reinvestigation and trial, as well as the biased composition of the trial and appellate court benches, rendered the verdict illegitimate and undermined the independence and impartiality of the superior courts (High Courts and the Supreme Court) for years to come.14

8. In fulfilment of our duty under the principle of transitional justice, and with the aim of distancing ourselves from past violations of fundamental human rights while moving forward in a manner consistent with justice for those who suffered from these violations, we explored all possible options within the existing constitutional and legal framework. The Constitution and the law provide no mechanism to set aside the judgment by which Bhutto was convicted and sentenced, as that judgment attained finality following the dismissal of the review petition by this Court. Furthermore, in its advisory jurisdiction under Article 186 of the Constitution, this Court lacks the authority to reappraise the evidence or overturn a final decision. However, after carefully examining the record of the reinvestigation and trial proceedings, we concluded-and so stated- that the trial proceedings in the Lahore High Court and the appellate proceedings in the Supreme Court of Pakistan did not meet the requirements of the Fundamental Right to a fair trial and due process as enshrined in Articles 4 and 9 of the Constitution,15 which were later reinforced as a separate and independent Fundamental Right under Article 10A of the Constitution. Our expression of this opinion reflects a commitment to confront past missteps and fallibilities during an authoritarian regime with humility, embodying a spirit of self-accountability and underscoring our dedication to ensuring that transitional justice shall be served with unwavering integrity and fidelity to the Constitution and the law.

9. In the end it needs to be said that the judiciary is a resilient institution, endowed with the remarkable ability to recover and rise above the shadows of authoritarianism. This resilience is not accidental but is deeply rooted in the courage and integrity of those judges who refuse to compromise and have the courage to speak truth to power. In the annals of judicial history, there are turning points when the judiciary is bold enough to confront its past mistakes and chart a course for a better future. Today marks one such moment-a testament to the judiciary's unwavering commitment to justice and the rule of law.

10. The independence of the judiciary is the cornerstone of justice, and its true test lies in a judge's ability to stand firm under authoritarian regimes. The essence of judicial independence is not found in passivity or retrospective correction but in resisting authoritarian overreach at the time it occurs. Transitional justice, while important, should serve as a sobering reminder to judges: justice delayed by decades is justice diminished. Judges must act as the first and last line of defence for the rule of law, refusing to compromise even under duress, so that societies do not have to rely on transitional processes to correct the damage inflicted by judicial capitulation. Let the lesson of transitional justice be clearjudges must uphold their oaths with courage in the face of oppression, for only then can the judiciary truly safeguard democracy and the rights of the people. Transitional justice, however, often becomes necessary because, during oppressive rule, some judges fail to uphold their constitutional duty, succumbing to the pressure of illegitimate authority. This failure not only enables violations of due process and fair trial rights but also erodes public trust in the judiciary.

11. Judges serving under authoritarian regimes must remember that their true strength lies not in holding office but in steadfastly upholding their independence and principles. Justice Dorab Patel exemplified this ideal when he courageously dissented in the Bhutto case, acquitting Mr. Bhutto of the charges, and later refused to take the oath under the Provisional Constitutional Order (PCO) promulgated by General Zia, thereby relinquishing his impending eight-year tenure as Chief Justice of Pakistan. His actions remind us that losing a position is a small sacrifice compared to compromising one's integrity or leaving behind a legacy of submission or compromise. Judges must always bear in mind that a judge's valour is measured by his courage to resist external pressures, stand firm against interference and safeguard the independence of the judiciary without fear or favour. Delay in confronting authoritarian inroads can prove fatal to the rule of law-such incursions must be resisted and rectified immediately, for the judiciary's role is to defend justice, not enable its erosion. I find no more suitable words to close this note than those of Bhutto himself, reflecting both a powerful critique of authoritarianism and a firm belief in the judiciary's essential role as a guardian of democracy. He wrote:

An independent Judiciary is the antithesis of Martial Law Anindependent Judiciary can only function under the umbrella of the Constitution and not under the shadow of the gun….. An independent Judiciary exists side by side with an executive chosen by the people and a legislature elected by them. But the people's Executive is in jail. The assemblies ... have become as silent as the graveyards. Can one flower flourish in a garden turned into a desert?16

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Syed Mansoor Ali Shah

Judge

YAHYA AFRIDI, J.---I have had the privilege of going through the detailed opinion of Justice Qazi Faez Isa, the Chief Justice, as well as the additional notes of Justice Syed Mansoor Ali Shah and Justice Syed Hasan Azhar Rizvi, in furtherance to the unanimous short opinion of this Court dated 06.03.2024 ("Short Opinion").

1. I find myself in agreement with the observation of Justice Syed Mansoor Ali Shah that certain portions of the detailed opinion of the Chief Justice verge on reappraisal of evidence in a case that has already been finally decided by this Court in its adjudicatory jurisdiction, and thus, the same exceed the scope of the inquiry delineated in the Short Opinion that '[i]n its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case'.

2. As to the question of law, whether the requirements of due process and fair trial were complied with in the murder trial of Mr. Zulfiqar Ali Bhutto, the former Prime Minister of Pakistan, by the trial court (the Lahore High Court) and the appellate court (the Supreme Court), I fully concur with the observations given in paragraphs No. 23 to 25, 31, 58 to 64 and 67 to 76 of the detailed opinion rendered by the Chief Justice, as well as paragraph No. 8 of the note authored by Justice Syed Mansoor Ali Shah, which highlight the violations of procedural due process and fair trial requirements.

3. I also record my concurrence, for the reasons given therein, with the view of Justice Syed Hasan Azhar Rizvi that the observation of the Chief Justice - that Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Code of Criminal Procedure, 1898 do not permit the High Court to conduct a murder trial - is untenable, as it is founded on a misconception of these provisions. I further agree with the opinion of Justice Syed Hasan Azhar Rizvi that Chapter XXVII of the Code of Criminal Procedure, 1898 does not extend to death sentences passed by the High Court in the exercise of its original criminal jurisdiction. Consequently, I respectfully differ from the view of the Chief Justice that these provisions necessitate confirmation of such sentences or lead to the forfeiture of the right of appeal, as such an interpretation is contrary to the established legal framework.

4. It is, however, very pertinent to note that the present reference was avowedly filed against the backdrop of the restoration of the judiciary and the proactive role of the restored judiciary in addressing the matters of public importance. In this context, the reference drew attention, inter alia, to the 'admission' of former Chief Justice of Pakistan, late Justice Nasim Hasan Shah, regarding external pressures in the decision of the appeal of Mr. Zulfiqar Ali Bhutto, which the reference described as a regrettable chapter in judicial history of our nation.

5. In consideration of the above, I am of the view that this reference might never have come before us but for the events recounted and the facts disclosed in the interview and autobiography of Justice Nasim Hasan Shah. Accordingly, it is both relevant and necessary to address certain aspects of that interview and autobiography, which raise significant concerns regarding the due process and fairness of the trial of Mr. Zulfiqar Ali Bhutto, as discussed in the following paragraphs.

6. In the Supreme Court judgement, Justice Nasim Hasan Shah rejected the contention that the trial of Mr. Zulfiqar Ali Bhutto was vitiated by bias on the part of Justice Maulvi Mushtaq Hussain, who presided over the Lahore High Court Bench that conducted the trial. However, this stance stands in direct contradiction to his later remarks in an interview with Iftikhar Ahmad for the program Jawab Deyh. In the aforesaid interview, Justice Nasim Hasan Shah described Justice Maulvi Mushtaq Hussain as an overt enemy of Mr. Zulfiqar Ali Bhutto, expressing that he should not have been part of the Lahore High Court Bench. In fact, the presence of Justice Maulvi Mushtaq Hussain on the Lahore High Court Bench was referred to as "Ziadati", a term that, within the context of the trial, could only be interpreted as bias. This clear contradiction in the views of Justice Nasim Hasan Shah raises concerns about the evaluation, in the appeal, of the question of bias on the part of Justice Maulvi Mushtaq Hussain.

7. Justice Nasim Hasan Shah revealed certain facts in his autobiography Memoirs and Reflections, which suggest that his inclusion in the Bench for the purpose of hearing the appeal of Mr. Bhutto was orchestrated by the Attorney General Sharifuddin Pirzada and Justice Maulvi Mushtaq Hussain. Such manipulation of the Bench composition undermines judicial impartiality and raises serious concerns about the fairness of the proceedings. It also shows that Justice Maulvi Mushtaq Hussain pursued the matter zealously even after the High Court had decided the case and the appeal was pending before the Supreme Court, despite his role having concluded with the decision of the High Court. This unwarranted involvement after conviction blurred the boundaries of judicial propriety and further eroded confidence in the impartiality of the appellate process.

8. The above account of events effectively undermines the duly expected impartiality of judicial decision-making in the trial of Mr. Zulfiqar Ali Bhutto. Such events, if left unaddressed, risk eroding public confidence in the fairness of the judicial process.

9. The extraordinary political climate of the time and the pressures inherent in such an environment appear to have influenced the course of justice in a manner inconsistent with the ideals of judicial independence. It is a sobering reminder of how deviations from constitutional governance can exert undue influence on judicial proceedings in politically charged cases, undermining the ideals of impartiality and due process in such exceptional circumstances. This also accentuates the importance of recognizing the courageous dissents of Justice Dorab Patel, Justice Muhammad Haleem and Justice G. Safdar Shah who stood their ground despite the prevailing atmosphere. Their dissents, even if unsuccessful in altering the outcome, remain a testament to the enduring principles of judicial integrity and impartiality, underscoring the value of an independent judiciary committed to the rule of law.

Opinion

1. In light of the foregoing discussion, I am of the considered opinion that the requirements of due process and fair trial were not complied with in the murder trial of Mr. Zulfiqar Ali Bhutto by the trial court and the appellate court.

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Yahya Afridi

Judge

SYED HASAN AZHAR RIZVI, J.---Before I express my concurrence with the detailed opinion authored by Mr. Justice Qazi Faez Isa, Hon'ble Chief Justice of Pakistan, I find it imperative to pen down a few additional observations that resonate with the conclusions reached therein. While I fully agree with the reasoning except those mentioned in para 26 to 30 and the outcome of the detailed opinion, the significance of the issues presented before this Court compels me to elaborate on certain aspects that reinforce our collective judicial philosophy. The case at hand touches upon the intricate application of legal principles and reflects the broader constitutional ethos that guides our jurisprudence. It is with a deep sense of responsibility and a commitment to the rule of law that I concur with the conclusion of the detailed opinion. However, I believe that certain nuances warrant further emphasis to underscore the contours of our legal landscape and to provide clarity for future jurisprudence. In aligning with the detailed opinion, I am mindful of the weighty considerations that have been accurately analyzed by the Chief Justice. The legal discourse presented therein is both thorough and compelling, leaving little room for dissent. Yet, it is the hallmark of a robust judicial system to allow for the expression of supplementary views that may fortify the decision's legal foundation and contribute to the richness of our legal tradition. Therefore, in the spirit of judicial comity and to enhance the legal reasoning that forms the crux of opinion by this Court, I offer the following observations.

1. Before delving into the intricate details of the case, let us first provide a concise overview of the key facts and events that set the stage for this reference. Briefly, Mr. Ahmad Raza Kasuri got registered an FIR No.402/74 dated 11.11.1974 for the offences under section 302/307 (now 324) of the Pakistan Penal Code, 1860 ('P.P.C.'), registered at Police Station ('P.S.') Ichhra, District Lahore against some unknown accused persons for the murder of his father Mr. Muhammad Ahmad Khan ('the deceased'). Later on, seven persons (Mr. Zulfiqar Ali Bhutto ('Mr. Bhutto'), Masood Mahmood, Director General Federal Security Force ('FSF'), Mian Muhammad Abbas, Director FSF, Ghulam Hussain, Inspector FSF, Ghulam Mustafa, Inspector FSF, Arshad Iqbal, Sub-Inspector FSF and Iftikhar Ahmad, Assistant Sub-Inspector (FSF) were nominated and the offences under sections 120-B/109 were also added in this case. A Full Court comprising five judges of the High Court was constituted for the trial of this case. After the trial, all the accused persons (except Masood Mahmood and Ghulam Hussain) were convicted and sentenced to death, along with other punishments, as per the judgment dated 18.03.1978, reported as PLD 1978 Lah. 523, pp. 618-622. A criminal appeal filed against the decision of the High Court was dismissed by this Court vide judgment dated 06.02.1979, reported as PLD 1979 SC 53. The review petition filed by Mr. Bhutto was also dismissed by this Court vide judgment dated 24.03.1979, reported as PLD 1979 SC 741. Finally, Mr. Bhutto was executed on 04.04.1979.

2. Since Mr. Bhutto's execution, one of Pakistan's major political parties, the Pakistan People's Party (PPP), has consistently questioned the fairness of the judicial process, alleging that it was influenced by the then-military dictatorship as well as political factors and as such lacked impartiality. The party views the trial of Mr. Bhutto and his subsequent execution as a miscarriage of justice, which remains a sensitive issue in Pakistani politics. In 2011, this longstanding grievance prompted the then-President of Pakistan, Asif Ali Zardari ('the President'), who was also Bhutto's son-in-law, to file a presidential reference under Article 186 of the Constitution of the Islamic Republic of Pakistan ('the Constitution') to seek the opinion of the Court on the legality and fairness of the original proceedings that led to Bhutto's death sentence. The reference aimed to address and rectify any historical injustices and to restore public confidence in the judiciary's impartiality. The President sought the opinion of the Court on the following questions of law:

3. 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?

4. 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 effects and consequences?

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?

6. Whether the decision in the case of the murder trial against Shaheed Zulfiqar Ali Bhutto fulfills 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:

(a) 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

(b) Sunan Ibn-e-Maaja, Chapter 171, Hadith No. 395.

1. 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?

2. On 06.03.2024, we unanimously rendered our short opinion (with reasons to be recorded later) on the aforementioned questions, whereby we refused to provide any assistance/ opinion on questions Nos. 2 and 4. However, as regards questions Nos. 1, 3, and 5, we opined as follows:

Opinion on Question No.1

"(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."

Opinion on Questions Nos.3 and 5

"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."

1. At the beginning of my note, I mentioned that, in principle, I concur with the conclusion reached in the detailed opinion rendered by the Chief Justice. However, certain areas related to constitutional and legal lapses in the case of Mr. Bhutto require further consideration and explanation keeping in view the scope and extent of authority of this Court in the advisory jurisdiction. Moreover, I disagree with specific observations made by the Chief Justice, as outlined in paragraphs 26 to 30 of the detailed opinion. Therefore, I will first highlight and explain the major constitutional and legal lapses that undermined the proceedings of trial of Mr. Bhutto before the High Court as well as the appeal filed by him before the Supreme Court of Pakistan, causing them to fail to meet the requirements of a fair trial and due process, as enshrined in Articles 4 and 9 of the Constitution. Secondly, I, with respect, outline the reasons for my disagreement with certain observations made by the Chief Justice in the detailed opinion. To avoid repetition, I will refer to the arguments presented by the legal representatives and counsel as outlined in the detailed opinion, except for those necessary for my analysis.

Right to due process and fair trial

1. At the time of the trial of Mr. Bhutto, the right to due process and a fair trial was not explicitly enshrined as a fundamental right in the Constitution. However, these rights have now been provided under Article 10-A, introduced by the Constitution (Eighteenth Amendment) Act, 2010. Even before the addition of this article to the Constitution, the right to a fair trial and due process was well-entrenched in our jurisprudence and considered as a part of the right of access to justice enshrined in the Constitution under Articles 4 and 9. Article 4 of the Constitution states that every individual has the right to be dealt with in accordance with the law, highlighting the necessity of legal processes that are fair and just. Article 9 further reinforces this by asserting that no person shall be deprived of life or liberty except in accordance with the law. These provisions collectively emphasized the importance of lawful procedures and the protection of individual rights, even before the explicit recognition of due process and fair trial in the Constitution. Thus, from the very beginning, this Court has stressed the importance of fair criminal trials to protect the rights and interests of both the victim and the accused. A fair trial ensures that the accused has the opportunity to present a defence and challenge the evidence, while the victim's rights to be heard and to seek justice are upheld. By maintaining impartiality and balancing the interests of both parties, this Court strives to deliver justice and maintain public confidence in the judicial system. For instance, this Court, in the case of Noor Ahmad v. The State (PLD 1964 SC 120), while shedding light on the conduct of criminal trials, observed that it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and that anything likely to cause serious embarrassment to the accused in the conduct of their defence should be avoided. The relevant paragraph is quoted below for ease of reference:"

'We are also of the same view. Even though sections 235 and 239 of the Criminal Procedure Code give a discretion to the Court to try certain persons and or offences jointly yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial which must be kept in view when deciding as to whether the discretion should in given in case be exercised or not. In a criminal trial, as we have already observed, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause nay serous embarrassment to him in the conduct of his defence should be avoided. Thus, in the present case, it seems to us that whether a collision in such circumstances constituted one transaction or not there should not have been a joint trail of the appellants before us for more than one reason Firstly because the accusations made against them did not allege any kind of joint or concerted action nor disclosed any causal connection between the respective acts of the appellants....'

1. Later, in the case of Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD 1975 SC 66), this Court delved into the concept of 'due process' and on pages 109, 119, and 120 of the judgment provided a detailed explanation of what 'due process' entails. The Court emphasized the importance of legal procedures that ensure fairness, justice, and the protection of individual rights. The relevant paras of the judgment are reproduced hereunder for ease of reference:

'Article 4 may be compared 'with the due process of law in the American Constitution. The case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, supports this view. In the case under report Article 2 of the 1962 Constitution which is corresponding to Article 4 of the Constitution was considered and the Court observed as follows:-

"The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner."

Frontier Crimes Regulation was an "existing law" under Article 225 of the 1962 Constitution and Article 280 of the Interim Constitution. It continues to be an "existing law" under Article 268 of the present Constitution. The regulation has, therefore, always been and still is an existing law operating subject to the Constitution of the day.

Since the continued operation of the Frontier Crimes Regulation is subject to the Constitution a question arises whether the Regulation is `law' within the meaning of Articles 4 and 9 of the Constitution. In the case reported in PLD 1969 SC 14, this Court has had occasion to observe that "law" in Article 2 of the 1962 Constitution (corresponding to Article 4 of the Constitution) is as comprehensive as the American "due process of law" clause in a new garb. A reference, therefore, to the views of the American jurists as contained in 16 American Jurisprudence will, be helpful to the discovery of the true meaning of the word "law" as contained in the said two Articles of the Constitution. The following are the extracts from that book:--

• Due process of law' must be understood to mean law in the regular course of administration through Courts of justice (Vide 16 American Jurisprudence 2d paragraph 546).

• It means law according to the settled course of judicial proceedings or in accordance with natural, inherent, and fundamental principles of justice, enforceable in the usual modes established in the administration of government with respect to kindred matters.

• A general law administered in its legal course according to the form of procedure suitable and proper to the nature of the case, conformable to, the fundamental rules of right and affecting all persons alike, is `due process of law'.

• Due process has to do with the denial of fundamental fairness shocking to the universal sense of justice; it deals neither with power nor with jurisdiction, but with their exercise.

• 'Law embraces all legal and equitable rules defining human rights and duties and providing for their enforcement, not only as between man and man, but also between the State and its citizens. (Vide 16 American Jurisprudence 2d paragraph 546).

• It is a general public law of the land (paragraph 547).

• It is the law that operates on all persons alike and do not subject the individual to the arbitrary exercise of the powers of Government.

• Under the 'due process of law' no change in procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action which relate to process of law, protect the citizen in his private right and guard him against the arbitrary action of Government (paragraph 549).

• Substantive due process has been roughly defined as the constitutional guarantee that no person shall be deprived of his life, liberty, or property for arbitrary reasons, such deprivation being constitutionally supportable only if the conduct from which the deprivation follows is prescribed by reasonable Legislation (i.e. the Legislation the enactment of which is within the scope of legislative authority) reasonably applied (that is, for a purpose consonant with the purpose of the Legislation itself). To the extent that arbitrary action involves procedural arbitrariness, such action is, of course, barred by the principles of due process. In general terms it has been stated that the requirement of due process of law may be satisfied if there is no unauthorised and merely arbitrary exercise of the powers of Government to the detriment of the people or of some of them.

• It has been authoritatively stated that the right of a citizen to due process of law must rest upon a basis more substantial than favour or discretion, and in many instances statutes have been held unconstitutional on the ground that they operated to vest in the Courts or in other officials an arbitrary power over matters protected by the Constitution (paragraph 550)."

Applying the concept of `law' as contained in the extracts just quoted, section 11 of the Frontier Crimes Regulation (hereinafter called the F. C. R. which empowers the Deputy Commissioner to refer the determination of the guilt or otherwise of a person to the "Council of Elders," does not seem to me to be "law" as contemplated in Articles 4 and 9 of the Constitution. The section gives unfettered powers to the Deputy Commissioner to refer the said question for decision to a Council of Elders, if he thinks it inexpedient that the matter should be determined by any Court of the classes prescribed in section 6 of the Code of Criminal Procedure. No guidance, at all, has been laid down in what circumstances the reference to the Council of Elders should be made. No rule of procedure or evidence has been prescribed for a proceeding before such Council. The Council is not prevented from adopting methods which are arbitrary and inconsistent with reason and the civilised decencies. The section has nothing to do with the regular course of administration through Courts of justice, and does not exclude arbitrary action involving procedural arbitrariness. It constitutes a denial of fundamental fairness shocking to universal sense of justice.'

1. In "Constitution of the Islamic Republic of Pakistan: A Commentary on the Constitution of Pakistan, 1962," by Muhammad Munir, former Chief Justice of Pakistan, it is mentioned on page 197 that in a criminal trial, an accused person has the following important rights under the general law:

'1. The right to know before the trial the charge and the evidence against him;

1. The right to cross-examine the prosecution witnesses;

2. The right to produce evidence in defence;

3. The right to appeal or to apply for revision;

4. The right to be represented by counsel;

5. The right to have the case decided by the Judge who heard the evidence;

6. The right to trial by jury or with the aid of assessors;

7. The right to certain presumptions and defences; and

8. The right to apply for transfer of the case to another Court.'

The above rights were approvingly referred to and endorsed by a five-member bench of this Court in the case of Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506). In this case, the Court, with respect to the above list of rights, observed that the rights (except the right mentioned at serial No.7 which is no longer available in Pakistan) enumerated by Mr. Munir are clearly available in a trial even by a Court Martial.

HIGH COURT AS A COURT OF ORIGINAL CRIMINAL JURISDICTION

1. In our country, the Code of Criminal Procedure, 1898 ('Cr.P.C.'), as the general law of the land, governs the procedure for conducting criminal trials in all criminal courts. Even where special criminal laws are silent on certain matters, the courts take guidance from and follow the principles laid down in the Cr.P.C. Undoubtedly, under the scheme of the Cr.P.C., the High Courts fall within the category of Criminal Courts and can try any offence under the P.P.C. A detailed procedure for trial before the High Court has been outlined in Chapter XXII-A of the Cr.P.C. For a better understanding of the above legal position, the relevant provisions of the Cr.P.C. (as existed at the time of the trial of Mr. Bhutto) are discussed below:

Section 6, Cr.P.C. provides the different classes of Criminal Court and Magistrates as follows:

"6. Classes of Criminal Courts and Magistrates: (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan, namely: -

(I) Courts of Session;

(II) \\1

(III) Magistrate of the first class:

(IV) Magistrate of the second class;

(V) Magistrate of the third class."

Emphasis supplied.

Section 28, Cr.P.C. states about the courts, competent to try offences under the P.P.C in the following words:

"28. Offences under Penal Code: Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried-

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable."

Emphasis supplied.

Section 190, Cr.P.C. prescribes a mode for taking cognizance of an offence under P.P.C. as follows:

'190. Cognizance of offences by Magistrates. (1) Except as hereinafter provided, any District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

(2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government, may empower any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Sessions for trial.

(3) A Magistrate taking cognizance of an offence under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial.'

Emphasis supplied.

Section 193, Cr.P.C. mandates that the Court of Sessions is not authorized to take cognizance of any offence as a court of original jurisdiction unless the case has been sent to it under section 190(3) supra. This provision of law is also reproduced hereunder for ease of reference:

'193. Cognizance of offence by Courts of Sessions.

(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3).

(2) Additional Sessions Judges and Assistant Sessions Judges shall tray such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial.'

Emphasis supplied.

Section 194, Cr.P.C. provides for the taking of cognizance of offences by the High Court as follows-

'194. Cognizance of offences by High Court: (1) The High Court may take cognizance of any offence in manner hereinafter provided.

Nothing herein contained shall be deemed to affect the provisions of any Letters Patent or Order by which a High Court is constituted or continued, or any other provision of this Code.

(2) (a) Notwithstanding anything in this Code contained the Provincial Government, exhibit to the High Court, against persons subject to the jurisdiction of the High Court, information for all purposes for which Her Majesty's Attorney-General may exhibit informations on behalf of the Crown in the High Court of Justice in England.

(b) Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar informations filed by Her Majesty\s Attorney-General so far as the circumstances of the case and the practice and procedure of the said High Court will admit.

(c) All fines, penalties, forfeitures, debts and sums of money recorded or levied under or by virtue of any such information shall form part of the revenues of the Province.'

Emphasis supplied.

1. As per the mandate of section 28, Cr.P.C., the High Court and the Court of Session have concurrent jurisdiction along with subordinate courts to try offences under the P.P.C. The Court of Session, unlike the High Court, is not a court of original criminal jurisdiction. As section 193 of the Cr.P.C. places a complete and clear bar on taking cognizance of any offence by the Court of Session in its original jurisdiction unless the case is sent to it by a Magistrate under section 190(3), Cr.P.C. Section 190(3), Cr.P.C., prescribes a mode of transmitting criminal cases (exclusively triable by the Court of Session) by a Magistrate after taking its cognizance under section 190(1) of the Cr.P.C. to the Court of Session, without recording evidence, for trial. It may be noted that the Magistrate taking cognizance of the offence will decide the forum competent to try the offence keeping in view the provision of section 30 as well as Schedule II to the Cr.P.C. No departure from this procedure ordinarily is possible. A perusal of Column 8 of Schedule II, Cr.P.C., indicates that the High Court is not mentioned as one of the courts competent to try offences under the P.P.C. Under this column, either the offences are triable by the Court of Session or by a Magistrate. However, Section 194 of the Cr.P.C. authorizes the High Court to directly take cognizance of any offence under the P.P.C., even though the High Court is not mentioned in Column 8 of Schedule II of the Cr.P.C. as a Court competent to try any offence. The above-stated position was quite different before the promulgation of the Law Reforms Ordinance, 1972 whereby the words appearing in section 194(1) "upon a commitment made to it" were omitted. Before the said Ordinance, the provision of section 194(1) was as under:

'194. Cognizance of offences by High Court: (1) The High Court may take cognizance of any offence, upon a commitment made to it, in manner hereinafter provided.'

1. Thus, prior to the amendment of subsection (1) of section 194, Cr.P.C. as it has been indicated hereinabove the High Court had no jurisdiction to directly take cognizance of the offence except upon a commitment made to it in the manner provided thereafter but after the amendment of subsection (1) of section 194, Cr.P.C. jurisdiction has been conferred upon the High Court to take cognizance of any offence directly. So far as the term 'in manner hereinafter provided' is concerned it has been noticed that the said term has already been explained by a two-member bench of this court in the case of Dr. Muhammad Afzal and others v. The State (2001 SCMR 1615). The Hon'ble bench, after a thorough examination of the legal provisions on the subject, concluded that, '...High Court can take cognizance of offence of Pakistan Penal Code under section 194, Cr.P. C. in the same manner as cognizance is taken under section 190(1)(c), Cr.P.C. by a Magistrate namely upon an information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed.' In addition, the High Court may withdraw for trial any case pending before any subordinate court while exercising its powers under Section 526, Cr.P.C. However, whether the High Court takes direct cognizance of a case or withdraws it from a subordinate court, it must follow the procedure for trial as provided under Chapter XXII-A of the Cr.P.C.

MAJOR CONSTITUTIONAL AND LEGAL LAPSES IN THE CASE OF MR. BHUTTO

1. Keeping in mind the above-settled principles and procedures to be adhered to while conducting a criminal trial, and after a thorough scrutiny of the entire record of Mr. Bhutto's case from the trial court/High Court up to this Court, I have found the following major constitutional and legal lapses that caused the proceedings of the trial of Mr. Bhutto to fail to meet the requirements of a fair trial and due process:

I) Biased Conduct of the Acting Chief Justice

In this case, the incomplete report/Challan under section 173, Cr.P.C. ('Challan') was submitted before the concerned area Magistrate on 11.09.1977. As the said Magistrate was not competent to try an offence punishable under section 302 P.P.C. (the main offence in the case), he, therefore, forwarded the same under section 190(3), Cr.P.C. to the Court of Session for trial. The record shows that on 13.11.1977, the State, through the Special Prosecutor, filed a petition, i.e., Criminal Misc. Application No. 127- T of 1977, for transfer of the criminal cases pending before a Court of Session at Lahore. The petition was fixed before the Acting Chief Justice, Mushtaq Hussain, who, on the same day, withdrew the case from the Court of Session and transferred it to the High Court and constituted a Full Court comprising five judges of the High Court for the trial of the case, and also adjourned the case to 24.09.1977 for hearing, vide the same judicial order dated 13.09.1977 (as reproduced in para 15 of the detailed opinion).

It would not be out of place to mention here that Chapter 1 of Volume-V of the High Court Rules and Orders deals with the Judicial Business of the High Court. Its Part A(b) prescribes a procedure for the disposal of petitions for the transfer of criminal cases. Rule 5 provides, 'the petitions for transfer of cases shall ipso facto be treated and dealt with as urgent petitions'. Rule 6 provides, 'Notice of the hearing of urgent petitions shall not be given individually to the petitioner or his counsel but a list of such petitions shall be hung up for the purpose on the notice board outside the Deputy Registrar's room and/or displayed in electronic media on the day proceeding the date fixed for the hearing of these petitions giving the name of the Judge by whom the petition will be heard.' Rule 7 provides, 'In petitions for transfer of cases under section 526, Criminal Procedure Code, filed in the High Court, the Sessions Judge shall, without fail, return all notices received by him from the High Court, whether for himself or for parties, after service, within one week from the date of their receipt.' Rule 8, Part A(b) further provides that 'The Sessions Judge shall, without fail, also submit, within one week from the date of receipt of the High Court letter, all reports or explanations called for by the High Court from himself or the Magistrate concerned with regard to allegations contained in the petitions for transfer or affidavit, copy whereof will accompany the said letter.' However, the then Acting Chief Justice sidestepped the above-noted prescribed procedure and, without giving/issuing any notice to the Court of Session/trial court for service to the parties, displaying the same in electronic media, or seeking any report or explanation from the Court of Secession/trial court with regard to allegation contained in the petition, passed the order dated 13.09.199 in a hasty manner.

Furthermore, he (the Acting Chief Justice) did not satisfy any of the conditions/grounds mentioned in section 526(1) (a-e) for exercising his jurisdiction under the said provision of law. The said order is also silent on the fact of what urgency or exigency necessitated the Acting Chief Justice to constitute a Full Bench for trial through a judicial order instead of a special order as required under Part-B of Chapter 3 of the High Court Rules and Orders. Without having any lawful authority, he, vide the said order, fixed the next date of hearing in the main case, even though the case file was not before him. Under the law, after the constitution of the Full Court/trial court, it is the exclusive power of the Full Court/trial court to fix the next hearing date at its convenience. All the aforementioned facts indicate his undue favor to someone against Mr. Bhutto. Even otherwise, the language of the order dated 13.09.1977 'In view of the submissions made in the petition the case is transferred to this Court for trial' ex -facie speaks volumes about his apparent bias or impartiality against Mr. Bhutto.

II) Non-observance of Prescribed Procedure by the Full Court

On September 24, 1977, the Full Court took up Mr. Bhutto's case for the first time and delivered the requisite copies to the accused persons (Mr. Bhutto, Mian Muhammad Abbas, Arshad Iqbal, Rana Iftikhar, and Ghulam Mustafa) under section 265-C, Cr.P.C. The Court also summoned the evidence for October 2, 1977. As previously mentioned, the Full Court was bound to follow the procedure for trial as provided under Chapter XXII-A of the Cr.P.C. Under this chapter, section 265-D stipulates that if, after perusing the police report or the complaint and all other documents and statements filed by the prosecution, the Court is of the opinion that there is ground for proceeding with the trial of the accused, it shall frame in writing a charge against the accused. However, the Full Court did not frame any charges against the accused persons, thereby ignoring the above mandatory provision of law and directly summoned the evidence. This implies that the Full Court had already formed its opinion to proceed with the trial even without perusing the record. However, the charges were formally framed against the accused person on October 11, 1977.

On November 5, 1977, Mr. Bhutto filed an application before the Full Bench, expressing his apprehension that a fair and impartial trial would not be conducted in his case. The Full Court, instead of disposing of the application, observed, 'This application be placed on record, which shall be disposed of in accordance with law, after the trial.' I find this course of action adopted by the Full Court difficult to understand. The application should have been disposed of promptly, considering that the accused was expressing distrust in the Court. However, the Court seemed adamant about concluding the trial without addressing the concerns raised by Mr. Bhutto.

III) In-Camera Trial Without Any Justification

On January 24, 1978, Mr. Bhutto informed the Full Bench that he had boycotted the trial after the cross-examination of Ghulam Hussain (PW.34) and, therefore, he was not prepared to answer any questions under section 342 of the Cr.P.C., which were directly related to his defence. Upon this, the Full Court made a general observation that the accused (Mr. Bhutto) had made several scurrilous, scandalous, and baseless attacks on the impartiality of the Bench. Consequently, the Court, solely based on the above reason, directed that the proceedings of the case be held in camera. It further ordered that no part of the in-camera proceedings would be published in any form whatsoever. Section 352, Cr.P.C. provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them. This provision of law, however, provides an exception to the above general rule that the Presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

I would feel no hesitation to observe here that this was a trial of a prominent politician who was also the head of a major political party and had served as the Prime Minister of the country. Against whom allegations of criminal conspiracy levelled by another politician in connection with the murder of his father. This situation created a compelling need for an open trial to ensure that justice was not only done but also perceived to be done transparently. An almost similar observation has been made by a five-member bench of this Court in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) wherein the said Hon'ble Bench upheld the findings of the trial court, which ordered an open trial for the accused because the accused was a high-ranking government official. This decision highlights the importance of transparency and public scrutiny in cases involving individuals in significant positions of authority. In light of these considerations, it appears that the Full Bench did not exercise its discretion appropriately by ordering an in-camera trial and caused serious prejudice to the accused, Mr. Bhutto in contumacious disregard of the law previously declared by this Court in the Nawaz Gardezi case supra.

IV) Denial of the Right to Defend

Similarly, On January 28, 1978, the request of Mr. Bhutto for the supply of a copy of his statement recorded under section 342, Cr.P.C. on January 25, 1978, was declined (with the permission only to see that statement) for the reason that the proceedings were held in camera. In the case of Mr. Bhutto, the legal requirements for a fair trial, such as due notice and the opportunity to defend oneself, appear to have been compromised, as he was not provided with the materials necessary to prepare his defence effectively. This could possibly undermine the fairness and integrity of the trial proceedings. A fair trial for a criminal offence involves not only the technical observance of the framework and formalities of the law but also the recognition and just application of its substantive principles to ascertain the truth and prevent miscarriage of justice.

V) Erroneous Appreciation of Evidence of Approver

There is no denying the fact that there was no direct evidence in this case, which was solely based on the evidence of the approvers Masood Mahmood and Mian Muhammad Abbas. Under section 133 of the Evidence Act, 1872 (now Article 16 of the Qanun-e-Shahadat Order, 1984), an accomplice is a competent witness against an accused person. Thus, the evidence of an accomplice holds significant importance in the criminal justice system, particularly in cases where direct evidence is scarce. An approver is a participant or accomplice in a crime who agrees to testify against their fellow accused in exchange for leniency or a pardon. However, the evidence of an approver is treated with caution due to the inherent risk of unreliability and the possibility of ulterior motives. Section 114, illustration (b) of the Evidence Act, 1872 (now Article 129, illustration (b) of the Qanun-e-Shahadat Order, 1984), reinforces this caution by requiring that the testimony of an approver be corroborated in material particulars by independent and reliable evidence. This corroboration is necessary to ensure that the testimony of the approver is truthful and not fabricated to secure their own benefit. This Court in the case of Ghulam Qadir and another v. The State (PLD 1959 SC (Pak.) 377) had a chance to examine the evidentiary value of an approver. After a thorough analysis of the material available on record and the law on the subject, a 3-member bench of this Court laid a normal standard of corroboration for the acceptance of the evidence of an approver in a criminal case. S. A. Rahman, J.- (as he then was) speaking for the bench observed as under:

'As a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case. However in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver's statement on material points suggesting a link between accused persons and the crime before such a statement could be accepted as a safe foundation for their conviction. The reason for the rule is obvious. There is always danger of substitution of the guilty by the innocent in such cases and it is realised that it would be extremely risky to act upon the statement of a self-confessed criminal who while trying to save hip own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner. But the corroboration required would depend on the facts and circumstances of each particular case and no hard and fast rule can be laid down in this behalf. Surely, one of the factors calling for consideration may be the circumstance that the approver had no ostensible motive to involve any of the accused persons falsely in the case. That does not imply any relaxation of normal standards of corroboration in such cases and indeed, in my humble judgment, the High Court, in the present case, does nor appear to have been guilty of any such lapse.'

The above normal standard of corroboration was followed by a subsequent equal bench of this Court in the case of Abdul Khaliq v. The State (1970 SCMR 307). The bench observed, "The extent and nature of corroboration of the testimony of an accomplice may vary from case to case. The rule of practice requiring corroboration of the evidence of the accomplice is that the corroboration must be in respect of some material particulars implicating the accused, and it is not necessary that evidence of the accomplice should be corroborated in every detail of the crime.' Later, a 5-member bench of this Court in the case of Abdul Majid and another v. The State (PLD 1973 SC 595) approvingly referred to the above observations of the earlier 3-member bench regarding the requirement of the normal standard of corroboration of the statement of an approver and decided the case accordingly.

Later a matter involving the encounter/murder of six persons by the police came for consideration before this Court in the case of Ch. Muhammad Yaqoob and others v. The State (1992 SCMR 1983). This Court after analyzing the case law from 1949 to 1991 observed that the testimony of an approver is to be scrutinized with care and caution and the Court should be doubly sure that his (approver's) evidence is corroborated in material particulars by reliable evidence. Further, this Court laid down the following principles for appreciating the evidence of an approver:

(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.

(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.

(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.

(iv) That though the confession of a co-accused cannot be made the foundation of conviction but it may be used in support of other evidence.

(v) That the confession of a co-accused is an evidence of a weak character.

(vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence.

(vii) That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reason that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.

(viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(ix) That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.

It is relevant to mention here that the provisions of sections 337 to 339, Cr.P.C., lay down the procedure for tendering a pardon to an accomplice. The combined effect of these provisions is that a pardon may be tendered with the objective of 'obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence.' A pardon can be offered to such a person on the condition that he makes a full and true disclosure of all circumstances within his knowledge related to the offence and to every other person involved, whether as a principal or abettor, in its commission. It is evident that, without attempting to provide a formal definition of the term 'accomplice', the above provisions outline the criteria necessary for treating a person as an accomplice to tender a pardon. An accomplice, therefore, means a guilty associate or partner in crime, someone who is consciously connected with the offence in some way, whether before, during, or after its commission, or who makes admissions of facts showing that he had a conscious hand in the offence. If a witness

is not concerned with the commission of the crime for which the

accused is charged, he cannot be said to be an accomplice in the

crime. In other words, an accomplice is a particeps criminis, who is consciously so connected with the criminal act done by his confederate that he, due to the presence of the necessary mens rea and his participation in the crime in some way, can be tried alongside that confederate who actually perpetrated the crime. A witness who could not be so indicted due to the absence of mens rea cannot be considered an accomplice.

VI) Masood Mahmood does not qualify to be an Approver

As the case rests mainly on the evidence of the approver his evidence requires a careful scrutiny, and can only be accepted if it is supported in material particulars by other reliable evidence. Upon examining the testimony of the approver (PW-2), numerous discrepancies and irregularities have been observed. Nonetheless, the following significant excerpts from his evidence are reproduced below for a thorough understanding and proper appreciation of his evidence:

'In June 1974 when Mr. Ahmad Raza Kasuri was speaking

in the National Assembly, Mr. Zulfiqar Ali Bhutto addressed

him directly and not through the Speaker as follows: He

asked him to keep quiet, that he had enough of him and

that he would not tolerate his nuisance anymore. This is

more or less, what the Prime Minister said. A day or two later I was sent for by the prime Minister. He, inter alia, said to me that he was fed up with the obnoxious behavior of Mr. Ahmad Raza Kasuri and that Mian Muhammad Abbas, an Officer of the FSF, knew all about his activities. This officer is an accused in this Case. The then Prime Minister further told me that this officer had already been given directions through my predecessor to get rid of Mr. Ahmad Raza Kasuri. The Prime Minister went on to instruct me that I should ask Mian Muhammad Abbas to get on with the job and produce the dead body or Mr. Ahmad Raza Kasuri or his body bandaged all over.'

'On the 11th of November, 1974, I was at Multan so was Mr. Zulfiqar Ali Bhutto. Very early in the morning he rang me up. He said to me, "Your Mian Abbas has made complete balls

of the situation. Instead of Mr. Ahmad Raza Kasuri, he has got his father killed". I was taken by surprise. The Prime Minister hung up after telling me that he would summon me later…. Soon after that, when I returned to the Headquarters, Mian Abbas informed me and reported to me that his operation had been successful, but instead of the intended victim his father Nawab Muhammad Ahmad Khan had been murdered at Lahore'.

'As far as I remember, I left Multan in the same afternoon. I was summoned by Mr. Bhutto on our return to Rawalpindi. He was peeved and agitated. He said that the actual task had yet to be accomplished. I said to him, "at your behest, an idea conceived by you was carried out and communicated by me to Mian Abbas who already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to task by God Almighty, but I will not carry out any such orders any more'.

In answer to a question during cross-examination, the approver (PW-2) stated that:

'I did not give any plan of mine to Mian Muhammad Abbas for committing the murder of Mr. Ahmad Raza Kasuri.

Since Mr. Abbas had assured me about the execution

of the orders ive to him by the then Prime Minister, therefore, I did not give any person to him for the execution of those orders'.

A careful examination of the above-quoted excerpts from the evidence of Masood Mahmood, the approver (PW-2), reveals that he implicitly distanced himself from the alleged conspiracy involving Mr. Bhutto. He portrayed himself as an innocent and God-fearing man who merely conveyed a message from the then Prime Minister to another officer, treating it as part of his official duties. Moreover, the alleged incident took place on November 11, 1974, and he was taken into custody on July 5, 1977, with his confessional statement recorded on August 24, 1977. To substantiate his bona fides and the voluntariness of his actions, he claimed that on August 14, 1977, he wrote a letter to the Chief Martial Law Administrator, explicitly disclosing the misdeeds of the Federal Security Force, as well as his own actions wrongly carried out under the orders of Mr. Bhutto. Surprisingly, the letter was written after more than two and half years of the occurrence while he was in custody. If he had truly repented for his previous actions, he should have written that letter before his arrest. However, this stance has no value, as the letter or a copy thereof was not produced by him as evidence. He also failed to explain why he remained silent for approximately two and half years after the alleged incident and why he did not report it to the concerned authorities. Even otherwise, if his entire statement is considered in its totality, it does not constitute any offence. His statement is free from any mens rea and is therefore exculpatory; thus, he does not fall within the category of an accomplice. However, the High Court/Trial Court did not take note of this important aspect

of the matter and, relying upon the evidence of the approver, erroneously convicted Mr. Bhutto. Although, this Court, in paragraph 413 of the majority judgment, made an important observation to the effect, '...If a witness is not an accomplice in the sense

indicated above, namely, on account of the absence of mens rea

then the real question is not of requiring corroboration of his evidence, but of the degree of credit to be attached to his testimony, depending

on all the facts and circumstances of the particular case. In other

words, he has then to be judged as any other witness, without introducing an artificial' requirement of corroboration of his evidence by applying the rule contained in illustration (b) to section 114 of the Evidence Act.'

Later, the majority judgment (para 456) concluded that Masood Mahmood, the approver was a truthful and reliable witness and dismissed the appeal of Mr. Bhutto while hypothetically observing, 'that Masood Mahmood enjoyed a special position under Zulfiqar Ali Bhutto, that he was in close and constant touch with him throughout his tenure as Director-General of the Federal Security Force from 1974 to 1977, that he was shown all kinds of favours and considerations by being sent abroad for official visits and medical treatment, that he was not the only civilian official taken into custody on the proclamation of Martial Law, and that during his long career in the Police service of Pakistan, he had held important positions involving the assumption of responsibility and exercise of authority, and it was, therefore difficult to hold that Masood Mahmood had become an instrument in the hands of the Martial Law authorities to deliberately and falsely concoct the story he had narrated at such length at the trial. A further significant fact strengthening this conclusion was that even if he was pressurised to falsely implicate the former Prime Minister, there was no reason for the Martial Law authorities, or for Masood Mahmood himself to falsely assign an important operational role in the conspiracy to the appellant

Mian Muhammad Abbas, who was then functioning as one of the Directors of the Federal Security Force, incharge of Operations and Intelligence...'.

VII) Lack of Corroboration of Evidence of the Approver

If, for the sake of argument, it is accepted that Masood Mahmood fulfills all the requirements of being an approver, the next important legal question is whether the prosecution has succeeded in providing the necessary corroboration to support his testimony. To find the answer, I thoroughly examined the available records and was highly disappointed to find any convincing evidence to corroborate the sequence of events as alleged by Masood Mahmood, the approver. As far as the motive is concerned, it has been found from the excerpt of evidence of Masood Mahmood, as quoted above, that the motive mainly set out by the prosecution was Mr. Bhutto's speech in June 1974 in the National Assembly, where he directly addressed Mr. Ahmad Raza Kasuri and said he had enough of him and would not tolerate his nuisance anymore. In addition to this, Mr. Ahmad Raza Kasuri, while appearing as PW-1 before the High Court/Trial Court, gave a detailed account of his differences with Mr. Bhutto. Notably, he stated that he was a founding member of the Pakistan People's Party ('PPP'), formed on December 1, 1967, and was elected to the National Assembly in 1971 on that party's ticket. As he considered Mr. Bhutto a power-hungry, their relations cooled and eventually became strained. The above are the two main reasons for the involvement of Mr. Bhutto in this case, as per the prosecution evidence available on record. It is worth discussing a shocking fact: Mr. Ahmad Raza Kasuri, while appearing as PW-1, disclosed that Mr. Bhutto formally expelled him from the PPP in October 1972. In June 1973, he joined Tehrik-I-Istiqlal and then rejoined the PPP on April 6, 1976, due to an instinct for self-preservation. I am unable to understand, and even a person of ordinary prudence could not fathom, why he would rejoin a party led by someone accused of conspiring in his father's death. His rejoining is not justified in any manner, regardless of his reasoning. Based on these facts, it could be surmised that Mr. Ahmad Raza Kasuri might have been subjected to some external pressure possibly motivated by the then Martial law regime to implicate Mr. Bhutto in the murder of his father, even though he might not have personally wished to do so or might have been convinced of Mr. Bhutto's innocence subsequently.

VIII) Motive Remained Unproved

Even otherwise, when there are open hostilities between two groups, the motive factor may propel one side to commit a crime, and the same factor may possibly induce the other group to implicate their rivals. Further, the motive is a double-edged weapon, which can be used either way and by either side i.e. for real or false involvement. Reference in this regard may be made to the cases of Noor Elahi v. Zafarul Haque (PLD 1976 SC 557); and Allah Bakhsh v. The State (PLD 1978 SC 171). Therefore, to my understanding the prosecution failed to establish the motive part of the case; but the High Court/Trial Court (in para 464 of the judgment) had erroneously held, 'the motive to kill Ahmad Raza Kasuri is proved to be on the part of the principal accused [Mr. Bhutto]'. Similarly, this Court in para 497 of the majority judgment subscribed to the finding of the High Court/Trial Court while ignoring the above apparent fundamental inconsistencies in the case of the prosecution and held that Mr. Bhutto had a strong motive to do away with Ahmad Raza Kasuri owing to their violent political differences, and the manner and the language in which Ahmad Raza Kasuri gave vent to his views against the former Prime Minister and his polices.

IX) The Retracted Confession of Mian Abbas carries no Evidentiary Value

A careful examination of the confessional statement made by Mian Abbas under section 164, Cr.P.C. shows that he also attempted to exculpate himself by laying the blame on approvers Masood Mahmood and Ghulam Hussain and incidentally implicating Mr. Bhutto in this crime. Under these circumstances, his statement cannot be treated as a confession for the purposes of section 30 of the Evidence Act, 1872 (now Article 43 of the Qanun-e-Shahadat Order, 1984). Moreover, he had initially admitted his guilt and recorded his judicial confession. However, he later retracted that confession, yet the High Court/

Trial Court convicted him and sentenced him to death. During the

appeal proceedings before this Court, he again changed his mind, retracted the retraction of his judicial confession, and pleaded guilty. Although a conviction can be based on a retracted judicial confession provided it is corroborated, the conduct of Mian Abbas as described above makes him a highly unreliable witness in case involving a capital sentence.

X) Impact of Negative Report of Ballistics Experts

Additionally, the negative report of the Ballistics Expert dated September 8, 1977, regarding the use of any of the 25 guns of the third Battalion of the FSF, then stationed in Walton Lahore, in the present crime undermines the entire prosecution case, not only in regard to the use of weapons belonging to this Battalion but also regarding the use of FSF ammunition. Particularly, this report is fatal to the evidence of the approver Ghulam Hussain and of the other witnesses who claimed to have supplied Short Machine Guns (SMGs) and ammunition to Ghulam Hussain for the purpose of carrying out an attack on Mr. Ahmad Raza Kasuri.

DISAGREEMENT WITH CERTAIN REASONS IN THE DETAILED OPINION

1. No doubt, the High Court, as earlier discussed, is fully competent to take direct cognizance under section 194, Cr.P.C. of a criminal case for the commission of any offence under the P.P.C. or transfer the same to itself for trial under section 526, Cr.P.C., as both provisions have existed in the Cr.P.C. since its inception in 1898. If these provisions were found to be inappropriate, the Parliament could amend or delete them in any of the subsequent amendments made after its adoption. Given the above legal position, I do not agree with the observation made in para 26 of the detailed opinion authored by the Chief Justice whereby it has been observed, 'Article 185(2)(b) of the Constitution and sections 411 -A and 526, of the Code permit trial to be conducted by the High Court, but these provisions do not provide for a High Court to conduct a murder trial.' I would feel no hesitation to state here that Section 411-A, Cr.P.C. only provides a remedy of appeal to an accused who has been convicted in a trial held by the High Court in the exercise of its original criminal jurisdiction. An exception is attached to this provision, under which no appeal lies in cases where an appeal lies to the Supreme Court under Article 185 of the Constitution. Article 185(2)(b) of the Constitution stipulates that an appeal shall lie to the Supreme Court from any judgment, decree, final order, or sentence of a High Court if the High Court has withdrawn any case for trial before itself from any court subordinate to it and has in such trial convicted the accused person and sentenced him. As the High Court withdrew the case of Mr. Bhutto from the Court of Session/Trial Court and convicted him, his case was not covered under section 411-A, Cr.P.C. being subject to its exception clause. Therefore, Mr. Bhutto filed a direct criminal appeal before this Court under Article 185(2)(b).

2. The Chief Justice, with due respect, erred in understanding the true meaning and purpose of Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Cr.P.C. Consequently, his observation that the aforementioned provisions of law permit the trial to be conducted by the High Court, but do not allow the High Court to

conduct a murder trial, is untenable under the law being based on

a misconception of these provisions. It is, however, true that the

trial of Mr. Bhutto, for the first time, was conducted by the High

Court in its original criminal jurisdiction; but now one more example

can also be quoted from the recent past. Where a single bench

of the Islamabad High Court tried the case of an on-duty Additional Sessions Judge, Raja Khurram Ali Khan, and his wife, Maheen Zafar, for torturing their domestic worker, Tayyaba Bibi. They were both convicted and sentenced and their criminal appeal under section 411-A, Cr.P.C., was dismissed by the Division Bench of the same High Court. See Raja Khurram Ali Khan and another v. Tayyaba Bibi and another (2019 YLR 98). A Criminal Appeal filed against the judgment

of the Division Bench was also dismissed by this Court. See Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another (PLD 2020 SC 146).

1. As far as the observation of the Chief Justice in para 27-28 of the detailed opinion regarding confirmation of the death sentence by the High Court is concerned, my understanding of the legal framework as provided under Chapter XXVII titled 'OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION' is quite different. Under this chapter, the Legislature has provided valuable safeguards for the life and liberty of convicts in cases involving capital sentences. The provisions contained therein seek to ensure that in capital sentence cases, where the life of the convicted person is at stake, the entire evidentiary material bearing on the innocence or guilt of the accused and the question of the sentence must be scrutinised with utmost caution and care by a superior Court. This Chapter only deals with the sentence of death passed by a Court of Session and it has nothing to do with the sentence of death passed by a High Court while trying a case in its original criminal jurisdiction. The provision of section 374 is more than clear in this regard which states as under:

'374. Sentence of death to be submitted by Court of Session: When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court'.

Emphasis Supplied.

Further, section 377 states as under:

'377. Confirmation of new sentence to be signed by two Judges: In every case so submitted, the confirmation of the sentences, or any new sentence or order passed by the High Court, shall, when such Court consists of two or

more Judges, be made, passed and signed by at least two of them.'

Emphasis Supplied.

1. The above provisions are clear and require no further interpretation regarding whether a death sentence passed by a Full Bench comprising five judges of the High Court still requires confirmation by another two judges of the same Court. On a reference for the confirmation of the sentence of death, the High Court is required to proceed in accordance with sections 375 and 376, Cr.P.C. and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the trial court is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. If, for the sake of argument, it is accepted that the said death sentence passed by a Full Bench still requires confirmation by another two judges of the same High Court, it would be against the spirit of the above Chapter as well as the settled law whereby a smaller bench cannot sit as an appellate authority against the decision of a larger bench even it would disturb the internal hierarchy of the High Court. For instance, Section 3(1) of the Law Reforms Ordinance, 1972, provides for an appeal to a bench of two or more judges of a High Court from a decree passed or final order made by a single judge of that Court in the exercise of its original civil jurisdiction. But no such appeal would lie if the decree or final order is made by a bench comprising more than one judge, thus rendering the said provision of law redundant. Similarly, we, for the purposes of Section 374, Cr.P.C., cannot use the terms 'Court of Session' and 'High Court' interchangeably, as both are

distinct and separate judicial forums. Consequently, when the High Court passes a sentence of death in its original criminal jurisdiction, the above Chapter XXVII of Cr.P.C. becomes redundant and inoperative. However, the convict may seek the remedy of appeal under Article 185(2)(b) of the Constitution or Section 411-A, Cr.P.C., as the case may be, as discussed in the preceding paragraphs. Therefore, with such an interpretation and understanding of Chapter XXVII of Cr.P.C., I am unable to agree with the view expressed by the Chief Justice in paragraphs 27 to 30 of the detailed opinion regarding the application of Chapter XXVII, as well as the loss of the right of appeal in the case of a criminal trial conducted by the High Court in its original criminal jurisdiction, as being misconceived.

1. In conclusion, while exercising the restraint expected of me in an advisory jurisdiction, I have no hesitation in stating that no evidence whatsoever was available on record to sustain the conviction of Mr. Bhutto as recorded by the High Court/Trial Court and upheld by this Court. The evidence of the material witnesses, namely Ahmad Raza Kasuri (PW-1), Masood Mahmood (PW-2), Saeed Ahmad (PW-3), Mr. Welch (PW-4), and Ghulam Hussain (PW31) is full of contradictions, improvements, and improbabilities and was not sufficient for awarding the capital punishment to Mr. Bhutto. Even the majority of this Court erroneously subscribed to the findings of the High Court/Trial Court without carrying out any independent analysis or review of the material available on record. In short, the case of Mr. Bhutto is a bitter example of unfairness, wherein both substantive and procedural laws were misapplied to please the then-Martial Law authorities. As a result, we lost a great political leader. This case stands as a stark reminder of how legal systems can be manipulated for political gain, leading to grave injustices. The misapplication of laws in this case not only undermined the integrity of the judicial process but also eroded public trust in the legal system. It highlights the importance of judicial independence and the need for courts to be free from political influence. The loss of Mr. Bhutto, a visionary leader, was not just a blow to his supporters but to the nation as a whole, depriving it of his leadership and contributions.

2. The above are the reasons in support of the unanimous short opinion rendered by this Court on 06.03.2024.

Sd/-

Syed Hasan Azhar Rizvi

Judge

Opinion on Reference No.01/2011, filed under Article 186 of

the Constitution of the Islamic Republic of Pakistan, 1973

MUHAMMAD ALI MAZHAR, J.---

Pursuant to the decision of the Federal Cabinet, the President of Pakistan, in the year 2011, filed a reference under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") seeking an opinion in respect of the proceedings of the judicial process in the case of the trial of Shaheed Zulfiqar Ali Bhutto, former Prime Minister of Pakistan (Mr. Bhutto).

For the ease of reference, the following index provides an outline of the key topics discussed in the opinion:

| | | | | --- | --- | --- | | Sr. No. | Heading | Page No. | | I. | Quintessence of Advisory Jurisdiction | 826 | | II. | Opinion of Larger Bench | 828 | | III. | Overview of Murder Trial | 828 | | IV. | Reinvestigation in a Closed Case | 829 | | V. | Transfer of Case from Sessions Court to High Court | 831 | | VI. | Allegations of Bias | 833 | | VII. | Doctrine of Natural Justice and Due Process of Law | 838 | | VIII. | Evidence of the Approver | 840 | | IX. | Confirmation of Death Sentence | 840 | | X. | Right of Appeal | 841 | | XI. | Interviews in Print and Electronic Media | 841 | | XII. | Mitigating Circumstances | 843 | | XIII. | Doctrine of Repentance | 845 |

I. Quintessence of Advisory Jurisdiction

1. To begin, it is expedient to reproduce, for the ease of reference, Article 186 of the Constitution as under:

Advisory Jurisdiction

186, (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. [emphasis applied]

1. The spirit and fundamental nature of the advisory jurisdiction under Article 186 accentuates that the President may refer any question of law which is considered to be a matter of public importance to the Supreme Court for its consideration and opinion. This function plays a momentous role in advisory jurisdiction. The foremost wisdom of this jurisdiction lies in enabling the President to seek aid and assistance in the form of an opinion from the Supreme Court on any issue of law concerning public importance, which is the dominant feature of the "Presidential Reference" encapsulated in the Constitution. In my view, while the opinion rendered under advisory jurisdiction may not be binding, it carries significant credence and persuasive value. It is rendered after much deliberation, thoughtfulness, and appreciation of the questions forwarded by the President consistent with the constitutional obligations and judicial propriety. Such opinions ought to be respected with due weight and esteem by all organs of the State. However, concomitantly, questions transmitted for opinion in the reference should not be ambiguous, indeterminate, or inexplicable to avoid the possibility of the Supreme Court returning the reference unanswered.

2. In essence, the scope and existence of advisory jurisdiction represent is a fundamental correlation and relationship between the government and the judiciary. It is the sole pathway for seeking Supreme Court's opinion in certain instances. The Court must remain confined to the proposed questions without making any departure and must keep a tight rein on the reference itself. The Supreme Court may decline to articulate an opinion if the questions framed lack any constitutional significance or public importance. In Reference No. 2 of 2005 (PLD 2005 SC 873), a nine-member bench of this Court rendered an opinion on the draft Bill titled "HISBA BILL". The opinion referenced various local and foreign judicial precedents and the insights of eminent jurists on constitutional provisions, and concluded that the opinion on a Presidential Reference is not a decision between parties but entails an extensive judicial exercise, including evaluation and appreciation of arguments advanced by advocates appearing for summoned parties, and the Court then forms an opinion. It was further expounded that keeping in mind the language used in Articles 189 and 190 of the Constitution, the opinion expressed by the Supreme Court on a Presidential Reference under Article 186 is required to be esteemed by all organs of the State. Thus, it would not be fair to say that the opinion expressed by the Supreme Court on a Presidential Reference under Article 186 of the Constitution has no binding effect.

II. Opinion of Larger Bench

1. On 06.03.2024, the larger bench of this Court delivered its opinion on five questions raised in the Reference filed by the President of Pakistan. The larger bench, by and large, opined that the proceedings of the trial by the Lahore High Court and the appellate judgment rendered by the Supreme Court did 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. It was further opined that 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 had attained finality after the dismissal of the review petition by this Court, and thus, this Court cannot reappraise the evidence to undo the decision.

2. No doubt, the conviction attained finality after the dismissal of the review petition by this Court. However, in my unfeigned empathy and astuteness, I reckon it my utmost duty to draw attention to the quintessential blemishes and glitches in the murder trial, which blatantly suppressed, devastated, and compromised the doctrine of due process of law and the right to a fair trial.

III. Overview of Murder Trial

1. To articulate my opinion, a selection of indispensable facts about the "Murder Trial" is sine qua non to be jotted down for augmentation. To avoid veibosity, I aim to recapitulate the short and snappy minutiae of the murder trial, which forms the nucleus of my opinion. Considering the acute topographies, FIR No.402/74 was registered on 11.11.1974 at Police Station Ichara, Lahore, on the complaint of Mr. Kasuri. After lodging the FIR regarding the assassination of his father, the police carried out the investigation but traced no culprits. Consequently, the investigation was transferred by the Senior Superintendent of Police to the Crime Investigation Agency. Despite the transfer, no suspects of the alleged crime were identified or implicated, and recommendations were made for closure. The report was submitted

to the concerned Magistrate and approved vide administrative order

dated 03.05.1976. Neither the complainant nor any other legal heirs of the deceased challenged the closure of the investigation in the High Court or applied to the prosecution agency for the revival of the case or changes to the investigation officer or agency. Here, the matter could have ended without any further proceedings or investigation, effectively setting it to rest for all practical purposes. However, on one fine morning, the Government of Punjab, of its own accord, appointed a Tribunal to inquire into the incident mentioned in the same FIR without any lawful justification or application from any aggrieved person.

IV. Reinvestigation in a Closed Case.

1. The erstwhile Tribunal, in its report dated 22.02.1975, issued certain directions for further investigation without any logical justification. After the imposition of martial law in the country, the Director of the Federal Investigation Agency ("FIA") resurrected the case on 03.05.1976, which had been closed much earlier. Again, this was done without any lawful justification and appeared to be an attempt to revive the closed case by any means with mala fide intentions. The Director of the FIA, more loyal than the king, implicated seven persons, including Mr. Bhutto. A final report under Section 173 of the Code of Criminal Procedure Code, 1898 ("Cr.P.C.") was submitted, wherein two accused persons were cited as approvers. The concerned Magistrate sent the matter to the Sessions Judge for trial on 12.09.1977. All of a sudden, a transfer application was moved by the State to the Acting Chief Justice of the Lahore High Court, who instantaneously transferred the case to the High Court for trial by 'a five-member bench headed by him. To conclude, the aforesaid bench, vide judgment dated 18.03.1978, awarded the death penalty to Mr. Bhutto. His appeal was dismissed by this Court on 06.02.1979, and though a review petition was filed, it was also dismissed on 24.03.1979. To end the story everlastingly, the death sentence was executed on 04.04.1979.

2. In the safe administration of the criminal justice system in our country, relevant provisions are provided under Cr.P.C. for making arrests, conducting investigations, holding trials, issuing convictions, and executing sentences. Whenever, an Officer In-Charge of a Police Station receives information about an offence, he is required to determine whether the offence is cognizable or non-cognizable. The Investigating Officer plays a crucial role in the administration of the criminal justice system and the constituent of the investigation report and its worth holds plenteous value and has repercussions on the outcome of any criminal case. The Investigating Officer is obligated to investigate the matter from all possible angles, as required by Rule 25.2(3) of the Police Rules, 1934, to ascertain the truth and aim to arrest the real offender, not the innocents. The investigation typically begins with inspecting the crime scene, reconnoitering the circumstances connected to the offence, identifying and arresting the suspect, gathering of relevant evidence (including witness statements), making applications to the Court for recording confessions if any, conducting searches and seizures, carrying out recoveries and identification parades if required, and finally submitting the final report under Section 173, Cr.P.C., after fulfilling all legal requirements. The Investigating Officer must ensure that the provisions of the law are conscientiously followed without any breaches and the investigation is conducted impartially, with the sole aim of uncovering the truth rather than implicating innocents. This impartiality forms the foundational pathway for the prosecution's case. The mere registration of an FIR does not insinuate conviction or proof of guilt. Section 169, Cr.P.C., clearly provides that if, upon investigation, it appears to the Officer In-Charge of the police station, or to the Police Officer conducting the investigation that there is insufficient evidence or reasonable grounds for suspicion to justify forwarding the accused to a Magistrate, such officer shall, if such person is in custody, release the individual upon executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial. The case of Norwest Holst Ltd. v. Department of Trade and others [(1978) 3 All ER 280 at 290] held that "in every investigation, there are by and large three different phases. First of all, the administrative phase; next, the judicial phase; and, finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed, or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of stating his case. Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. Fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course, it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins". The judgment also quoted a passage from Lord Reid's speech in Wiseman v. Borneman [(1971) AC 297, at 308)], that every public officer deciding whether to prosecute or raise proceedings ought to first decide whether a prima facie case is made out or not.

3. Neither does it appear from the record that anyone, including the legal heirs of the deceased, was dissatisfied with the first investigation into the alleged crime, nor is there any indication that they approached the police, the FIA, or the High Court to request a fresh investigation. Additionally, nothing in the record justifies the decision to reinvestigate a closed case. No independent reasoning appears to have been applied to explain why reinvestigation was necessary. Moreover, there is no mention of significant errors or blunders made by the original Investigating Officer, nor any suggestion that evidence was intentionally omitted or manipulated to favour the accused. Similarly, there is no indication that overwhelming evidence was ignored or that reinvestigation was necessary to unearth the truth because the earlier investigation was so defective or contained such visible and seeming lapses on part of the Investigating Officer that it was rendered inadequate. Even the directions in the Tribunal's order to the investigating agency do not reflect any concrete or strong justification for reinvestigation. Instead, reinvestigation was ordered mechanically without identifying lapses on the part of the Investigating Officer. Neither was it asserted that the earlier investigation was botched, nor was any departmental action proposed against the Investigating Officer if the Tribunal believed that he failed to discharge his statutory duty of conducting a fair and impartial investigation.

4. The 'purpose of reinvestigation is not to appease influential individuals or to implicate the innocent. Its underlying principle is to unearth the truth where fairness, rectitude, and impartiality demand it. However, this does not mean that reinvestigation should routinely or customarily be ordered de novo, after submission of challan/report of closure, without any rational or well-articulated justification. Such orders must not cater to grudges or nefarious designs aimed at dragging the irreproachable or innocent individuals into .dire consequences. Reinvestigation cannot be wielded as a tool to favour any influential persons or punish the innocent so casually, callously, or arbitrarily, at the whims of influential and powerful individuals. Manipulated or misused, the garb of reinvestigation is truly a dangerous idea that undermines the integrity of the criminal justice system and poses a serious danger to its administration.

V. Transfer of Case from Sessions Court to High Court

1. According to Section 28 of the Cr.P.C., an offence under the Pakistan Penal Code, 1860 (P.P.C.) may be tried by the High Court, or by the Court of Session or by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable. Section 31, P.P.C., however, is noteworthy, according to which the High Court may pass any sentences authorised by law. Similarly, a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, with the rider that any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. While Section 302 offences are triable by Sessions Court, as also mentioned in the Schedule-II (Explanatory Note) of the Cr.P.C., as the procedural framework outlined in Section 190, Cr.P.C., states that the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence; upon a report in writing of such facts made by any police officer; upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed which he may try or send to the Court of Session for trial. A Magistrate taking cognizance of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial under Section 193, Cr.P.C., wherein it is clearly provided that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the case has been sent to it under Section 190.

2. The factual matrix in the case decrypts that the case was sent for trial to the Sessions Judge, Lahore, on 12.09.1977. However, on the very next day, a transfer application was filed by the State, which was allowed on the same day by the Acting Chief Justice of the Lahore High Court, the late Justice Maulvi Mushtaq Hussain, who constituted the bench, and the charge was framed on 11.10.1977. Without a doubt, under Section 526 Cr.P.C., the High Court has jurisdiction to transfer a case or itself try it, but with certain conditionalities, for instance: (a) that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto; (b) that a question of law of unusual difficulty is likely to arise; (c) that a view of the place in or near which any offence has been committed may be required for a satisfactory inquiry into a trial of the same; (d) that an order under this section will tend to the general convenience of the parties or witnesses; or, (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code. While exercising this jurisdiction,, the High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative.

3. It appears beyond any doubt that J. Maulvi Mushtaq Hussain allowed the transfer application in a slipshod manner, even without notice to the accused persons. Neither did the Court consider the parameters and constituents of Section 526, Cr.P.C., which require consideration before passing an order of transfer of a case, nor did it record in the order how Mr. Bhutto, who was incarcerated and no longer in power, was in a position to influence or manipulate the outcome, or hinder a fair inquiry or trial. Moreover, it was not mentioned what serious question of law of unusual difficulty was likely to arise in the prosecution case, or how the transfer was required for the general convenience of the parties or witnesses, or expedient for the ends of justice. On the contrary, in my view, the order was tainted with malice, seemingly intended 'to gain control of the prosecution case to stifle or curb the ends of justice and the right to a fair trial which is an inherent and fundamental right of every accused. The Court should not have rubberstamped the State's request for a case transfer without notice to the accused or without judiciously, cautiously, and diligently addressing the grounds raised in the transfer application to determine whether it genuinely made out a case for transfer or if the purpose of the transfer was to cause serious prejudice to the defence. It is evident from the record that Mr. Bhutto not only challenged the transfer order but also objected to the five-member bench trying the case, particularly alleging bias against J. Maulvi Mushtaq Hussain, who was heading the bench. However, all such objections were in vain. Neither the

bench members of the High Court ever acknowledged these concerns, nor did this Court give any importance or paid any heed to them. Despite serious objections, J. Maulvi Mushtaq Hussain did not recuse himself from the bench, but continued enthusiastically completing the murder trial.

VI. Allegations of Bias

1. Now, I would like to address the allegations of bias. Various instances are reflected in the record, including altercations and sarcastic remarks from the bench during the trial, which led Mr. Bhutto to believe he could not expect a fair trial or justice. Time and again, he raised allegations of bias and expressed lack of confidence, but the bench, seemingly overenthusiastic, overzealous, or under external pressure, continued the trial. They awarded the maximum sentence based solely on the testimony of an approver, without any other concrete incriminating or corroborative testament or circumstantial evidence. The bench's approach was unique and, even without considering any mitigating circumstances, appeared predetermined or prejudiced to impose the maximum punishment in a highly dubious case. In my considered view, the personal bias or preconceived notions of the judges unambiguously rendered them incapable of serving independently and fair-mindedly, which undermines the basic limb of the administration of justice and the sacred trust of the masses. When there is an actual probability of bias, the judge ought to recuse themselves, not because they are necessarily biased or incapable of dispensing justice impartially, but because the circumstances might engender a certain restlesness or fear of bias influencing the outcome of a case in the mind of others. In fact, reposing public confidence in the judiciary is the yardstick by which the justice delivery system and its integrity are appraised, including adherence to the doctrine of ex debito justitiae. A biased decision inevitably undermines credibility. However, mere apprehension or allegations of bias without any substantial whys and wherefores cannot alone justify recusal. Each judge, guided by his own conscience and

sense of right and wrong, must decide whether to sit in a particular case or not. Lord Hewart's aphorism in Rex v. Sussex Justices ([1924] 1 KB 256) aptly applies here: "Justice must not only be done, but must also be seen to be done". Relevant local and foreign judicial precedents which are essentially concentrated on the question of alleging bias are as follows:-

1. Ms. Benazir Bhutto v. The President of Pakistan (1992 SCMR 140). Bias in a Judge is the paralysis, complete or partial, of judicial faculties and therefore the allegation of bias against a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one-sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous. Bias in judicial matters may be caused by the judgment, order or observations of a Superior Court or it may spring from personal, political, religious, communal, racial, commercial or economic considerations. Ref: Dimes v. The Grand Junction Canal (No.1) and others (1852) H.L.C. 759-794) and Rex v. Sussex Justices (1924) 1 K B 256) and Muhammad Ismail Chowdhury v. Abdul Khaleque Dowdagar and another (PLD 1960 SC (Pak.) 301.

2. Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57). Mere suspicion of bias, even if it is not unreasonable, is not sufficient to disqualify a Judge. The basis of the disqualification, therefore, is "personal bias or prejudice" of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case and this must be shown as a matter of fact and not merely as a matter of opinion.

3. President v. Shaukat Ali (PLD 1971 SC 585), The mere assertion of bias can never be sufficient to disqualify a

Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown.

4. Government of NWFP v. Dr. Hussain Ahmed Haroon (2003 SCMR 104). It is an age-old fundamental principle of law that justice should not only be done but manifestly and undoubtedly it should seen to have been done. To achieve this objective/

goal it is of prime importance that a Judge/person equipped with the authority of decision should not be having any sort of personal interest in the outcome of the matter under issue

before him. The conduct of the proceedings should not

generate any reasonable apprehension in the mind of a person that the deciding officer has harboured any grudge or bias against him.

1. Asif Ali Zardari v. The State (PLD 2001 SC 568). The foremost question is what is 'bias' has been described in Corpus Juris Secundum, Volume X pp. 354 and 355. BIAS. Primarily, a diagonal or slant, especially of a seam, cut, or line across a fabric; and so derivatively, a leaning of the mind; a mental predilection or prejudice; anything which turns a man to a particular course; a particular influential power which sways the judgment; a preconceived opinion; a sort of emotion constituting untrustworthy partiality; bent, inclination, prepossession, propension, or tendency, which sways the? mind toward one opinion rather than another; propensity toward an object, not leaving the mind? indifferent. "Bias" has been held synonymous with "partiality," and strictly to be distinguished from "prejudice". Garner on Administrative Law, 4th Edition at page 122 has also attempted to define bias as a disqualification and in such context observed as follows: "Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair Judge, one free from bias. Bias in this context has usually meant that the adjudicator must have no financial interest in the matter under dispute, but it is not necessarily so limited, and allegations of bias have been upheld in circumstances where there was no question of any financial interest."

6. State of Punjab v. Davinder Pal Singh Bhullar (AIR 2012 SC 364). In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting: "If, however, bias' and partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions…… Much harm is done by the myth that, merely by….. taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine." The principle in these cases is derived from the legal maxim nemo debet esse judex in causa propria sua. It applies only when the interest attributed is such as to render the case his own cause. This principle is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice. (Vide: Rameshwar Bhartia v. The State of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State of Bihar and another AIR 1960 SC 468; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and The Secretary to the Government, Transport Department, Madras v. Munuswamy Mudaliar and others AIR 1988 SC 2232).

7. Gullavalli Negeswararao etc. v. The State of Andhra Pradesh and others (AIR 1959 SC 1376). It is one of the fundamental principles of judicial procedure that the person or persons who are entrusted with the duty of hearing a case judicially should be those who have no personal bias in the matter. In Ranger v. Great Western Ry. Co.(1) Lord Cranworth, L.C., says: 'A judge ought to be, and is supposed to be, indifferent between

the parties. He has, or is supposed to have, no bias inducing

him to lean to the one side rather than to the other In ordinary cases it is just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent."

8. Ranjit Thakur v. Union of India and others (AIR 1987 SC 2386). The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice.

9. Bhajan Lal, Chief Minister, Haryana v. Messrs Jindal Strips Ltd. and others (1994) 6 SCC 19. Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as 'sua causa', whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.

10. Justice P.D. Dinakaran v. Hon'ble Judges Inquiry Committee (2011) 8 SCC 380. Nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesar's wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias... He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision-making.

11. A.K. Kraipak v. Union of India (AIR 1970 SC 150). The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.

12. Davidson v. Scottish Ministers [2004] UKHL 34 [House of Lords]. In Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, 494, paragraph 103, my noble and learned friend Lord Hope of Craighead expressed the test in terms accepted by the Second Division and by both parties to this appeal- "The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

13. Webb & Hay v. R [1993] HCA 30 [High Court of Australia]. When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether the fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done.

1. R v. Sussex Justices, ex parte McCarthy [1923] All ER 233 [House of Lords]. It was of fundamental importance that justice should not only be done, but that it should also be manifestly seen to be done; the question was not whether the acting clerk, when with the justices, made any observation or offered any criticism which he could not properly make or offer, but whether he was so related to the case by reason of the civil action as to be unfit to act for the justices in the criminal proceedings, and the answer to that question depended, not on what was actually done, but on what might appear to be done; what be did might have created a suspicion that there had been an improper interference with the course of justice; and, therefore, the conviction of the applicant must be quashed.

2. R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577 [House of Lords]. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say it is alleged that there is an appearance of bias not actual bias. The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

16. Taylor and another v. Lawrence and another [2002] EWCA Civ 90 [Court of Appeal, Civil Division]. For the purpose of applying the test for apparent bias, namely whether in the all the circumstances a fair-minded and informed observer would be led to conclude that there was a real possibility that the tribunal was biased, the informed observer could be expected to be aware of the legal traditions and culture of the English jurisdiction, and accordingly he would be aware that in the ordinary way contacts between the judiciary and the legal profession should not be regarded as giving rise to a possibility of bias.

VII. Doctrine of Natural Justice and Due Process of Law

1. In our history, it was not rare but rather the first murder trial conducted by the High Court, which was unique in that it was decided by a bench of five likeminded judges, including the then Acting Chief Justice, who unanimously agreed to award the death penalty. I am also mindful of the turn of phrase, "the accused is the favourite child of law". The substratum of this concept is based on the farsightedness and prudence that it is better to let a hundred guilty persons be acquitted than to convict one innocent or that it is better to run the risk of sparing the guilty than to condemn the innocent. Reliance is placed on the principles elucidated in my judgment, Muhammad Riaz v. Khurram Shehzad (2024 SCMR 51). The raison detre is to assess and scrutinize whether the police and prosecution have performed their tasks accurately and diligently in apprehending and exposing the actual culprits or whether they dragged innocent persons into the crime due to a defective or botched-up investigation, depriving the victim of justice. The philosophy of this phrase, though, does not imply that the Court should grant any unwarranted favours, indulgences, or preferential treatment to the accused. Rather, it ensures a fair-minded and unbiased sense of justice in all circumstances, as a safety gauge to maintain an evenhanded right of defence and a fair trial, thereby complying with the due process of law and reinforcing the renowned doctrine, "innocent until proven guilty". However, if the prosecution case's background or chronicle is analyzed, it strongly suggests that Mr. Bhutto was not treated as the "favorite child of law" but rather as an "unfavourite child of law".

2. The personal bias, prejudice mind or jaundiced eye of the judges tarnished and contaminated the framework of entire trial and the judgment, which tantamount to grave violation of the principle of natural justice and it also enfeebles the elementary foundation of the administration of justice which is sacrosanct for the faith and conviction of the masses. To enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen. The purpose of Article 4 of the Constitution, is to ascribe and integrate the doctrine of equality before the law or equal protection of the law. No action detrimental to the life and liberty of any person can be taken without due process of law. The principles of natural justice require that the delinquent be afforded a fair opportunity to converge, explain, and contest before being found guilty or condemned without any bias or prejudice of the Courts and judges. The principles of natural justice and the doctrine of due process are not new phenomena but have long been encapsulated as a sacred obligation of every court and tribunal to follow religiously in all matters, whether civil or criminal, to ensure a fair trial. The right to a fair trial has now been explicitly enshrined in our Constitution by virtue of the 18th Constitutional Amendment in the shape of Article 10-A and in case of apparent bias as done in this case, the accused could not expect right to fair trial. [Reference can be made to some judgments authored by me, such as Junaid Wazir v. Superintendent of Police (2024 SCMR 181), Federation of Pakistan v. Zahid Malik (2023 SCMR 603), Usman Ghani v. The Chief Post Master, GPO Karachi (2022 SCMR 745), Capital Development Authority v. Shabir Hussain (2022 SCMR 627), Raja Muhammad Shahid v. The Inspector General of Police (2023 SCMR 1135), Muhammad Yaseen v. Province of Sindh (2024 PLC(C.S.) 111), Government of Balochistan v. Ghulam Rasool (2024 SCMR 1155) and Inspector General of Police, Quetta v. Fida Muhammad (2022 SCMR 1583).

VIII. Evidence of the Approver

1. I cannot ignore another crucial aspect, which is an acid test for considering and appreciating the evidence of an approver: whether their testimony is trustworthy or not. To ensure the safe, effective, and efficient administration of the criminal justice system, certain norms and yardstick are to be followed. The Court must first be satisfied that the testimony of the approver has been adequately corroborated to avoid a conviction based on weak or tainted evidence. Each case has its own facts. No doubt, an approver may be a competent witness, but their evidence requires substantial corroboration regarding the crime, the identity of each accused, and corroboration through independent and reliable evidence. The settled rule of practice is not to convict any accused on the basis of any vicious or venomous investigation. Therefore, the evidence of an approver must be appreciated with great care and caution and not treated as gospel truth. It would not be incongruous to emphasize here that under Section 114 of the Evidence Act, 1872, which is analogous to Article 129 of the Qanun-e-Shahadat Order, 1984, the Court may presume the existence of any fact it considers likely to have happened, having regard to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case. However, the illustration provided in clause (b) distinctly conveys "that an accomplice is unworthy of credit, unless he is corroborated in material particulars", an important factor that was also not considered when giving credence to the evidence of the approver.

IX. Confirmation of Death Sentence

1. If the death sentence is awarded to an accused by the Court of Session, the proceedings must be submitted to the High Court under Section 374, Cr.P.C., and the sentence cannot be executed unless confirmed by the High Court. Under Section 376, Cr.P.C., when a murder reference is submitted by the Court of Session under Section 374, the High Court may confirm the sentence, or pass any other sentence warranted by law, or may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or may acquit the accused person, provided that no order of confirmation shall be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of. For all intent and purposes, one thing is clear beyond any shadow of doubt: confirmation of a death sentence by the High Court is only required if the punishment is awarded by the Court of Session and a murder reference is submitted to comply with the letter of law. However, in this case, the death penalty was awarded by a five-member bench of the High Court, so there was no need for confirmation by any lower, or similar, or even larger bench of the same High Court. According to the exactitudes of Section 374, Cr.P.C., a murder reference may be sent by the Court of Session for confirmation, and the role of the High Court as provided under Section 376 Cr.P.C. cannot be read in isolation. It is contingent upon the murder reference sent by the Court of Session for confirmation under Section 374, Cr.P.C. Since the murder trial was conducted by the High Court itself, which was undoubtedly a rare example, no further confirmation was required upon conviction by the High Court, in accordance with the provisions of Section 376, Cr.P.C.

X. Right of Appeal

1. Had the murder trial been conducted by the Court of Session and the death penalty awarded, Mr. Bhutto could have appealed before a divisional bench of the Lahore High Court. However, since the trial was conducted by the High Court itself, his right to appeal in the High Court was forfeited. To address such situations, the framers of the Constitution wisely provided for a direct appeal to the Supreme Court under sub-article (2) (b) of Article 185 of the Constitution in cases where the High Court withdraws a case for trial before itself from a subordinate court and convicts the accused. Likewise, the prerequisites of the appellate jurisdiction of the Supreme Court are further delineated in the sub-article (3) of Article 185, which states that an appeal to the. Supreme Court from a judgment decree, order, or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal. What normally happens? When the death penalty awarded by the Court of Session is confirmed by the High Court in a murder reference and the appeal of the convict is dismissed by the High Court while maintaining the judgment awarding the death penalty, the Supreme Court, in order to ensure the safe administration of justice, typically grants leave to appeal and provides ample opportunity for hearing in order to reevaluate and revisit whether the death penalty is rightly awarded or not. However, in the case of Mr. Bhutto, due to the direct appeal being preferred in the Supreme Court, at least one sure-shot expected right of appeal with the leave of this Court was lost, and the solitary remedy or opportunity that remained in the playing field was to move a review petition alone after dismissal of Appeal by this Court.

XI. Interviews in Print and Electronic Media

1. Last but not least, the reference sent by the President of Pakistan is also structured and unfolded in paragraph 9, where the late Justice Nasim Hasan Shah, former Chief Justice of Pakistan, in his interviews on print and electronic media, admitted that the decision regarding Mr. Bhutto's appeal was made under coercion. This admission leaves no doubt in the mind of a sane and prudent person that it was a judicial murder and such admission constitutes a violation of his oath. According to the chronicles, J. Nasim Hasan Shah was appointed as an Ad Hoc Judge of the Supreme Court on 18.05.1977. The Lahore High Court delivered its judgment against Mr. Bhutto on 18.03.1978; the Supreme Court decided his appeal on 06.02.1979; the review petition was dismissed on 24.03.1979; and to close the chapter, the death penalty was executed on 04.04.1979. J. Nasim Hasan Shah retired on 14.04.1994, but was first interviewed by journalist Mr. Suhail Warraich in 1996, which interview was published in Jang Magazine. Another journalist/ host, Mr. Iftikhar Ahmed, interviewed him on 03.12.2003 for his TV show, aired on Geo TV Network. After laying down the robes of his office, his conscience awakened and forced him to make disclosures through print and electronic media. In both interviews, J. Nasim Hasan Shah revealed his own views and some other relevant facts. Though he retired in April 1994, he made certain revelations years later that added fuel to the fire and were also incorporated in the Presidential Reference as eye-openers. The remorse, confession, or admission of wrongness in the decision came much after the die was cast. It is quite a common phenomenon that poetry or its verses have multiple meanings, interpretations, or even double entendres, but quite fitting for the belated disclosures made in the interview under discussion, I wish to dedicate the following rhymes of the famous poet Dagh Dehlvi, which seems to match the situation:

1. According to the manuscript and DVD produced in Court during the hearing of this Reference, J. Nasim Hasan Shah expressed regret over the decision and admitted that Mr. Bhutto's punishment could have been reduced. He also revealed that some of the judges were under external pressure. J. Nasim Hasan Shah confessed in an interview with Iftikhar Ahmed, televised on Geo TV's programme "Jawab De". According to the gist of the interview, J. Nasim Hasan Shah stated that it was J. Maulvi Mushtaq Hussain's unjustness (zyaadati), as he was a very strong person and an enemy of Mr. Bhutto. He said that it would have been better if he had not been on the case. When the host asked if he still could have written a dissenting note, J. Nasim Hasan Shah replied in the affirmative, but explained that there was some weakness on his part as well as on the part of Mr. Bhutto's chief defense attorney, Mr. Yahya Bakhtiar, as the latter had somewhat annoyed the judges. The host further pointed out that while Mr. Yahya Bakhtiar might have annoyed the judges, J. Nasim Hasan Shah himself admitted that Mr. Bhutto should have received the benefit of doubt. J. Nasim Hasan Shah again responded in the affirmative. The host then asked if Pakistan's history would have been different today had he written a dissenting note, to which J. Nasim Hasan Shah responded that he does not know if it would have been different, but at least Mr. Bhutto's life might have been spared. He expressed regret about the situation, noting that Mr. Yahya Bakhtiar seemed unwilling to argue against the sentence or mitigating circumstances. Mr. Nasim Hasan Shah said that, as a human, a certain level of detachment occurs, but the role of the lawyer is to win the judge's favor, and in this case, the counsel had annoyed the judges. The disclosures made in the interview, though belated, not only blew the whistle on the biases involved but also pierced the veil of the entire trial and conviction, exposing blatant violations of fair trial principles with the complicity of the judges conducting the trial.

XII. Mitigating Circumstances

1. A judge is not supposed to be influenced by appeasement or flattery, nor should they harbor malice or venom against any party while discharging their sacred duty of imparting o justice in accordance with the law. The conversion of a death penalty into life imprisonment does not equate to a clean chit for the convict; the punishment remains intact, albeit with a modified quantum. It is astonishing that, according to aforementioned interview excerpt, the judges of this Court, while hearing the appeal of Mr. Bhutto, were anxiously waiting for arguments on the quantum of sentence but felt annoyed by the counsel for the appellant. The tolerance and forbearance of judges must not be so fragile or touchy as to make them easily annoyed during the hearing of a case, which is a sacred duty and trust. If a judge becomes annoyed with a litigant or their advocate in an unruly manner and loses their patience, control, or peace of mind, it becomes difficult for them to impart justice in accordance with the law. Therefore, judges should remain calm, be good listeners, and instead of arguing themselves, which is the core function of lawyers, they must allow lawyers the opportunity to present their cases and arguments. According to the details of the interview, the judges hearing the appeal were annoyed, and if this was so, then of course, the possibility of an independent application of mind was remote. Decisions made in haste or anger are not only contrary to the basic norms of justice under the law of the land, but also violate the standards set forth in the injunctions of Islam for the administration of justice. Normally, in appeals filed before the Supreme Court in cases where the High Court has confirmed the death penalty, this Court, in order to ensure the safe administration of justice, not only grants leave but, at times, considers mitigating 'circumstances, altering the punishment without specific arguments. Sometimes, the Court even hints at this line of argument.

2. In the judgment of the Review Petition Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 741), this Court recorded submissions by Mr. Yahya Bakhtiar that, even if the petitioner's conviction were maintained, it was a fit case for the lesser penalty under Section 302 of the P.P.C., read with Sections 109 and 111, as the petitioner was guilty only of abetment and was not present at the scene of the murder. However, these arguments were conveniently set aside on the ground that they had not been raised during the hearing of the appeal. It was further articulated in the judgment of the review petition that during the hearing of the appeal the question of sentence was very much present before the Court, and it was the duty of the learned counsel for the petitioner to raise such points during that time, but the counsel was more focused on seeking acquittal than pleading for mitigation of the sentence.

3. In my opinion, almost in all cases where appeals are filed against confirmation of the death penalty, no advocate directly requests a conversion of the sentence to life imprisonment. Instead, they strive for a fair acquittal for their client, which is the professional duty of every lawyer. Simultaneously, the appellate Court, with its sense of right and wrong, always has inherent jurisdiction to affirm, set aside, or modify sentences. Even when dismissing an appeal and maintaining a conviction, the Court may alter or convert the sentence from death to life, or to a lesser punishment, to do complete justice, particularly when the punishment does not seem commensurate with the gravity of the charge, the role attributed to the convict, or in cases of doubt that a maximum punishment may not be justified. Despite the established bias and grave violations of natural justice and due process in the trial and conviction, the punishment in this case was maintained. The matter did not end here, but the Court also missed the train and failed to consider mitigating circumstances, despite overwhelming material on record which could have justified an acquittal or, at the very least, a conversion of the death penalty to life imprisonment. This omission was quite tragic, atrocious, and reprehensible.

4. Though this Court rendered its opinion on 06.03.2024, almost after 13 years, it may be said, better late than never. In my view, there was no plausible justification to delay the opinion on the Presidential Reference. I am at a loss as to why it was preserved in cold storage, left hanging, and why the hearing was not commenced immediately when the questions were framed by the respected bench of this Court. Anyhow, . It is an essential limb of civil and criminal administration of justice that "justice delayed is justice denied," which virtually means that cases, whatever they may be, should not be delayed or protracted indefinitely. Courts should decide matters within a reasonable period of time, as unjustified delays can emasculate fairness and render justice inconsequential or of little worth to the parties involved. On the other hand, another maxim, "justice hurried is justice buried," also has far-reaching implications, accentuating that undue haste or a compromise on natural justice and .due process may also prejudice the rights of the parties. In such situations, the possibility of injustice cannot be ruled out. The best course to avoid the adverse consequences of both the aforesaid legal aphorisms is to maintain a proper balance in the court docket, with a measured pace. More importantly, cases should not be delayed purposefully due to their profile or significance, as happened with this Reference, which awaited its long-pending turn for an opinion.

XIII. Doctrine of repentance

1. Another important factor that cannot be overlooked is that Question No. 4 of the Presidential Reference framed by this Court had a direct nexus with the doctrine of repentance. For ease of reference, it is reproduced as under: -

"Whether the decision in the case of murder trial against Shaheed Zulfiqar Ali Bhutto fulfills 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:

(a) 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-Nehal verse 119 Sura Al-Taha: verse 82 as well as (b) Sunan Ibn-e-Maaja, Chapter 171, Hadith No. 395.

What are effects and consequences of doctrine Re: Repentance"

1. No opinion was rendered by this Court on Question No. 4, which was left unanswered for the valid reason that no assistance was provided on this question. Since this question on the doctrine of repentance was framed with reference to various verses of. the Holy Quran, forming a substantial segment of the Presidential Reference, I feel it should not remain untouched or unanswered. Repentance is expressed in Arabic as "taubah," which is a fundamental precept of the teachings of Islam. It involves the confession of sins, remorse for past wrongdoings, and a pledge to refrain from them in the future. Islam prescribes that repentance entails giving up the sin immediately, regretting what happened in the past, resolving not to go back to sinning, restoring others' rights or property, and fepenting before the agony of death [Ref: https://islamaa.infoien/answers/14289/how-to-repent-in-islam#:]. One of the wisdoms of repentance is that the believer experiences real regret and turns to Allah without wasting any time and strives not to repeat that mistake. Therefore, he repents in a true and sincere manner. He repents and keeps his word that he

will remain on the right path until the end of his life [Ref: https://www.arabnews.pk/islam-perspectiveinews/841561]. Allama Ibn al-Shami, a renowned jurist, stated that Muslims should emulate the Prophet's example by following his teachings, and should not try hard to find wrongdoings. We must also strive to protect the excellent reputation of the Last Messenger of Almighty Allah and abide by what he did, accepting the repentance of one who repents. As he emphasized, "it is not for us to impose punishments and other means of deterrence on the basis of our personal inclinations. Rather, we are bound to act on what appears to be the law of our Prophet (peace and blessings of Allah be upon him)" [Ref: Zubair Saeed Sabri v. The State (PLD 2024 SC 681)].

1. The unresolved question in my introspection is why the question regarding the doctrine of repentance was framed by this Court? Who had to or has to repent for the unfair and biased trial? Was it the departed souls who tried the case in the High Court? Those who heard the appeal and review? The bench that entertained and framed the question? Or the bench members who rendered their opinion years after the Reference was instituted? This Court unanimously noted various lapses and biases in the High Court's murder trial, ultimately concluding that the proceedings of the trial by the Lahore High Court and the appeal by the Supreme Court failed to meet the constitutional requirements of a fair trial and due process enshrined in Articles 4, 9, and later guaranteed as a separate and independent fundamental right under Article 10A of the Constitution. In my view, not only it demonstrates some sought of remorse though not explicitly articulated but it also implies a recognition of repentance for the failure to ensure a fair trial and due process, even as Question No. 4 of the Presidential Reference remains unanswered or undecided.

1. I wrap up this opinion with the poignant verses of Mirza Ghalib (Mirza Asadullah Baig khan):

P L D 2025 Supreme Court 847

Present: Naeem Akhter Afghan and Muhammad Shafi Siddiqui, JJ

KHALID PERVAIZ UL HAQ and another---Petitioners

Versus

Mst. MINHA ASIF and another---Respondents

Civil Petition No. 930 of 2024, decided on 22nd April, 2025.

(Against the judgment dated 19.02.2024 of the Peshawar High Court, Peshawar passed in Writ Petition No. 5091-P of 2023).

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

----Ss.12-A & 14(3)---Right of cross-examination struck off by Trial Court---Interlocutory order, challenge to---Scope---The petitioners challenged an interlocutory order passed by the Family Court, whereby, their right to cross-examine the respondents' witnesses was struck off---The order was assailed in a Constitutional petition before the High Court, against dismissal of which, the petitioners then sought leave to appeal---Held: Section 12-A of the Family Courts Act, 1964 made it obligatory for the Trial Court to decide/dispose of a case/family suit within a period of six months from the date of institution---Indeed, every litigant has a right to cross-examine the witnesses deposing evidence but that cannot be stretch down to an unreasonable desire of the counsel and litigant seeking adjournments one after the other and the reasons which were not found sufficient by the Trial Court, as could be seen that numerous opportunities were provided---Moreover, Family Courts Act, 1964 restricted and prohibited challenge to an interim/interlocutory order in terms of section 14(3) of the Family Courts Act, 1964---The impugned order which maintained the order of the Family Court was maintained by the Supreme Court---Petition for leave to appeal was dismissed, in circumstances, and leave was refused.

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

----S.14(3)---Interim/interlocutory order passed by Family Court, challenge to---Scope---Interim/interlocutory order passed by the Family Court, under the restriction placed in terms of section 14(3) of the Family Courts Act, 1964, is not allowed to be challenged---Trial under the special law especially the Family Courts Act, 1964 requires strict adherence which ought to be complied with, otherwise the essence and effectiveness of the law will be frustrated---If any right is curtailed by any interim order not appealable, it can well be merged with and into the final order and would then, if required, be available for a challenge along with other grounds.

Ch. Hafeez Ullah Yaqub, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Burhan Latif Khaisori, Advocate Supreme Court for Respondents.

P L D 2025 Supreme Court 850

Present: Shahid Bilal Hassan and Aamer Farooq, JJ

MUHAMMAD AMIN SAQIB and others---Petitioners

Versus

JUDGE FAMILY COURT, TOBA TEK SINGH and others---Respondents

C.P.L.A. No. 919-L of 2016 and C.P.L.A. No. 1056-L of 2016, decided on 10th July, 2025.

(Against judgments dated 11.02.2016 passed in W.Ps. Nos.10602 and 12501 of 2012 by Lahore High Court, Lahore).

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Civil Procedure Code (V of 1908), S.151---Maintenance allowance for minor daughters---Quantum, enhancement of---Family Court entertaining enhancement application instead of fresh suit for maintenance enhancement---Powers, scope and legality---For consideration of enhancement of maintenance allowance separate suit need not be filed and instead Family Court may entertain application under section 151, C.P.C. for enhancement---Supreme Court remanding the matter to the Trial Court to reconsider the enhancement application under section 151, C.P.C.---Facts in brevity were that the daughters of petitioner filed a suit for recovery of maintenance allowance through their mother which was decreed at Rs.800 per month for each daughter with a 10% annual increment---Their application for enhancement was initially dismissed by the Family Court but the District Court increased it to Rs.1,500 per month, later further enhanced by the High Court to Rs.2,500 per month for each daughter with the same annual increment, considering their day to day and educational expenses---Dissatisfied, the daughters sought further enhancement, while the petitioner challenged the increase before the Supreme Court---Held: Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith---Once the decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court could entertain any such application (under section 151, C.P.C.) and if necessary make alteration in the rate of maintenance allowance---In the present matter when the High Court fixed the maintenance allowance of respondents Nos.4 and 5 at Rs.2,500/- per month each, the monthly take home salary (earning) of the petitioner was Rs.33,026/-, however, as per computer generated salary slip submitted by the respondents' side and not denied by the petitioner, the take home salary of the petitioner was Rs.161,148/-, which would have further increased after increment---Therefore, to keep the door open for the parties to further challenge and agitate, if aggrieved of the order of enhancement or otherwise, it was deemed appropriate that in view of the above development, the matter be remanded to the Trial Court to consider the request of the respondents for enhancement of the maintenance allowance, treating the same as an application under section 151 of C.P.C.---Present matter was remitted to the Trial Court to consider the application of the respondents Nos. 4 & 5 for enhancement of the maintenance allowance, obviously, after obtaining reply from the petitioner and dilating upon the evidence, so produced by the parties and decide the matter treating the same as an application under section 151, C.P.C., within a period of not more than one month, even if it had to fix the case on day to day basis, under intimation to the Deputy Registrar, Lahore Registry Branch of the Supreme Court---Present petitions were disposed of, in circumstances.

Lt. Col. Nasir Malik v. Additional District Judge Lahore 2016 SCMR 1821 rel.

Asif Mumtaz, Advocate Supreme Court (in C.P.L.A. No. 919-L of 2016) and Rana Rashid Akram Khan, Advocate Supreme Court (in C.P.L.A. No. 1056-L of 2016) for Petitioners.

Rana Rashid Akram Khan, Advocate Supreme Court (in C.P.L.A No. 919-L of 2016) for Respondents.

P L D 2025 Supreme Court 853

Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Shakeel Ahmad, JJ

MUHAMMAD AKHTAR HUSSAIN PIRZADA---Petitioner

Versus

MEDICAL SUPERINTENDENT, THQ HOSPITAL, LODHRAN and others ---Respondents

C.P.L.A. No. 3984 of 2024, decided on 15th April, 2025.

(Against the order dated 11.06.2024 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in I.C.A. No.98 of 2022).

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

----Art. 128---Birth during marriage conclusive proof of legitimacy---DNA test of minor daughter---Petitioner was aggrieved of denial of conducting DNA test to establish paternity of minor daughter---Validity---Material question relating to paternity of the minor daughter had already been determined by three courts below in earlier round of litigation, on the basis of evidence available on the record---Ex-parte judgment and decree relied upon by petitioner was subsequent to the judgment in family suit and could not nullify earlier judgment, passed by Court of competent jurisdiction, establishing legitimacy of the minor---Supreme Court declined to interfere with the conclusion reached at by High Court which was in favour of legitimacy of minor daughter---Conditions attached to legitimacy are more strict under Muslim Law than under other systems but Muslim jurists and also the Courts have generally been very reluctant to stigmatize a child as illegitimate---As far as possible every presumption is made in favour of legitimacy---Courts are reluctant to declare a child bastard and have generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances---Petition for leave to appeal was dismissed and leave to appeal was refused.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767 rel.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

P L D 2025 Supreme Court 856

Present: Muhammad Ali Mazhar and Ayesha A. Malik, JJ

PROVINCE OF SINDH through Secretary, Government of Sindh, Karachi and others---Petitioners

Versus

Mst. SORATH FATIMA and another---Respondents

Civil Petition No. 616-K of 2025, decided on 10th July, 2025.

(Against order dated 27.02.2025 passed by the High Court of Sindh, Circuit Court, Larkana in C.P. No.D-226 of 2024).

(a) Interpretation of statutes---

----Circulars and administrative directives--- Effect--- Executive clarifications in the form of circulars and administrative directives cannot override, amend or curtail scope of statute itself or rules framed thereunder.

(b) West Pakistan Civil Services Pension Rules, 1963---

----R. 4.10 (3)(a)---Circular No. FD (PCDC) 3 (225)/2022, dated 05-12-2022, issued by Government of Sindh, Finance Department---Convention on the Elimination of All Forms of Discrimination Against Women, Art. 2(f)---Constitution of Pakistan, Arts. 14 & 25---Family pension---Divorced daughter, entitlement of---Determining factor---Dispute between parties was with regard to release of family pension to respondent who was daughter of deceased civil servant and was divorced after the death of civil servant---Validity---Dependency is not a metric for financial stability rather it is an assumption that disregards actual economic need and lived experiences of many women---Claim of surviving daughters should be based on need and individual assessment rather than a legal framework built on patriarchal assumptions as to what is stereotypically believed to constitute dependency---This presumptive exclusion based solely on marital status is unconstitutional, discriminatory and a violation of Articles 14, 25, and 27 of the Constitution---Concept of tying a daughter's eligibility to family pension solely to her marital status results in an unjustifiable distinction---Women are independent right-holders, autonomous and should be entitled to family pension where financial need is established---Pakistan's obligations under international law reinforce the principle that women cannot be denied access to economic entitlements based on marital status alone---As a party to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Pakistan is required to abolish discriminatory laws and practices that impair women's enjoyment of rights on an equal footing with men---Provision of Article 13 of the Constitution thereof guarantees women equal rights in family benefits, while Article 2(f) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),obliges States to repeal existing laws and regulations that constitute discrimination---Circular, which imposes restrictions unsupported by the Act or the Rules, is void ab initio, unconstitutional, and of no legal effect---Timing of death of civil servant could not lawfully be used to extinguish a surviving daughter's right to claim pension---Supreme Court declined to interfere in the judgment passed by High Court---Petition for leave to appeal was dismissed and leave to appeal was refused.

Secretary, Government of Punjab v. M. Ismail Tayer 2014 SCMR 1336; Muhammad Ismail Memon: In the matter of Criminal Miscellaneous Application No. 226 of 2006 PLD 2007 SC 35; Government of N.-W.F.P. v. Mohammad Said Khan PLD 1973 SC 514; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Muhammad Yousaf v. Province of Sindh 2024 SCMR 1689; Province of Punjab v. Kanwal Rashid 2021 SCMR 730; Muhammad Amin Muhammad Bashir Ltd. v. Government of Pakistan 2015 SCMR 630; Khajani Devi v. Union of India and others 2016 (4) RCR (Civil) 158; Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330; Bhagwanti v. Union of India AIR 1989 SC 2088; Poonamal v. Union AIR 1985 SC 1196 and Carson and others v. The United Kingdom [20 10] ECHR 338 ref.

Sibtain Mehmood, Additional Advocate General, Sindh for Petitioners (via video link, Karachi).

Nemo for Respondents.

P L D 2025 Supreme Court 866

Present: Yahya Afridi, C.J., Shakeel Ahmad and Ishtiaq Ibrahim, JJ

ZAHID KHAN and others---Petitioners

Versus

The STATE through Prosecutor General, Punjab and another---Respondents

Criminal Petition No. 645-L of 2025, decided on 25th June, 2025.

(Against the order dated 19.11.2024 passed by the Lahore High Court, Lahore in Cr. Misc. No. 46729-B of 2024).

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail---Pendency---Practice of not arresting accused---Accused after dismissal of his pre-arrest bail by High Court, approached Supreme Court to seek pre-arrest bail---Held: Any practice whereby police authorities treat mere filing of a petition before Supreme Court as an implied stay or bar to arrest, despite dismissal of pre-arrest bail, indicates a misunderstanding of the purpose of pre-arrest bail---Such relief exists as an exceptional measure to protect individuals against arbitrary or mala fide arrest, where circumstances clearly warrant such protection---Once a competent Court has declined pre-arrest bail, it has necessarily determined that no such exceptional circumstances exist and arrest is lawful and necessary to ensure an effective investigation---Allowing mere act of filing another petition to operate as a de facto stay would render judicial determination meaningless, defeat the objective of ensuring prompt and fair investigation and risk abuse of process by enabling accused persons to indefinitely evade arrest without any legal basis---Judicial orders must remain binding and enforceable unless and until a competent Court expressly orders otherwise---Interim protection is not automatic; it must be specifically sought and expressly granted---In absence of such order, a refusal of bail remains fully operative and must be implemented promptly and in good faith by investigating authorities---Investigating officers and police authorities are legally bound to act upon Court orders dismissing pre-arrest bail immediately, without waiting for further instructions or presuming existence of any stay where none has been granted---Administrative convenience, internal practice, or mere pendency of higher-forum proceedings cannot justify or excuse failure to act in accordance with law---Petitioner withdrew his pre-arrest bail application---Petition was dismissed.

Amjad Iqbal Khan, Advocate Supreme Court with the petitioners for Petitioners.

Rana Abdul Majeed, Addl. P.G. Punjab, Sarfraz Khan, S.I. and Waqar Azeem, I.O. for the State.

Sher Afghan Asadi, Advocate Supreme Court for the Complainant.

Dr. Usman Anwar, I.G., Punjab on Court's Call.

P L D 2025 Supreme Court 869\

Present: Qazi Faez Isa, C.J., Sardar Tariq Masood, Ijaz ul Ahsan, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Amin-ud-Din Khan, Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Musarrat Hilali, JJ

RAJA AMER KHAN and others---Petitioners

Versus

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

Constitution Petitions Nos. 6 to 8, 10 to 12, 18 to 20 and 33 of 2023, decided on 15th December, 2023.

[Challenging the vires of the Supreme Court (Practice and Procedure) Act, 2023]

Per Qazi Faez Isa, CJ.

(a) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act')was upheld as being in accordance with the Constitution---Detailed reasons stated.

There appears to be nothing unconstitutional, illegal or objectionable in the Supreme Court (Practice and Procedure) Act, 2023 ('the Act')on a plain reading of its provisions. The measures taken in the Act ensure judicial independence, facilitate access to justice, instill transparency, make the realization of Fundamental Rights more effective, and strengthen the office of the Chief Justice by introducing consultation with the two most senior Judges.

The Constitution does not grant to the Chief Justice power to decide cases unilaterally and arbitrarily. The term "Master of the Roster" is not mentioned in the Constitution, in any law or even in the Supreme Court Rules, 1980 ("the Rules"). The word master is offensive in a constitutional dispensation founded on democracy, and servitude negates consultation.

History stands witness to the fact that when power is concentrated in an individual, disastrous consequences invariably follow. Irreparable damage is caused to the Judiciary and to the people of Pakistan when the legitimacy, integrity and credibility of the Judiciary is undermined.

Mutual respect requires that the Supreme Court should not substitute its own opinion for that of Parliament, no matter how correct it considers it to be. Interventions should be restricted to only when Parliament enacts legislation which is demonstrably unconstitutional. In respect of the Act this has not been demonstrated.

Parliament enacted the Act which does not in any manner infringe any of the Fundamental Rights, rather facilitates their enforcement. The Act also grants an appeal to one who is aggrieved by a decision of the Supreme Court which is passed in exercise of the original jurisdiction of the Supreme Court under Article 184(3) of

the Constitution. The Act does not in any manner violate the Constitution, it does not undermine the Supreme Court, nor does it compromise the independence of the judiciary. In effect it does the very opposite in ensuring the enforcement of Fundamental Rights, strengthening the Judiciary and creating greater independence therein.

For the aforesaid reasons these petitions are dismissed and the constitutionality of the Act is upheld.

Per Yahya Afridi, J.

(b) Precedent---

----Supreme Court of Pakistan---Full Court---Members of a Full Court are not to be shackled by precedents---No doubt, the Supreme Court has to draw wisdom from the decisions already rendered, but in no way is a Full Court bound by the principle of stare-decisis---To do so, would defeat the very purpose of convening a Full Court to hear and decide a matter.

(c) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 5(1), 5(2) & Preamble---Constitution of Pakistan, Art. 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---Maintainability---In essence, the petitioners through these petitions seek to preserve and protect the independence of the judiciary, which undoubtedly, is beyond the realm of their private or individual concerns, and most certainly covers a more general or wider sphere, spanning the entire society and affecting the public at large---Thus, the present petitions do relate to an issue of 'public importance'---Scope of taking cognizance of a matter by the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution is much wider and can also be invoked, even if there is no infringement of any fundamental right, but what is essential is that the matter raised in the challenge before the Court relates to ensuring that the fundamental rights of the citizens and/or persons, provided under the Constitution, are effectively exercised---Given this aspect of the jurisdiction that can be invoked under Article 184(3) of the Constitution, the present petitions, fulfill both the conditions precedent for invoking the original jurisdiction of the Supreme Court---Accordingly, objection regarding maintainability of present petitions is repelled.

(d) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 5(1), 5(2) & Preamble---Constitution of Pakistan, Arts. 184(3), 191 & Fourth Sched., Part 1, Entry No. 58---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was upheld as being in accordance with the Constitution---However, His Lordship declared that section 5 of the Act had been enacted by Parliament beyond its ordinary legislative power conferred on it under the Constitution; that section 5 of the Act was, therefore, ultra vires the Constitution, and thus of no legal effect---His Lordship also observed that section 2 of the Act had expanded the scope of regulating the practice and procedure of the Court to "every cause, appeal or matter" before the Court, which was rather excessive, therefore, the Federal Government was urged to move Parliament to reconsider section 2 of the Act---Detailed reasons stated.

Saying that a law enacted by a competent legislature cannot regulate the practice and procedure of the Supreme Court would amount to shutting our eyes on the plain language of Article 191 of the Constitution, and thereby offending the settled cardinal principles of interpretation of constitutional provisions.

The matter of practice and procedure of the Supreme Court is a matter that relates to the Federation, and thus falls within the scope of Entry 58 of the Federal Legislative List in the 4th Schedule to the Constitution. Parliament, therefore, has the legislative competence to enact the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') on the matter of practice and procedure of the Supreme Court.

Admittedly, the Act has essentially dealt with the power of constituting Benches and suo motu invocation of the original jurisdiction of this Court under Article 184 of the Constitution. Earlier, the constitution of Benches of the Supreme Court was decided by the Chief Justice alone, whereas the enabling provisions of the Act have conferred the said authority on a Committee, comprising of the Chief Justice and two next most senior Judges of this Court. What is evident is that these powers have remained in and with the Court, that is, its Judges. No power has been conferred on any outsider to the Court. Despite their lengthy arguments, the counsel for the petitioners and other persons opposing the validity of the Act remained unable to explain, how the Act affects the independence of the judiciary in substituting the Chief Justice with the Committee comprising not only the Chief Justice but also the two next most senior Judges to exercise the administrative powers of constituting Benches and invoking suo motu under the original jurisdiction of the Court.

Viewed from another legal perspective, it would be interesting to note that, in essence, the Act makes the process of constituting Benches more democratic, fostering a participatory approach in decision-making. No one can dispute that a decision based on mutual consultation of three Judges, instead of the solitary opinion of one Judge, would enhance transparency and responsibility of the process.

The expansive scope of authority vested in the Committee under section 2 of the Act is a cause of concern. As per the Statement of Objects and Reasons of the Bill introduced in the Parliament, the primary aim was to regulate the practice and procedure of the Supreme Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution but the compass of section 2 of the Act goes far beyond it, and covers "[e]very cause, appeal or matter" before the Court. This can be regarded as rather excessive.

Section 5 of the Act has created a right of appeal against an order passed by the Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution. And this right of appeal has been made available, with retrospective effect, to an aggrieved person against whom the order has been made even before the commencement of the Act. By creating the right of appeal against orders passed by the Supreme Court in its existing original jurisdiction under Article 184(3) of the Constitution, Parliament has not 'enlarged' the jurisdiction but has in fact created a separate and new appellate jurisdiction, which was not provided for in the Constitution. By no stretch of the imagination can the word 'enlargement', include the 'creation' of a new jurisdiction.

With utmost respect for Parliament, I declare that section 5 of the Act has been enacted by Parliament beyond its ordinary legislative power conferred on it under the Constitution; section 5 of the Act is, therefore, ultra vires the Constitution, and thus of no legal effect.

Per Syed Hasan Azhar Rizvi, J.

(e) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 5(2) & Preamble---Constitution of Pakistan, Arts. 4, 8, 9, 10, 10A, 24, 25 & 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was upheld as being in accordance with the Constitution---However, His Lordship declared that the provisions of subsection (2) of section 5 of the Act providing the right of appeal to an aggrieved person against whom an order had been made under clause (3) of Article 184 of the Constitution, prior to the commencement of impugned Act were ultra vires under Article 8 of the Constitution as they offended Articles 9, 10, 10-A, 24 & 25 thereof and were arbitrary and unreasonable---Therefore, they shall be deemed non-est from the day of their promulgation---Detailed reasons stated.

I generally concur with the majority judgment to the extent of affirming the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023 ('the Act'); however, my disagreement pertains solely to the retrospective right of appeal as stipulated in section 5(2) of the Act. This dissent is grounded in a conscientious examination of the potential consequences that such a retrospective operation may yield, both legally and practically.

Before the Act, there was no right of appeal against the

order passed by the Supreme Court in the exercise of the original jurisdiction under clause (3) of Article 184 of the Constitution. But, the aggrieved person could have sought his remedy by invoking the review jurisdiction of the Supreme Court under Article 188 of the Constitution. An appeal allows for a comprehensive re-examination of a case, unlike a review that focuses on specific aspects of the original decision. More appropriately, the right of appeal and review are not analogous as an appeal is, the review is not the continuation of the same proceedings.

The provision of the right of appeal to an aggrieved person against whom an order has been made under Clause (3) of Article 184 of the Constitution is one of the objects of the enactment of the Act as set out in the preamble thereof. By providing the right of appeal, the legislature has achieved its objective. The conferment of the right of appeal is also in conformity with the injunctions of Islam as laid down in the Quran and the Sunnah.

Federation of Pakistan v. Public at Large PLD 1988 SC 202 and Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6 ref.

The legislative framework (i.e. the Act) would uphold the principles of fairness, transparency, and justice within our legal system. Now, independent judges, greater in numbers and uninvolved in the original case, have the opportunity to rehear and decide the matter. This not only reaffirms the core values of impartiality but also strengthens the integrity of the legal system by allowing for a fresh perspective when justice may not have been adequately served in the original proceedings.

On a plain reading of the language of subsection (2) of section 5 of the Act, it becomes abundantly clear that the legislature's intent is to provide the remedy of appeal against orders passed by the Supreme Court, even predating the enactment or commencement of the Act. The retrospective expansion thereof raises significant apprehensions, as it threatens to disrupt the finality and certainty that has historically been attributed to judicial pronouncements.

The notion of granting a right of appeal against earlier decided cases is not to be taken lightly, as it carries profound implications that extend far beyond the immediate legal proceedings. Such a provision, while intended to ensure justice and fairness, can potentially cast a shadow of prejudice over past and closed transactions, as well as the rights and interests that have been secured under the judgments of the Supreme Court.

Introducing a retrospective right of appeal now raises a profound concern. This could further compromise the principle of res judicata and jeopardize the stability and predictability of the legal system. It would open a floodgate of litigation and potentially overburden the Supreme Court with the daunting task of reevaluating numerous pre-settled matters or rights which had accrued on account of determinations validly made under the then-existing law.

Chief Land Commissioner, Sindh, and others v. Ghulam Hyder Shah and others 1988 SCMR 715 and Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43 ref.

By applying the settled principles of law, it has been found that the provision of section 5(2) of the impugned Act unequivocally grants a right of retrospective appeal, a remedy that, by its very nature, has the potential to revisit and reopen all past and closed transactions. This aspect of the matter carries significant consequences, particularly the looming specter of injustice and prejudice that could be inflicted

upon the parties in whose favour certain personal rights and liabilities

have already rightfully been accrued and secured under the judgments or orders of the Supreme Court. The provision of the right of appeal retrospectively by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law as provided under Article 9 read with Article 25 of the Constitution.

Bhandari v. the Rehabilitation Authority, Lahore and 2 Others PLD 1961 SC 89; Nagina Silk Mill, Lyallpur v. the Income-Tax Officer, A-Ward Lyallpur and others PLD 1963 SC 322; Ahmad Ali Khan v. Muhammad Raza Khan and others 1977 SCMR 12 and Controller General of Accounts, Government of Pakistan, Islamabad and others v. Abdul Waheed and others 2023 SCMR 111 ref.

Since the laws are enacted under a written Constitution and have to conform to the does and don'ts of the Constitution, neither prospective nor retrospective laws can be made to contravene the said prescribed limitations, particularly, the fundamental rights, independence of judiciary or its separation from the executive.

In view of the foregoing, it is declared that the provisions of subsection (2) of section 5 of the impugned Act providing the right of appeal to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of impugned Act are ultra vires under Article 8 of the Constitution as they offend Articles 9, 10, 10-A, 24 & 25 thereof and are arbitrary and unreasonable. Therefore, they shall be deemed non-est from the day of their promulgation.

Per Muhammad Ali Mazhar, J.

(f) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 5(2) & Preamble---Constitution of Pakistan, Art. 184(3)---Supreme Court (Practice and Procedure) Act, 2023('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was upheld as being in accordance with the Constitution---However, His Lordship declared that the retrospective/retroactive right of appeal conferred under subsection (2) of Section 5 of the Act was ultra vires the Constitution to the extent of the retrospective application thereof---Detailed reasons stated.

Though I have advocated and reinforced the majority view with regard to the legitimacy and constitutionality of the Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), but in tandem I have declared the retrospective/retroactive right of appeal conferred under subsection (2) of Section 5 of the Act ultra vires the Constitution to the extent of the retrospective application thereof.

The provision of a right of appeal to the Supreme Court through an ordinary act of Parliament is not a unique or novel idea and has, in the past, been supported by various pieces of legislation. Such rights of appeal, or leave to appeal, are in addition to the jurisdiction conferred by Article 185 of the Constitution.

The counsel for the petitioners remained unsuccessful in persuading as to how the Act infringes or contravenes the fundamental rights of any person, or how the same is against the public interest. Except to the extent of the right of Intra Court Appeal with retrospective effect, the Act is neither hit by the doctrine of colourable legislation, nor is it ex facie discriminatory or violative of any constitutional provision. The procedural stipulations and the conferral of a right of appeal with prospective effect do not violate any fundamental right, nor do they offend any provision of the Constitution. The Parliament has not curtailed the jurisdiction of the Supreme Court by dint of colourable legislation, rather the jurisdiction of the Supreme Court has been enlarged in the larger public interest by means of the Act.

Providing for an appeal with retroactive effect would open a flood gate of cases which will have serious repercussions on already decided cases and would amount to a reversion to the status quo ante (the previously existing state of affairs), with no end in sight. Though some persons may feel aggrieved by the orders or judgments of the Supreme Court rendered prior to the promulgation of the Act, it is equally true that many persons were found to have benefited from the same, and such rights between the litigants or parties, now having been decided one way or the other, cannot be re-agitated at this juncture and the parties cannot now be repositioned in the state of affairs that existed previously or before the effective date of the Act.

The moment a decision is final, either for the reason that no appeal was preferred, or an appeal was filed and subsequently dismissed by the Court, or no right of appeal is provided under the relevant legislation, then neither party will be permitted subsequently to challenge such decision in order to relaunch the matter and argue it de novo. No doubt prior to this Act, no right of appeal was provided, but all those persons aggrieved in the past must have availed the right to file a review petition, and if these review petitions have been decided then it is not possible or feasible to provide a right of appeal to them and reagitate the matter again.

Every statute which takes hold of or prejudices vested rights assimilated under existing laws, or contrives a new obligation or enforces a new duty, or characterises a new disability in respect of transactions already past and closed is presumed to have no retrospective effect. In other words, a 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 have already occurred and, instead of promoting or advancing the cause of

justice, is creating consequential impediments or causing any disadvantage to any of the concerned parties. Moreover, the provisions of a statute cannot be interpreted in a way that would lead to the devastation of rights and liabilities that have accrued by means of past and closed transactions, therefore the right of Intra Court Appeal with retrospective effect as provided under subsection (2) of Section 5 of the Act is against public policy, as well as the doctrine of finality and immutability of judgments; hence to such extent it is declared ultra vires.

(g) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists---Entries, interpretation of---Entries in the legislative lists represent fields of legislation which must receive the broadest and most expansive interpretation, and are construed to encompass all ancillary or subsidiary matters which can reasonably be said to be comprehended in them---In case of discord or overlap with other entries, the rule of harmonious construction is applied to reconcile the conflict for giving effect to each of the entries---The items mentioned in the list cannot be read in a narrow or restricted sense but rather should be given a wide and liberal interpretation without constricting it with technical considerations, and each general word should be held to extend to all ancillary or subsidiary matters which can reasonably be said to be comprehended in it.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; Government of Sindh through Secretary, Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

(h) Administration of justice---

----Excessive use of lawful power is in itself unlawful.

Independent Newspapers Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others 1993 SCMR 1533 ref.

(i) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 3---Constitution of Pakistan, Art. 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---Reading down of section 3 of the Act---An important aspect which needs to be addressed and read down is the provision contained under Section 3 of the Act which elucidates that any matter invoking the exercise of original jurisdiction under Article 184(3) of the Constitution shall be first placed before the Committee constituted under Section 2 for examination, and if the Committee is of the view that a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved, it shall constitute a Bench comprising not less than three Judges of the Supreme Court which may also include the members of the Committee, for adjudication of the matter---This is perturbing for the reason that if the Committee administratively decides not to fix a particular matter before the Court because, in their point of view, no question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is made out, then in that eventuality the matter ends without any further judicial scrutiny or order---Obviously, no appeal lies in Chamber before a single judge in terms of Supreme Court Rules, 1980 on the refusal of Committee to entertain a matter---Therefore, where the Committee refuses to entertain or fix a case, then in such a situation the matter should be fixed before the Court for judicial scrutiny regarding whether any case is made out to exercise the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution; and since the matter is taken up by the Committee on the administrative side, therefore, in case of refusal, the matter may be fixed before any available three-member bench, not including the members of the Committee, on the judicial side.

(j) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----S. 6---Constitution of Pakistan, Arts. 184(3) & 188---Supreme Court Rules, 1980, O.XXVI---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---Change of counsel in review petitions---Under Section 6 of the Act, a right has been accorded to appoint a counsel of choice for filing a review petition, which was not earlier permissible---The right of changing or appointing new counsel of choice to file and pursue the review application/petition shall not be construed as allowing a rehearing of the matter, and the counsel so appointed should not attempt to reargue the whole case, or expect to start from scratch as an opportunity of rehearing to cure or supplant the lacunas, mistakes and/or oversights of the earlier counsel---Mere repetition of old and overruled arguments through a different counsel would be insufficient and impermissible in this regard.

(k) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2 & 3---Constitution of Pakistan, Art. 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---Chief Justice of Pakistan---"Master of the Roster"---Changes made after promulgation of the Act---Prior to the promulgation of the Act, the Chief Justice alone was the master of the roster, and without the issuance of the roster of sittings or the constitution of benches by him, no Judge or bench of Judges could embark on or assume any jurisdiction except for the cases assigned by the Chief Justice, however in order to mitigate and clip off the sole discretion of the Chief Justice, the Act was enacted and now, for all intents and purposes, the functions of the master of the roster which vested solely in the Chief Justice have now been assigned and shifted to the collegium comprising the Chief Justice and the two next most senior judges of this Court as the masters of the roster for issuing the roster of sittings and constituting benches after due deliberation.

Per Syed Mansoor Ali Shah, J.; Qazi Faez Isa, CJ,.Sardar Tariq Masood, Amin-ud-Din Khan, Jamal Khan Mandokhail, Athar Minallah and Musarrat Hilali, JJ. agreeing; Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ., partially agreeing

(l) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 3, 4, 5 & Preamble---Constitution of Pakistan, Arts.142, 184(3), 191, 238 & Fourth Sched., Part 1, Entry Nos. 55 & 58---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was upheld as being in accordance with the Constitution---Detailed reasons stated.

The phrase "subject to law" as used in Article 191 of the Constitution does not mean subject to "substantive law" only. The word "law" includes law in all senses - procedural and substantive; enacted directly on the matter of practice and procedure of the Supreme Court or containing only incidental or ancillary provisions.

Winberry v. Salisbury 5 N.J. 240 (1950) ref.

The power to deal with the subject of rules regulating its practice and procedure, no doubt, primarily vests in the Supreme Court but this is not exclusive to it. This rule-making power of the Supreme Court is subservient to the superior constituent power and ordinary legislative power of the Legislature. The rules made by the Supreme Court are to hold the field unless changed by the Legislature in the exercise of its constituent power under Article 238 or its legislative power under Article 142 of the Constitution. This is the correct understanding of the phrase "Subject to the Constitution and law" as used in Article 191 of the Constitution.

Entry 58 of the Federal Legislative List further establishes the legislative competence of Parliament to make law on the subject of practice and procedure of the Supreme Court. No provision in the Constitution has been pointed that prohibits either expressly or by necessary implication the exercise of legislative power of Parliament on the subject of practice and procedure of the Supreme Court, but rather the specific mention of the phrase "subject to law" in Article 191 of the Constitution suggests otherwise and repels the argument of any implied prohibition that could have possibly been raised if this phrase had not been there. When instead of any such prohibition there is a clear permissibility expressed by using the phrase "subject to law" in Article 191, the subject of the practice and procedure of the Supreme Court squarely falls within the scope of Entry 58 of the Federal Legislative List and with respect to it, Parliament is fully competent to make law in the exercise of its legislative power under Article 142(a) of the Constitution. Therefore, the Parliament has competently enacted the Supreme Court (Practice and Procedure) Act, 2023 ('the Act')on the subject of practice and procedure of the Supreme Court.

Hawkins in Hall v. State 539 So. 2d 1338 (Miss. 1989) ref.

Section 5 of the Act also falls within the scope of the subject of regulating the practice and procedure of the Supreme Court, and Parliament has competently enacted it in the exercise of its legislative power under Article 142(a) of the Constitution read with entry 58 of the Federal Legislative List. Even otherwise, if Section 5 of the Act is taken as the one that has conferred a substantive right of appeal on persons aggrieved of an order passed under Article 184(3) and thus enlarged the appellate jurisdiction of the Supreme Court, the same will then fall within the scope of Entry 55 of the Federal Legislative List.

Devolving two of the administrative powers of the office of the Chief Justice (i.e. powers to constitute benches and invoke suo motu original jurisdiction) to the Committee of three Judges, which also includes the Chief Justice, does not in any manner infringe the independence of the judiciary nor does the provision of a right of intra court appeal affect the right of access to justice.

His Lordship declared that the doctrine of past and closed transactions is to applied to the acts of constitution of benches and decisions of the cases by those benches during the period of suspension of the operation of the Act; that in order to give effect to the provisions of Sections 4 and 5 of the Act to a possible extent, the review petitions filed against orders passed in jurisdiction under Article 184(3) should be treated as appeals, on applications made in this regard, with permission to file additional grounds of challenge and dealt with accordingly under Section 5 of the Act while the review petitions filed in other cases that fall within the category mentioned in Section 4 of the Act may be fixed for hearing before the Benches comprising not less than five Judges of the Court.

(m) Separation of powers, doctrine of---

----Scope---Doctrine of checks and balances---Concomitant with the doctrine of separation of powers is, however, the doctrine of checks and balances---It acknowledges that while each organ operates independently, there should be some mechanism to restrain each organ within the limits of its power and to counteract whenever such limits are exceeded---It is through checks and balances that each organ is empowered to monitor and, if necessary, undo the actions of the others, ensuring that no organ exceeds its constitutional authority---The very strength of the separation of powers is thus dependent on the checks and balances, making no organ absolutely unchecked---Therefore, in essence, the separation of powers and the checks and balances are intertwined concepts that reinforce the stability and integrity of a constitutional democracy; they provide a framework where each organ is both empowered and limited, fostering both cooperation and accountability.

Per Ayesha A. Malik, J.; Munib Akhtar and Shahid Waheed, JJ. concurring.

(n) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 3, 4, 5, 6 & Preamble---Constitution of Pakistan, Arts. 184(3), 191 & Fourth Sched., Part 1, Entry Nos.55 & 58---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was upheld as being in accordance with the Constitution---However, Her Ladyships found the Act in its entirety to be ultra vires the Constitution---Detailed reasons stated.

The term subject to law used in Article 191 of the Constitution does not suggest legislative competence rather it means the rule-making power of the Supreme Court is subject to the existing law, meaning thereby the Supreme Court cannot make rules contrary to substantive or statutory law which are already in the field. The Constitution mandates that the Supreme Court can make its rules on practice and procedure but in doing so, it cannot encroach upon established legislative domain being that, under the garb of its rule-making power, it cannot replace or override statutory law. The reason for this constitutional command is very simple, the Constitution grants rule-making authority on practice and procedure exclusively to the Supreme Court without giving Parliament any overriding power by way of legislation and restricts the authority of the Supreme Court to rule-making and nothing more. The rule-making power under Article 191 of the Constitution exclusively falls within the domain of the Supreme Court and is directly linked with the independence of the judiciary.

The Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), has legislated on matters already covered by the Supreme Court Rules, 1980 ('1980 Rules'), rendering the affected rules redundant. Basically, Parliament has modified and changed the 1980 Rules making the rule-making authority of the Supreme Court non-existent. If the rule-making scheme has to be reshaped it must be done by the Supreme Court itself, which is constitutionally responsible for its practice and procedure. This is why the 1980 Rules have been placed on a higher pedestal and cannot be changed or modified or amended or altogether displaced by ordinary legislation.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Chairman N. W.F.P. v. Khurshid Anwar Khan 1992 SCMR 1202 ref.

The argument that Entry 58 of the Federal Legislative List ('FLL') gives legislative competence to Parliament on the subject of practice and procedure is totally without basis as this is a residuary and independent Entry dealing with matters which are, as per the Constitution, under the legislative competence of Parliament and relate to the Federation. If this is taken to mean that it is a general Entry granting legislative competence to Parliament to legislate on any subject matter which is not specifically covered under the FLL, it would in fact become an all-encompassing Entry giving Parliament competence on just about any subject matter. Effectively, the FLL would become redundant as Parliament could legislate on any subject matter and take cover under Entry 58 of the FLL. Therefore, on its own, Entry 58 of the FLL cannot grant competence to Parliament to legislate on practice and procedure which as per Article 191 of the Constitution is the power of the Supreme Court.

The constitutional mandate granting the Supreme Court the power, to regulate its own practice and procedure, is a power that is inherently entrenched in the functioning and administration of the Supreme Court. It is an explicit constitutional grant that requires the Supreme Court to make its own rules for its effective administration. This rule-making power is an inherent power within the court for its efficient and effective functioning as it allows the court to deal with matters of practice and procedure, which includes fixation of cases and constitution of benches, etc. and these matters cannot be subject to legislative intrusion.

Winberry v. Salisbury 5 N.J. 240 (1950); Kolkman v. People 89 Colo. 8 (1931); People v. Brown 238 Mich. 298 (1927); Tomlinson v. Tomlinson 338 Mich. 274 (1953) and Epstein v. State 190 Ind. 693 (1920) ref.

Historically, the rule-making powers of the Supreme Court were within the exclusive domain of the Supreme Court (or Federal Court, as the case may be), which were protected legislatively (Government of India Act, 1935 as adopted for Pakistan) and constitutionally (1956, 1962, 1972 Interim and 1973 Constitutions). The Supreme Court exercised its constitutional power by making these rules and the same were in the field throughout the making and remaking of the constitutional order. Our constitutional history does not demonstrate that Parliament was ever competent to make law on the subject of practice and procedure.

The Constitution mandates the judiciary, and no other organ, to solely and completely determine its institutional affairs in terms of constitutional balance of power.

On the issue of master of the roster, which terminology refers to the prerogative of the Chief Justice of Pakistan ('CJP') to make and provide for the roster. It flows from the understanding that while the Chief Justice is first amongst equals on the judicial side; so far as the administrative function of constituting benches and allocating cases that lies with the Chief Justice. This function is prescribed for in the 1980 Rules and it is deeply rooted in the constitutional convention and ruled by various pronouncements of the Supreme Court.

State of Maharashtra v. Narayan Shamrao Puranik AIR 1983 SC 46; Campaign of Judicial Accountability and Reforms v. Union of India (2018) 1 SCC 196; State of Rajasthan v. Prakash Chand AIR 1983 SC 1344 and Shanti Bhushan v. Supreme Court of India AIR 2018 SC 3287 ref.

If there is a concern with the working of the CJP, as master of the roster, then in terms of Article 191 of the Constitution, it is for the full court of the Supreme Court to rethink and reshape its 1980 Rules by making them more effective and dispel the notion of arbitrariness and unreasonableness. While the Act has formed a Committee under Section 2, the fact remains that the relevant provisions in the 1980 Rules and the rule-making authority of the Supreme Court have become redundant as this function of practice and procedure has been legislated upon. Similar consequences flow from Sections 3, 4 and 6 of the Act which are in direct conflict with the 1980 Rules. The Act has, therefore, made the 1980 Rules redundant meaning thereby that the legislature has prevailed over the rule-making power of the Supreme Court.

There can be no ordinary legislation with respect to the jurisdiction and powers of the Supreme Court or the enlargement of its jurisdiction unless it has been authorized expressly by or under the Constitution. The Act establishes the appellate jurisdiction of the Supreme Court against an order passed under Article 184(3) of the Constitution being an order of this Court. So the issue is that a right of appeal is created against an order of the Supreme Court to its larger bench. Effectively, it has enlarged the jurisdiction of this Court given in Article 185 of the Constitution. However, the issue is that the original jurisdiction of this Court as well as the appellate jurisdiction has been already set out by the Constitution. This means that if an appeal is to be created, thereby expanding on the appellate jurisdiction of this Court under Article 185 of the Constitution, it can only be done through a constitutional amendment. An Act of Parliament cannot override or amend any provision of the Constitution. Furthermore, the intent of the Constitution-makers is clear as they did not provide any appeal against an order under Article 184(3) of the Constitution. If there is a desire to change this thinking, then it can only be done through a constitutional amendment. To suggest that Parliament can enlarge the constitutional jurisdiction of this Court under Entry 55 of the FLL would also suggest that Parliament can amend the Constitution by way of ordinary legislation, which would be in total conflict with the constitutional mandate.

The basic question remains as to what happens to the right of appeal under Section 5 of the Act when all Judges (of the Supreme Court) sit in a petition under Article 184(3) of the Constitution. The right of appeal granted under Section 5 of the Act becomes redundant. This in turn means that a party, who can avail the right of appeal under the Act, will no longer be able to avail of that right since the full court heard the matter. This Court by way of its practice and procedure will not be able to sit as a full court in a petition under Article 184(3) of the Constitution simply because the right of appeal will be blocked and cannot be availed.

The Act is ultra vires the Constitution as Parliament does not have legislative competence to make law on the subject of practice and procedure.

(o) Constitution of Pakistan---

----Preamble---Supremacy of Parliament to make laws---Scope---Under the existing constitutional structure, the Constitution is supreme and not Parliament---This means that the provisions of the Constitution must be given effect and the interpretation of the Constitution is one where its objective must be achieved.

Justice (R) Fazal Karim, 1 Judicial Review of Public Actions (2nd ed. 2018), 28. ref.

(p) Separation of powers, doctrine of---

----Scope---Principle of separation of powers is fundamental to the organization of any state and the same is fundamental to the systems of Government---It is a basic principle of our Constitution---The separation of powers is inferred from the Constitution's organizational principles, hence, it is implicit in the Constitution---Separation of powers is not only a fundamental principle of our constitutional construct but also the cornerstone of a constitutional democracy---The separation of the judiciary from the executive and legislature is part and parcel of judicial independence.

Justice (R) Fazal Karim, 1 Access to Justice in Pakistan (1st ed. 2003), 11; Jurists Foundation v. Federal Government PLD 2020 SC 1; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Imran Ahmad Khan Niazi v. Federation of Pakistan PLD 2024 SC 102; State v. Zia-ur-Rehman PLD 1973 SC 49; Yousaf Raza Gillani v. Assistant Registrar, Supreme Court PLD 2012 SC 466; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

(q) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 3, 4, 5, 6 & Preamble---Constitution of Pakistan, Art. 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---Maintainability---Independence of the judiciary in itself is a fundamental right and issues relating to independence, structure and functioning of the judiciary, are a matter of public importance---Questions with respect to the independence of the judiciary, and access to justice will always be a matter that concerns the public at large, hence, issues raised to this extent are maintainable under Article 184(3) of the Constitution---Hence, present petitions were maintainable.

Per Shahid Waheed, J.

(r) Constitution of Pakistan---

----Art. 184---Original jurisdiction of the Supreme Court---Scope---Since jurisdiction of the Supreme Court under Art. 184 of the Constitution flows directly from the Constitution, it is self executing without further Acts of the Parliament.

(s) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 3, 4, 5, 6 & Preamble---Constitution of Pakistan, Art. 4, 10A, 25 & 184(3)---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---Maintainability---His Lordship found the present petitions to be maintainable---Detailed reasons stated.

The plain reading of clause (3) of Article 184 of the Constitution makes it clear that there is a three-stage requirement for the Supreme Court to take cognisance of a matter under the said clause: firstly, all that is needed is that there must be a "question"; secondly, the question raised needs to be in respect of public importance; and lastly, the question so raised needs to be of public importance about the enforcement of fundamental rights enshrined in the Constitution. The expression 'question' has to be understood in its ordinary or popular meaning, which, in my opinion, would be a matter requiring resolution or discussion. The 'question' so raised in this petition relates to the free functioning of this Court, the legislative competence of Parliament to regulate the practice and procedure of this Court and whether the enforcement of Supreme Court (Practice and Procedure) Act, 2023 ('PAPA'), will result as an impediment to the public's access to justice. So, the first stage test is satisfied because the questions thus raised are not vague but clear in their purpose, requiring due deliberation. The purpose of these petitions is to preserve and protect the independence and autonomy of this Court, which in turn promotes the welfare of the people; as such, they raise a question of public importance and, therefore, satisfy the second stage test. The third test that needs to be qualified is whether the question in these petitions relates to the enforcement of any fundamental right guaranteed under the Constitution. The word "enforcement" in the context of Article 184(3) of the Constitution overtones that no law shall take away or abridge the right conferred by the Constitution but it also implies that ensuring compliance with one right must not involve violation of other fundamental rights. So, here the Supreme Court has been called upon to examine whether the PAPA while seeking to enforce Articles 4, 10-A and 25, of the Constitution, strikes a balance with other guaranteed rights or vice

versa contravenes other rights, such as independence of the judiciary, access to justice and whether the Parliament is competent to regulate the practice and procedure of this Court. As such, it would be in the fitness of things to open and keep open this Court to determine the 'questions' involved in these cases, and resultantly, the petitions are maintainable.

(t) Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 3, 4, 5, 6 & Preamble---Constitution of Pakistan, Arts. 2A, 9, 175(2), 175(3), 184(3), 191 & Fourth Sched., Part 1, Entry Nos. 55 & 58---Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), constitutionality of---Constitutional petitions before the Supreme Court challenging the constitutionality of the Act---By majority of 10 to 5, the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was upheld as being in accordance with the Constitution---However, His Lordship found the Act in its entirety to be ultra vires the Constitution---Detailed reasons stated.

Where an Act of legislature confers a jurisdiction, the Act may provide for the procedure of the Court to the extent of the jurisdiction so conferred, but in no fashion can it be construed that an Act of the legislature may also regulate the rule-making power conferred by the Constitution on the Supreme Court, such as the constitution of benches and fixation of cases etcetera. The restrictive phrase 'subject to' in Article 191 of the Constitution and the subsequent words 'the Constitution and the law' have been used to limit the power of the Supreme Court to make rules regulating its practice and procedure or in other words the Supreme Court has been given the power to frame rules in conformity with the Constitution and the law - nothing more and nothing less.

Winberry v. Salisbury [5 N.J. 240] ref.

It is the Supreme Court that has the power to regulate its practice and procedure, and the Supreme Court Rules, 1980 ('SCR') will always supersede ordinary legislation because the rules are, in other words, 'Constitutional Rules' and can only be overruled or amended by the Parliament through a constitutional amendment or by the Supreme Court itself.

Ghulam Mohiuddin v. Federation of Pakistan PLD 2023 SC 825; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923; Shaukat Aziz Siddiqui v. Federation of Pakistan PLD 2018 SC 538; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Zain Noorani v. Secretary National Assembly of Pakistan PLD 1957 SC 46 ref.

If Article 191 of the Constitution is construed as a source of legislative power, then the Constitutional requirement to ascertain the independent functioning of the Supreme Court is abridged because the Parliament, by an ordinary Act, will be able to regulate the practice and procedure of the Supreme Court, which in its essence is a violation of the salient feature of trichotomy of powers, embedded in our Constitution. The Parliament cannot enact a law that conflicts with SCR without violating the trichotomy of powers. If the legislature under Article 191 regulates the practice and procedure of the Supreme Court, in such eventuality, the executive would be issuing orders for constitution of benches of their choice for hearing particular cases which would be a violation of principles of independence of judiciary and denial of access to justice enshrined in Articles 2A and 9 of the Constitution. A more significant problem this would lead to is that this legislative authority would also be exercisable through Ordinances if construed as a source of legislative power. An Ordinance, despite its legislative impact, is an act of the executive. This will unequivocally contradict Article 175(3), which stipulates an absolute separation of the executive from the judiciary. Thus, this would disrupt the fundamental structure of our Constitutional framework of trichotomy of powers.

The reference to Article 191 as a legislative source in the preamble of the Supreme Court (Practice and Procedure) Act, 2023 ('PAPA')was unfit. Parliament had no competence to enact PAPA by using Article 191 as its legislative source.

Entry 55 of the Federal Legislative List does not rescue PAPA for the reason that primarily the Act is a procedural law and is not covered by Entry No.55. Section 5 of PAPA provides a jurisdictional right against a constitutional jurisdiction which does not come under the scope of Entry No.55 because a constitutional jurisdiction can only be varied or enlarged if expressly authorised by or under the Constitution, whereas no such authorisation has been provided under Article 184 nor Article 185 of the Constitution.

The right of appeal under section 5 of PAPA is not an enlargement of the original jurisdiction of Article 184(3) nor the appellate jurisdiction of Article 185 of the Constitution. Section 5 confers a new right of intra-court appeal, which did not exist prior to the enactment of section 5 of the PAPA, and so, is creating a jurisdiction and not enlarging it. This certainly cannot be done under Entry No.55, as its scope is limited to the enlargement of pre-existing jurisdiction conferred by law, and not the creation of a new jurisdiction.

To say that Entry No.58 (which is a general clause on matters that "relate to the Federation") read with Article 191, provides competence to Parliament to legislate would undermine the fundamental framework of the Constitution by annihilating the objective of Article 191, which is to preserve and promote separation of powers between the judiciary and the executive. Consequently, the Supreme Court's practice and procedure cannot be legislated under Entry No.58.

Article 191 of the Constitution clearly states that it is the responsibility of the Supreme Court to make its own rules regarding its practice and procedure. This Court can regulate its practice and procedure under Article 191 for the following reasons: Firstly, the technicality in day-to-day proceedings and administration of the Court. Secondly, the efficiency of this Court. Parliament cannot be permitted to encroach on the administrative domain of this Court, for such intrusion inevitably will result in unforeseen contingencies. If allowed, only Parliament itself will be able to address these contingencies, as it would effectively assume control of the Court's administration. The process of enacting changes and amending laws within Parliament is time-consuming and does not align with the Court's or the interest of the public at large. Thirdly, delegating powers to this Court to regulate its practice and procedure puts this Court in a position to use its discretion for speedy and flexible adjustment to new practical and technical developments without activating the legislative or executive machinery in motion for necessary amendments. Fourthly, urgent emergency powers where the national interest demands rapid and effective action, and thus, it is in democratic interest to equip this Court with extraordinary powers, such as to fix urgent matters before available judges, etcetera.

The failure or omission to call a full court for the necessary amendment to SCR cannot be construed as giving the Parliament the right to intrude into the judicial domain and enact a law such as the PAPA without legislative competence. Such an eventuality can only occur if the Constitution plainly says so, and since it does not, a constitutional amendment may be required for such an action.

There are several defects in section 2 of PAPA. Firstly, if one of the judges on the Committee is not present, who will replace that member? Legally, no judge or other person can replace a member of the Committee unless the Parliament amends section 2 in a way that delegates such powers to the Committee to appoint a temporary member in the absence of one member. Secondly, what if the two members of the Committee decide to send the Chief Justice to another provincial branch registry. As absurd as it sounds, it can very much be done, which will have serious consequences as the Chief Justice is the administrative head of this Court and has a crucial role in the day-to-day affairs. Lastly, what if one member of the Committee is out of the country, the other becomes indisposed, and there is a severe national emergency; there is no remedy provided in the PAPA to deal with such a situation, and as a result, chaos would ensue, and the entire system would be disrupted.

Under section 3 of PAPA, a matter invoking the original jurisdiction of the Supreme Court under Article 184(3) shall be first placed before the Committee constituted under section 2, which, in essence, means that the committee will decide whether a petition under Article 184(3) is maintainable or not. The problem with this is that the Constitution under Article 184(3) contemplates that the issue of maintainability has to be decided by this Court in its judicial capacity, whereas the committee of three judges is an administrative function. This judicial function bestowed on this Court by the Constitution itself cannot be delegated to an administrative body. For the administrative committee to decide on maintainability, a constitutional amendment to Article 184(3) is required and cannot be done through ordinary legislation. Thus, on this point alone, section 3 of PAPA is ultra vires the Constitution.

P. Surendran v. State 2019 SCC Online SC 507; All Pakistan Newspaper Society v. Federation of Pakistan PLD 2004 SC 600; Farman Ali v. Muhammad Ishaq PLD 2013 SC 392 and Qausain Faisal v. Federation of Pakistan PLD 2022 SC 675 ref.

The second part of section 3 provides that for matters of fundamental rights invoking Article 184(3), not less than a three-member bench is to be constituted by the Committee. Section 4 of the PAPA seeks for the constitution of at least a five-member bench for matters involving interpretation of the Constitution. Matters of fundamental rights, unquestionably, are matters of constitutional interpretation. Under section 3, a three-member bench can interpret these constitutional provisions, but under section 4, a three-member bench cannot. As a direct result, section 3 and section 4 are contradictory and, thus, anomalous.

Original jurisdiction of the Supreme Court cannot be expanded or restricted by an Act of Parliament. The Parliament provided an appeal under Section 5 of the PAPA, which, violates the Constitution and extinguishes the swiftness of the Supreme Court in redressing wrongs about fundamental rights apart from extending and increasing litigation.

The effects of the material provisions of the PAPA lead to an irresistible conclusion that it (PAPA) is a spanner in the free and efficient functioning of the Supreme Court. Therefore, PAPA is declared to be ultra vires the Constitution.

(u) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists---Entries, interpretation of---If there is a restriction in one legislative entry about a particular subject matter, that restriction extends to all other general applicable entries on the said matter.

Bourke v. State Bank of NSW (1990) 170 CLR 276 ref.

For the Petitioners:

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (in Const. P. 6/2023).

Khwaja Tariq A. Rahim, Senior Advocate Supreme Court assisted by Hashim and Hissam and Sabeel, Advocates (in Const. Ps. 6, 7 and 12/23).

Muhammad Hussain Choutya, Advocate Supreme Court and Mrs. Kausar Iqbal Bhatti, Advocate-on-Record (in Const. P. 8/2023).

Petitioner in person (in Const. P. 10/2023)

Petitioner in person (in Const. P. 11/2023).

Petitioner in person (in Const. P. 18/2023).

Hassan Irfan Khan, Advocate Supreme Court, assisted by Saqib Asghar, Advocate (in Const. P. 19/2023).

Muhammad Ikram Ch., Sr. Advocate Supreme Court, assisted by Sohail Akhtar, Najmul Hassan and Malik Haroon, Advocates (in Const. P. 20/2023).

Dr. Adnan Khan, Advocate Supreme Court (in Const. P. 33/ 2023).

On Court Notice:

For the Federation:

Mansoor Usman Awan, Attorney-General for Pakistan and Ch. Aamir Rehman, Addl. AGP, assisted by Ms. Maryam A. Abbasi, Maryam Rashid, Ahmed-ur-Rehman and Saad Javid Satti, Advocates.

For PML (N):

Salahuddin Ahmed, Advocate Supreme Court.

For PPPP:

Nemo for Respondents.

For PTI:

Uzair Karamat Bhandari, Advocate Supreme Court, assisted by Ali Uzair Bhandari and Awais Asif Ali, Advocates.

For PML(Q):

Zahid F. Ebrahim, Advocate Supreme Court.

For JUI(P):

Kamran Murtaza, Sr. Advocate Supreme Court.

For Jamat-e-Islami:

Ghulam Mohyuddin Malik, Advocate Supreme Court and Saifullah Gondal, Member Central Legal Committee, Jamat-e-Islami.

For MQM:

Faisal Siddiqui, ASC assisted by M. Usman Mumtaz and Ms. Sheza Ahmed, Advocates.

For SCBAP:

Abid S. Zuberi, Advocate Supreme Court, Muqtadir Akhtar Shabbir, Advocate Supreme Court, Malik Shakeel-ur-Rehman, Advocate Supreme Court, Ms. Bushra Qamar, Advocate Supreme Court, assisted by Ms. Amna Khalili, Advocate.

For PBC:

Haroon-ur-Rasheed, Advocate Supreme Court and Hassan Raza Pasha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record.

P L D 2025 Supreme Court (AJ&K) 1

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

ABDUL MAJEED---Petitioner

Versus

ABDUL SAMMAD and another---Respondents

Criminal Revision No. 12 of 2024, decided on 24th September, 2024.

(Against the judgment dated 22.04.2024, passed by the Shariat Appellate Bench of the High Court in Revision Petition No. 37 of 2024).

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 540---Qatl-i-amd, common intention---Recording statement of witness---Procedural lapse---Irregularity---Application for summoning the Sub-Divisional Magistrate for recording his statement was dismissed---Validity---A review of the record showed that the then Sub-Divisional Magistrate was listed as prosecution witness in the report under S. 173, Cr.P.C---Said witness recorded the statement of the accused-respondent under S. 164, Cr.P.C.---However, the Trial Court rejected the petitioner's application to record that witness's statement solely on the ground that the statement recorded under S. 164, Cr.P.C., was not submitted to the Court before recording of the respondent's statement under S. 342, Cr.P.C.---Such procedural lapse, although irregular, should not affect the case; it was an irregularity that the Trial Court might have overlooked especially given the significance of the witness's testimony, which could substantially make an impact on the case---Trial Court acknowledged the irregularity but mistakenly concluded that the order dated 23.06.2023 was not challenged by the prosecution, rendering it final and unreviewable---If the Court realized that the earlier order based on procedural irregularity, then the appropriate course would have been to consider the petitioner's application and act accordingly---Alternatively, the Trial Court had the authority under S. 540, Cr.P.C., to summon and examine any witnesses on its own---Trial Court itself could have re-summoned the witness, instead of adhering rigidly to the prior order, which remained in effect---Earlier order passed in the petitioner's absence and not communicated to him offered compelling grounds for reconsideration---Considering the gravity of case, which involved a murder and irreplaceable loss of life, it was imperative that the complainant party be afforded every opportunity to fully present its case---Fundamental right to a fair trial could not be sacrificed on the altar of procedural technicalities---It was evident from the provision of S. 164, Cr.P.C., that the onus to forward the statement or confession to the Trial Court rested with the Magistrate, a duty such was overlooked---Instead of addressing such critical procedural oversight, the Trial Court unjustly penalized the petitioner by rejecting the application to record the statement of witness---Such failure raised serious concerns, as the Magistrate neglected to comply with the statutory requirements under S. 164(2), Cr.P.C., which not only undermined the integrity of the legal process but also resulted in manifestly unjust consequents for the petitioner---High Court dismissed the revision petition on the grounds that petitioner failed to challenge the order of the Trial Court dated 23.06.2023, thereby allowing it to become final---Such dismissal occurred without the exercise of proper judicial discretion---Both Trial Court and the High Court erred in their judicial approach---Revision petition was allowed accordingly.

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

----S. 561-A---Inherent powers of the High Court--- Scope--- High Court possessed inherent powers under S. 561-A, Cr.P.C., to ensure substantial justice and prevent any abuse of judicial process within its jurisdiction---High Court's powers under S. 561-A, Cr.P.C., were not contingent upon the filing of an application or petition by any party, rather the Court may invoke such inherent powers suo-motu when it identified an abuse of the judicial process or when an action was deemed necessary to serve the ends of justice---Section 561-A, Cr.P.C., allowed the High Court to intervene independently to prevent injustice, correct procedural wrongs and uphold the integrity.

Ch. Ghulam Nabi, Advocate for Petitioner.

Raja Akhlaque Hussain Kiyani, Advocate for Respondent No.1.

Raja Mazhar Waheed Khan, Additional Advocate-General for the State.

P L D 2025 Supreme Court (AJ&K) 9

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

ABDUL WAHID RAFIQUE and 8 others---Appellants

Versus

MUHAMMAD MISKEEN and 12 others---Respondents

Civil Appeal No. 184 of 2024, decided on 23rd December, 2024.

(On appeal from the judgment and decree of the High Court dated 16.04.2024 in Civil Appeal No. 15 of 2019).

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

----Arts. 42(11)(d), 42(11)(e) & 42(12)---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, perpetual injunction and correction in the revenue record during settlement---Value of subject-matter less than Rs.50,000/=---High Court setting aside judgment passed by District Court---Whether appeal or petition for leave to appeal---Respondents raised objection regarding maintainability of appeal against the judgment passed by High Court---Objection of the respondents was that although, through the impugned judgment, the High Court had set aside the judgment of the District Judge, however, the value of the subject matter was less than Rs.50,000/-, hence, against the impugned judgment, Petition to Leave to Appeal (PLA) was competent and not direct appeal---Validity---Reading of the provisions of Arts. 42(11)(d), 42(11)(e) & 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, showed that a direct appeal laid in the (Supreme) Court when the value of the subject matter in the Court of first instance and in the appeal was not less than fifty thousand rupees and the High Court had altered or varied or set aside the impugned judgment or decree of the Court immediately below---First condition for filing the direct appeal before this (Supreme) Court under the said statutory provision was the value of the subject matter before the Court of first instance, as well as in the appeal, which should not be less than Rs.50,000/-, and the second condition was that the High Court had altered, varied or set aside the judgment and decree of the Court immediately below---Except for these two conditions, Art. 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, shall apply---An appeal to the Supreme Court may be filed only if the Court grants leave to appeal upon a petition, and not otherwise---In the present case, the plaintiff (predecessor of the appellants) filed a suit for declaration etc. regarding suit-property before the Senior Civil Judge (Muzaffarabad); and in relevant para of the plaint, the plaintiff himself fixed the value of the suit for the purpose of Court fee and jurisdiction of the Court as Rs.5000/---Thus, admittedly, the value of the subject matter was less than Rs.50,000/- in the Court of first instance i.e. the Trial Court as well as in the appeal---Had the value of the subject matter been above 50000 rupees in the Court of 1st instance and the High Court had also varied or set aside the judgment and decree of the Court immediately below, then the direct appeal was competent, otherwise, PLA was competent before this (Supreme) Court, even though the High Court set aside, altered or varied the judgment of the Court immediately below---Present appeal had been filed incompetently and was liable to be dismissed on this sole ground, therefore, there was no need to discuss the merits of the case---Appeal, having being filed incompetently, was dismissed.

WAPDA and others v. Taj Begum and others 2014 YLR 2649 ref.

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

----Arts. 42(11)(d), 42(11)(e) & 42(12)---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, perpetual injunction and correction in the revenue record during settlement---Value of the subject-matter less than Rs.50,000/- High Court setting aside the judgment passed by the Court immediately below---Whether appeal or Petition for Leave to Appeal---Conduct of advocate---Effect---Respondents raised objection regarding maintainability of appeal against the judgment passed by High Court---Contention of the Advocate, representing the appellants, was that the appellants filed the PLA against the impugned judgment, however, the Assistant Registrar of the Court, raised objection on the maintainability of the PLA and advised for filing direct appeal---Validity---Such assertion and conduct of the Advocate, who was appearing before the Supreme Court, was regrettable---An Advocate, appearing before this (Supreme) Court has to be well-versed with the Supreme Court Rules and has to file a case against the judgment(s) of the Courts below according to his own wisdom and not on the advice of the Assistant Registrar of the Court---At least, if there was any confusion in understanding the statutory provision, he had to consult with some senior Advocates---Thus, assertion made by the Advocate, being vague in nature was repelled---Present appeal had been filed incompetently and was liable to be dismissed on such sole ground---Appeal was dismissed.

Maqbool-ur-Rehman Abbasi and Raja Muhammad Altaf for Appellants.

Muhammad Yaqboob Khan Mughal for Respondents.

P L D 2025 Supreme Court (AJ&K) 14

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

MUHAMMAD IKHLAQ and others---Appellants

Versus

AMIR MUNIR and others---Respondents

Civil Appeal No. 51 of 2024, decided on 17th February, 2025.

(On appeal from the judgment and decree of the High Court dated 21.12.2023 in Civil Appeal No. 50 of 2020).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XIII, R. 3(1-A)---Appeal before Supreme Court, filing of---Lists of the legal heirs of the parties with memo of appeal/petition for leave to appeal not submitted---Effect---Appeal, competency of---It was an admitted position that the lists of the legal heirs annexed with the (present) memo of PLA/appeal were not the lists of the legal heirs of the plaintiffs and defendants, filed before the Trial Court---Under Sub-rule (1-A) of R. 3 of O. XIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, filing of lists of the legal heirs of the plaintiffs and the defendants filed before the Trial Court, were mandatory to be annexed with the memo of PLA/appeal of the said statutory provision---It was enjoined upon the (present) appellants to annex the lists of legal representatives of the plaintiffs and the defendants, and if the same were not filed in the Trial Court, then the certification of the Trial Court in said regard should necessarily be brought on the record, which had also not been done---Thus, present appeal had been filed incompetently, therefore, there was no need to dilate upon the merits and demerits of the case as the same would be a futile exercise---Appeal, having been filed incompetently, was dismissed.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants.

Abdul Waheed Arif, Advocate for Respondents.