PLJ 2010 Karachi 1 (DB)
Present: Khilji Arif Hussain and Ms. Soofia Saeed, JJ.
IJAZ AHMAD--Appellant
versus
HABIB BANK LIMITED, KARACHI through its Head Office and 4 others--Respondents
First Appeal No. 3 and C.M.As. No. 73-75, 666 of 2009, decided on 19.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. IX, R. 13--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Fraud and misrepresentation was made--Proceedings of the suit converted into execution proceedings--Prima facie--Question of maintainability of application u/S. 12(2) of CPC--Held: Since the appellant was admittedly not served on his address, given in memo of plaint, but on another address notices were sent where the appellant was not residing and appellant came to know about proceedings when Bank filed application u/O. VII, R. 11 of CPC in other suit--Prima facie application u/S. 12(2), CPC was maintainable and the controversy whether any fraud and misrepresentation had been made in the matter, can be resolved after recording the evidence--Banking Court was directed to frame the issues and after recording the evidence decide the same afresh--Case was remanded. [P. 3] A
Mr. Abdus Salam Baloch, Advocate for Appellant.
Mr. M. Hassan Akbar, Advocate for Respondent No. 1.
Date of hearing: 19.5.2009.
Order
Aggrieved by the order dated 05.12.2008, whereby learned Banking Court No. II, dismissed the application filed by the appellant under Section 12(2) read with Order IX Rule 13, CPC, listed appeal has been filed.
Heard Mr. Abdus Salam Baloch, learned counsel for the appellant, and Mr. M. Hassan Akbar, learned counsel for Respondent No. 1.
Mr. M. Hassan Akbar. learned counsel for Respondent No. 1, at the very outset raised the objections in support of impugned order that the appellant has failed to show why he had not appeared before the Banking Court No. II in suit, secondly, how he came to know about the judgment and decree passed by the Court and thirdly, that the application under Section 12(2), CPC was filed in the execution proceedings and executing Court cannot go behind the decree. He, in support of his contentions, relied upon the cases of Lal Din and another vs. Muhammad Ibrahim (1993 SCMR 710), Mirza Mahmood Baig vs. Mirza Ashfaq Baig (1993 MLD 640) and Ghulam Mehmood vs. Hukam Khan and others (2001 MLD 366).
Mr. Abdus Salam Baloch, learned counsel for the appellant, in reply argued that the appellant, on having information that the respondent-Bank approached National Savings Centre for encashment of Defence Saving Certificates, filed Suit No. 345/08 before the learned Senior Civil Judge, where the respondent-Bank appeared and filed an application under Order VII Rule 11, CPC. The appellant for the first time through application under Order VII Rule 11, CPC came to know about the judgment and decree passed by the Banking Court and thereafter immediately filed application under Section 12(2), CPC. It was further contended by the learned counsel for the appellant that under Ordinance 2001, the Decree-Holder is not required to file execution application and the proceedings of the suit converted into the execution proceedings and as such his application under Section 12(2), CPC was maintainable. He further contended that sufficient material was available on record that the appellant has not deposited his Defence Saving Certificates as a security in respect of the financial facility granted to the principal borrowers, Respondents No. 2 & 3, and in this regard he pointed out a certificate issued by the National Savings Centre annexed with their parawise comments that the officer, who attached the certificate, creating charge on this Defence Saving Certificates, was never in the employment of Respondent No. 4.
We would not like to discuss these issues in detail as the same may affect the merits of the case and since the appellant was admittedly not served on his address, given in the memo. of plaint, but on another address notices were sent where the appellant was not residing and the appellant came to know about the proceedings when the respondent-Bank filed application under Order VII Rule 11, CPC in Suit No. 345/08. Prima facie application under Section 12(2), CPC is maintainable and the controversy, whether any fraud and misrepresentation has been made in the matter, can be resolved after recording the evidence and accordingly impugned order is set aside. The Banking Court is directed to frame the issues and after recording the evidence and healing the parties decide the same afresh.
We would like to make it clear that the order we have passed, will not affect judgment and decree passed against Respondents No. 2 & 3.
(R.A.) Case remanded.
PLJ 2010 Karachi 3
Present: Shahid Anwar Bajwa, J.
AL-KARAM TEXTILE MILLS (PVT.) LTD. through Resident Director & Notified Manager--Petitioner
versus
SINDH LABOUR COURT NO. 4, PAKISTAN SECRETARIAT, SADDAR, KARACHI and another--Respondents
Const. P. No. S-526 of 2009, decided on 20.11.2009.
Industrial Relations Act, 2008 (IV of 2008)--
----S. 84--Limitation Act, (IX of 1908), S. 5--Grievance petition--Barred by time--Condonation of delay--Since the grievance petition must also be treated as barred by time--Where the matter is barred by time the Court cannot go into merits of controversy between the parties--Section 84 of the Industrial Relations Act, 2008 made provisions of Section 5 of the Limitation Act applicable to proceedings and things to be done under the Act of 2008--In his application for condonation of delay no ground whatsoever has been made for condoning the delay--Mere statement that he was kept on promises is not sufficient to condone delay. [Pp. 12 & 13] A & C
PLD 1990 SC 692, 2001 SCMR 912 & 2005 TD (Service) 58, rel.
Interpretation of Statutes--
----Limitation shuts the door and bars the remedy--Statutes of limitation are statutes of repose--It is in the interest of society and the community at large that after a certain lapse of time the citizens and the parties must be allowed ease of relaxation of their vigils--However since there could be serious risk of injustice it was necessary that provision be made to protect bonafide litigants--Petition allowed. [P. 13] B
Mr. Mehmood Abdul Ghani, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 2.11.2009.
Judgment
The facts giving rise to this petition are that grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969 was filed by the present Respondent No. 2, in the 4th Sindh Labour Court at Karachi. It was stated in the grievance petition that the petitioner before Labour Court (hereinafter referred to as the workman) entered employment of the present petitioner (hereinafter referred to as the employer) on 25.5.1996. It was further stated in the petition that the workman met with an accident on 6.9.1999 and remained under treatment till 14.3.2000. After recovery the workman reported for duty but the employer without any written response kept the workman waiting and forced the workman to visit the factory again and again but did not allow him to join duty or compensated him in any manner in respect of medical treatment consequent upon his accident. After waiting for considerable time the workman served grievance notice on 24.3.2001 for redressal of his grievance. The grievance notice was not replied to and consequently workman filed grievance petition in the Labour Court. With the grievance petition an application under Section 65-B of the Industrial Relations Ordinance, 1969 for condonation of delay was also filed. In the application it was prayed that, for the reason disclosed in the accompanying affidavit, the Court may be pleased to condone delay and the reason slated in the affidavit was that since there was no written order of termination of employment of workman and the workman was kept on waiting and therefore time consumed and it may be condoned.
The employer filed Counter-Affidavit to the application for condonation of delay as well as preliminary legal objections and reply statement. It was pleaded that the grievance petition was barred by time as according to the workman he was declared fit for duty by the doctors, on 14.3.2000 and grievance notice was served by him on 24.3.2001. It was further pleaded that there was no relationship of employee and employer between the workman and the employer. It was further pleaded that the workman was actually an employee of an independent contractor, M/s. Farid. Agreement with the contractor was produced with the reply statement.
After recording evidence the Labour Court vide its order dated 31.7.2009 ordered that the workman be allowed to resume his duties and pay all his withheld wages and benefits. On the question of limitation the Labour Court observed as under:--
"Admittedly the petitioner remained admitted in hospital for more than six months. He then was relieved and came and reported for joining duty. It is his case that he was forced to visit the factory again and again but was not allowed to resume duty or paid compensation and no any written notice declaring reasons was given but only verbally was being called for resolution of the grievance and only on 23.1.2001 when he had made complaint to Monitoring Cell when he was prohibited from visiting the factory, therefore, he served the grievance notice. The version of petitioner is supported by Muhammad Sohail Khan Personnel Manager of respondent who in Para (9) of his affidavit stated that the petitioner abandoned his duty w.e.f. 23.1.2001 and it was even retrieved in his cross-examination. Thus it is clear that the petitioner was attending factory up to 23.1.2001 and certainly he would have been doing so on one or other promise and when he was stopped he served grievance notice on next day i.e. 24.1.2001. Hence the cause of grievance stated when petitioner was prohibited from coming to factory and grievance notice served on 24.3.2001. Under Section 25-A of repealed I.R.O. the grievance notice could be served within three months from the date of cause of grievance. Hence service of grievance notice was within time. Under Section 25-A of Reported I.R.O. 1969 a period of two and half months after service of grievance notice and 2 months of reply of grievance notice the petition could be filed before Labour Court and it was filed on 3.5.2001 therefore, is with in time hence objection is over ruled."
When this Constitutional Petition was filed notice was ordered to
Respondent No. 2, the workman on 28.8.2009 and the matter was adjourned to 17.9.2009. On that date the board was discharged. The matter next came up on 15.10.2009. Bailiff had reported that he went to Landhi for serving notice but he could not locate house which the workman in his grievance petition has given address. In this view of the situation, the counsel for the employer requested that let the petitioner be served through publication in daily Nawa-e-Waqat'.
Consequently notice was published in dailyNawa-e-Waqat' on 27.10.2009 and no one appeared for the petitioner/workman. Service was held good and the
Respondent No. 2 was ordered to be proceeded exparte. Consequently exparte arguments were heard on 2.11.2009 and judgment was reserved.
Learned counsel for the employer made the following submission:--
That according to the petitioner himself he was declared fit by doctors on 14.3.2000 and thereafter he served grievance notice on 24.3.2001. Even if version of the petitioner that he was kept on false promises is accepted workman should have at the most waited for 3 months and served grievance notice by 14.6.2000. The grievance notice was therefore hopelessly barred by time. Learned counsel relied upon Tanveer Hussain v. Ravi Ryan Limited through its Managing Director and others, PLJ 2007 SC 577, and contended that it has been held that grievance notice being an act prior to filing of grievance petition and being a matter between employer and employee, the delay if caused cannot be condoned.
That the grievance petition was dismissed by the Labour Court on 10.10.2001 for non-prosecution. However on 13.3.2001 it was restored conditionally subject to costs. Learned counsel submitted that the costs had not been paid even till today. He relied upon Ghanshamdas v. Presiding Officer, Sindh Labour Court No. VIII Larkana and another, 2004 PLC 366, wherein it was held that if costs are not paid the petition would be liable to be dismissed. However it was a case in which it was pleaded that costs had been paid and the Labour Court came to the conclusion that costs had not been paid and then dismissed grievance petition. Learned counsel also relied upon Ghanswhamdas v. Presiding Officer, Sindh Labour Court-VIII, Larkana and another, 2005 PLC 317, in which Supreme Court upheld the order of the High Court. Learned counsel further relied upon Muhammad Akram Khan v. District and Sessions Judge, Rahim Yar Khan and Others, 2008 PLC (C.S) 219, where appeal was dismissed by Service Tribunal because the process fee had not been paid and the Supreme Court had held order of the Service Tribunal as unexceptionable.
That before recording evidence the Labour Court should have framed issues. However, the Labour Court recorded evidence and decided the matter and while deciding the matter it framed the issues. He relied upon 2009 SCMR 1256, 2008 SCMR 1384 and NLR 2008 (Revenue) 97.
No termination order was issued because the workman was not an employee of the employer.
5-A. That the grievance notice was addressed to the factory manager. Factory manager is merely a designation and title and is not legal, person. In this regard learned counsel relied upon Secretary, B. & R., Government of West Pakistan and 4 Others v. Fazal Ali Khan, PLD 1971 Karachi 625, in which it was held that the suit brought against official designations or titles of defendant officers and not against legal person would not be maintainable. He also relied upon Nagina Bakery v. Sui Southern Gas Limited and 3 others, 2001 PLC (C.S) 760, in which it was held that where the petition was filed against designations and titles of officers of the Company who were not legal or natural persons, it would not be maintainable. Both these judgments are distinguishable, the first related to a suit and the second related to a Constitutional Petition. The matter out of which this petition has been filed has arisen out of a labour matter, where what has to be seen is definition of employer as given in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
Learned counsel referred to cross-examination of the workman in which the workman stated that he had been given appointment letter and confirmation letter but had no pay slip or Attendance Card or any Service Book with him. He further referred that the petitioner's social security card and submitted that the Provincial Employees Social Security Ordinance, 1965 carries a different definition of employee tan those under the Standing Orders Ordinance or under the I.R.O. He further pointed out from the cross-examination that the workman had stated that his grievance notice was barred by one year and 10 days. He further admitted that the workman had been given 40% compensation by the Social Security Institution the Institution is paying Rs.920/- per month as pension to the workman.
Learned counsel also referred to affidavit-in-evidence of witness of the employer where in cross-examination it was admitted that the workman was working in the factory of the employer but was voluntarily stated that he was an employee of the contractor. The learned counsel also referred to the affidavit-in-evidence of the contractor in this regard. Learned counsel relied upon M/s. Al-Hadi Textile (Pvt.) Ltd., v. Habibur Rehman, 2001 PLC 635, decision of this Court in Habib-ur-Rehman v. Sindh Labour Appellate Tribunal and others, C.P. No. D-2441 of 2001, Abdul Rashid Malik and others v. General Manager, Pakistan Railways and others, 1992 PLC 1116, Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others, 2000 PLC 52, unreported judgment of Supreme Court in Nasir Jamal and 23 others v. Pak Suzuki Motor Company Ltd., and 3 others, C.P.L.A. No. 458-K of 1999, Mian Munir Ahmad v. The State, 1985 SCMR 257, Farid Ahmad v. Pakistan Burmah Shell Ltd. And others, NLR 1987 Labour 219, Seagull Exports (Pvt.) Ltd. V. Sindh Labour Appellate Tribunal and others, 2002 PLC 212, Muhammad Sharif and others v. Punjab Labour Court No. 3 and another, Civil Appeal No. 39 of 1977, Aftab Ali and others v. M/s. Woodward Pakistan (Pvt.) Ltd. And others, C.PS.L.A. Nos. 809-K to 815-K of 2005, decided by the Supreme Court on 19.12.2005, Pakistan Tobacco Co. Ltd. V. Punjab employees' Social Security Institution, Lahore and another, PLD 1978 Lahore 704, Punjab Small Industries Corporation. Punjab Labour Appellate Tribunal, Lahore and others, 1988 SCMR 1725, Taj Din and 44 others v. Punjab Labour Court No. 3, Lyallpur, PLD 1976 Lahore 1169. Learned counsel referred to cases and material on Labour Laws by K.W. Wedderburn (Cambridge University Press 1967: page 8 & 9) and the following citations there from:--
"LORD PARKER,C.J.: sometimes it is said quite generally that the test is whether the master can order or require what is to be done, where the true contract is one for services, or whether the master can order or require not only what is to be done, but how it shall be done, in which case it is a contract of service.
That perhaps is an over-simplification, and in Short v. Henderson, Lord Thankerton dealt with what he called the four indicia of a contract of service. These are, and he quoted the Lord Justice Clerk: (a) The master's power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master's right to control the method of doing the work, and (d) the master's right of suspension or dismissal. Lord Thankerton went on: `The learned judge adds that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form, and that the principal requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship."
Learned counsel also referred to Casebook on Industrial Law by R. S. Sim, Butterworths 1969: page 4 and the following citations there from:--
"DENNING, L.J.: (This case) raises the troublesome question of the distinction between a contract of service and contract for services. The test usually applied, is whether the employer has the right to control the manner of doing the work. Thus in Collins v. Herts County Council (1947), HILBERY,J.L said:
"The distinction between a contract for services and a contract of service can be summarized in this way: In the one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done, but how it shall be done."
With reference to Hussainbhai's, case (AIR 1978 S.C 1410) learned counsel cited from Industrial Jurisprudence A critical Review by EM Rao (Butterwsorths Wadhwa) Nagpur page 919 and to the following citations:--
"Adverting to Hussainbhai, Iyer J observed that the presence of intermediate contractors with whom alone the workers had immediate or direct relationship ex contractu was of no consequence; and that on lifting the veil the naked truth could be discerned, though draped in different perfect paper arrangement, that the real employer was the management, not the immediate contractor. What does he mean by the expression lifting the veil'? Whose veil was to be lifted and for what purpose, in the face of a battery of decisions which distinguishedcontract for service' from `contract of service'?"
"The large question as to whether all agriculture and operations connected with it are included within the definition of S.2(f) of the Act was not decided and the decision was based on the facts of the instant case. It was further pointed out that in dealing with industrial matters, industrial adjudication should refrain from enunciating any general principles or adopting any doctrinaire considerations. It is desirable that industrial adjudication should deal with problems as and when they arise and confine its decisions to the points which strictly arise on the pleadings between the parties. If in reaching any conclusion while dealing with the narrow aspect raised by the parties before it, industrial adjudication has to evolve some principle, it should land must, no doubt, attempt to do so but in evolving the principle, care should be taken not to lay down an unduly general or broad proposition which may affect facts and circumstances which are not before industrial adjudication in the particular case with which it is concerned."
"17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back Wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
... disputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds otherwise an order of determination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act."
Learned counsel also relied upon Malik Diary Farms v. Their Workers' Union, 37 F.I.R. 412 & State of Punjab v. Jagir Singh, AIR 2004 S.C. 4757, to contend that in determining back wages conduct of the workman should also be taken into consideration. Learned counsel also relied upon U.P. Financial Corporation & others v. V.P. Sharma & another, (1999)-III-LLJ 538, where it was held that the public interest should be considered while awarding back wages. Learned counsel also referred to Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others, 2002 PLC(C.S) 1083, where it was held that employee must have established that he had not been making earnings during the period he remained out of employment. To summary learned counsel submission was that for awarding back benefits there should be four considerations; (a) conduct of the employer, (b) conduct of the employee during litigation, (c) documentary evidence of employee having made attempts to mitigate his loss, (d) proof by employee as to how did he make ends meet during the period he was illegally kept out of job.
I have considered the submissions made by the learned counsel and have also gone through the record. I will first deal with the question of limitation It has been stated in the grievance petition that the workman was declared fit for resuming duties by doctors on 14.3.2000. Thereafter the workman claimed that he kept on visiting the factory and was kept on false promises. Ultimately he served grievance notice on 24.3.2001. It was further stated by him that he served grievance notice when he was prohibited from visiting the factory. The Labour Court has relied upon the following statement in the cross-examination of witness of the employer:
"It is a fact that petitioner has abandoned his duty with effect from 23.1.2001 as stated in Para 9 of my affidavit." Reference was made to Para-9 of the affidavit which reads as under:--
"9. That it has also been informed by the Contractor Mr. Farid Khan, that Respondent has abandoned his duty with effect from 21.1.2001 and has not reported for duty since then. There was no Bond of relationship between Respondent and Applicant."
If the two statements are read together it is not employer who was stating that the workman abandoned his duty but it is the contractor who stated. It must have been considered along with what the workman had himself stated in his grievance petition in Paras 3 and 4 and he stated as under:--
"3. That the applicant was met with an accident on 6.9.1999 and was remained under treatment till 14.3.2000"
"4. That after the recovery from the injury the applicant attended the respondent establishment for allowing duty and granting compensation and expenses suffered by the applicant. But the respondent with any written response forced the applicant to visit the factory again and again but they did not allow him the duty or compensation in this respect. Up till now there is no written notice or reason disclosed that as to why I am not being allowing duty and payment of compensation and only verbally calling the applicant in the establishment for resolution of the grievance."
Nobody can be allowed to set up a case different from his pleadings. When the workman had not pleaded that he was allowed to continue work till January 2001 how the employer's sentence can be plucked out of context. The Labour Court read that sentence without going to context i.e. Para-9 of affidavit-in-evidence with reference to which that sentence was uttered and Paras 3 and 4 of the grievance petition. Since the grievance notice is barred by time the grievance petition must also be treated as barred by time. It is settled law that where the matter is barred by time the Court cannot go into merits of the controversy between the parties. If any authority is needed one may refer to Fazal Elahi Siddiqui v. Pakistan through Secretary Establishment & 2 Others, P.L.D. 1990 S.C. 692, Wali Muhammad Khokhar v. Government of Sindh and others, 2001 SCMR 912 and Muhammad Latif v. Assistant Chief of Air Staff (Personal) Etc., 2005 TD (Services) 58. The reason is not far to seek. Limitation shuts the door and bars the remedy. Statutes of limitation are statutes of repose. It is in the interest of society and the community at large that after a certain lapse of time the citizens and the parties must be allowed ease of relaxation of their vigils. However since there could be serious risk of injustice it was necessary that provision be made to protect bonafide litigants. That is why the Section 84 of the Industrial Relations Act, 2008 made provisions of Section 5 of the Limitation Act applicable to proceedings and things to be done under the Act of 2008. In his application for condonation of delay no ground whatsoever has been made for condoning the delay. Mere statement that he was kept on promises is not sufficient to condone delay.
In view of the above discussion, I do not think that it would be necessary to advert to other submissions made by the learned counsel. The result of the above discussion is that this writ petition is allowed, order passed by the Labour Court below on 31.7.2009 is set aside and grievance petition filed by present Respondent No. 2 before Respondent No. 1 is dismissed. There shall be no order as to costs.
(M.S.A.) Petition allowed.
PLJ 2010 Karachi 13 (DB)
Present: Sarmad Jalal Osmany and Aziz Ullah M. Memon, JJ.
Mian MUNIR AHMED--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others--Respondents
Constitutional Petition No. D-91 of 2005, decided on 3.5.2005.
Constitution of Pakistan, 1973--
----Art. 199--Exit From Pakistan (Control) Ordinance, 1981, S. 2--Constitutional petition--Fundamental right of freedom to travel--Request to put petitioner name in the exit control list--Mere pendency of civil/criminal cases against a citizen is no ground to deny fundamental right of freedom to travel within or without Pakistan--No reasons have been given in the notification whereby the petitioner's name was put in the exit control list, which would mean the petitioner had been condemned unheard--Although Government could in exercise of powers available under Section 2 of the Exit from Pakistan (Control) Ordinance, 1981, place the name of a citizen on the exit control list, However, such power could not be exercised arbitrarily or without giving right of a fair hearing to a citizen against whom action is proposed to be taken--Petition was allowed.
[Pp. 14 & 15] A
1989 CLC 79; PLD 1997 Lah. 619; 1998 MLD 490; PLD 1999 Kar. 177; PLD 2003 Pesh. 102; 2003 CLC 246 & PLD 2003 Kar. 708.
Mr. Hassan Akbar, Advocate for petitioner.
Mr. S. Mehmood Alam Rizvi, DAG.
Mr. Shaukat H. Zubedi, DPGA, NAB.
Date of hearing: 3.5.2005.
Order
Learned Counsel for the petitioner submits that admittedly no reason has been given in the notification dated 10.10.1998 issued by the Ministry of Interior and Narcotics Control, Government of Pakistan whereby the name of the petitioner was placed in the Exit Control List. However, per copy of the letter of said Ministry filed by the Learned DAG, dated 08.04.2005, the petitioner was placed in the list on the recommendation of FIA/SEP as he was loan defaulter. Per Learned Counsel, according to dated 13.01.2005 of the State Bank of Pakistan filed alongwith the Petition, the petitioner's name was not recommended to be placed in revised ECL forwarded to the Ministry of Finance, on 09.02.2003. Even otherwise per Learned Counsel, it is settled law that mere pendency of criminal and civil matters against a citizen is no ground to deny the freedom as guaranteed by the constitution to travel within or without Pakistan.
Furthermore, per Learned Counsel, according to the list of cases supplied today which were filed against the petitioner viz. 25 in number out of which 19 have been disposed of and 3 of them being criminal cases filed before the Banking Court rest being suits, executions and appeals etc. At the moment, the petitioner is a party in only 6 known civil matters pending before the Courts which relate to the Central Cotton Mills Limited, in which the petitioner was the Director and which has now been wound up by this Court. In this regard he has relied upon Abdul Hafiz Pirzada V/s. Government of Pakistan (1989 CLC 79), Wajid Shamas-ul-Hassan V/s. Federation of Pakistan (PLD 1997 Lahore 617), Arshad Sami Khan V/s. Federation of Pakistan (1998 MLD 490), Saleem Akhtar V/s. Federation of Pakistan (PLD 1999 Karachi 177), Major (Retd) Mir Mazhar Qayyum V/s. Federation of Pakistan (1999 YLR 111), Munawar Ali Sherazi V/s. Federation of Pakistan (PLD 1999 Lahore 459), Babar Khan Ghori V/s. Federation of Pakistan (PLD 1999 Karachi 402), Sikandar Hayat Khan V/s. Government of Pakistan (PLD 2003 Peshawar 102), Mehtab Ahmed V/s. Federation of Pakistan (2003 CLC 246) and Hashmat Ali Chawla V/s. Federation of Pakistan (PLD 2003 Karachi 705).
For all the foregoing reasons, Learned Counsel has prayed that the Petition be allowed as prayed.
Learned DAG and the Learned DPGA, NAB have only submitted that the petitioner's name has been put in the ECL since he was loan defaulter and the cases are pending against him.
We have heard the Learned Counsel for the petitioner. Learned DAG and Learned DPGA, NAB. It would be seen that as per settled law mere pendency of civil/criminal cases against a citizen is no ground to deny him fundamental right of freedom to travel within or without Pakistan. Similarly, it would be seen that no reasons have been given in the notification whereby the petitioners name was put in the Exit Control List, which would mean the petitioner had been condemned unheard. Although Government could in exercise of powers available under Section 2 of the Exit From Pakistan (Control) Ordinance, 1981 place the name of a citizen on the Exit Control list. However, such power could not be exercised arbitrarily or without giving right of a fair hearing to a citizen against whom action is proposed to be taken a.
In view of the foregoing observations, we are of the opinion that this Petition should be allowed to the extent that the petitioner may go abroad and return to Pakistan freely as the Learned Counsel has not pressed the challenge to vires of the Ordinance mentioned above. Order accordingly.
(S.S.) Petition allowed.
PLJ 2010 Karachi 15 (DB)
Present: Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ.
MUJAHID HUSSAIN MEMON and another--Petitioners
versus
FEDERATION OF PAKISTAN & 2 others--Respondents
C.P. No. D-743 of 2007, heard on 11.3.2009.
Constitution of Pakistan, 1973--
----Art. 212(3)--Termination of civil servant--Identical questions of law--Maintainability--Civil servant was appointed as management trainee in pursuance of Talent Poll Scheme--Training assignment of the civil servant had been terminated--Challenge to--Departmental appeals were filed before Service Tribunal before expiry of 90 days and such were treated as premature--Question of--Whether termination from service of the civil servant was legal or illegal, is a mix question of fact and law to be determined by the competent forum an instant case had been determined by FST which had attained finality--Held: Neither instant judgment had been called in question by the petitioners nor they had been challenged their termination order before High Court--Further held: Judgment of Service Tribunal being a appealable u/Art. 212(3) of Constitution, making of a prayer before High Court, which by implication set aside such judgment of FST was not maintainable. [P. 18] C
Constitution of Pakistan, 1973--
----Art. 212(3)--Limitation to file civil petition--Maintainability--Constitution petition before High Court against judgment of Service Tribunal is not maintainable even if limitation to file civil petition for leave to appeal under Art. 212(3) expires--Petition was not maintainable. [P. 18] D
Rule of Seniority--
----Civil servant--Determination of rule of seniority--Benefit of--Benefit of such determination cannot be denied to a civil servant on ground that he was not a party to litigation before tribunal or on ground that determination was declaratory of rule of seniority. [P. 18] B
Judgment in Personam and Judgment in Rem--
----Benefit of judgment of Supreme Court--Rule of good governance demands that the benefit of judgment of Supreme Court be extended to other civil servants who cannot be party to the litigation instead of compelling them to approach the tribunal or any other legal forum. [P. 18] A
Mr. Zameer Hussain Ghumro, Advocate for petitioners.
Mr. Ashiq Raza, D.A.G. for Respondent No. 1.
Mr. Shahid Anwar Bajwa, Advocate for Respondent Nos. 2 & 3.
Date of hearing: 11.3.2009.
Judgment
Malik M. Aqil Awan, J.--This petition involves identical questions of law as in C.P. No. D-1748 of 2006 which has been disposed of by us vide judgement dated 04.03.2009.
The Petitioner No. 1 Mujahid Hussain Memon, was appointed/selected as Management Trainee in pursuance of Talent Pool Scheme with effect from 06.05.1996 under appointment order dated 3rd April 1996 by Respondent No. 2, whereas Petitioner No. 2, Shah Muhammad Banglani was appointed/selected as Management Trainee in pursuance of the same scheme with effect from 4th September 1995 under appointment order dated 08.08.1995 by Respondent No. 2. In clause-1 of the appointment orders of both the petitioners, it is stated that, "Kindly note that your employment may be terminated at any time without any notice, should your performance during training period be considered un-satisfactory by the Company."
Respondent No. 2 terminated such training assignment of the Petitioner No. 1 vide order dated 29.8.1997 whereas the training assignment of the Petitioner No. 2 was terminated vide order dated 27.08.1997.
Both the petitioners challenged their termination stated above in two separate appeals before the Federal Service Tribunal as Petitioner No. 1 filed Service Appeal No. 2483(K)/97 and Petitioner No. 2 filed Service Appeal No. 2522(K)/97. The appeal of Petitioner No. 1 was clubbed with other identical appeals and was dismissed in limine vide order dated 23.12.1997 on technical ground that some of the appellants have filed the departmental appeals whereas some of them have not. Those who have filed departmental appeals have filed the appeal before the Service Tribunal before expiry of 90 days statutory period from the date of filing of the departmental appeals and such were treated as premature. It appears that Petitioner No. 1 was satisfied with the order dated 23.12.1997 and did not challenge the same before Supreme Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973. The Service Appeal No. 2522(K)/97 filed by Petitioner No. 2, was also dismissed by the Federal Service Tribunal vide its judgement dated 24.07.2000. The Federal Service Tribunal inter-alia held that assignment of Management Trainee did not mature into regular appointment. The assignment of Management Trainee was accepted by the petitioners with all the terms and conditions embodied in such letter of selection under his own signatures and termination has taken place in pursuance of such accepted terms and conditions. Since the impugned order of termination is passed in terms of the appointment letter by the competent authority, therefore, is a lawful order amounting to termination simplicitor, which do not require issuance of any show-cause-notice to the petitioners. The Petitioner No. 2 also appears to have been satisfied with the said order inasmuch as he did not challenge the same before the Supreme Court.
It is case of both the petitioners that some of the employees/ petitioner's colleagues went in appeal before the Federal Service Tribunal, like Petitioner No. 1 and Petitioner No. 2 and on dismissal of their appeals by Federal Service Tribunal, they went in appeal by way of filing Special Leave to Appeal before Hon'ble Supreme Court. The Hon'ble Supreme Court in a case of Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others, reported in PLD 2001 S.C 980 came to the conclusion that in view of termination of such a large number of employees, it is to be determined whether it is a dismissal in the garb of termination simplicitor and the exercise of authority/power to terminate the employees is malafide or not. The Hon'ble Supreme Court in the said case held that since such exercise to determine question of fact can not be undertaken in appellate jurisdiction therefore, remanded the matter to Service Tribunal to decide them accordingly.
That consequently all the matters of alike nature which were disposed of and remanded to the Service Tribunal were decided afresh and under different judgments appeals were allowed and the appellants were reinstated in service with back benefits. Such judgments were further challenged before the Hon'ble Supreme Court by Respondent No. 2 but such appeals were dismissed under the judgment dated 17.3.2004 with observation that if Respondent No. 2 wants to proceed against any of the employees then a meaningful show-cause notice is to be issued against them and an opportunity of defence and personal hearing be provided to them in accordance with law. The Petitioner No. 1 & 2 were removed from service under order dated 29.8.1997 and 27.8.1997 respectively and the Federal Service Tribunal having dismissed their appeals on 23.12.1997 and 24.7.2000 respectively which orders were not challenged before the Supreme Court and have attained finality, have come up in this petition with the prayer that Respondent No. 2 be directed to extend the benefit of judgment of Supreme Court mentioned supra and they may be reinstated in service accordingly.
We have heard Mr. Zamir Hussain Ghumro, learned counsel for the petitioners, Mr. Ashiq Raza learned DAG for Respondent No. 1 and Mr. Shahid Anwar Bajwa, learned counsel for the Respondent Nos. 2 and 3. The learned counsel for the petitioners has relied upon the case of Tarachand V. Karachi Water and Sewerage Board, reported in 2005 PLC (CS) 368. In this case, relying upon the case of Hameed Akhtar Niazi, reported in 1996 SCMR 1185, the judgment in personam and judgment in rem were distinguished and it was held that rule of good governance demands that the benefit of the judgment of Supreme Court be extended to other civil servants who may not be party to the litigation instead of compelling them to approach the Tribunal or any other legal forum. He has further relied upon a case of Chairman Pakistan Railways v. Muhammad Latif, 1984 SCMR 286, to the effect that determination of rule of seniority by Punjab Service. Tribunal in respect of certain civil servants, the benefit of such determination cannot be denied to a civil servant on ground that he was not a party to litigation before Tribunal or on ground that determination was declaratory of rule of seniority.
The point in issue is that whether the termination from service of the petitioners under the order dated 29.8.1997 and 27.8.1997 was legal or illegal, is a mix question of fact and law to be determined by the competent forum and in this case the same has been determined by the Federal Service Tribunal under judgment dated 23.12.1997 and 24.7.2000 respectively which have attained finality. Neither this judgment has been called in question by the petitioners in the above petition nor they have challenged their termination order before us. The judgment of the Supreme Court relied upon by the petitioner may not have the effect to set aside both the orders automatically without bringing the same in challenge in accordance with the prescribed procedure. Moreover, the judgment of Federal Service Tribunal being a appealable under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, making of a prayer before this Court, which by implication set aside such judgment of the Federal Service Tribunal, is not maintainable. It is further stated that what cannot be done directly it cannot be done indirectly. It has been held in number of cases that constitution petition before High Court against judgment of Service Tribunal is not maintainable even if limitation to file civil petition for leave to appeal under Article 212(3) expires.
Under such circumstances, the present petition is misconceived and not maintainable. Moreover admittedly petitioners were terminated from service on 29.8.1997 and 27.8.1997 respectively and their appeals before Federal Service Tribunal were dismissed on 23.12.1997 and 24.7.2000 respectively and the judgment relied upon was delivered by the Division Bench of Supreme Court in case of P.S.O. v. Muhammad Akram on 17.3.2004, whereas the present petition has been filed on 28.9.2006 without explaining laches on the part of petitioner. Therefore, this petition is barred by laches as well and is accordingly dismissed in limine with no order as to costs. On 11.03.2009 after hearing the learned counsel for the parties, by a short order this petition was dismissed. Above are the reasons for the said short order.
(R.A.) Petition dismissed.
PLJ 2010 Karachi 19
Present: Mrs. Qaiser Iqbal, J.
AKHTAR MUNEER--Appellant
versus
GENERAL TYRE & RUBBER COMPANY OF PAKISTAN LTD., KARACHI through its Senior Manager--Respondent
Labour Appeal No. 650 of 2003, heard on 16.11.2006.
Industrial Relation Ordinance, 1969 (XXIII of 1969)--
----S. 47(3)--Grievance petition against termination was dismissal--Challenge to--Allegation of impartiality of inquiry officer--Held: When there are serious allegations against inquiry officer to his impartiality, the accused employee has to brought some reliable evidence on record and inquiry officer should be produced in order to select it. [P. 21] A
Industrial Relation Ordinance, 1969 (XXIII of 1969)--
----S. 47(3)--Non-examination of inquiry officer--Effect--Held: Non-examination of enquiry officer is not fatal to the case while in cross-examination each and every page of inquiry proceedings is confronted and there is admission of signatures as well as signature of helper. [P. 22] B
Labour Court--
----Scope & power--Re-examination and re-appreciation--Held: It is not open for labour Court to re-examine and re-appreciate evidence recorded in domestic inquiry and come to conclusion contrary to that taken by inquiry officer. [P. 23] C
Words & Phrases--
----Misconduct--It means improper conduct of an employee, the acts and omission listed in Standing Order 15 the Ordinance, 1968 are illustrative because any act which is prejudicial to the good discipline form the disciplinary action. [Pp. 23 & 24] D
1999 SCMR 779, ref.
Plaint--
----Non-supply of copy of plaint--Effect--Supply of copy of plaint following basis of charge sheet was not legal requirement. [P. 24] E
1987 PLC 987, ref.
Show-Cause Notice--
----Issuance of second show-cause notice is not a legal requirement. [P. 24] F
1984 SCMR 143, ref.
Mr. Shafiq Qureshi, Advocate for Appellant.
Mr. Mehmood Abdul Ghani, Advocate for Respondent.
Date of hearing: 16.11.2006.
Judgment
Appellant has resorted to file appeal under Section 47(3) of Industrial Relations Ordinance, 2002 assailing the judgment dated 20th September 2003 in Grievance Application No. 39/1997 under Section 25 of Industrial Relations Ordinance, 1969 passed by Sindh Labour Court-IV Karachi was dismissed.
Appellant designated as Truck Tyre Builder is a skilled workman was employed by the respondent on the permanent job from the year 1985. The appellant was monthly rated worker also paid in piece rate upon building tyre more than the fixed quantity, he was elected as propaganda Secretary in the registered CBA Union in the year 1988-89 contested for the post of General Secretary lost election. The respondent management terminated the employment of the appellant on flimsy ground on 23.8.1990. He has resorted to file Grievance Petition which was allowed but was dismissed by Labour Appellate Tribunal Karachi in an appeal filed by the respondent, he was not taken on duty and was paid monthly wages for about 2 years. No work was assigned to him. The appellant was called upon to sit in the security room. The appellant at the instigation of Abdul Majeed accompanied with supervisor Shakil and one Saudul Hassan CBA Union officer bearer visited the Manager of the factory namely Muhammad Ali insulted, shouted upon the appellant issued a charge sheet on 31st July 1996 with malafide allegations inquiry was conducted by a professional advocate an outsider, ultimately the appellant was dismissed on the basis of impartial inquiry. The appellant had resorted to file Grievance Petition for his reinstatement.
The respondent in the written reply raised manifold objections pleaded that the appellant's dismissal was not in connection with Industrial dispute. On 30th July 1996 appellant along with Shakil Ahmed had entered office of Senior Manager used highly objectionable and unparliamentary language tried to physically assault him therefore he was charged sheeted, after inquiry was dismissed from the service. The appellant's witness Saudul Hassan filed affidavit in evidence duly cross-examined on behalf of the respondent. Tariq Solat Manager Admin filed his affidavit in evidence and was cross examined.
I have heard Mr. Shafiq Qureshi learned counsel for appellant and Mr. Mehmood Abdul Ghani learned counsel for respondent and also perused the record.
On account of the divergent pleadings, the parties were permitted to adduce the evidence, the appellant examined himself Mr. Saoodul Hasan, Mr. Izhar Ahmed Ansari from the Coastal Department, the respondent examined Tariq Soulat, Manager, Administration documentary evidence was also brought on record by the parties on conclusion the Labour Court dismissed the Grievance Petition.
Mr. Muhammad Shafiq Qureshi, learned counsel for the appellant has contended that in the first round of litigation appellant was reinstated in service with full back benefits upon joining the service, the appellant was served with charge sheet on 31.7.1996, for misbehavior, reply was submitted found unsatisfactory, Syed Wahid Jaffery was appointed as inquiry officer, who was biased, his inquiry was based upon the malafides. It is next urged that during the cross-examination of complainant Muhammad Ali, the inquiry officer rejected number of questions, determining the same to be irrelevant. In this context reliance has been placed on the case of Lateef Bano V/s M/s. Crescent Domestic Garment Industries (Pvt) Limited (1992 PLC 302) and The Vice President, (Admn.) National Bank of Pakistan and others (1996 SCMR 201), the dictum laid down is that it cannot be held that in every case in which Enquiry Officer is not examined, in support of the inquiry report, the same would be fatal led to the maintainability of the order passed pursuant to such an inquiry report. It would depend on the facts of each case. If there are serious allegation against the inquiry officer as to his impartiality and in support of such allegations, the accused employees has brought some reliable evidence before the first Court, it becomes incumbent on the employer to produce the inquiry officer in order to rebut the evidence brought on record as to the partiality of the inquiry officer. In the instant case nothing has been brought on record to indicate even remotely that the inquiry officer in question, in any way was prejudicial or partisan. In this view of the matter, it was not necessary to have examined inquiry officer.
The appellant was aggrieved of the order of the dismissal and had served the notice upon the Manager, Industrial Relations of the respondent. Learned counsel for the respondent has contended that the appellant has admitted that he was served with the charge sheet and submitted his explanation that he used to work in Truck Tyre Building Department. In the cross-examination, the appellant has admitted that inquiry proceedings bears his signature, the inquiry officer has provided copy of inquiry proceedings and his statement was recorded before the inquiry officer. The allegations against the appellant were that he along with another employee of respondent Mr. Shakeel Ahmed entered into the office of the Industrial Relations used filthy and objectionable language against him and physically assaulted him. No doubt, according to RW Tariq Soulat, the appellant had participated in the inquiry proceedings at no stage the appellant had objected to the appointment of outsider as inquiry officer. It is persistently stressed by the counsel appearing for the appellant that appellant was victimized by adopting unnatural mode to conduct inquiry.
Learned counsel for the respondent has contended that the allegations leveled by the appellant are clearly misconceived, an exhausted charge sheet was served upon the appellant, a reply was submitted, the allegations of the appellant that the copy of the complaint forming on the basis of charge sheet was not provided to him is not a legal requirement as is laid down in unreported case, CP. No. D-861/2000 Syed Ibra V/s Sindh Labour Appellate Tribunal, so far as the question of non-examination of the inquiry officer before the Labour Court is concerned, his whereabouts were not known as such could not be produced before Labour Court. Non-examination of enquiry officer is not fatal to the case while the appellant in cross-examination when confronted with each page of the inquiry proceedings admitted his signature as well as signatures of his helper. The appellant was also admittedly provide copy of the inquiry proceedings yet he did not proceed to file any complaint against the biased/partisan inquiry officer nor any complaint in writing before the authority about the inquiry officer. Issue stands resolved in case of Mujahid Hussain Shah V/s K.S.B. Pumps Company Limited (1997 PLC 132), an advocate appointed as an inquiry officer, the workmen participated in the inquiry, Hon'ble Supreme Court repelled the arguments to the appointment as inquiry officer held that it was legal and proper, subsequently followed by a Division Bench in CP. No. 127/1994 in High Court of Sindh (Mir Muhammad V/s Sindh Labour Appellate Tribunal) thus, the objection of the appellant for appointment of an outsider as an inquiry officer was not sustainable. It is next urged by the learned counsel appearing for the appellant that second show-cause notice was not served leading to miscarriage of justice, which just not seems to be a legal requirement of law as was laid down by the Hon'ble Supreme Court reported in SCMR 1997 page 681, 1998 SCMR 1352, PLD 1981 S.C. 225 and 1999 SCMR 1237.
To the extent and scope of examination of inquiry proceedings, the consistent view of this Court as well as of the Supreme Court of Pakistan is that it was not open for Labour Court to re-examine and re-appreciate evidence recorded in domestic inquiry and come to the conclusion contrary to that taken by the inquiry officer.
Averting to the next contention of the learned counsel for the appellant that the act of the appellant does not come within the purview of misconduct. Misconduct as construed under the law in terms of Section 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 reads as under:--
"15(3). The following acts and omissions shall be treated as misconduct:--
(a) willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) willful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous to disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (I);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(l) go-slow"
The words misconduct means improper conduct of an employee, the acts and omission listed in Standing Order 15 the Ordinance 1968 are illustrative because any act which is prejudicial to the good discipline could form the disciplinary action as laid down in 1999 SCMR 779. It is urged by the learned counsel for the appellant that the signatory of the reply statement Muhammad Ali was not examined before the Labour Court, defence of the management is liable to be struck off. Unfortunately, the signatory of the reply statement died during the pendency of the litigation, on behalf of the Management Mr. Tariq Soulat, appeared as a witness, the grievance of the appellant was that after his reinstatement in service the Management had not employed him per job description as Truck Tyre Builder, whereas the job assigned to him was lighter in nature and that for six months, he was allowed to sit in the security office of the establishment.
The examination of Muhammad Ali signatory of the reply statement and inquiry officer was not necessary in the present case as Mr. Tariq Soulat was competent to appear on behalf of the employer and was fully cross-examined. The ground agitated by the appellant appears to be misconceived that charge sheet was not inconformity; with law as a matter of fact appellant has submitted, reply of the charge sheet. It was not open to the appellant to plead with copy of the plaint forming the basis of charge sheet was not provided to him. The issue stands resolved by Division Bench in C.P. No. D-861/2000 (Syed Ibrahim Vs. Sindh Labour Appellate Tribunal) as well as reported in 1987 PLC 987 that supply of a copy of plaint following basis of the charge sheet was not legal requirement of law therefore objection is misconceived. The whereabouts of the inquiry officer were not known therefore management before the Labour Court had pointed out this factum, resulted in none cross-examination before the Labour Court. It is an admitted fact that appellant was supplied copy of inquiry proceedings and he had not filed a written complaint against inquiry officer alleging that his statement was not recorded fully or verbatim. Adverting to the next issue urged by the learned counsel for the appellant that second show-cause notice was not served upon the appellant leading to miscarriage of justice. The consistent view of the Hon'ble Supreme Court of Pakistan is to the effect that issuance of second show-cause notice is not a legal requirement as laid down in 1984 SCMR 143 and 1999 SCMR 1237. It is pertinent to mention that material before the inquiry officer was sufficient to establish the charge and such, finding cannot be substituted without any tangible material. The Labour Court was required to appreciate whether proper opportunity was provided to implead employee to defend himself and whether inquiry officer had conducted inquiry proceedings in a proper and fair manner, finding of inquiry officer could only be substituted if it was arrived out to misreading of the evidence or to become perverse. As a matter of fact material questions were allowed to be put by the appellant to the witness therefore no prejudiced was caused to the appellant's case.
In any view of the matter, no case is made out, impugned judgment passed by the Labour Court does not warrant interference. As a result whereof on account of the above discussion, appeal merits no consideration hereby stands dismissed with no orders as to cost.
(W.I.B.) Appeal dismissed.
PLJ 2010 Karachi 25
Present: Nadeem Azhar Siddiqi, J.
Mst. ROEEBA KHATOON (WIDOW) and others--Petitioners
versus
M.Y. BUTT and another--Respondents
IInd Appeal No. 10 of 2006, decided on 31.3.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Civil Procedure Code, (V of 1908)--S. 100--Suit for declaration--Starting point of limitation--Under Art. 120 the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues--When a right to sue accrues in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right. [P. 27] A
1995 SCMR 284 & PLD 2000 Lah. 385, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Second appeal--Grounds--High Court in second appeal can interfere on the ground of error of law or an error in the procedure--High Court can also interfere if the decision is contrary to law and contrary to usage being force of law. [P. 28] B
Mr. Muhammad Aziz Khan, Advocate for Appellants.
Mr. Saifuddin, Advocate for Respondent No. 2.
Date of hearing: 31.3.2009.
Order
By filing this IInd Appeal the appellants have challenged the Judgments and Decrees passed by the trial Court and Appellate Court, dismissing the suit of the appellants.
In short, the facts of the case are that the appellants are the successors of late Marghoob Ahmed, who has acquired the property in question from the Respondent No. 1 on 9.5.1966 against consideration. The said Marghoob Ahmed expired on 22.4.1986 leaving the appellants as his legal heirs. The Appellant No. 1 submitted an application to the Respondent No. 2 for mutation, but the same was refused on the ground that she has no title document in her favour. The appellants filed suit for declaration and mutation in record of PECR Society. The suit was dismissed. The appellants preferred appeal, which was also dismissed.
Learned counsel for the appellants states that in this matter Article 120 of the Limitation Act is applicable which provides a period of six years from the date when the right to sue accrues. He then submits, that the right to sue accrues to the appellants on the day when the Respondent No. 2 has refused the mutation of their names. He further submits that the learned Trial Court as well as learned Appellate Court without considering the material available on record and without determining the date of start of limitation have come to the erroneous conclusion and thus, failed to exercise the jurisdiction vested under it properly and in accordance with law. Learned counsel has relied upon the following reported cases:--
Wali & 10 others Vs Akbar & 5 others (1995 SCMR 284);
Mst. Zakia Begum Vs Niaz Ahmad (1999 MLD 3156);
Saleem Akhtar Vs Nisar Ahmad (PLD 2000 LAHORE 385); AND
Mst. Samina Sheikh Vs Vice Chancellor University of Punjab (PLJ 1996 LAHORE 1389).
Learned counsel for the Respondent No. 2 has conceded the above legal position and states that both the Courts below should have discussed the specific article of the Limitation Act under which the suit was barred and has endorsed his no objection for remand of the case to the trial Court for deciding the same afresh on merits after providing the opportunity to the parties to led further evidence if they so desired.
From the perusal of both the judgments it appears that both the Courts below have dismissed the suit on the point of limitation. In the judgment dated 20.7.2004 passed by the learned trial Court it has been observed as under:--
"As it is evident from the record that Margoob Ahmed the father of Plaintiffs No. 2 to 10 and husband of Plaintiff No. 1 allegedly purchased the suit plot on 9-5-1966 and the present suit was filed on 17-12-2002 after lapse of 36 years which clearly shows that present suit is hopelessly time barred and plaintiff side has not been able to advance any plausible explanation for such delay. Hence in my humble view that the present suit is hopelessly time barred and not maintainable."
From the above quoted portion of the judgment it appears that the trial Court has not stated which article of Limitation Act is applicable and what was the starting point of limitation.
The Judgment of the trial Court was upheld, by the learned Appellate Court. While dismissing the appeal, the learned Appellate Court has observed as under:--
"Margoob Ahmed the father of Appellants/Plaintiffs No. 2 to 10 and husband of Appellant/Plaintiff No. 1 allegedly purchased the suit plot on 9-5-1966 and the suit was filed on 17-12-2002 after lapse of 36 years which clearly shows that it is hopelessly time barred and appellants have not been able to advance any plausible explanation for such delay. Hence I am of the opinion that the learned trial Court has rightly held that the suit is not maintainable."
From the above quoted judgment of the learned Appellate Court it is apparent that the same error has been committed by the learned Appellate Court by not dealing, with the specific article of the Limitation Act by which the suit was barred. The Appellate Court has also not discussed the starting point of limitation and has merely stated that the husband of Plaintiff No. 1 allegedly purchased the suit plot on 9.05.1966 and the present suit was filed on 17.12.2002 after lapse of 36 years.
In this matter it appears that Article 120 of First Scheduled of the Limitation Act is applicable. The said article provides that the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues. The question when a right to sue accrues in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right.
In the reported case of Wali Vs Akbar (1995 SCMR 284) the Hon'ble Supreme Court has held as under:--
"In such cases Article 120 of the Schedule to the Limitation Act applies and time runs from the date when the plaintiff feels aggrieved."
In the reported case of Saleem Akhtar Vs Nisar Ahmad (PLD 2000 LAHORE 385) the Lahore High Court has held as under:
"Article 120 Limitation Act provided limitation for filing a suit for declaration six years only from the date of right to sue. The right to sue would accrue to the plaintiff when his right was denied by the defendant/respondent. The right of the plaintiff is a continuous right. There can be no right to sue until there is an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
The High Court in second appeal can interfere on the ground of error of law or an error in the procedure. The High Court can also interfere, if the decision is contrary to law and contrary to usage being force of law. Apparently by not discussing the relevant provisions of the Scheduled of the Limitation Act and by not determining the date from which the limitation starts running both the Courts below have committed error in law and have failed to exercises the jurisdiction vested under them properly and in accordance with law.
In view of the above position, both the judgments of the Courts below are set aside. The case is remanded to the trial Court for deciding the same afresh on merits. The parties are at liberty to lead further evidence and to produce further documents in support of their claims, if they so desired. The learned Trial Court shall proceed with the matter expeditiously and shall dispose of the matter within four months.
In the above circumstances, the parties are left to bear their own cost.
This IInd Appeal is disposed of accordingly.
(S.K.A.) Appeal disposed of.
PLJ 2010 Karachi 28
Present: Shahid Anwar Bajwa, J.
UNITED BANK LIMITED through Power of Attorney--Petitioner
versus
SINDH LABOUR COURT NO. 5, SINDH SECRETARIAT, KARACHI & another--Respondents
Constitutional Petition No. S. 492 of 2009, decided on 21.10.2009.
Industrial Relations Act, 2008 (IV of 2008)--
----S. 55--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Right to invoke constitutional jurisdiction--No remedy against Labour Court--Employment of bank--Termination from job--Charge sheet--Grievance petition was allowed to be reinstated in service without back benefits with employer being at liberty to award proper, lenient punishment to applicant--Allegation against the employee was that on five different occasions he received amounts but did not account for the same--Guilty of the charge sheet--Operation system of banks-under banking system at the close of each day if cash is found in excess the employee has to state--Validity--If cash is found short the employee has to state at the close of the day to the employer--There is no statement of the present respondent that when he totaled the scroll he found cash short--Held: No labour appellate tribunal has been constituted in the province of Sindh, petitioner has no remedy whatsoever available to him against the impugned order passed by Labour Court--Petitioner has a right to invoke constitutional jurisdiction of High Court--Petition was allowed. [Pp. 32 & 38] A & B
1980 PLC 981, 2005 SCMR 753, SBLR 2008 SC 79, 2007 SCMR 1143, SBLR 2007 Sindh 1109, 2009 PLC 254, 2008 SBLR 83, SBLR 2004 Sindh 1565 & 2003 PLC (CS) 1247, ref.
Mr. Mehmood Abdul Ghani, Advocate for Petitioner.
Respondent No. 2 in person.
Date of hearing: 21.10.2009.
Judgment
The facts giving rise to this constitution petition are that Respondent No. 2 was employed as an Assistant/Teller by the petitioner bank. He entered into employment of petitioner bank in 1974. On 11.5.2007 a charge sheet was issued to Respondent No. 2. The substance of charges against him, as stated in the charge sheet, was in the following words:--
"CHARGE SHEET
It has been reported against you by the manager Compliance and Control (CCD) vide its report dated April 19,2007, that while performing duties of Teller at Taimuria Branch, Karachi, you have committed the following irregularities of serious nature which tantamount to misconduct:--
(i) On 19.02.2007, you received an amount of Rs. 5,300/- in collection of Utility (KESC) Bill of Consumer # AL-623866, which was not accounted for in the same date in the Books of the Branch/Scroll Sheet, thus you embezzled/ misappropriated the entire Bill amount of Rs. 5,300/-.
(ii) On 19.04.2007, when the Consumer came in the Branch and complained for Arrears in his Bill, you refunded the said amount.
(iii) The claim of Citi Bank amounting to Rs. 3200/- as per following particulars, has neither been accounted for nor settled by you as yet, although pointed out to you at the time of receipt of claims particularly vide Branch letter dated 24.03.2007:
S. No. Consumer/ Amount Cash Details Subscriber of Claim Received No. Date
1 PTCL Rs. 500/- 14.3.2007 Cash of Rs. 1840/ No. 6640352 received by you but accounted for Rs. 1340/- as such diff. amount of Rs. 500/- was pocketed by you
2 KESC Rs. 1,800/- 16.3.2007 Cash of Rs.4,200/- received by AL-543648 you but accounted for Rs. 2400/- as such diff. amount of Rs. 1800/-was pocketed by you.
3 KESC Rs.900/- 18.9.2006 Cash amounting to Rs.900/- AL-765633 received by you, but not accounted for as such Rs. 900/- was pocketed by you.
The Respondent No. 2 did not submit any reply to the charge sheet and therefore an inquiry was ordered. The Respondent No. 2 contention in the inquiry was that he had not done it deliberately and intentionally but when there came certain complaints which related to dates of his duty he repaid the amount. After report was submitted by the Inquiry Officer, employment of Respondent No. 2 employment was terminated vide letter dated 19.7.2007.
Being aggrieved by termination Respondent No. 2 served grievance notice on 17.8.2007 and thereafter filed grievance petition in the 5th Sindh Labour Court at Karachi. The grievance petition was allowed vide order dated 9.7.2009. Respondent No. 2 was ordered to be reinstated in service without back benefits with employer being at liberty to award proper, lenient punishment to the applicant according to the circumstances of the case. Since Labour Appellate Tribunal as required by law (Section 55 of the Industrial Relations Act, 2008) has not been constituted in the province of Sindh, this constitution petition has been filed.
Learned counsel for the petitioner made the following submission:--
Since Labour Appellate Tribunal has not been constituted, he has no remedy against the impugned order and therefore the constitution petition would be maintainable.
That although Labour Court repeatedly came to the conclusion that there have been a number of admissions on part of Respondent No. 2 regarding his alleged misconduct even then its ordered reinstatement on the ground, in the words of the Labour Court below that "punishment awarded to the applicant before Labour Court appears harsh and he was not liable to be dismissed from service and he was liable to be punished for reprimand or stoppage of his increment etc."
That it is sole and absolute discretion of the employer to decide as to what punishment should be awarded to a employee who has been proved guilty in domestic inquiry. Learned counsel in this regard relied on plethora of judgments to which I will refer at appropriate place in this judgement.
On the other hand, Respondent No. 2 who was present in person stated that he wanted to argue his case in person. He argued that he had not done any dishonest act. It had been human mistakes, innocent and without intention to defraud and when pointed out he repaid the amount.
I have given my anxious consideration to submissions made by the learned counsel. I have gone through the record as well as case law cited by the learned counsel.
A perusal of the charge sheet indicates that allegation against the employee was that on five different occasions he received amounts but did not account for the same. Learned counsel referred to page 9 of the judgment where it was observed by the learned Court below that inquiry proceedings produced by the respondent proved that applicant in the inquiry had pleaded guilty of the charge against him. This according to the learned counsel was first time in the impugned judgment where admission of Respondent No. 1 was recorded. In the second time on page 10 of the judgment the learned Court below stated that in response to the question put by the Inquiry Officer Respondent No. 1 pleaded guilty against the charges as contained in the charges sheet. Thereafter the Labour Court stated that the respondent/employee evidence proved that second time the present respondent had admitted his negligence. According to the Labour Court third time was when the employee said that all the amount claimed were repaid. The fourth time being that in cross-examination in the Labour Court, the employee admitted the charges. The learned counsel submitted that it is beyond doubt that appellant had received the amount of the bills and did not account for them.
The banks operate in a system which is a rigid and documented one. Under banking system at the close of each day if cash is found in excess the employee has to state. Similarly if cash is found short the employee has to state at the close of the day to the employer. In the present case, there is no statement of the present respondent that when he totaled the scroll he found cash Short. In fact in the case of first charge amount of Rs. 5300/- was received by the respondent and he did not account for it at all. The bill on which the amount received was produced in the Court below and clearly bore stamp of 9.2.2007, initial of the petitioner and amount of Rs. 5,300/-. If the petitioner had forgotten to mention this amount in the scroll he should have stated at the end of the day that he had cash in excess of Rs. 5300/- There is no such statement by the petitioner. Therefore there is no longer a question of his being guilty of the charge. I do not think any fault can be found with the order of the employer or with the order of the Labour Court on that score.
However the matter went further and learned Labour Court stated that the punishment is harsh keeping in view gravity of the offence. Learned Labour Court was of the opinion that at most the applicant before it was liable to be punished with reprimand or stoppage of increment. Learned counsel for the petitioner in support of his contention that it is sole and absolute discretion of the employer to decide as to what punishment should be awarded, referred to the following case law:
Pakistan Tobacco Co. Ltd. v. Channa Khan & Others, 1980 PLC 981. The workman was employed as Naik in Watch and Ward Department of his employer. On 19th May, 1974, at 1.50 p.m. he was searched by the Security Staff and was found to possess 3 packets of Gold Leaf cigarettes. After due process he was dismissed from service. The First Junior Labour Court while holding that it was established beyond doubt "that he was caught red-handed and there was no error in the proceedings which led to his dismissal," directed the appellant to substitute punishment of termination of service in lieu of dismissal and further to impose the penalty of fine equivalent to ten times the value of the property stolen. Appeal went to the First Sindh Labour Court, it did not succeed. Writ petition also failed. The matter was taken to the Supreme Court. The Supreme Court held as under:--
"The First Junior Labour Court has found no flaw in the proceedings which led to the order of dismissal but mitigating circumstances to disturb the order of the dismissal and thereby substitute it with a termination of service. The termination of service is not a punishment prescribed for misconduct under Standing Order No. 15(2) consequent upon such finding having been arrived at in accordance with the procedure prescribed by Standing Order No. 15(4). However, under Standing Order No. 12(6) the services of an employee can be terminated simpliciter for misconduct. There is a marked difference between the two provisions accordingly, if the termination of service was not a punishment for misconduct it could not be substituted for dismissal which is so prescribed merely on the ground that subsection (5) of Section 25-A of the Industrial Relations Ordinance empowered it to pass "such orders as may be just and proper in the circumstances of the case." This expression refers to an order passed in accordance with law as the words "just" and "proper" reflect this meaning. This being so that First Junior Labour Court could not substitute a punishment which is not prescribed under the garb of the exercise of that power. Further, it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of the Statute; and if the employer chooses to award dismissal, the First Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment."
Nazir Ahmed Pathan & another v. The Muslim Commercial Bank Ltd. & Others, SBLR 2008 SC 79. The workman in this case being a bank employees were found to have committed misappropriation/embezzlement of customers money. After due disciplinary process they were dismissed from service. They approached Sindh Labour Court which allowed their grievance petitions. Appeal were filed in this Court which were accepted. Thereafter workmen invoked jurisdiction of the Supreme Court. Supreme Court after noting that even Labour Court did not disagree with findings of the Inquiry Officer qua guilt on the charges, it held the punishment of dismissal to be harsh and disproportionate to guilt of the petitioner. In this background, observed that, "once the charge of misappropriation/embezzlement leveled against the worker is proved the question of quantum of punishment rests with the employer and neither the Labour Court not the Appellate Court has nay discretion in the matter unless the sentence awarded is found to be either one which is not provided or warranted by law or which it appears to be excessive or harsh or totally disproportionate to the guilt which no prudent man would have awarded in the circumstances of a particular case."
Water and Power Development Authority through Chairman, WAPDA House, Lahore & 2 Others v. Khawaja Abdul Waheed, 2005 SCMR 753. Facts in this case were that the employee was charge sheeted with allegations of gross irregularities in purchase and disposal of stores in the region and was consequently after due disciplinary process dismissed. Federal Service Tribunal set aside the order of removal and directed the employer to reinstate him with consequential benefits. Leave to appeal was granted by the Supreme Court to consider whether Federal Service Tribunal after upholding findings of the Departmental Authorities in disciplinary proceedings about guilt of the respondent, was vested with power to interfere with and modify the nature of punishment/penalty and to reduce the same from removal of service to reduction in rank for two years. The Supreme Court laid down law in the following words:--
"12. Charge of corruption/misappropriation was proved against the respondent. Under such circumstances, the appropriate forum for Departmental Authority, whose opinion shall be given due weight, unless otherwise is shown. The Departmental authority knows better than anybody else to decide such issue. After the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fiber of discipline of service, besides encouraging others to resort such illegal activities as to enrich themselves by illegal means with impunity at the cost of welfare of the society for whose benefit they are employed. We are of the view that the respondent was not entitled to any leniency."
Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. & Others, SBLR 2007 Sindh 1109.
Allied Bank Limited through Attorney and others v. Syed Nasir Abbas Naqvi & others, 2007 SCMR 1143. In this case the employee who was found to have cheated in bank diploma examination was debarred from appearing in examination conducted by the Institute of Bankers. After due disciplinary process he was dismissed from service. He filed grievance petition before Labour Court which ordered reinstatement in service. Employer's appeal was accepted by the Labour Appellate Tribunal and dismissal was up held. The employee filed writ petition in Lahore High Court, Rawalpindi Bench and the High Court allowed the petition and substituted punishment of dismissal with withholding of increments. Aggrieved by this order employer approached the Supreme Court. The Supreme Court first held that the act of the employee constituted misconduct and thereafter laid down the law as under:--
"We may agree with the learned counsel that ordinarily the High Court is not supposed to interfere in the administrative functions and disciplinary matter of public organizations in its constitutional jurisdiction unless it is found that an order passed by an authority in its discretion was capricious arbitrary or was passed in utter disregard of law. This is also not disputed that in disciplinary matter, the departmental authorities have exclusive domain to determine the quantum of punishment in the light of nature of charge and Court may not substitute its decision in such matters but this is settled law that the High Court in exercise of writ jurisdiction may look into the question of legality of an order passed by an authority and consequently, we deem it proper to examine the proposition in the light of the provisions of Section 25-A of I.R.O., 1969."
In this case Supreme Court held that penalty of stoppage of increment is inadequate, it did not disturb reinstatement of the respondent in service, modified penalty of stoppage of two increments to withholding his promotion for a period of seven years with effect from date of order of dismissal. Although Channa Khan's case was noticed in the leave granting order, it was not adverted to when appeal was decided.
Iqbal Ahmed v. Muslim Commercial Bank Ltd., 2009 PLC 254. In this case a cashier of a Bank was sent from Larkana to Sukkur to bring cash. He brought the cash and after taking cash to Strong Room reported that Rs. 2 million was found missing. After due disciplinary process he was dismissed from service. He approached the Labour Court and the Labour Court ordered reinstatement in service. Bank filed appeal in the High Court. Appeal succeeded. The employee went to the Supreme Court and civil appeal was dismissed by the Supreme Court observing that he would certainly held accountable for the act of gross negligence amounting to misconduct due to which bank suffered a loss of Rs. 2 million.
Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. & Others, 2008 S.B.L.R. 83. In this case act of embezzlement and misappropriation stood proved after which he was dismissed from service. Labour Court ordered reinstatement, High Court set aside the findings of the Labour Court and Supreme Court concurred with High Court.
Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd.), Etc,. A.I.R. 2000 S.C. 3129. Four of the employees were charge with misappropriation of goods whose value was about Rs. 24,239.97. After inquiry all the four employees were dismissed. The Labour Court considered the evidence produced by the management that employees admitted that goods were sent to their countries for sale by means of supply slip and they had not accounted for the shortage of goods. Labour Court held that charges of misappropriation were proved. However, it ordered reinstatement with 25% of back wages. It further ordered for continuity of their service and penalty of stoppage of 5 increments with cumulative effect was imposed on them. Writ petition was dismissed by a Single Judge of Karnataka High Court. Matter was taken to the Supreme Court of India. The Supreme Court allowed the appeal and its observations in relevant part from the order of the Supreme Court are in the following words:--
"Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees to service. Law on this point is well settled. (Re: Municipal Committee, Bahadurgarh v. Krishnan Behari, (1996) 2SCC 714): (1996 AIR SCW 1309: AIR 1996 SC 1239: 1996 Lab IC 1056). In U.P. State Road Transport Corporation v. Basudeo Chaudhry, (1997) 11 SCC 370 this Court set aside the judgment passed by the High Court in a case where a conductor serving with the U.P State Road Transport Corporation was removed from service on the ground that alleged misconduct of the conductor was attempt to cause loss of Rs. 65/- to the Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but recovering @ Rs. 5.35 per head and also by making entry in the waybill as having received the amount of Rs. 2.35. The Court held that it was not possible to say that Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct."
Learned counsel also referred to Mukarram Shah v. Sindh Labour Appellate Tribunal & Others, S.B.L.R. 2004 Sindh 1565, Muslim Commercial Bank Limited through Assistant Vice President and Attorney v. Abdul Razzak Pathn, 2007 TD (Labour) 460, Akhtar Ali Mangi v. United Bank Limited, N.L.R. 2008 Labour 14, Shaukat & Others v. Allied Bank of Pakistan, S.B.L.R. 2007 SC 1.
I do not think it will add to weight of the judgments although volume of judgment would certainly swell thereby.
A reading of the above judgments makes it clear that except in Syed Nasir Abbas Naqvi's case in every other case the Supreme Court and the High Court have up-held the right of the employer to impose penalty and limitation as pave of Labour Court to interfere with quantum of punishment decided by the employer. In Syed Nasir Abbas Naqvi's case misconduct on the part of employee was that he cheated in a examination and debarred from appearing in diploma examination. A consequence of result of Banking Diploma Examination would have been that employee would have been entitled to promotion. It was in that background of situation that Supreme Court upheld conversion of dismissal into withholding of promotion for seven years. In every other case where there was a misappropriation Supreme Court has up-held the act of the employer in dismissing the employee from service. The case from Indian Supreme Court, indicates that this has been done when the amount misappropriated was about Rs. 65/- and in case of Pakistan Tobacco Co. Ltd. v. Channa Khan & Others, where quantity of stolen property was only 3 packets of cigarettes which even today do not cost Rs. 200/-. The principles deducible appear to be that if there is a financial mis-appropriation or embezzlement, howsoever small the amount may be and howsoever short period of embezzlement may be the employee does not deserve any leniency. Rectitude and best possible standard of honesty and propriety must be instilled in all segments of society because if small misappropriation are allowed to unnoticed and unpunished or are allowed to be handled with kid gloves entire moral fabric of the society will be on a slipper slope, down hill to what it would be difficult to imagine. And in case of banks as has been rightly observed in Abdul Razzak Pathn's case that money in the bank is public money and even if there is temporary misappropriation, the charge is proved once misappropriation is established and employee cannot be allowed to go grinning by saying that he returned the embezzled amount. The Hon'ble Supreme Court of Pakistan in Sultan Hussain v. National Bank of Pakistan & 2 others, 2003 PLC (CS) 1247, has held that return of embezzled amount does not wipe away the act of embezzlement. The stigma stop and stain remains conspicuous. The relevant observation is in the following words:--
"The mere fact that the amount allegedly drawn in fraudulent manner, was returned and no loss was caused to the bank, would not remove the charge of misconduct against the (employee) who being custodian of public and private money was not supposed to act in breach of trust. The employees of financial institutions and banks are required to be extremely fair in the dealings and their conduct should be aboveboard so that people may not loose confidence in the financial institutions. The dishonest use of private property for personal gain even temporarily, without an intention to cause loss to a party or the bank would not only be and act of misconduct but also constitutes a criminal offence."
Since no Labour Appellate Tribunal has been constituted in the province of Sindh, petitioner has no remedy whatsoever available to him against the impugned order passed by the Labour Court. Therefore petitioner has a right to invoke constitutional jurisdiction of this Court.
Result of the above discussion is that this writ petition is allowed in limine. Impugned order dated 9.7.2009 passed by the Sindh Labour Court No. V, is set aside. In the peculiar circumstances, the parties are left to bear their own costs.
(R.A.) Petition allowed.
PLJ 2010 Karachi 39
Present: Shahid Anwar Bajwa, J.
NASEER AHMED--Applicant
versus
Mst. AZRAH and another--Respondents
C.T. Appln. No. 40 of 2009, decided on 23.11.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 25--Transfer of case--Allegation of lost faith upon Court--Validity--Such ground was not available to litigant unless litigant was able to demonstrate from the record that the judge had acted with malice or that he deliberately committed an irregularity or some previous circumstances were pointed out or similar other cognate factors were demonstrated to have existed--High Court declined to transfer the case from one Court to another Court on mere saying of applicant that he had lost faith in trial Court--Application was dismissed. [P. 40] A
DNA Test--
----Parentage of child--Question of bearing of expenditure--Determination--Whether applicant was father of child or not had to be decided on basis of evidence available it is obviously for Family Court to decide whether it need DNA Test or not--Costs of such test should be borne by the party who made application for the test. [P. 41] B
Mr. Naimat Ali Randhawa, Advocate for Applicant.
Mr. Yousuf Chohan, Advocate for Respondents.
Date of hearing: 11.11.2009.
Judgment
Guardian and Wards Application under Section 25 of the Guardians and Wards Act, 1890 was filed by the present petitioner. It was stated in the application that petitioner married Respondent No. 1 on 11-1-2001 at Karachi. It was further stated that during subsistence of marriage the petitioner contracted another marriage albeit because of attitude of the Respondent No. 1 with one Azra daughter of Allah Wasaya, on 15-12-2003 and out of this second wedlock a male baby Wasif Naseer was born on 16-2-2005. It was further stated in the application that when second wife came to know of his first marriage, by consent, upon her seeking the second marriage was dissolved by way of divorce on 11-6-2005 and custody of the minor was handed over to the father. The father brought the child to his home and entrusted him to Respondent No. 1. Marriage of petitioner with Respondent No. 1 was dissolved by way of Khula in Case No. 60 of 2009 but it is alleged that the respondent kept the child in her custody and did not hand him over to the petitioner.
Respondent No. 1 filed written-statement and pleaded that child was an adopted child and not a offspring of present petitioner. An application under Section 12 of the Guardians and Wards Act, was filed which application has been dismissed by the trial Court. Thereafter the present Respondent No. 1 filed an application in the trial Court praying that DNA test of the child and the applicant before the Court be conducted to determine whether the applicant before the trial Court is father of the child or not. That application is still pending.
The Civil Transfer Application has been filed and the grounds stated are as under:--
"(1) That the applicant saw the Respondent No. 1 was coming out from the chamber of the trial Court in the absence of party counsel as well as the applicant.
(2) That the applicant is being treated as accused person by the learned trial Court, on date of hearing he is insulted, misbehaved and threaten to send him in police custody therefore the applicant have lost faith upon the learned trial Court.
(3) That from the day of meeting of the Respondent No. 1 with the learned trial Judge, on many occasions the Hon'ble Court has stated that you are not father of the minor which amount to announcing judgment prior to proceedings. Due to such conduct of the Hon'ble Court the applicant has lost faith upon the Court and having no other remedy except filing this application.
(5) (sic) That the applicant shall crave urge further ground at the time of hearing of this application."
The key ground is, that the applicant states that he has lost faith in the trial Court. I am afraid such a ground is not available to a litigant unless litigant is able to demonstrate from the record that the trial Judge has acted with malice or that he deliberately committed an irregularity or some previous, circumstances are pointed out or similar other cognate factors are demonstrated to have existed. It is not appropriate to transfer a case from one Court to another Court on mere saying of applicant that he has lost faith in the trial Court. This Civil Transfer Application is therefore dismissed.
Before parting with the judgment, trial Court is directed as under:--
(1) To proceed with the trial, record evidence and dispose of the main application within a period of six months;
(2) As far as, application for DNA test is concerned, since the question whether the applicant before the trial Court is father of the child or not has to be decided on the basis of evidence available it is obviously for the Family Court to decide whether it needs DNA tests or not. Obviously costs of such DNA test should be borne by the person who made the application for such test.
(R.A.) Application dismissed.
PLJ 2010 Karachi 41 (FB)
Present: Anwar Zaheer Jamali C.J., Khilji Arif Hussain, Sajjad Ali Shah, Nadeem Azhar Siddiqi and Muhammad Karim Khan Agha, JJ
RASHEED A. RAZVI and others--Petitioners
versus
PROVINCE OF SINDH through Chief Secretary and others--Respondents
Const. P. Nos. D-2404 of 2008 and D-38 of 2009, decided on 15.6.2009.
Sindh Judicial Service Rules, 1994--
----Rr. 2 & 5--Sindh Government Notification No. S.O.R.-I (5GA&CD) 2-3/93, dated 4-12-2008--Constitution of Pakistan (1973), Arts. 199, 4, 9, 14, 175 & 203--Constitutional petition--Violative of the Constitution and also against the doctrine of separation of powers and independence of judiciary inter alia, as already laid down by Sindh High Court--Government of Sindh, in exercise of its power under S.26, Sindh Civil Servants Act, 1973 framed Sindh Judicial Service Rules, 1994 for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto--(Before the issuance of impugned notification) the position was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under Rule 2(e) of the Sindh Judicial Service Rules, 1994, whereafter appointments were to be made by the Provincial Government on the basis of such recommendation of the "Provincial Selection Board"; After the issuance of Sindh Government Notification in this regard now the only authority left with the High Court of Sindh was the formality of sending requisition to the "Commission " as defined under newly added R.2(aa) of the Sindh Judicial Service Rules, 1994--Moot question of--Whether, despite clear and unambiguous directions of Sindh High Court could be amended so as to negate the very spirit and directions in the said judgment and also to cause a serious blow to the sanctity of a separate and independent judiciary in the Province of Sindh--Held, In a very arbitrary and crude manner the role of superior judiciary in the matter of recruitment and appointment of Civil Judges-cum-Judicial Magistrates had been completely eliminated, except to the extent of sending a requisition, which was nothing but a formality--Issuance of the impugned notification, amounted to negating the directions of Sindh High Court contained in Sharaf Faridi's case--By issuing the impugned notification which amended the Sindh Judicial Service Rules, 1994, Government of Sindh took a step which was contrary to settled procedure and practice, unconventional and unilateral, which paralyzed the very basic structure of the recruitment process as earlier envisaged in the Rules for appointment of Judicial Officers--Terms "recruitment" and "appointed" used in the Rules did not convey a symbolic authorization for the High Court to issue requisition to the Government for such purpose or to sign for or issue appointment letters of the Judicial Officers, leaving the other main crucial exercise of the selection of a transparent subordinate judiciary in the hands of the executive authorities, rather they provided for complete exercise of such selection process commencing from the stage of advertisement in the newspapers for inviting applications against the available vacancies, and culminating at the stage of issuance of appointment letters, after its formal procedural approval from the Provincial Government and consequent notification to that effect--If amended Rules as per notification were implemented, their net result would be that the High Court of Sindh under whom the newly appointed Judicial Officers have to work would become only an authority, that has to make requisition to the Provincial Public Service Commission for such appointments with no further role or participation at any stage--Provincial Public Service Commission had no jurisdiction to play any role in the recruitment/appointment of Civil Judges and Judicial Magistrates, which exercise exclusively fell within the domain of the "Provincial Selection Board" formed under Sindh Judicial Service Rules, 1994, which was substantiated by the fact that Civil Judges-cum-Judicial Magistrates, after their recruitment, in judicial service, did not acquire the status of "civil servants"--All the members of the "Provincial Selection Board" established under Rule 2(e) of the Sindh Judicial Service Rules, 1994 were none else, but sitting Judges of the High Court of Sindh before whom most of the candidates who might have applied for such posts, must have been appearing frequently--Impact of the impugned notification over the Sindh Judicial Service Rules, 1994 was cutting at the very root of the concept of separation of power and independence of judiciary; on one hand by addition of it introduced a new Institution (Sindh Public Service Commission) which was otherwise an alien to the Rules, and on the other hand, by amendment in R.5, it completely ousted the role of "Provincial Selection Board" and made the highest Court of the Province simply an Institution, that could only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exerciseDoctrine of separation of Judiciary from the Executive and independence was riot only to be gauged on the yardstick of the relevant constitutional provisions and settled law by the superior Courts, but also from the public perspective--Under the doctrine of separation of powers there was no room for any adversarial stance between the pillars of the State viz. Legislature, Executive and Judiciary, rather said system could flourish and become strong when each of three organs of the State function strictly within their domain and jurisdiction, with respect of each other and spirit of harmonious working without any overlapping or sharing of powers--Independence of judiciary was something, which was to be jealously guarded and could not be compromised at any cost--Initial appointment/ recruitment of Civil Judges/Judicial Magistrates was its integral part, forming its foundational stone, thus, the impugned notification negating said wsition and transgressing the limits of judicial independence was liable to be struck down being mala fide, without jurisdiction and ultra vires the Constitution--High Court, declared that amendments made in Rules 2 & 5 of the Sindh Judicial Service Rules, 1994 and the Notification dated 4-12-2008 were without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires the Constitution and that the amendments made in Rr.2 & 5 of the Sindh Judicial Service Rules, 1994 were illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to, and in violation of Arts.4, 9, 14, 175 & 203 of the Constitution. [Pp. 60, 61, 62, 64, 65, 66, 73, 74, 78, 79, 83, 84, 86, 87] A , B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X & Y
PLD 1989 Kar. 404; PLD 1994 SC 105; PLD 1993 SC 341; PLD 2000 SC 869; PLD 1996 SC 324; PLD 1999 SC 504; PLD 2001 SC 607; PLD 1998 SC 416; AIR 1966 SC 1987; AIR 1987 SC 331; AIR 1970 SC 1617; PLD 1992 SC 595; PLD 2004 SC 285; 2002 SCMR 510; 1988 PLC (C.S.) 337; 1988 PLC (C.S.) 344; PLD 1998 SC 1445; PLD 1971 Kar 514; PLD 1988 Lah. 49; PLD 1989 SC 26; PLD 1997 Lah. 38 and PLD 2006 SC 602 ref.
Petitioner No. 1 in person assisted by Tahmasp R. Razvi and Mrs. Umaimah A. Razvi (in C.P. No. D-2404 of 2008).
Petitioner No. 2 Sindh High Court Bar Association (in C.P. No. D-2404 of 2008) through Petitioner No. 1.
Petitioner No. 1 in person in (C.P. No. D-38 of 2009).
Petitioner No. 2 Sindh Bar Council (in C.P. No. D-38 of 2009) through Petitioner No. 1.
Mr. Muhammad Yusuf Leghari, Advocate-General Sindh along with Muhammad Sarwar Khan, Addl., A.-G. Sindh for Respondents Nos 1 and 2 (in both the petitions).
Mr. Ashraf Mughal, Deputy Attorney-General for Respondent No. 3 (in both the petitions).
Dates of hearings: 10 & 15.6.2009.
Judgment
Anwar Zaheer Jamali, C.J.--These two constitutional petitions; one filed by the Sindh High Court Bar Council and its President Mr. Rasheed A. Razvi, and the other filed by the Sindh Bar Council, and its Chairman Executive Committee Mr. Abdul Haleem Siddiqui, both challenging the legality of the Notification No. SOR-I (5GA&CD)2-3/93 dated 4-12-2008 (hereinafter referred to as the impugned Notification), were heard together and vide our short order dated 15-6-2009 allowed to the extent of prayer clauses (a) and (c) to the petitions, which read as under:--
(a) That this Honourable Court be pleased to declare that the Amendments made in Rules 2 and 5 of the Sindh Judicial Service Rules, 1994 and the Notification dated 4-12-2008 (Annexure "A") are without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires of the Constitution, 1973.
(c) A further declaration that the amendments made in Rules 2 and 5 of the Sindh Judicial Service Rules, 1994, are illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to and in violation of Articles 4, 9, 14, 175 & 203 of the Constitution, 1973.
"Government of Sindh, Services Central Administration Co-ordination Department (Regulation) Wing
Notification.
No. S.O.R.-I(5GA&CD)2-3/93. In exercise of the powers contained in Section 26 of the Sindh Civil Servant Act, 1973, The Government of Sindh are pleased to make the following amendments in the Sindh Judicial Service Rules 1994.
Amendments
In Rule 2, after clause (a) the following new clause shall be inserted:
"(aa) "Commission" means the "Sindh Public Service Commission".
In Rule 5, in sub-rule (1), for the words "on the recommendations of the Provincial Selection Board" the words "through Commission on the requisition of the High Court of Sindh" shall be substituted.
Fazal-ur-Rehman. Chief Secretary Sindh"
No. S.O.R-I(5GA&CD) 2-3/93, Karachi dated the 4th December, 2008
In a nutshell, the common grievance of the petitioners is that issuance of impugned Notification is violative of Articles 4, 9, 14, 175 and 203 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the "Constitution") and also against the doctrine of separation of powers and independence of judiciary, inter alia, as already laid down by a seven members Bench of Sindh High Court in the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404, which was maintained by the Honourable Supreme Court of Pakistan in the case of Government of Sindh v. Sharaf Faridi PLD 1994 SC 105.
Some other relevant features of the case gathered from the record are that after the pronouncement of judgment in the case of Sharaf Faridi (supra), following the directions contained therein, the Government of Sindh, in exercise of its power under Section 26 of the Sindh Civil Servants Act, 1973, framed Rules for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto.
In terms of these Rules, position as it stood before the impugned Notification was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under Section 2(e) of the Sindh Judicial Service Rules, 1994, in a manner prescribed therein, whereafter appointments were to be made by the Provincial Government on the basis of such recommendation of the Provincial Selection Board. However, after the issuance of impugned Notification in this regard, now the only authority left with the High Court of Sindh is the formality of sending requisition to the "Commission" as defined under newly added Rule 2(aa) of the Sindh Judicial Service Rules, 1994 (in short "Rules of 1994").
Notices of these petitions were issued to respondents as well as to the Attorney-General of Pakistan and Advocate-General Sindh, calling upon them to submit their parawise comments in terms of the order dated 16-12-2008. In response to it, on behalf of Respondent No. 3 (Federation of Pakistan), following statement was filed in Court on 13.1.2009:--
"It is submitted that the above titled petition mainly relates to Respondents Nos. 1 and 2 i.e. Government of Sindh. This Ministry is impleaded as proforma Respondent (No. 3) and no relief whatsoever has been claimed/sought against it. Hence, no comments are offered on behalf of Respondent No. 3."
On behalf of Respondent No. 1 (Province of Sindh), precisely their case is that the impugned Notification is neither ultra vires, nor mala fide but has been issued to bring the policy of recruitment in the Sindh judiciary in consonance with the one followed in the other three Provinces of the country i.e. Punjab, N.-W.F.P. and Balochistan. Respondent No. 1 also denied the allegations that the impugned Notification undermines the independence of judiciary or is violative of any judgment of the apex Court touching upon the issue of the independence of judiciary or appointment of Judges in the District judiciary.
The Respondent No. 2 (Sindh Public Service Commission) in their parawise comments has more or less, endorsed the case of Respondent No. 1 as regards the merits of the impugned Notification. They further stated that the office of "Sindh Public Service Commission" is an important institution of the Government under the Constitution. Thus, exercise for recruitment of Civil Judges and Judicial Officers, if undertaken, through this office will cause no harm to the concept of independence of judiciary.
Mr. Rashid A. Razvi Advocate/petitioner in his arguments submitted that the legality or otherwise of the impugned Notification is to be examined by the Court, keeping in view the following four important aspects of this controversy:--
(a) Whether the impugned Notification is violative of Articles 2A,4, 9, 14, 175 and 203 of the Constitution?
(b) Whether the impugned Notification is against the scope and spirit of independence of judiciary as laid down in the Constitution?
(c) Whether the Sindh Government was competent to bring amendment in the Sindh Judicial Service Rules of 1994, despite directions contained in the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404?
(d) Whether the amendments brought through impugned Notification needed prior approval of the Sindh High Court?
Dilating upon the above aspects of the matter, Mr. Razvi vehemently contended that the Constitution of Pakistan has a basic structure, providing for a trichotomy of powers between the three organs of State i.e. Legislature, executive and judiciary. In this regard much law has been laid down by the superior Courts while analyzing the scope of Articles 2-A, 175 and 203 of the Constitution together with fundamental rights guaranteed under Chapter-II of the Constitution. These Articles envisage complete independence of judiciary in all respects, including financial matters. Unfortunately, contrary to the same, the executive is bent upon encroaching the independence of judiciary by creating financial constraints in its working and also by creating administrative hurdles in its smooth functioning. The impugned Notification is a glaring instance of such mindset of the executive to undermine the independence of judiciary. Learned counsel further contended that unless the judiciary is allowed to function independently in the matter of fresh appointments in judicial service, the very concept of its independence will be compromised and there will be a complete failure of this organ of the State in the performance of its duties and functions if for this purpose it has to seek assistance from the Executive and is left at the mercy of the executive authority of the Province.
Making reference to the earlier notified Rules dated 24th November 1994, he submitted that these Rules were framed after their approval from the Full Court of High Court of Sindh, therefore, even if for argument's sake, any amendment was needed in it; as a pre-condition for that, a reference should have been made to the High Court for seeking its approval or otherwise from the Pull Court, instead of permitting the executive for unilaterally exercising its authority and circumventing the role of the provincial High Court. Thus, thrusting its decision upon the highest judicial forum of the Province.
Mr. Rasheed A. Razvi also made reference to the process of recruitment undertaken by the High Court from time to time through the Provincial Selection Board after the enforcement of the Sindh Judicial Service Rules, 1994 in the Province of Sindh, to show the level of its transparency and "merit criteria", due to which, on several occasions even the available vacancies of the judicial officers could not be filled up by the Provincial Selection Board despite much higher number of applicants/candidates for these posts. In support of his submissions learned counsel made reference to the following cases:--
(1) Sharaf Faridi and 3 others v. the Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLC 1989 Kar. 404, (2) Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341, (3) Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869, (4) Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan PLD 1996 SC 324, (5) Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, (6) Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, (7) Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 416.
Sharaf Faridi and 3 others v. the Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another.
"Reference may also be made to the Ballentine's Law Dictionary, Third Edition and Black's Law Dictionary, Fifth Edition for the meaning of the words "control" and "supervise".
Ballentine's Law Dictionary.
`Control': Verb. To check, restrain, govern, have under command and authority. Wolffe v. Loeb 98 Ala 426, 432 Noun: A position of authority in direction and management.
`Supervise'. To exercise oversight. To keep under inspection.
See Superintendence.
`Superintendence': Oversight, inspection, supervision, Moffitt v. Asheville, 103 NC 237, 9 SE 695. Care and oversight for the purpose of direction, and with authority to direct: The act of superintending.
"The word seems properly to imply the exercise of some authority or control over the person or thing subjected to oversight." Dantzler v. De Bardeleben Coal and Iron Co. 101 Ala 309, 14 So 10.
Black's Law Dictionary.
`Control': v. To exercise, restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.
`Control': n. power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The "control" involved in determining whether "principal and agent relationship" or "master and servant relationship" is involved must be accompanied by power or right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2d 972."
`Supervise'. To have general oversight over, to superintend or to inspect. See Supervisor, "Supervisor". A surveyor or overseer. Also in some States, the chief officer of a town; one of a board of country officers.
In a broad sense, one having authority over others, to superintend and direct.
The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment. National Labour Relations Act S.2(11)."
I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution.
The Constitution should not be interpreted in a narrow and pedantic manner. It should be given liberal and broad interpretation but any enactment which transgresses the limitations placed by Constitution would be declared void. If there is a conflict in the provisions of the Constitution they should be interpreted harmoniously so that without violating the other both can be practised and co-exist. In such a situation a construction which ensures smooth working of the Constitution in consonance with its other provisions should be "adopted. No provision of the Constitution unless so provided by the Constitution itself is supreme to the other nor can it override the other provisions. Such interpretation should be adopted which promotes harmony, consistency and keeps the Constitution alive and progressive.
A mandatory duty has been cast upon the Executive and Legislature to separate the Judiciary from Executive, but they have remained completely silent, dormant and unconcerned. Such omission to exercise jurisdiction not only violates Article 175 but infringes Fundamental Right as well. In such circumstances necessary orders can be passed and direction in mandatory form can be issued to ensure enforcement of the provisions of the Constitution and to prevent the breach of Fundamental Right".
Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others.
"In fact the administration of justice cannot be made subject to or controlled by the executive authorities. The Constitution provides for separation of judiciary from the executive. It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive officers. This is merely a semblance of establishing Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the rear nor will it achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and well-being. The Constitution envisages independent judiciary separate from the executive. Thus, any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25."
Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others.
"210. The Independence, of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve this objective, Article 175 provides that "the Judiciary shall be separated progressively from the executive". The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161, indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualification for appointment of Judges of the High Courts, prescribing the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a judge from a High Court to the Federal Shariat Court. Furthermore, the Supreme Court judgment in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, inasmuch as, they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive.
In a constitutional system of governance, guaranteeing Fundamental Rights and based on principles of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society.
The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast, creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment which is conducive to economic growth and social development."
Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan.
The independence of Judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary. The relevant constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.
The system of appointment of Judges obtaining in USA and UK has no direct bearing on the issue. The systems of appointment of Judges in the above two countries are different as compared to Pakistan. The relevant Articles in Constitution of Pakistan relating to appointments in Judiciary with minor variations have been lifted from the Indian Constitution, 1950, and, therefore, the factum as to how they have been interpreted and acted upon in India is relevant.
As stated in the short order, if we look at the Constitution of 1973, we find that the title is "The Constitution of Islamic Republic of Pakistan" and Article 2 thereof commands that Islam is to be its State religion. Preamble to the Constitution says that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed and independence of judiciary fully secured Objectives Resolution as reproduced in the Preamble has been made as substantive part of the Constitution by Article 2A inserted by P.O.No. 14 of 1985. Part IX of the Constitution contains Islamic provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The institution of Judiciary in Islam enjoys the highest respect and in this judgment in the preceding paragraphs from 34 to 46 instances from the Islamic history have been given showing how and on what criteria Judges/Qazis were appointed and how they were respected and even the rulers of the time used to appear in the Court and obey judgments without any demur, which were binding on them. The Islamic history also shows that rulers were God-fearing, humble, polite, benign, unsarcastic and righteous and did not claim any air of mundane superiority and submitted to the jurisdiction of the Courts as a matter of duty. In one case when Amirul Momineen appeared in the Court of Qazi who got up from his seat as a gesture of deference, Amirul Momineen disapproved it on the ground that it was inconsistent with the dignity and independence of the Court. In Islam Chief Justice was given power to appoint other Judges in the subordinate Courts."
Liaquat Hussain v. Federation of Pakistan.
"......The impugned Ordinance does not envisage the establishment of permanent Military Courts but it provides for the trjal of civilians for the offences mentioned in the Ordinance by any of the four types of Courts mentioned in Section 80 of the Army Act to be convened for each case comprising different Army personnel. In pith and substance the above types of Courts cannot be equated with the normal Courts envisaged under the Constitution as enunciated by this Court in the case of Mehram All v. Federation of Pakistan (supra). It may be pointed out that, this Court in the cases of Government of Balochistan v. Azizullah Memon (supra), Al-Jehad Trust (supra) and Mehram Ali (supra) has held that the right to have access to justice through independent Courts is a Fundamental Right and, therefore, any law which makes a civilian triable for a civil offence, which has no nexus with the Armed Forces or defence of the country, by a forum which does not qualify as a Court in terms of the law enunciated particularly in Mehram Ali's case (supra) will be violative of Articles 9, 25, 175 and 203 of the Constitution." (italics added).
Khan Asfandyar Wali v. Federation of Pakistan.
"However, the functioning of any Court or tribunal, beyond the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, does not fulfil the mandatory requirement of the Constitution, in that, under Article 203 read with Article 175 of the Constitution, the supervision and control of the subordinate judiciary exclusively vests in the High Courts. The above principles were also recognized by a 5-member Bench of this Court in the case of Mehram Ali (supra) wherein it was inter alia held that the provisions of the Anti-Terrorism Act, 1997 were valid except those which militated against the concept of independence of Judiciary or which were repugnant to the provisions of Articles 175 and 203 etc."
Benazir Bhutto v. Federation of Pakistan.
"Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. Sub-Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not to make law which takes away or abridges the rights so conferred, and any law made in contravention of this clause shall to the extent of such contravention, be void. Article 199(1)(c) authorizes the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which is inconsistent with the Fundamental Rights shall be void. Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself. Article 184(3) of the Constitution empowers the Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental Rights takes place by the operation of the law itself."
(1) Sindh Judicial Service Rules, 1994 were amended by the Government of Sindh through impugned Notification which is ultra vires to the Article 175(3) of the Constitution of the Islamic Republic of Pakistan 1973. The said Articles clearly state that the judiciary shall be separated from the Executives within fourteen (14) years from the commencing date.
(2) Article 203 of the Constitution of Islamic Republic of Pakistan 1973 states that each High Court shall supervise and control all Courts that are subordinate to it. The words "supervise and control" have been used in Article 203 of the Constitution and according to Oxford Dictionary the word "supervise" mean "to oversee, have the oversight of, superintend the execution or performance of a thing, the movements or a work of a person". Similarly, in Black's Law Dictionary the meaning assigned to it is "to have general oversight over, to superintend or to inspect". The word "control" according to Oxford English Dictionary means "to overrule a judgment or sentence", as understood in the legal parlance. Again in Black's Law Dictionary it means "power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee". These words from their meanings convey the same sense as the word "superintendence".
(3) Articles 233 to 236 of Constitution of India relates to the appointment of District Judges, their promotions and transfers. The object of this group of Articles is to secure the independence of judiciary from the Executive as is held in the reported case law.
Chandra Mohan v. State of U.P. AIR 1966 SC 1987.
At Pg. 1990 paragraph 7 of the case-law. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say he can only appoint a person to the Court of District Judge in consultation with the High Court. The object of consultation is apparent that the High Court knows better that the Governor in regard to the suitability or otherwise of a person belonging either to the "judicial service or to the bar" to be appointed as a District Judge.
It was mentioned in reference to Article 233 that a mandatory provision (consultation with the High Court) was violated.
At Pg. 1993 paragraph 14 of the case law. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive. And the makers of the Indian Constitution also realized that "it is the subordinate judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed ever more important, that there independence should be placed beyond question in the case of the superior judges.
(4) The Constitution of India gave clear mandate to exercise the power of appointment of the District Judges by the Governor, conditioned by his consultation with the High Court, that is to say that he can only appoint a person to the post of District Judges in consultation with the High Court.
State of Kerala v. A. Lakshimikutty AIR 1987 SC 331.
Pg. 331-2 Paragraph 31-34. Under Article 233 Governor's consultation with the High Court on the point of appointment of judges is a necessary condition which has to be taken care of at all time. The duty of the Governor to consult the High Court in the matter of appointment of District Judges is so integrated with the exercise of his power that the power can only be exercised in the manner provided by Article 233(1) or not at all. If the State Government for "good and weighty reasons" finds it difficult to accept the recommendation of High Court, the State Government should communicate its view to the High Court and must have complete and effective consultation with the High Court in the matter.
State of Assam v. Kusseswar AIR 1970 SC 1617.
The High Court was of opinion that this was deliberately done to grab at the power of promoting subordinate judges by taking advantage of the definition of District Judge which includes an Assistant District Judge. By this device, which the High Court described as `a fraud upon the Constitution' the power of promotion vested in the High Court in respect to persons belonging to the Judicial Service of a State and holding posts inferior to the post of the District Judge the jurisdiction of the High Court under Article 235 was taken away. Formerly, the subordinate service was composed of two grades and promotion between the two grades was made by the High Court. Under the new rules there is only one grade (i.e. Grade III) in which Art.235 can operate if at all. Since all the posts there are equal and carry equal pay there is no scope for promotion at all. The High Court is thus right that there is no scope for the exercise of the power of the High Court to make promotions in the case of persons below the rank of District Judges (which term includes an Assistant District Judge). The High Court was thus far right but the High Court is not right in thinking that it can ignore the hierarchy of Courts in Assam as established by law and treat the change as of no consequence. The remedy is not to go against the Civil Courts Act as amended, but to have the amendment rescinded. We are of the view that the change is likely to lead to an impairment of the independence of the judiciary at the lowest levels whose promotion which was vested by the Constitution in the High Court advisedly, will no longer be entire in the hands of the High Court. The remedy for it is by amendment of the law to restore the former position. We may say that we do not approve of the change of mere name without any additional benefits."
In reply, Mr. Muhammad Yousuf Leghari, Advocate-General, Sindh addressing the Court challenged the maintainability of these petitions on the ground that under Section 26 of the Sindh Civil Servants Act, 1973, the Government of Sindh has full powers for issuing the impugned Notification and it is not for the first time that such powers have been exercised by it, for bringing amendments in the Sindh Judicial Service Rules, 1994. In this regard, he also made reference to three earlier Notifications dated 29th October 1995, 13th December, 1995 and 3rd June 2006, and cited the case of Hakim Khan and 3 others vs. Government of Pakistan PLD 1992 SC 595, which deals with the scope of Article 2A of the Constitution and lays down the principle that such provision of the Constitution of Pakistan is not a supra-Constitutional provision. The Objectives Resolution having been made a substantive part of the Constitution by virtue of Article 2A, became an essential and integral part of the Constitution, possessing the same weight and status as other Articles of the Constitution which were already a substantive part thereof. It further lays down the proposition that as a well established rule of interpretation the Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole scheme of the instrument in order to ascertain the true intent and meaning of any particular provision. Where any apparent repugnancy appears to exist between its different provisions, the Court has to harmonize them, as far as possible.
Further submission of the learned Advocate-General was that as long as the Respondent No. 1 is legally empowered to bring amendments in Sindh Judicial Service Rules, 1994 in the exercise of such powers by it, no interference is called for from the High Court. He further argued that Sindh Public Service Commission is an independent body, which is meant for the purpose of selection/appointment of Government servants, therefore, in the matter of appointment of Judicial Officers in the District judiciary too, no exception can be taken to such authority of the Commission and it is for this reason that the impugned Notification was brought into force by the Sindh Government, in order to ensure full transparency in the appointment of Judicial Officers in the District judiciary.
Learned Advocate-General, Sindh further made reference to the Punjab Judicial Service Rules, 1994 and the Rules in force in the other two Provinces of Balochistan and N.-W.F.P. to show that in three other Provinces, the selection process of the Civil Judges and Judicial Officers is undertaken through respective Public Service Commissions, whereas, in two of these Provinces the appointments in the judicial service are made by the respective High Courts.
The learned Advocate-General was, however, unable to show us, from the Rules of 1994 applicable in Sindh, whether any such parallel provision for appointment in the subordinate judiciary was available with the High Court, which, after the issuance of impugned Notification has been virtually left only with the authority of sending requisition to Sindh Public Service Commission, informing them about the number of Civil Judges and Judicial Magistrates required for the purpose of District Judiciary in Sindh.
In the end, learned Advocate-General made reference to the method of recruitment followed in United Kingdom to add force to his contention that as a matter of policy, recruitment of Judges in the District judiciary has always remained under the control of executive. However, we found little conviction in his arguments on this point.
Besides, reference to some of the cases earlier cited by the petitioner's counsel, learned Advocate-General, Sindh cited following other cases in support of his arguments about the validity of impugned Notification:--
(i) Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595, (ii) Syed Imam Shah and others v. Government of N.-W.F.P. PLD 2004 SC 285, (iii) Federation of Pakistan v. Ammar Textile Mills (Pvt.) Limited and others 2002 SCMR 510.
In the case of Hakim Khan and others, examining the objection of insertion of Article 2A in the Constitution, the Court observed that Constitution is to be lead as a whole and it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision and where an apparent repugnancy appears to exist between its different provisions the Court should harmonize them, if possible. It was further observed that since the Objective Resolution has been made a substantive part of the Constitution it has undoubtedly become an essential or integral part of the Constitution possessing the same weight and status as other Articles of the Constitutions, which were already a substantive part thereof.
In the case of Syed Imam Shah, the Honourable Supreme Court examined in detail the connotation of words "practice" and "rule" and observed that a mere practice cannot attain the status or rigidity of a rule. Practice has no binding element; because of its instatic nature and vulnerability to change it has no consequences, unless some mala fide is established for deviation from the same. Rules, on the other hand, are framed by a competent authority in exercise of powers conferred upon it by some statute(s), law, legislation or enactment having a binding effect which cannot be violated/or departed from, unless otherwise provided.
In the case of Federation of Pakistan v. Amin Textile Mills, making reference to Section 21 of the General Clauses Act, the Honourable Supreme Court held that the authority of Government to amend, vary or rescind a notification issued earlier cannot be denied in view of such provision of the General Clauses Act, 1897.
Keeping in view the ratio of the above cited judgments, it will be pertinent to mention here that in the instant petition, there is no dispute as regards authority of the Provincial Government in framing rules under Section 26 of Sindh Civil Servants Act, 1973, but the moot question for consideration is whether, despite clear and unambiguous directions of a Full Bench of the Sindh High Court contained in Sharaf Faridi's case, affirmed by the Honourable Supreme Court of Pakistan, Sindh Judicial Service Rules, 1994 framed in compliance of such directions could be so bluntly and brutally amended so as to negate the very spirit and directions in the said Judgment and also to cause a serious blow to the sanctity of a separate and independent Judiciary in the Province of Sindh.
Mr. Ashraf Khan Mughal, D.A.-G. on behalf of Respondent No. 3 adopted the arguments of Advocate-General, Sindh Mr. Yousuf Leghari, though such stance is contrary to their written reply to the petition.
Mr. Rashid A. Razvi in his reply arguments, contended that the mala fide of the Respondent No. 1 regarding the impugned Notification is evident from the fact that since the last almost two years all possible hurdles have been created to hamper the process of recruitment of Judicial Officers in the District judiciary in Sindh, which at one point of time, had reached an advanced stage, but could not materialize, and ended up in the form of impugned Notification for reasons that need not be dilated upon here.
To rebut the submissions of Mr. Leghari as regards mode of appointment of judicial officers in the United Kingdom, Mr. Razvi made reference to the Constitutional Reforms Act, 2005, introduced in United Kingdom which has brought about sweeping reforms in the policy of recruitment of judicial officers in the U.K. He contended that a drastic improvement had been brought about in the United Kingdom to make the superior judiciary more independent in the matter of selection and appointment of the Judges to the subordinate judiciary, this being their specialized field. He also made reference to Articles 8 and 9 of our Constitution in aid of his submissions that the instant Constitutional Petitions challenging the impugned Notification are very much maintainable in law and such illegal action of Respondent No. 1 is liable to be struck down by this Court, while exercising its powers under Article 199 of the Constitution.
Amplifying his submission on the point of mala fide nature of the impugned Notification, Mr. Rasheed Razvi made specific reference to the case of State of Kerala v. A. Lakshimikutty AIR 1987 SC 331, and the case of State of Assam v. Kusseswar AIR 1970 SC 1617. (Both already cited above).
In order to examine in detail the background of framing the Sindh Judicial Service Rules, 1994, we have perused the relevant record, which reveals that after the judgment in Sharaf Faridi's case, the matter regarding framing of such rules was first taken up for consideration in the meeting of Honourable Chief Justices of High Court in all the four Provinces of Pakistan, held on 23-1-1993. Thereafter, in Sindh Province, exercise of framing of such Rules was taken-up by the Administrative Committee of High Court, where the report of the sub-Committee comprising Justice Haider Ali Pirzada and Justice Syed Abdul Rehman, on the subject of framing of Sindh Judicial Service Rules, was considered along with the notes recorded thereon by Justice (R.) Z.A. Channa, Justice Qaiser Hamdi and Justice Nazim Hussain Siddiqui.
Finally, after detailed deliberations, the drafted Rules were approved in the meeting of Administrative Committee of the High Court of Sindh and sent for formal approval to the Provincial Government. It was on these basis that the Rules were finally notified in the year 1994. Here it will not be out of place to mention, that even for the purpose of three earlier amendments in the Sindh Judicial Service Rules, as brought to the notice of this Court by Advocate-General, Sindh by placing on record Notifications dated 29th October 1995, 13th December 1995 and 3rd June 2006, the proposed amendments were first taken into consideration by the Administrative Committee of the Sindh High Court and upon its recommendations and reference, consequent amendments were brought in the said Rules. Thus, it is obvious that at the time of issuance of impugned Notification, contrary to this settled procedure and practice, an unconventional and unilateral step was taken by the Government of Sindh for issuance of impugned Notification, which has virtually paralyzed the very basic structure of the recruitment process as earlier envisaged in the said Rules for appointment of judicial officers.
In our opinion, the terms "recruitment" and "appointed" used the Rules do not convey a symbolic authorization for the High Court issue requisition to the Government for this purpose or to sign for or issue appointment letters of the judicial officers, leaving the other main and crucial exercise of the selection of a transparent subordinate judiciary in the hands of the executive authorities. Rather they provide for complete exercise of such selection process commencing from the stage of advertisement in the newspapers for inviting applications against the available vacancies, and culminating at the stage of issuance of appointment letters, after its formal procedural approval from the Provincial Government and consequent Notification to this effect.
The perusal of the scheme of Sindh Judicial Service Rules providing therein for establishment of "Provincial Selection Board" is in consonance with the spirit of such Rules, otherwise, the very purpose of constitution of Provincial Selection Board would become redundant. In the wake of such clear legal position coupled with the observations of the Honourable Supreme Court of Pakistan and the Full Bench of Sindh High Court, in the judgments referred to above, there remains no room for doubt to see that the "Sindh Public Service Commission" cannot be entrusted with the task of selection and recruitment of Judicial Officers and their appointment through Government of Sindh, as it will be a clear negation of the doctrine of separation of power and independence of judiciary as entrenched in the basic structure of the Constitution. To add more, if amended rules as per impugned Notification are implemented, their net result would be that the High Court of Sindh under whom the newly appointed Judicial Officers have to work will become only an authority, that has to make requisition to the Commission for such appointments with no further role or participation at any stage.
Examining the role of Respondent No. 2 (Sindh Public Service Commission), we find that by virtue of Article 242 of the Constitution the Provincial Government is empowered for the establishment and constitution of a "Provincial Public Service Commission". This Commission under sub-Article (2) can be assigned such functions as may be prescribed by law.
When we see the formation of Respondent No. 2 (Sindh Public Service Commission) under the Sindh Act XI of 1989, we find that the nomination of its Chairman and Members is in the hands of the Governor of the Province, with a fixed time frame to hold such office and the performance of its functions being in terms of Section 7 of the Act. Thus in reality the Commission is part of the executive setup of the Province, whilst the judiciary, which is the third pillar of the State under the Constitution, has no role to play in it's formation or working. Moreover, no sitting Judge of the High Court can hold such office during the term of his service in the superior judiciary. These undisputed facts go a along way to show that Respondent No. 2 has no jurisdiction to play any role in the recruitment/appointment of Civil Judges and Judicial Magistrates, which exercise exclusively falls within the domain of the Provincial Selection Board formed under the Rules of 1994. This is substantiated by the fact that Civil Judges-cum-Judicial Magistrates after their recruitment in judicial service do not acquire the status of civil servants. In this regard a reference to Section 2(e) of The Removal from Service (Special Powers) Sindh Ordinance IX of 2000 is relevant, which reads as under:--
"2. In this Ordinance, unless there is anything repugnant in the subject or context:--
(a)
(b)
(c)
(d)
(e) "person in Government service" includes every person who is a member of a Provincial Service or of a Civil Service of the Province or who holds a civil post in connection with the affairs of the Province or any employee serving in any Court or Tribunal set up or established by government but does not include a Judge of the Supreme Court or of a High Court or Federal Shariat Court or any Court subordinate to the High Court or any employee thereof." (Underlining for emphasis).
Gleaning the past performance of Sindh Public Service Commission, we cannot remain oblivious of the voluminous litigation against it, mainly agitating grievances about malpractices and corruption and assertions of the Sindh Government contained in their comments filed in C.P. No. D-1182 of 2008 together with the report of our learned brother Justice Faisal Arab dated 7-4-2007, which speaks volumes about the mismanagement and malpractices prevalent in the said Commission. It is pertinent to mention that these allegations were duly supported by the Sindh Government, rather made basis for refusing appointments of certain candidates, who were recommended by the Commission for appointment as D.D.As. etc.
For the sake of ready reference two relevant paragraphs of the comments filed by Secretary Law Department, Government of Sindh in this regard are reproduced as under:--
"It is submitted that in the selection of the petitioners as D.D.As. in BPS-17, The Sindh Public Service Commission did not adopt transparent procedure as in order to pick 69 most qualified candidates for viva-voce, Controller Examination, Sindh Public Service Commission had determined 47 marks as minimum qualifying marks. However, 25 candidates (including petitioners) who had secured less than 47 marks and failed to qualify written test were selected/called for viva-voce as indicated by inquiry report dated 7th July 2007 of Mr. Justice Faisal Arab, Honourable Judge of the High Court of Sindh. In the light of the inquiry report, the petitioners have been placed under suspension and show cause notices have been issued to them by the Chief Secretary, Government of Sindh so as to why one or any of the penalties as provided in Section 3 of the Removal from Service (Special Powers) Sindh Ordinance, 2000 should not be imposed upon them on account of having committed misconduct in procuring their appointments in illegal and clandestine manner. In fact petitioners are not eligible and had not qualified the criteria set for appointment of D.D.As.
It is admitted that in view of enquiry report of his lordship Mr. Justice Faisal Arab, Judge of the Honourable High Court of Sindh, show-cause notices were issued to the petitioners by the competent authority on account of committing a misconduct as although petitioners had failed in the written test but in collusion with the Controller of the Sindh Public Service Commission, managed their names in the list of successful candidates."
While exploring the practicality and rationality of recruitment of Civil Judges and Judicial Officers through the "Provincial Selection Board" established under Section 2(e) of the Rules of 1994, it will also be pertinent to mention here that all the members of that Provincial Selection Board are none else, but sitting Honourable Judges of the High Court before whom most of the candidates, who may have applied for such posts must have been appearing frequently. This in turn enables the members of Provincial Selection Board to form a better opinion about their level of efficiency and competence. This unique opportunity will be totally lacking in a situation where such exercise is allowed to be undertaken through the Commission as provided through the impugned notification.
In other words, the members of the Provincial Selection Board are experienced and specialized persons connected with and part of the judicial system, therefore, their suitability and experience to undertake the process of recruitment of Civil Judges/Judicial Magistrates is unparalleled with that of the members of the Commission. It is significant to mention here that under the Rules of 1994 (before the impugned Notification) though the exercise of initial recruitment of Civil Judges-cum-Judicial Magistrates was to be undertaken by the Provincial Selection Board or the Committee of not less than three Honourable High Court Judges specially constituted for the purpose of recruitment by the Full Court, nonetheless their recommendations were to be sent to the appointing Authority under Rule 4 (Government of Sindh), which had the option to disagree with such recommendations for valid reasons, in respect of all or some of the candidates, so recommended. However, such act on the part of appointing Authority was open to challenge before the judicial forum to see whether the decision of the Executive Authority was arbitrary, biased, mala fide or for some extraneous consideration other than merits. In this regard we can seek guidance from the two judgments of Sindh High Court in the cases of Nawaz Ali Sher v. Province of Sindh 1988 PLC (C.S.) 337 and Manthar Ali Jatoi v. The Government of Sindh 1988 PLC (C.S.) 344.
Thus, it will be seen that under the Original Rules of 1994 the rule making authority has adopted a fair approach for striking a suitable balance in the matter of recruitment/appointment in judicial service. Over and above by virtue of Rule 9, such appointments against substantive vacancies are required to be on probation for a period of two years, which enables the High Court to dispense with their service before the expiry of period of probation, if not found fit to be retained in service or even otherwise, as normally, for removal from service during probation period the competent Authority is not required to assign any reason for it.
Contrary to this as a result of impugned Notification, in a very arbitrary and crude manner the role of superior judiciary in the matter of recruitment and appointment of Civil Judges-cum-Judicial Magistrate has been completely eliminated, except to the extent of sending a requisition, which is nothing but a formality.
Scanning the law of some foreign countries having similar legal system on the subject of recruitment/appointment of the judicial officers as ours reflects an increasing trend towards active involvement of superior judiciary/judicial officers in such process, which seems to be for the reason, to avail benefit of their experience and expertise in the field of law and to minimize the chances of political influence or corruption.
A deeper analysis of the practices, policies and procedures of recruitment/appointment of judicial officers followed in some other countries, we find that in France, there is a system of a self governing body to control judicial appointments' process known as, Conseilsuperieur de la Magistrature (CSM), which consists of twelve members comprising five elected Judges, one Public Prosecutor, one Counsellor of State chosen by his or her peer and three individuals, of whom one Judge is nominated by the President of the Republic, Senate and the National Assembly. This Committee also own two ex-officio members, the President of the Republic and Ministry of Justice.
In Italy, the Self-Governing Body, which controls judicial appointment, is the "Consiglio Superiore Delia Magistratura" (CSM), which consists of thirty three members, comprising twenty Judges elected directly by the Judiciary, ten lawyers, University Law Professors nominated by the Parliament and a number of Ex-Officio members, which include President of the Court of the Cassation, Prosecutor General Cassation and President of the Republic.
In Spain, Self-Governing Body for judicial appointments is the "Consejo General Delpoder Judicial", which consists of twenty one members comprising twelve Judges and eight lawyers with more than fifteen years' experience, all appointed by the Parliament and the President of the Supreme Court as ex-officio member.
In Portugal, Judicial Self Governing Body is the "Conselho Superior Da Magistrautra" (CSM), which consists of seventeen members comprising seven Judges elected directly by the Judiciary, one Judge nominated by the President of the Republic, seven non-judges nominated by the Parliament, one non-judge nominated by the President of the Republic and the President of the Supreme Court as an Ex-Officio member.
In Germany, there is a regional governance system for judicial appointments. The boards are made up of members of Judiciary as well as members of Parliament and members of the bar in varying numbers who recommend the appointment to the Judiciary.
In Netherlands too such exercise is undertaken by a Board consisting of majority of Judges and persons from legal fraternity so as to ensure that in the matter of appointment of Judges there is no political impact and complete transparency is made in that.
This brief survey regarding the Judicial appointment in various European countries, coupled with the Constitutional Reforms Act, 2005, leads us to a clear conclusion that in all the democratic and civilized societies, now the importance of separation and independence of Judiciary is fully recognized. Consequently, as per their respective suitability, independent Selection Boards, Commissions/Institutions are being formed mostly consisting of members of superior judiciary to avoid political pressures and other malpractices in the matter of appointment of Judicial Officers and ensuring that merit criteria are met.
As the learned counsel has made specific reference to the Constitutional Reforms Act, 2005, in the United Kingdom. In this context, it will be useful to reproduce hereunder first paragraph of Chapter 5 of the Book titled as "Constitutional & Administrative Law" by Hilaire Barnett (Fifth Edition published in the year 2004), which highlights the background of such constitutional reforms' enactment, the same read as under:--
"The separation of powers, together with the rule of law and parliamentary sovereignty, runs like a thread throughout the Constitution of the United Kingdom. It is a doctrine which is fundamental to the organization of a State - and to the concept of constitutionalism - in so far as it prescribes the appropriate allocation of powers, and the limits of those powers, to differing institutions. The concept has played a major role in the formation of constitutions. The extent to which powers can be, and should be, separate and distinct was a central feature in formulating, for example, both the American and French revolutionary Constitutions. In any State, three essential bodies exist: the executive, the legislature and the judiciary. It is the relationship between these bodies, which must be evaluated against the backcloth of the principle. The essence of the doctrine is that there should be, ideally, a clear demarcation of functions between the legislature, executive and judiciary in order that none should have excessive power and that there should be in place a system of checks and balances between the institutions. However, as will be seen, there are significant departures from the pure doctrine under the United Kingdom's Constitution, and it must be conceded that, while the doctrine is accorded respect, it is by no means absolute.
In 2003 the government announced that it intended to pursue further constitutional reform which - if enacted - will have major implications for the separation of powers. There are found principal aspects of the reform; the areas are as follows:
-- Abolition of the office of Lord Chancellor;
-- Removal of the Law Lords from the Appellate Committee of the House of Lords and replacement by a Supreme Court located away from the Houses of Parliament;
-- The role of the Lord Chancellor in relation to judicial appointments is to be taken over by a Judicial Appointments Commission;
-- Arrangements are to be made to enable the House of Lords to appoint its own Speaker of the House."
"If we look at the history of concept of separation of powers between the Legislature, Executive and Judiciary, its traces are found from the days of Arristotle (384 - 322 BC), who in his Book `Politic', proclaimed as under:--
"There are three elements in each constitution in respect of which every serious law giver must look for what is advantageous to it; if these are well arranged, the Constitution is bound to be well arranged, and the differences in Constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses every thing of common importance; second, the officials; and third the Judicial element."
De 1Esprit des lois' (The Spirit of the Laws) (1748) wrote as under:--"When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty. Again, there is no liberty if the power of judging is not separated from the legislature and executive. If it were joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. If it were joined to the executive power, the Judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."
"By this time the issue had assumed a definite political character as the Indian National Congress which had been passing resolutions year after year putting forward the demand for the separation of the Judiciary from the Executive but included its issue in political programme. After passing of the Government of India Act, 1935, it was expected that the problem would receive the foremost attention of the representative government setup in the Province under the Act. The matter, however, remained under the consideration of the provincial government and before any decision could be taken there came the second world war, which brought it an emergency necessitating the further strengthening of the Executive hand. "
"36. The High Court pointed out that since the object of the separation of the two functions was to take away the Deputy Commissioner's control over the Judicial Magistrates, both the Deputy Commissioner and the Commissioner would be naturally dissatisfied with the new arrangement under which the Additional District Magistrate behaved as though he was independent. In the opinion of the Judges, the dissatisfaction of the Commissioners with the scheme was rather an indication of its success. As regards the control over the Judicial Magistrates, the High Court agreed with the proposal that the control and supervision should vest in the High Court through the District and Sessions Judges. The matter remained under consideration with the Provincial Government till the 28th October, 1958, when, after the promulgation of Martial Law, a circular was issued by the Government informing the Registrar of the High Court of West Pakistan and all the District Magistrates and District and Sessions Judges in West Pakistan that the scheme for the separation of the judicial from the executive functions introduced with effect from the 2nd January, 1954 in the areas of the former Province of the Punjab had been abrogated with immediate effect and that the criminal work would be carried out according to the system prevalent before the introduction of the scheme."
"38. Although no experiment was carried out in East Pakistan, the matter continued to receive occasional attention from the Government and ultimately in 1956, the Legislature in East Pakistan decided to implement the above Constitutional directive to effect a complete separation of the judicial and executive functions in the Province. A bill was, accordingly, introduced in the Provincial Legislative Assembly known as the Code of Criminal Procedure (East Pakistan Amendment) Bill, 1956 and the same was passed unanimously by the Assembly. This Act effected a complete separation by creating two classes of Magistrates known as Executive Magistrates and Judicial Magistrates. The Executive Magistrates were placed under the High Court through the District and Sessions Judge and they were to be appointed in consultation with the High Court like other judicial officers. For fuller details, a reference may be made to a copy of the Act added as Appendix I to this Chapter. This Act was to come into force on a date to be notified by the Provincial Government. Before the Provincial Government could issue the requisite notification, the Constitution of the Country was abrogated and Martial Law was promulgated in 1958."
"45. It is noticed that some of the grounds on which the demand for separation of the judiciary from the executive was opposed in the early days of the British are being put forward even up to this day. It is still maintained that the prestige of the District Magistrate is likely to suffer in case the Magistrates trying criminal cases are taken away from his control and supervision. This peculiar argument was advanced for the first time by the British administrators who thought that the District Magistrate, being the eyes and ears of the Government, should have control over all officials of different branches of administration."
"55. The Commission has been studying the various patterns on which the separation of judiciary from the executive should be effected. The basic principle for a complete separation of the judicial and executive functions is that there should be a separate and independent set of officers for doing judicial work and that they should not be under the administrative control of the executive. This principle can be given effect to by making suitable amendments in the Code of Criminal Procedure. The Commission is of the view that the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957 (E. P. Act XXXVI of 1957) (Appendix I) can serve as a model in this behalf. Besides these amendments in the Code of Criminal Procedure, some change in the administrative policy of the Provincial Government will also be necessary, such as the postings and transfers of the Judicial Magistrate will have to be made by the High Courts and the Provincial Government will have to be made by the High Courts and the Provincial Governments will be left only with the matter of promotion of these officers which of course, will be dealt with by the Government on the recommendation of the High Courts."
Summary of recommendations
(1) There should be complete separation of the judiciary from the executive, (italics added)
(2) The patterns envisaged by the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957 (E.P. Act XXXVI of 1957) should be adopted in this behalf.
(3) The scheme for separation of the judiciary from the executive should be introduced through a phased program extending over three to five years and there should be an integrated judicial Service in each Province, (italics added).
This Report highlights the demand and the struggle to separate the Executive from the Judiciary which, time and again, seems to have been thwarted by financial, administrative complications and even at times by out right resistance from officers holding executive posts based on their personal pride rather than the wider interests of the State and Society.
It is significant that the first Constitution of the Country being the 1956 Constitution provided under Article 30 that, "the State shall separate the Executive from the Judiciary as soon as-practicable". A similar Article, however, found no mention in the 1962 Constitution, which was the Constitution which was promulgated after the abrogation of the 1956 Constitution. This may be because the 1962 Constitution was Presidential in nature, aimed to strengthen the hand of the Executive. In any event, the omission of this provision in our view significantly adversely affected attempts to separate the Executive from the Judiciary during the period 1958 to 1973.
Article 50 of the Constitution of India, 1949 also deals with the separation of the judiciary from the executive and provides as under:--
"50. Separation of the Judiciary from the executive.--The State shall take steps to separate the judiciary from the executive in the Public services of the State."
Article 233 of the Constitution of India 1949, dealing with appointments to the superior Courts also covers subordinate Courts in the same vein in Chapter VI of the Indian Constitution through Articles 233 to 237.
The recommendations of the Report were, however, translated into a Constitutional obligation in the Constitution of 1973, which is the only unanimously approved Constitution in the history of Pakistan which again through Article 175(3) read with Article 203, required the separation of the Executive from the Judiciary, except this time within a given period of time as opposed to "as soon as practicable", as provided under Article 30 of the earlier 1956 Constitution.
Such specified time restriction was most likely a result of the realization that such similar wording such as "as soon as possible" etc. would only lead to the non-implementation of the Article as the debate over its manner of implementation would lead to it becoming buried and lost amongst various committees/commissions established to propose modalities for its implementation.
The drafters of the 1973 Constitution realized that the process of separating the Executive from the Judiciary could not be achieved overnight probably based on the history of the struggle to separate the executive from the judiciary as set out in the Report and the failure to achieve this notwithstanding the Constitutional Obligation to do so under Article 30 of the 1956 Constitution. Bearing this background in mind three years, later extended to five years and finally to fourteen years' time was given for its accomplishment. Regrettably, the Government was unable to entirely achieve its constitutional obligation of progressively separating the Executive from the Judiciary within this time frame.
This led to the land mark ruling in respect of the separation of the Judiciary from the Executive in terms of Articles 175(3) and 203 in the case of Sharaf Faridi (supra) by a Full Bench of the Sindh High Court as discussed in the later part of this judgment.
There is no denial of the fact from the respondents' side that the Constitution of Pakistan provides for a structure of trichotomy of power with independent judiciary separate from the Executive in terms of Article 175(3). In such circumstances, it is inconceivable that the most important exercise of fresh appointment to judiciary should be allowed to be undertaken through Respondent No. 2, who, as experience shows, has remained under the influence of the Executive and on several occasions successfully given results as-per their expectations or to say the least, on considerations other than pure merits.
As against it, the past experience of recruitment of Civil Judges/Judicial Magistrates through Selection Board in terms of Rules of 1994 has shown a great level of transparency and consequently, better results. The record of such recruitments undertaken by the High Court from time to time through its Provincial Selection Board goes to show that a high level of merit was made criteria for this purpose. As a result, on several occasions, out of huge number of candidates against such vacancies, the total number of suitable candidates could not be found, save few.
To be precise as per available data in the year 2005 out of 1920 candidates only 21 were selected by the Selection Board comprising Honourable Justice Ghulam Rabbani, Justice Mujeebullah Siddiqui and Justice Muhammad Moosa K. Leghari, though the number of available vacancies was 44.
To lay more emphasis to the mode of proper recruitment of Judges in District Judiciary, the following illustration may aid understanding:--
(a) A healthy and fruitful tree is beneficial to the whole of society. The recruitment of a Judge is analogous to sowing of the appropriate kind and quality of seed in the field of judiciary, quality of which will facilitate the growth of such system. However, if the selection of the very seed is not par excellence or is inferior, neither the most fertile of lands, timely watering and usage of fertilizers/ pesticides can yield the required results nor can the deficiency be cured at the nurturing stage. Similarly, if the very induction of a Judge is unsuitable, irrespective of the kind of training and education he receives; he/she cannot excel in the profession or be beneficial for his institution and society at large."
An added benefit of recruitment through Provincial Selection Board is that of highly specialized skills of its members, which enable them to gauge the competency and suitability of candidates in a better way. All this is leaving apart, the main controversy relating to doctrine of separation of judiciary and its total independence from Executive, as dilated upon by the superior Courts of our country as well as Indian jurisdiction in a number of cases.
When we refer to some other judgments of our superior Courts, touching the issue of independence of judiciary and its separation from the Executive, reference to the case of Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445 is indispensable. In paragraph 11 of this judgment, inter alia, dealing with the scope of Articles 175 and 203 of the Constitution vis-a-vis the question of legality of establishment of Anti-Terrorism Courts under Act XXVII of 1997, making reference to a plethora of case law on the subject, the Honourable Supreme Court laid down as under:--
(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law.
(ii) That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(iii) That our Constitution recognizes only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not funded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.
(iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution.
(vi) That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirements of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions." (Underlining for emphasis).
(a) Exercising its powers under Section 25 of the Balochistan Civil Servants Act, 1974, the Government of Balochistan has framed Rules on 30th September 1994, whereby per Rule 4 the appointing authority is the Government of Balochistan and per Rule 5 initial recruitment is to be based on the recommendations of the Commission "Balochistan Public Service Commission", while there is no provision for formation of any Provincial Selection Board under the control of the High Court.
(b) In the North-West Frontier Province, the Government while exercising its powers under Section 21 of the N.-W.F.P. Civil Servants Act 1973, has notified the Rules for recruitment to the judicial service and prescribing the terms and conditions of service of persons appointed thereof. Rule 2(a) relating to definitions, provides for Administration Committee of the High Court. Rule 2(d) provides for Commission "i.e. N.-W.F.P. Public Service Commission"; Rule 2(e) deals with the Departmental Promotion Committee constituted under the High Court Rules; and Rule 2(k) provides for Selection Authority. In these Rules the appointing authority is the High Court while the method of recruitment is regulated in a way that the initial appointment for the posts of Civil Judges-cum-Judicial Magistrates and Ilaqa Qazis is to be made on the recommendation of the Commission (N.-W.F.P. Public Service Commission) on the basis of results of competitive examination to be conducted by it in the subjects specified in the appendix to the Rules. Appointment to the posts of Senior Civil Judges-cum-Judicial Magistrates empowered under Section 30, Cr.P.C. and Ala Ilaqa Qazis is to be made on seniority-cum-fitness basis from the Civil Judges-cum-Judicial Magistrates/Ilaqa Qazis on the recommendation of the Departmental Promotion Committee while the appointment for the posts of Additional District and Sessions Judges/Izafi Zila Qazis is to be made 2/3 by promotion on the recommendation of the Departmental Promotion Committee while the remaining 1/3 from amongst members of the Bar, Public Prosecutors/ Government Pleaders and Additional Public Prosecutors/ Additional Government Pleaders. Further the appointment of District and Sessions Judges/Zila Qazis. is to be made by promotion on the recommendation of Department Promotion Committee on the basis of seniority-cum-fitness from the amongst holders of the posts of Additional District Judges/Izafi Zila Qazis. In addition to it under proviso to Rule 5, the High Court is empowered to make appointments by initial recruitment on contract basis on the recommendations of Provincial Judicial Selection Board in accordance with the policy of Government applicable to appointments on contract basis.
(c) In the Province of Punjab in exercise of powers under Section 23 of the Punjab Civil Servants Act 1974, Rules regulating recruitment to the Punjab Judicial Services and prescribing conditions of services for the persons appointed thereto were notified on 31.03.1994. Under Rule 2, which provides for definitions, the provision for formation of "Provincial Judicial Selection Board", "Departmental Promotion Committee" and "Commission" i.e. "Punjab Public Service Commission" is envisaged under sub-rules (e), (f) and (i) respectively. In terms of Rule 4, the appointing Authority is the High Court as defined in Rule 2(c). Rule 5 dealing with the method of recruitment provides that appointment to the post of Senior Civil Judge-cum-Judicial Magistrate is to be made by initial recruitment on the recommendation of the "Commission" based on the result of competitive examination conducted by it in the subjects specified in the appendix to these Rules. This Rule further empowers the Government to nominate any person within six months from the date of notification of these Rules, who possesses a degree in law and has exercised the powers of the Magistrate of First Class for a period not less than two years, for appointment by transfer as Civil Judge-cum-Judicial Magistrate, who shall be on deputation till his absorption in service. The appointment for the post of Senior Civil Judges-cum-Judicial Magistrates is to be made on seniority-cum-fitness basis from amongst the Civil Judges-cum-Judicial Magistrates on the recommendation of Departmental Promotion Committee. Appointment to the post of Additional District Judges is to be made to the extent of 60% by promotion from amongst Civil Judges-cum-Judicial Maginstrates with 10 years as Judicial Officers by selection on merits with due regard to seniority on the recommendation of Provincial Judicial Selection Board and 40% by initial recruitment from members of the Bar with 10 years standing as Advocate. Moreover, appointment to the posts of District and Sessions Judges is to be made 3/4 by promotion from amongst the Additional District Judges by selection on merits with due recommendation by the Provincial Judicial Selection Board and not more than 1/4 by transfer of A.P.D.G., D.M.G. officers.
(d) In Sindh, the Sindh Judicial Service Rules were notified by the Sindh Government on 24th November 1994, in the manner as already discussed in the preceding paragraphs. Under these Rules by virtue of Rule 4, appointments in the judicial service are to be made by the Government. Rule 5 deals with the method of recruitment and provides that posts of Civil Judges/Judicial Magistrates are to be filled through initial appointment on the recommendation of the "Provincial Selection Board. The appointment to the post of upper grade of Service i.e. Senior Civil Judges/Assistant Sessions Judges is to be made by promotion from amongst the members of the lower grade of service on the recommendation of the Provincial Selection Board. However, in case no suitable member of the lower grade of service amongst Civil Judges and Judicial Magistrates is available for promotion, such vacancy can also be filled up by initial appointment. For appointment to the post of Additional District and Sessions Judge not less than 2/3 of the vacancies are to be filled up by promotion from amongst Senior Civil Judges/ Assistant Sessions Judge on recommendation of the Provincial Selection Board while 1/3 of the vacancies can be filled by initial appointment through Provincial Selection Board. The appointment for the post of District and Sessions Judge is also to be made by promotion amongst senior most Additional District and Sessions Judges, on the recommendations of the Provincial Selection Board.
"Provincial Selection Board means the Administrative Committee of the High Court or a Committee of not less than three High Court Judges specially constituted for the purposes of these Rules by the Full Court."
However, under Rule 4, the appointing Authority is the Provincial Government.
"Provincial Judicial Selection Board means Administrative Committee of the High Court or a Board comprising such number of Judges of the High Court as may be nominated by the Administrative Committee."
"Provincial Judicial Selection Board means a Board comprising the Administration Committee or such number of Judges of the High Court as may be nominated by the Administration Committee."
Moreover, under Rule 4, the appointing authority is the High Court.
In the Province of Balochistan, the appointment in the judicial service is to be made by the Government. The matter of appointment provides for initial recruitment on the recommendation of the Commission based on the results of the competitive examination while as regards appointments against other vacancies, the Rules seem to be silent.
Thus, the conclusion derived from the above comparative study of these Rules, in our view, is that Sindh Judicial Service Rules 1994, as stood before impugned Notification were more close to the directions contained In the case of Sharaf Faridi (supra), and its spirit has been more effectively, adhered to and followed while framing such Rules.
In any case, the argument that in the other three provinces of Pakistan, the policy of initial recruitment envisaged in the Rules is different from the province of Sindh, does not justify the issuance of the impugned Notification. Each province is autonomous and has its own authority to legislate law on this subject, according to its suitability and requirement and if at all this issue is to be revisited then for that purpose, the proper forum will be the Honourable Supreme Court of Pakistan.
Addressing, the next point of mala fide in law in issuing the impugned Notification, as argued by Petitioners' counsel, we find much force in their submissions that the issuance of impugned Notification amounts to negating the directions of the Full Bench of the Sindh High Court contained in its Judgment in the case of Sharaf Faridi (supra), which read thus:
"12. I would, therefore, allow the above two petitions in (he following terms:--
(A) The respondent in the first petition i.e. Respondent No. 2 (i.e. the Province of Sindh) in the second petition is directed--
(i) to issue necessary notification in terms of sub-section (2) of Section 1 of Ordinance No. XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under the administrative control of the High Court within a period of six months.
(ii) to issue necessary Notification under sub-rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1978, and Rule 4 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days.
(iii) to initiate legislative measures within a period of six months in order to make necessary amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C, Sindh Civil Servants Act, 1973, Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil Servants (Appointment. Promotion and Transfer) Rules, 1974 and in the other enactments to make the same in conformity with above Articles 175 and 203 of the Constitution.
(B) Respondent No. 1 (i.e. the Federation of Pakistan) in the Second Petition is directed to initiate all legislative/ administrative steps/ measures to bring the existing laws relating or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months."
"The Committee appointed by this Court held five meetings on various dates. The first meeting was held on 9-12-1989 and the last one on 21-12-1991. In these meetings the problems and difficulties pointed out by the Provincial Governments in carrying out the Constitutional mandate into effect as also the measures being taken to fulfil their obligations in this respect were carefully considered and ways and means of overcoming these obstacles also discussed. The Chairman of the Committee pointed out to the representatives of the Provincial Governments that notwithstanding the difficulties with which they were confronted separation of the Executive from the Judiciary was an obligation cast upon them by the Constitution and this obligation could not be willed away or avoided. It had, willy nilly to be carried into effect despite all the difficulties. During the course of the deliberation of the Committee considerable progress was achieved in securing separation of the Judiciary from the Executive and the steps being taken for this purpose. The Provincial Governments were intimated by the representatives of the parties to the Committee during the period that the Committee remained seized of this matter.
In this respect the situation today is that in relation to the enforcement of the Scheme for separation of the Judiciary from the Executive in the Province of Sindh that 100 posts of Judicial Magistrates have been sanctioned. So far 25 Judicial Magistrates have been appointed on the recommendations of the High Court. Furthermore some candidates (seven in all) have been recently selected (for the posts of Judicial Magistrates) and their names forwarded to the Provincial Government for notifying their appointment and they are receiving judicial training in the Sindh Judicial Academy at present. On notification of their appointment it is proposed to post them against the vacant Courts of Judicial Magistrates. The process of selection of 25 more Judicial Magistrates is in process and the last date for receipt of the applications has been fixed as 10-10-1993.
So far as the matter of control of the High Court over the subordinate judiciary is concerned the Chief Justice has been delegated powers of Authority under the Sindh Civil Servants (E&D) Rules in respect of Members of the subordinate judiciary and a separate Service Tribunal has been established for resolution of disputes of judicial officers. Rules for appointment, promotion and transfer etc. of Judicial Officers have been drafted and are likely to be approved by the High Court soon.
In the impugned judgment of the High Court it has been observed that the mandate of Article 175 requiring separation of the Judiciary from the Executive shall be met if the Judiciary has an effective say in the formulation of its annual demands and this finding is elaborated by observing that this implied that the executive shall place the annual funds allocated to the superior Courts at their disposal for operating them without interference by any agency of the Executive in accordance with requirements.
The above findings of the High Court were not questioned or challenged either by the learned Attorney-General or by any of the representatives of the Provincial Governments and we too are in agreement with it and would endorse this finding."
(i) Haji Hashmatullah v. K.M.C. PLD 1971 Kar 514, (ii) Ghulam Mustafa Khar v. Federation of Pakistan PLD 1988 Lah. 49, (iii) Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, (iv) Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38, (v) Muhammad Mubin us Salam and others v. Federation of Pakistan and others PLD 2006 SC 602.
In the first case of Haji Hashmatullah a Division Bench of Sindh High Court, examining the question of mala fide observed that an order in violation of law is mala fide, though actual malice may not be present in the mind of the authority passing the order. The Bench further observed that rules framed under the Statute are subordinate to it. Therefore, anything contained in the rules contrary to the provisions of the Statute, or in deviation from the Statute, conferring excessive powers, will be repugnant to the Statute and void to the extent of such repugnancy.
In the second case of Ghulam Mustafa Khar, a three-member Bench of the Honourable Lahore High Court dilating upon the principles of interpretation of statutes observed that statute must be interpreted according to the intention of the legislature and if the words adopted therein, are clear and unambiguous these should be expounded in their natural and ordinary sense. However, where the language used vividly demonstrates ouster of jurisdiction, then the ouster must be absolute and even on the acts performed without jurisdiction, or mala fide will not be open to judicial scrutiny. The Bench further held that for expounding an Act, not only its words are to be considered but the intent of the legislature may also be gathered from the cause and necessity of making the Act and sometimes from extraneous circumstances so far as they can properly shed light on the subject.
In the third case of Federation of Pakistan vs. Ghulam Mustafa Khar, which was an appeal against the earlier judgment of the Lahore High Court and many other connected cases, the Honourable Supreme Court of Pakistan dealing with the question of interpretation of statutes observed that where the ouster clause in a statute is clear and unequivocal, admitting of no other interpretation, Courts unhesitatedly give effect to it. Provisions seeking to oust the jurisdiction of the superior Courts are to be construed strictly with pronounced leaning against ouster. Further held presumption is that legislature does not perpetuate inequity or injustice, such presumption can be invoked while interpreting provisions of a statute or Constitution.
In the fourth case of Manzoor Ahmed Wattoo, a three-member Bench of Lahore High Court dealing with the question of mala fide made distinction in malice in law and malice in fact and observed that an action is said to be suffering from mala fide on facts if it is taken due to some personal grudge, or animosity, or some personal benefit. Thus, the state of mind of the person taking action is of great importance. On the other hand, action is said to be suffering from malice in law if the authority taking the action is not competent to do so or has acted beyond its powers or in violation of the law applicable, even though it may have acted bona fide and without ill will. It was further held that malice in law is different from the malice as known in the common parlance, which is usually associated with evil motive influencing the mind of the person committing the malicious act. An order in violation of law is mala fide in law though actual malice may not be present in the mind of the authority passing the order.
In the last case of Muhammad Mubin us Salam, Honourable Supreme Court of Pakistan while disposing of a bunch of identical petitions relating to service matters, dealing with the subject of interpretation of statutes observed that the question of constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy. Such question depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-constitutional law by which the Parliament purports to exercise that authority. It was further held that general terms following particular ones apply to such persons or things as are "ejusdem generis" with those comprehended in the language of the Legislature.
Keeping in view the above discussion and the case law, when we again revert to the facts of the present case and the background of the impugned Notification, we find that in the prevailing circumstances, issuance of impugned Notification on 4-12-2008, when already the process of recruitment of Civil Judges and Judicial Magistrates was in the pipeline for over one year and six months having being delayed for different unavoidable reasons, was not only mala fide in law but also mala fide on facts, though not so argued by the petitioners counsel.
The conclusion that can be deduced from the above cited cases, in simple words, is that if the rules framed are in conflict with the spirit of the statute or any constitutional provision or against the mandate of the direction of the Supreme Court/High Court, though framing of rules may not be mala fide, or strictly with ulterior motive, still the same shall be deemed to be mala fide in law and liable to be struck off on that account.
When further dilating upon and discussing the question of separation of powers and independence of judiciary, particularly keeping in mind the ratio of judgments in Sharaf Faridi's case and Al-Jehad Trust's case and the recent events of November 3rd, 2007 and thereafter, we cannot turn a blind eye to the fact that the Independence, which the judiciary enjoys today, in a very large part, is owed to the civil society of this Country, who, joined hands with the lawyers' movement and successfully struggled to restore the prestige of the Judiciary, which had been badly damaged by unconstitutional executive actions.
Both the Judges and legal community in this Country always had an obligation to protect the rights of its citizens against State or other forms of oppression and injustice. Through the public support and faith in the legal system in recent times that obligation has been further re-enforced and the public has now even greater expectations of the judiciary.
In this regard not only has the National Judicial Policy of June, 2009 attempted to deal with the backlog of cases by ensuring speedy disposal of cases thereby, in particular nursing the wounds of litigant public, but it has also taken further measures in line with the expectations of the people to ensure the Independence of the Judiciary by reassuring that the judiciary is further separated from the executive and is seen to be so by the public. In this context it is instructive to set out an earlier decision of the Committee and Pages 11 to 12 of the National Judicial policy which came into force from 1st June, 2009.
Separation of Judiciary from the Executive.
The Committee discussed the issue of separation of judiciary from executive and independence of judiciary as mandated by the Constitution. In this regard the Committee decided that in future no Chief Justice or a Judge of superior Court shall accept appointment as Chief Justice or a Judge of superior Court shall accept appointment as acting Governor of the Province. Sub-Article (2) of Article 207 of the Constitution prohibits Judges of the superior judiciary from holding an office of profit before expiration of two years after retirement. The same reads as under:--
(2) A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a Law Commission or of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office.
The Committee resolved that in future no retired Judge of the superior Court shall accept an appointment which is lower to his status and dignity including appointment as presiding officers of Banking Court, Customs Court and Administrative Tribunals etc. The Committee further asked that a letters should be written to such Judges to resign from such posts in the interest of independence of judiciary. The Committee further recommended that the Federal and Provincial Governments may also be asked to relieve such Judges and may not make such appointments in future. The Committee observed that this will be a safeguard against Judges of the superior Courts as well as subordinate Courts from being induced/ influenced for appointment against executive posts. The Committee further recommended that the trend of retired judicial officers being appointed to Special Courts be also discouraged and as per the requirement of principles of independence of judiciary, qualified serving Judges should be appointed against these posts in consultation with the Chief Justice of respective High Court.
National Judicial Policy
A. Independence of Judiciary
(1) In future no chief justice or a judge of the superior Court shall accept appointment as acting Governor of a Province.
(2) No retired Judge of the superior Court shall accept an appointment which is lower to his status or dignity including appointment as presiding officer of Banking Court, Customs Court, Administrative Tribunal, etc.
The Committee asked the retired Judges of the superior judiciary to maintain the highest standards of decorum and voluntarily relinquish the charge of such posts which are lower to their status to earn respect in public and uphold .the principle of the independence of judiciary.
The Committee asked the Secretary, National Judicial (Policy Making) Committee to write letters to the Secretary, Establishment Division and Provincial Chief Secretaries to relieve all such Judges and may not make such appointments in future.
(3) Instead of appointing retired judges/judicial officers as presiding officers of the Special Court/Tribunal, qualified serving Judges be appointed against these posts, in consultation with the Chief Justice of the High Court.
(4) Posting of serving Judges against executive posts in Federal and Provincial Government Departments on deputation be discontinued. All such Judges should be repatriated to the respective High Courts, where their services are needed most for expeditious disposal of pending cases.
(5) All special Courts/tribunals under the administrative control of Executive must be placed under the control and supervision of the judiciary, their appointments/postings should be made on the recommendation of the Chief Justice of concerned High Court.
(6) In future judiciary would avoid its involvement in the conduct of elections, as it distracts the judicial officers from professional duty and complaints of corrupt practices tarnish the image of judiciary.
It is satisfying to observe that only a few weeks down the road from the coming into force of the above policy a large part of it has already been implemented so far as the separation and independence of the Judiciary is concerned.
At the cost of repetition, when we again look at the impact of the impugned notification over the Sindh Judicial Rules, 1994, we find that in a crude manner, it is cutting at the very root of the concept of separation of power and independence of judiciary. On one hand, by addition of sub-Rule (aa) to Rule 2, it introduces a new institution "Commission" (S.P.S.C), which is otherwise an alien to the Rules, and on the other hand, by amendment in rule 5, it completely ousts the role of Provincial Selection Board and makes the highest Court of the Province simply an Institution, that can only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exercise.
The doctrine of separation of Judiciary from the Executive and its independence is not only to be gauged on the yardstick of the relevant Constitutional provisions and the case law laid down by the superior Courts, but also from the public prospective, that places genuine expectations upon us in this regard. Judiciary to be independent and appear to be independent is of utmost importance so that people have faith and confidence in the Judges and for that matter also in the Institution that has been entrusted the task of their appointment. If the recruitment/appointment of Judicial Officers is entrusted to the Executive or to a body alien to judiciary then a huge question mark is placed on the whole process.
Dealing with the doctrine of separation of powers between the three pillars of the State i.e. Legislature, Executive and Judiciary, we must not loose sight of the fact that under this doctrine there is no room for any adversarial stance between these pillars of the State, rather this system could only flourish and become strong when each of the three organs of the State function strictly within their domain and jurisdiction, with respect for each other and spirit of harmonious working without any overlapping or sharing of powers.
Summing up the above discussion, we hold that the independence of the judiciary is something, which is to be jealously guarded and cannot be compromised at any cost. The initial appointment/recruitment of Civil Judges/Judicial Magistrates is its integral part, forming its foundational stone, thus the impugned notification negating this position and transgressing the limits of Judicial independence is liable to be struck down being mala fide, without jurisdiction and ultra vires the Constitution.
Foregoing are the reasons for our short order dated 15.6.2009.
(R.A.) Order accordingly.
PLJ 2010 Karachi 87
Present: Shahid Anwar Bajwa, J.
NATASHA RASHID--Petitioner
versus
RASHID ZAR and 4 others--Respondents
C.P. No.S-930 and CM. A. No.4179 of 2009, decided on 14.12.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Constitution of Pakistan, 1973, Art. 199(1)(c)--Habeas corpus--Notification by High Court conferring jurisdiction on the Session Judges--Terms of notification with approval of chief justice and judges of High Court--Question of maintainability of petition--Effect of Notification on powers of High Court--Conferment of jurisdiction on the Sessions Judges by High Court under Notification dated Sept. 7, 2002, has not divested High Court of its jurisdiction under S.491, Cr.P.C. given to it by the Constitution and the law and High Court does not cease to have jurisdiction under S.491, Cr.P.C. [P. 90] A
Constitution of Pakistan, 1973--
----Art. 199(1)(c)--Constitutional petition--Concept of writs certiorari, mandamus, prohibition, quo warranto and habeas corpus--Maintainability--Performance of functions by the respondent in connection with the affairs of the federation, a province or a local authority, is not a condition precedent for maintainability of a petition under Art. 199(1)(c) of the Constitution--Use of word "including" in clause (c) and omission thereof in clause (a) or clause (b) is most significant in this regard--Power of High Court to enforce fundamental rights, therefore, is much more broader and far reaching than the time-tested concepts of writs of certiorari, mandamus, prohibition, quo warranto and habeas corpus. [Pp. 92 & 96] B & E
Custody of Minor--
----Denying a person right of company of children--Violation of fundamental right to life--Right to life not only include one's own life but also life liberty and happiness of one's children--Therefore denying a person right of company of his children is probably as severe, if not more, penalty and curse on that person than denying him life altogether--Strongest bond that nature has created its bond between mother and the child--Such point is not only for the period the child is within body of the mother--Held: If a mother is denied her right of company of her child it would amount to violation of her fundamental right to life. [P. 94] C
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 491 & 561-A--Habeas corpus petition--Maintainability--Custody of minors--Cases pertaining to custody of children should not be decided on technicalities--Where petition under S.491, Cr.P.C. is not found to be competent due to absence of element of illegal custody by the father of his own child, High Court can also pass an appropriate order in exercise of its inherent jurisdiction. [P. 94] D
PLD 2004 SC 1 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Guardians and Wards Act, (VIII of 1890), S.25--Custody of minor--Habeas corpus--Enactments do not exclude each other--Power of High Court under S.491, Cr.P.C. although are different from the powers of a Guardian Judge under the Guardians and Wards Act, 1890 yet there is no question of one excluding the other. [P. 96] F
2007 MLD 512 ref.
Hizanat--
----Right of--Minor was only three years old--Held: Mother had right of hizanat. [P. 97] G
Mr. Rasheed A. Akhund and Irfan Haroon, Advocates for Petitioner.
Mr. Khawaja Navid Ahmed, Advocate for Respondents.
Date of hearing: 14.12.2009.
Order
Mr. Khawaja Navid Ahmad, Advocate filed counter-affidavit on behalf of Respondent No. 1. Same is taken on record.
Factual context of the petition is that petitioner married Respondent No. 1 on September 17, 1999 and Rukhsati took place on 29th January, 2000. Out of the wedlock one child was born on April 19, 2001 and other child was born on October 9, 2006. Relationship between the parties, from pleadings of two sides it appears, were far from cordial and eventually marriage was dissolved by way of divorce. The elder child is with the mother and the younger child is with the father.
This petition was filed under Section 491, Cr.P.C. read with Article 199(1)(c) read with Articles 4 and 9 of the Constitution of the Islamic Republic of Pakistan.
Mr. Rasheed A. Akhund, Advocate learned counsel for petitioner submitted that the petition has been filed both under Section 491, Cr.P.C. as well as under Article 199(1)(c) of the Constitution and therefore the petition would be maintainable. He relied upon Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1. He next submitted that father had been beating the mother and referred to a Medico-legal Certificate in this regard and relied upon Zubaida Shehzadi v. Muhammad Aslam and another 2007 MLD 512. Learned counsel submitted that petition under Article 199(1)(c) of the Constitution can be filed even against a person who is not performing any function in connection with the affairs of the Federation or a Province or a local authority. In this regard he referred to Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507. He also referred to Article 9 of the Constitution and to Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693, to contend that right to life is to be given a broad and extended meaning. Learned counsel also referred to Mst. Nuzhat Sultana v. Syed Farukh Raza and another PLD 2003 Karachi 54 and Mahera Fatima v. Province of Sindh and others 2007 YLR 1487, to contend that custody of the minor who is only three years old should be given to the other.
Mr. Khawaja Navid Ahmed, learned counsel for the Respondent No. 1 submitted that respondent is a highly educated Doctor and is working as Administrator in Agha Khan Hospital as well in Kharadar Hospital. He further submitted that Respondent No. 1 has filed an application under Section 25 of Guardians and Wards Act, 1872 for custody of the elder child and that application is pending before the Family Court. He also referred to Gazette Notification dated 7-9-2002 available at Page 691 of the Major Acts, which Gazette Notification states that the Honourable Chief Justice and Judges of this Court have been pleased to order, in pursuance of Section 491(1-A), Cr.P.C. that powers vesting in the High Court under clauses (a)(b) of sub-section (1) of S.491, Cr.P.C. may also be exercised by the Sessions Judges, in Sindh within the territorial limits of Sessions Division in which they are posted from time to time and until further orders.
Learned counsel for the petitioner pointed out that the word used in the Gazette Notification in September 7, 2002 is "May".
I have considered the submissions made by the learned counsel and have also gone through the case record.
First question is maintainability of this petition. Mr. Khawaja Navid Ahmed, Advocate strenuously asserted that in the petition claim has been made against a private person and therefore writ petition is not maintainable. Reply Mr. Akhund was two fold: firstly even in the tile of the petition it has been stated that it is also under Article 199(1), read with Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan. It was contended by Mr. Akhund that petition under Article 199(1)(c) of the Constitution can be filed by a persons against even a private person and it is not essential for petition under Article 199(1)(c) that respondent be a person performing functions in connection with the affairs of the Federation or a Province or a local authority. In respect of Section 491, Cr.P.C. Mr. Akhund submitted that petition has been filed under that sections also and terms of notification with the approval of the Chief Justice and Judges of this Court on September 7, 2002, confer jurisdiction on Sessions Judges.
No doubt under Notification dated September 7, 2002 the High Court has granted jurisdiction to the Sessions Judges in their respective Sessions divisions. However the word used there is "May". Consequently there is nothing in the notification divesting the High of its own jurisdiction. And it cannot be done. After all jurisdiction has been conferred upon the High Court by the Constitution and the law. Therefore conferring jurisdiction on the Sessions Judges cannot be read to mean that High Court ceases to have jurisdiction under Section 491, Cr.P.C.
Much emphasis was laid by Mr. Akhund on Article 199(1)(c) of the Constitution of Islamic Republic of Pakistan. The said Article reads as under:--
"199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-1 of Part-II Adjourned to a date in office."
In Human Rights Commission of Pakistan's case (supra), the factual context was that an agriculturist had moved the High Court alleging that a large number of person having obtained loans from Zamindars and having contracted to render services being otherwise bound to do so under the Sindh Tenancy Act, 1950 were misusing the provisions of Section 491, Cr.P.C. to avoid repayment of the loans or to render services in accordance with the Tenancy Act and contracts voluntarily entered into by them. On the other hand many petitions were preferred on behalf of several individuals alleging to be unlawfully detained by different landowners and subjected to forced labour in violation of fundamental rights guaranteed to them by the Constitution and the law including Bonded Labour System (Abolition) Act, 1992. The High Court dismissed the constitution petition and the matter was taken to the Honourable Supreme Court. The Honourable Supreme Court observed as under:--
"Indeed there is a large number of cases relating to minors and women where the Courts have declined to exercise jurisdiction under Section 491, Cr.P.C. requiring the matter to be adjudicated in the fora established by law. Nevertheless invariably in all those cases the respondents have claimed a legal right to the custody of the person allegedly detained. The basis of distinction in our humble view is not that of a person's detention in public or private custody but the fact that the respondent has asserted a legal right to keep the person allegedly detained in his custody, and therefore the Courts have rightly required that disputes as to such rights need to be adjudicated upon by the appropriate forum i.e. Family Courts. In the case at hand however it was evident that a landlord could not detain a tenant under any legal authority and as such the analogy was totally inapplicable. At the juncture we may observe that the observations of the Honourable High Court in the case of Imdad Hussain v. Noor Hassan and 5 others reported in PLD 1974 Karachi 485 at Page 489 are contrary to the law declared by this Court and ought to be treated as per incuriam.
"On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of trial Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-1, Part-II."
It needs to be explained that in matters pertaining to fundamental rights the jurisdiction of the High Court is wider than that available under clauses (a) and (b). In this context the true meaning of the expression "enforcement of fundamental rights" needs to be ascertained. For doing so a comparison of the provisions pertaining to fundamental rights in the Constitutions of US and Pakistan may be appropriate. For instance, the 13th Amendment to the US Constitution forbids slavery and forced labour but provides that the Congress has no power to enforce this Article through appropriate legislation. Similarly in the 14th Amendment Section 1 requires that any State shall not deprive any person of life, liberty or property or equal protection of laws. Section 5 however requires that the Congress shall have the power to enforce by appropriate legislation. These provisions show that while State-action violating or ignoring provisions of the Constitution may be struck down by Courts exercising normal judicial power, the power to positively enforce the rights through appropriate sanctions could be exercised by the Congress alone. It is for this reason that the US Supreme Court was able to give effect to the 14th Amendment in respect of racial segregation in the absence of legislation, only through extending the concept of State-action to State-aided school etc.
On the other hand, in the scheme of our Constitution, the power to enforce fundamental rights has been conferred upon the superior Courts through Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void. Therefore, even in the absence of clause (c) any action by a person performing functions in connection with the affairs of the Federation, a province or local authority, inconsistent with fundamental rights is to be declared with lawful authority under the clause (a) of Article 199.
The reach of clause (c) however is wider. It not merely enables a Court to declare an action of a State functionary inconsistent with fundamental rights to be unlawful but also enables the Courts to practically enforce such rights by issuing appropriate directives as is evident from its language."
Therefore in order to maintain petition under Article 199(1)(c) the respondent need not be a person performing function in connection with the affairs of the Federation or a Province or a local authority. Use of word "including" in clause (c) which word finds no mention in clause (a) or (b) is the most significant. Therefore this Court's power to enforce fundamental rights is much broader and much more far-reaching than the time-tested concepts of writs of Certiorari, Mandamus, Prohibition, Quo Warranto and Habeas Corpus.
Reference was made by learned counsel for petitioner to Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 which Article ordains that no one shall be deprived of live or liberty save in accordance with the law. In Ms. Shehla Zia's case (supra), in respect of right of life, it was observed that right to enjoyment of personal rights and to be protected from encroachment of such personal rights, freedom and liberties is included in the right to life. It was further held that word life used in the Constitution is not used in limited manner and wider meaning should be given to enable a man not only to sustain life but also to enjoy it. The relevant observations are in the following words:
"The Constitutional Law in America provided an extensive and wide meaning to the word life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal right and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the wordlife' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable."
Zoologists, Biologists and Evolutionary Psychologists are in total agreement on the point that it is an inherent and inbuilt instinct in all living things, plants and animals included, to ensure survival of their genes. Through its offspring an animal ensures immortality of its genes. Hence, evolutionary Psychologist contend, these it lies primary of sexual drive among other human instincts and motherly instinct of every specie. Therefore right to life not only includes one's own life, but also life, liberty and happiness of one's children. Therefore denying a person right of company of his children is probably as severe, if not more, penalty and curse on that person than denying him life altogether. The strongest bond that nature has created its bond between mother and the child. This point is not only of for the period the child is within body of the mother, but continues thereafter: first food of the child, after all, comes from body of the mother itself. Therefore if a mother is denied her right of company of her child it would amount to violation of her fundamental right to life.
The Honourable Supreme Court of Pakistan in Mst. Khalida Parveen's case (supra), has observed that cases pertaining to custody of children should not be decided on technicalities. The Supreme Court has further held that although ordinarily petition under Section 491, Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child, but the Court could also pass an appropriate order in exercise of its inherent jurisdiction. Observation of the Honourable Supreme Court are in the following words:
"In our opinion in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition under Section 491, Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate orders in exercise of its inherited jurisdiction. In this behalf in the judgment relied upon by the learned counsel for the petitioner i.e. Muhammad Naseer Humayon v. Mst. Syeda Ummatul Kabir (supra), a learned Judge of the High Court changed the custody in exercise of the jurisdiction under Section 491, Cr.P.C. and against the said order petition for leave to appeal was filed before this Court but leave was declined keeping in view the fact that the parties have parted their ways and the minor is of a tender age. As same situation is in the case in hand where the respondent had divorced the petitioner and the age of the minor is also two years therefore, following the observation from the reported judgment, we are of the opinion that in the interest of justice as well as for the welfare of the minor Hina Sultan alias Umm-i-Romaan aged two years, the petitioner being mother is entitled to retain her custody."
Respectfully following the dictum of the Honourable Supreme Court, it is held that this petition is maintainable both under Section 491, Cr.P.C. as well as under Article 199(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973.
In Zubaida Shehzadi's case (supra), decided by Mr. Justice M.A. Shahid Siddiqui, as a Judge of Lahore High Court (as his lordship then was and now his lordship graces the Supreme Court), the High Court noted that there was no dispute that the petitioner was living with her parents separately from her husband. The Medico-legal certificate was produced in that case, as has been done in this case, which prima facie showed that the petitioner had been subjected to violence. It was held that it would be in the interest of the minors that they may be placed again in the custody of their mother without further loss of the time. Relevant observations were as under:
"6. I have considered the arguments put forth by the learned counsel for the parties and have perused the record appended with the petition. There is no dispute that the petitioner is living with her parents separately from her husband. The Medico-legal Certificate of the petitioner, dated 8-6-2006 prima facie shows that she had been subjected to violence. Both the minors were admittedly enjoying the custody of their mother till 6-6-2006. The petitioner was allegedly expelled by the respondent from his house. Even if it is assumed that she had left the house of her husband it would not make any difference. One thing is certain that she felt compelled to leave the house of her husband alone and in this way both the minor daughters stood deprived of the custody of their mother on June 6, 2006. It would be in the interest of the minors that they should be placed again in the custody of their mother without further loss of time. The mere fact that the respondent has also approached the Guardian Judge on the same day would not prevent the petitioner from approaching this Court under Section 491, Cr.P.C. The powers of this Court under Section 491, Cr.P.C. although different from the powers of a Guardian Judge under the Guardians and Wards Act but there is no question of one excluding the other. I seek guidance from the law laid down in the case of Muhammad Javed Umrao v. Miss Usma Vahid 1988 SCMR 1891. In the circumstances of the case, but the minor girls who have admittedly not attained puberty are ordered to be given in the interim custody of the petitioner. The learned judgment Family Judge/Guardian Judge shall finally decide the question of custody of the minors strictly in accordance with law without being influenced by the instant order of this Court. This petition stands disposed of."
In Mahera Fatima's case (supra), it was a Criminal Miscellaneous Application under Section 491, Cr.P.C. The High Court held that petitioner was admittedly mother of the minor boy aged about three years and prima facie had a right to Hizanat of the said minor. The High Court held that the question as to whether the petitioner had lost her right to continue in custody of the minor is to be tried and decided by the competent Family Court and such a question cannot be decided by means of application under Section 491, Cr.P.C. Consequently custody was ordered to be handed over to the mother. Since apprehension was expressed that she may take minor out of Pakistan, she was directed to furnish one surety in the sum of Rs.500,000 with P.R. bond in the like amount to the satisfaction of Nazir of the High Court, so that she may not take minor out of Pakistan without prior permission of the Family Court. In Mst. Nuzhat Sultana's case (supra), again custody was given to the mother in some what similar circumstances.
During extensive arguments in the Court lot of muck was thrown by the parties on each other. This is probably the most unfortunately part of family related litigation. Two persons who have shared bed for quite some time and have jointly brought human being into this world, when they come to the Court they try to point each other as psychopaths, pathological liars, highly irresponsible individuals, sadists and what not. One calls the other reckless philanderer and the other call her a "never-say-no-Nancy". It is extremely unfortunate that such attitudes are adopted and such pleadings are made. It would be more in the fitness of things if the two parties arrayed in family matters realize that they have a joint interest and a joint responsibility: their children. Tomorrow when the children grow up and read pleadings of their respective parents, I am sure it would not make them proud. Parties indulging in family litigation should not lose their sense of propriety, sense of decency and sense of balance. They should realize that the muck that they throw, some of it is bound to stick to names of their children and may mar them psychologically. It would be in parties' interest and in the interest of their children if restraint is adopted as a policy both in pleadings and in oral presentations and submissions.
In this case elder child is already with the mother. Father has filed application under the Guardians and Wards Act in the Court of Senior Civil Judge and Family Judge, South at Karachi which, Mr. Khawaja Navid Ahmed, Advocate submitted, is pending as Guardians and Wards Application No. 941 of 2009. Petitioner in this case is the, mother. The child is only three years old. Mother has right of Hizanat. Moreover it will be more appropriate if the two children are brought up together and the custody of the minors is given to the mother. Needless to observe that this is not final determination of custody of minors. That can only be done by a Family Court after a proper trial and factual determination. However since it has been pointed out that both the children are foreign nationals and serious apprehension was expressed that they may be taken out of Pakistan an order is required to be passed in that regard.
Result of the above discussion is that this petition is allowed and Respondent No. 1 is directed to hand over custody of the minor child Master Ammar Zar to the petitioner subject to the petitioner, within three days, depositing passport of the minor child with the Nazir of this Court and furnishing one surety in the sum of Rs.5,00,000 (Five hundred thousand) with P.R. bond in the like amount to the satisfaction of Nazir of this Court so that the minor may not be taken out of Pakistan without prior permission of the Family Court of competent jurisdiction.
As far as father's visitation rights are concerned, he is at liberty to make appropriate application before the concerned Family Court.
The petition is disposed of in the above terms.
(R.A.) Petition allowed.
PLJ 2010 Karachi 97
Present: Ms. Rukhsana Ahmed, J.
MUHAMMAD AYUB KHAN--Petitioner
versus
Mst. SHEHLA RASHEED and another--Respondents
C.P. No. S-894 of 2009, decided on 26.11.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Sched.--Constitution of Pakistan (1973), Art.199--Constitutional petition--Pronouncement of khula--Passing of decree in favour of wife by Family Court in lieu of dower amount--Constitutional petition by husband for declaring his marriage with respondent still subsisting due to non-payment of dower amount--Respondent stand on oath--Feels remorse and had changed her mind--Wanted to remain her marriage with petitioner--Plea of respondent that she had filed suit due to misunderstanding; that Family Court had not provided her an opportunity of reconciliation; and that she had changed her mind and wanted to maintain her marriage with petitioner--Validity--Pronouncement of Khula' by Court would amount to a single divorce--Petitioner would be at liberty to re-marry respondent after solemnization of Nikah without intervention of third person--Impugned judgment/decree was set aside. [P. 101] C
Khula--
----Pronouncement of khula--Question of--Whether spouse after pronouncement of dissolution of marriage by way of khula passed by Family Court can rejoin without intervention of third person--Amount of dower or dowry articles had not been exchanged--Effect of--Pronouncement of Khula by the Court would amount to single divorce--Held: Until the third divorce takes place the petitioner would be at liberty to marry his wife again. [P. 99] A & B
Mr. Umar Farooq Khan, Advocate for Petitioner.
Respondent present in person.
Date of hearing: 26.11.2009.
Order
Petitioner has prayed to declare that the marriage still subsists and order 16-10-2009 passed in F.S. No. 1538 of 2008 by Xth Civil Judge/Judicial Magistrate Karachi South is illegal and ineffective under the law whereby learned Civil Judge/Judicial Magistrate has dissolved the marriage between Mst.Shehla Rasheed daughter of Rasheed Khan and Muhammad Ayub Khan son of Basher Khan in lieu of dower amount. Learned counsel for the petitioner contended that dower has not yet been exchanged. He further contended that suit for dissolution of marriage has been filed by Respondent No. 1 on instigation of her brother, under duress, coercion and misrepresentation.
Respondent No. 1 Mst. Shehla present in Court states on oath that suit for Khula' has been filed by misunderstanding, no opportunity of reconciliation was given to her and she has three minor children therefore she feels remorse, and has changed her mind voluntarily and wants to maintain her marriage with the petitioner.
As per submission made on behalf of petitioner and statement of Respondent No. 1, settlement has been arrived at between the parties and both want to live as husband and wife, neither any occasion has been provided to remove the differences nor chance of pre-trial has been given, therefore, the suit was filed due to misunderstanding.
The question raised in this petition is whether the petitioner and Respondent No. 1, after pronouncement of dissolution of marriage by way of Khula' passed by the competent Family Court in lieu of Dower amount, can rejoin without intervention of third person when it is admitted by both the parties that the said amount of dower or dowry articles have not been exchanged.
In order to resolve the question, I would refer to Majmua-e-Qawaneen-e-Islam, Vol. II, Qanoon-e-Talak written by Tanzil-urRehman at Pages 369 and 597 which stipulates:--
What could be deduced from the above referred reference is that pronouncement of Khula' by the Court would amount to a single divorce, therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again. However, I would like to refer to the Book of Hedaya or Guide by Charles Hamilton, 1975, Edition at Page 112 of Chapter-VIII and Page 107, which provides as under:--
"Which occasions a single irreversible divorce:--And where, the compensation is thus offered and accepted, single divorce irreversible takes places, in virtue of Khula'.
At Page 107 it provides:--
"In a case of irreversible divorce, short of three divorces, the husband is at liberty to marry his wife again, either during her Idit, or after its completion, as the legality of the subject still continues, since the utter extinction of such legality depends upon a third divorce; and accordingly until a third divorce takes place, the legality of the subject continues."
However, I would also like to refer to a case reported as Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447, where petitioner invoked the Constitutional Jurisdiction of this Court by filing a petition whereby he assailed the Judgment/Decree of Dissolution of marriage by way of Khula' passed by the learned Family Judge in lieu of dower amount. In that petition the petitioner and his wife filed an application praying therein to dispose of the petition in the light of settlement arrived at between the parties. Hamid Ali Mirza, J. (as his Lordship then was) appointed Mr. Shafi Mohammadi as amicus curiae. The counsel for the petitioner produced Fatwas from Dar-ul-Uloom, Taleem-ul-Quran; Dar-ul-Uloom, Farooq-e-Azam and from Jamia Farooqia wherein it had been stated that judgment of Family Judge ordering dissolution of marriage by way of Khula did not have legal status and was not admissible in Shariah and the parties may continue to be in the Nikah and the respondent (wife of the petitioner) could not marry another person. The Honourable Judge after going through the authenticated observations made by the learned Scholars in the books of Majmual-e-Qawaneen-e-Islam, Vol. II, Qanoon-e-Talak written by Tanzil-ur-Reham Pages 369 and 597, the Hedaya or Guide by Charles Hamilton, 1975, Edition at Chapter-VIII and after hearing the counsel for the petitioner as well as the amicus curiae, disposed of the said petition while annulling/setting aside the dissolution of marriage by way of Khula' and observed as under:--
"In the circumstances the pronouncement of Khula' by the Court would amount to a single divorce therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again, consequently the parties can rejoin as husband and wife on the solemnization of Nikah without the intervention of third person."
For the foregoing reasons, while keeping in view the authenticated observations made by the learned Scholars as well as respectfully following the decision of this Court, hold that pronouncement of Khula' by the Court would amount to a single divorce until the third divorce takes place. The petitioner would be at liberty to re-marry his wife and the parties can rejoin as husband and wife on the solemnization of Nikah without intervention of third person. Resultantly, Judgment and Decree of the Court in respect of dissolution of marriage between the parties on the basis of Khula' is declared annulled and is therefore set aside. In view of the above, this petition stands disposed of.
(R.A.) Petition accepted.
PLJ 2010 Karachi 101 (DB)
Present: Mushir Alam and Aqeel Ahmed Abbasi, JJ
KAWAS B. AGA and another--Petitioners
versus
CITY DISTRICT GOVERNMENT, KARACHI (CDGK) through Nazim-e-Ala and others--Respondents
C.P. Nos. D-1885 and D-1886 of 2006, decided on 27.1.2010.
Civil Procedure Code, 1908 (V of 1908)--
----Ss.35 A 35-A--Costs--Scope---Costs awardable by Court can either be actual or compensatory--Question of--Whether compensatory cost could be claimed under the circumstances--Actual costs are awardable by Court in order to secure expenses undergone by successful litigant in assertion of his right/claim before Court--Where costs awarded under S.35-A, C.P.C. are not sufficient compensation, Court in addition, has the discretion to award costs by way of compensation to successful litigant--Such costs are compensatory in nature and not awarded as penalty against unsuccessful party. [P. 107] A
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code, (V of 1908)--Constitutional petition--Costs, awarding of--Scope--In addition to actual costs and compensatory costs, High Court in its constitutional jurisdiction can award compensatory costs even in excess of Rs. 25,000/- as prescribed under S.35-A, C.P.C.--Special costs can also be awarded by High Court in exercise of its inherent powers--Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its constitutional jurisdiction. [P. 107 & 111] B & C
PLD 1990 SC 28; 1990 MLD 597; PLD 1999 Lah. 409; PLD 1997 Kar. 13; 1997 MLD 3283; 1998 SCMR 2386; 1998 PCr.LJ 1035 and 1992 MLD 107 rel.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 35 & 35-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Costs, imposing of--Public department--Registration authorities who failed to execute and register renewal lease in respect of properties in-question--Assailed--Petitioners also sought imposition of costs against the authorities for their such failure--Validity--High Court, in its Constitutional jurisdiction, could award compensatory cost as well as exemplary cost/penal cost in appropriate cases--Such costs could be recovered from state/departments instead of delinquent public officer, as the State/department might recover the same from delinquent officer--Exemplary or penal costs were imposed on delinquent public functionary and was required to be recovered from such person--Petitioners were entitled for claim of costs as well as compensatory costs, therefore, High Court directed the department to deposit actual costs of petition and also compensatory costs--High Court further directed the concerned department to initiate departmental inquiry against delinquent officers and if they were found guilty of such misconduct, then besides any disciplinary action deemed necessary, costs so imposed would be recovered from them--Petition was allowed accordingly. [Pp. 111 & 112] D, E & F
2002 CLC 59; AIR 1995 SC 117; 1997 SCMR 1020; 1998 MLD 53; 1993 SCMR 639; 1997 SCMR 1020 and AIR 2005 SC 488 rel.
Mr. Saadat Yar Khan Akhtar, Advocate for Petitioners.
Mr. Manzoor Ahmad, Advocate along with Imran Hassan Khan, DDO for Respondents/CDGK.
Mr. Faisal Siddiqui Amicus Curiae.
Date of hearing: 6.10.2009.
Order
Aqeel Ahmed Abbasi, J.--Through these two petitions, the petitioners being seriously aggrieved by the inaction and inordinate delay on the part of registration authority, who failed to execute and register the renewal lease in respect of the properties involved in the instant petitions, following common relief is claimed in both petitions:--
"(a) To direct the respondents to execute and registered renewed lease (as per specimen attached annexure "H") before the Registrar on same terms of that of the expired lease and submit the same in Court within three weeks from the date of passing of Order.
(b) To declare that the inaction of the respondents is illegal and bad in law.
(c) To grant costs of the petition to the petitioner.
(d) To grant such or any other decree or decrees, order or orders, direction or directions as this Honourable Court may deem proper or fit in or about the circumstances of the case."
After notice to the respondent during the pendency of the above petitions, it appears that the lease was duly executed in favour of the petitioners by the official respondent. The said fact was brought to the notice of the Court. However, the petitioners were not satisfied by this belated action on the part of the official respondent and submitted an application under Sections 35, 35-A read with Section 151, C.P.C. in both the petitions. It was pleaded that the delinquent officer, responsible for such delay, shall be penalized by imposing exemplary cost either on his person or through the department concerned (CDGK) in addition to the normal cost to the petitioner. Learned counsel for the petitioners insisted that delay has caused grave inconvenience and financial loss to the petitioners, who were otherwise entitled for getting their property registered at the relevant time. Under the circumstances, it was urged that exemplary cost may also be awarded to the petitioners.
On 4-11-2008, while hearing the application referred to hereinabove, learned counsel for both the parties were directed to make their submissions on the above legal proposition.
Under the facts and circumstances of the instant petitions, it was required to be determined as to whether the cost can be imposed in writ jurisdiction, if yes. Whether it is to be imposed on the public functionary in person or through concerned department, and further as to whether compensatory cost could be claimed under the circumstances. On 10-9-2009, Mr. Faisal Siddiqui, Advocate was appointed as Amicus Curiae to assist the Court on the above said proposition of law. The matter finally came-up for hearing on 6-10-2009 when all the counsel for the parties as well as the learned Amicus Curiae argued the case in detail.
Learned counsel for the petitioners argued that the delinquent officer shall be held responsible to bear the exemplary cost. However, it was further argued that initially the same may be recovered from the department i.e. CDGK in the instant petition. Reliance was placed on Muhammad Zia v. Ch. Nazir Muhammad, Advocate 2002 CLC 59, Arivnder Singh Bagga v. State of U.P. and others, AIR 1995 SC 117 and Inayatullah v. Sh. Muhammad Yousuf 1997 SCMR 1020.
Conversely, the learned counsel for the respondent argued that the claim of the petitioner cannot be examined in writ jurisdiction, without prejudice to this objection he further argued that even if compensation is to be allowed to the litigant, it cannot be claimed for a period prior to litigation. The same could possibly be awarded during the pendency of the litigation in Court. It was also argued that as soon as the notice of the above petitions was received by the respondents, the present official respondent immediately acted upon the directions of the Court and the lease was duly registered without any delay. It was argued that the previous D.D.O. has already been transferred by the learned Nazim on having received complaints.
Learned Amicus Curiae, besides arguing verbally on the legal proposition, has also placed on record a written treatise along with case law in support of the submissions therein. The learned amicus curiae has categorized the legal proposition into following categories:
(i) Whether cost can be imposed in constitutional petition.
(ii) Against whom cost to be imposed.
(iii) Whether cost be imposed for a period prior to litigation or it can be imposed for the period of pendency of litigation.
The learned amicus curiae submitted that cost, compensation damages are three different and distinguishable categories having different parameters. According to learned amicus curiae, in a case where any defence plea or stand is taken by any party which is false/vexatious, compensatory cost is attracted under Section 35-A, C.P.C. whereas claim of damages relate to actual injury. The learned amicus curiae referred to several judgments to support his contentions that the cost can be imposed in constitutional jurisdiction. He also referred to various judgments in which it was held that cost can be imposed against State/Department.
Similarly, several judgments were referred by the learned amicus curiae, wherein it was held that cost can be imposed against a person including private and corporate entity.
After having referred to various cases wherein the cost has been imposed in constitutional jurisdiction on State as well as delinquent public functionary, the learned amicus curiae argued that in the facts and circumstances of the instant petitions the cost claimed by the petitioners appears to be in the nature of compensatory cost as provided under Section 35-A, C.P.C. According to learned amicus curiae, the provisions under Section 35-A are attracted where indefensible position is taken during the proceedings and it transpires that such claim or defence is false or vexatious. According to learned amicus curiae, compensatory cost can be allowed in addition to any other cost or damages as may be available to a party to the proceedings.
Counsel for the petitioners argued that the petitioner are entitled to penal cost and the compensatory cost as inaction on the part of public functionary, without any lawful excuse, attracts penal and exemplary cost to be imposed upon his person, whereas the compensatory cost is attracted for the period which was consumed during the litigation/proceedings on account of a false frivolous and vexatious defence by the public functionary.
We have heard both the learned counsel as well as the learned Amicus Curiae, who has provided valuable assistance to this Court by referring to a number of judgments, relating to imposition of cost, compensatory cost, penal cost and damages in the writ jurisdiction and further on the point as to whether such cost can be imposed either on the person i.e. department, public functionary or upon the State/Department. However, for the purposes of question proposed under the facts and circumstances of the instant petitions, we would like to dilate upon the precise issue agitated by the petitioners by claiming cost and compensatory cost under sections 35 and 35-A, C.P.C. Undisputedly in both the petitions the petitioners were entitled for getting their expired lease renewed by the respondent. It has also emerged that the petitioners having complied with all the requirements for getting their renewal lease duly executed by the respondent were denied to get such renewal lease deed registered by the respondent without any legal jurisdiction in this regard. It was only after filing instant petitions, such renewal leases were duly executed by the respondent on the basis of already available documents and compliance by the petitioners to this effect. The respondent could not come forward with any plausible explanation for this inordinate delay of about more than one year in discharge of the duties by the public functionary. During the course of arguments, it was pointed out by Mr. Manzoor Ahmed learned counsel for CDGK that the delinquent officer has been transferred from such post. Whereas the present official having come to know about the instant matter and the pendency of the petitions has immediately executed the renewal lease without any delay.
On 10-9-2008 it was pointed out by the learned counsel for the petitioners that the two functionaries i.e. namely, Khalid Hashmi, DDO and Shariq Ilyas, DO of CDGK were instrumental in refusing the registration of lease and it was only after filing of these petitions they executed such lease.
Be that as it may, the fact of unexplainable inordinate delay in the execution of the renewal of the lease of the petitioners by the respondents department through their delinquent public functionaries is established.
To thrash out the legal issue involved in these petitions, it will be advantageous to reproduce provisions of sections 35 and 35-A of Civil Procedure Code.
SECTION 35
Costs.--(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of an incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall State its reasons in writing.
(3) The Court may give interest on costs at any rate not exceeding six per cent, per annum, and such interest shall be added to the costs and shall be recoverable as such.
SECTION 35-A
Compensatory costs in respect of false or vexatious claims or defences.--(1) If in any suit or other proceeding, including an execution proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken as at the earliest opportunity and if it is satisfied of the Justice thereof, may after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding twenty five thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less.
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(3)...................................................................
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(4)...................................................................
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On combined reading of the above provisions it emerges that the costs awardable by a Court can either by actual costs or compensatory costs. Actual costs are awarded by a Court in order to secure expenses undergone by a successful litigant in the assertion of his rights/claim before a Court. However, while exercising this discretion relating to awarding of actual costs such direction is subject to conditions and limitations as provided in Order IX, Rule 3, Order XIII, rules 2 and 4, Order XIX, Rule 3(2), Order XXI, Rule 72(3), Order XXIII, Rule 1(3), Order XIV, Rule 4, Order XXXII, rules 4 (4) and 5(2), Order XXXIII, rules 10,11 and 16, Order XXXIV, Rule 10 and Order XXXV, Rule 3.
Similarly, it is also within the discretion of the Court that where the costs awarded under Section 35 of Civil Procedure Code are not sufficient compensation. The Court in addition, awards costs by way of compensation to the successful litigant. Such costs are compensatory in nature and not awarded as a penalty against unsuccessful party. In addition to actual costs and compensatory costs the High Court in its constitutional jurisdiction can award compensatory cost even in excess of twenty five thousand rupees as prescribed under Section 35-A Civil Procedure Code. Similarly, special cost can also be awarded by the High Court in exercise of its inherent powers. In this regard we are guided by following reported judgments --
(i) Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28.
(ii) Haji Muhammad Shafi v. Mst. Hamdani Bibi 1990 MLD 597.
(iii) M.D. Tahir, Advocate v. Federal Government and others PLD 1999 Lahore 409.
(iv) Mrs. Asma Begum v. The Commissioner, Karachi Division, Karachi. PLD 1997 Karachi 13.
(v) Abdul Razzak v. The Federation of Pakistan 1997 MLD 3283.
(vi) Inayatullah v. Sh. Muhammad Yousuf 1997 SCMR 1020.
(vii) The Postmaster General, Northern Punjab and Azad Jammu and Kashmir Rawalpindi v. Muhammad Bashir 1998 SCMR 2386.
(viii) Sayed Ahmad v. Mst. Khatoon Begum 1998 MLD 53.
"Admittedly, the sale-deed was presented for registration on 21.5.1987. In spite of fulfilling all the requirements and completing all the formalities, the same has not at all been registered so far. Thus, the petitioner is not only deprived of enjoying his property rights but she has been subjected to untold misery and hardship. Taking judicial note of the inconvenience, hardship, mental agony and the misery suffered by the petitioner all these years and having regard to the money spent on various litigations on account of the mischief committed by the Sub-Registrar and the District Registrar, this Court, instead of awarding damages, impose cost on these two officers. Learned Government Pleader fairly submitted that the present Sub-Registrar is ready to register the document and requested this Court not to award cost on the aforesaid two officers. Learned Government Pleader is not fair in pleadings mercy on behalf of these two officers who have committed a great blunder in the discharge of their official duties, as a result of which the petitioner has suffered a lot. Normally this Court will not impose costs but in compelling and deserving cases costs or damages have to be imposed/awarded in order to prevent commission of such mischiefs by the officers of the State. In the result, the writ petition is allowed and the endorsement made on the sale-deed and the impugned order passed by the 3rd respondent in the appeal are quashed. The petitioner shall present the sale-deed for registration within a week and the 2nd respondent is directed to register the same within a period of two weeks thereafter. Cost of Rs. 10,000 is awarded on the State Government to be payable to the petitioner within a period of four weeks and the same shall be recoverable equally from the concerned Sub-Registrar and the District Registrar."
"In addition to payment by way of substantial relief we are also of the opinion that when a person unlawfully deprived of liberty has to approach the Court for relief and the Court finds his detention to be mala fide and unlawful he is entitled to costs. Depending on the circumstances, of each case such costs could be (i) actual (ii) Compensatory (iii) Penal or deterrent. In Muhammad Akram v. Farman Bi PLD 1990 SC 28 the distinction between actual and compensatory costs was clearly explained with reference to sections 35 and 35-A, C.P.C. In the subsequent case of Khurshid Ahmed Naz Faridi 1993 SCMR 639 the concept of penal costs required to be personally paid by Government official transgressing the limit of their power was discussed and considered. It is evident from the aforesaid judgments, of the Honourable Supreme Court that apart from actual costs incurred a petitioner may also be entitled to compensatory costs under Section 35-A, C.P.C. In addition thereto, however, he may also be entitled to penal or deterrent costs. The quantum of costs awarded, whether compensatory or penal, may be determined by Court in its discretion. It might suffice to hold that in cases like the present one aggrieved person may be entitled to all three kinds of costs and the concerned official rather than the Government itself may be burdened with the liability to pay penal costs."
"We are unable to accept the contention of the learned counsel for the petitioner that special costs could only be awarded in terms of Section 35-A, C.P.C. ...... In these circumstances the High Court was fully competent in exercise of its inherent powers to grant appropriate compensation to the respondents. There being no positive prohibition on the power of the High Court while exercising jurisdiction under Article 199 of the Constitution to award costs to compensate a party made to suffer unnecessarily through frivolous litigation. The High Court in appropriate case, in exercise of its inherent power, may award adequate costs by way of compensation to a party made to suffer on account of such litigation."
"Costs are granted to a person who succeeds in a litigation. Such costs are to be paid by the unsuccessful party. The object of granting such costs may be two-fold. One, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassment. The other object is to penalize a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive. Where a person acting in this official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards cost to be paid by him personally, it will be proper exercise of discretion."
"Further for the manifestation of utter lack of sense of responsibility by the District Magistrate in not even caring to call upon the Superintendent of Police to reveal the bogy supportive material tending to substantiate his subjective opinion despite the patently self-demonstrative vague generalization without spelling out particulars thereof and just hastily thumb-marking the stamped portion of the papers tendered before him in the nature of requisition slip as a matter of automatism, while dealing with the rights of citizens amounts to dereliation of duty in breach of Article 5(2) of the 1973 Constitution; consequently, the petition is allowed with special costs of Rs. 3,000 against Arif Bajwa, present incumbent of the office of District Magistrate, Narowal personally."
"Now Section 35-A of the Code of Civil Procedure restricts the special costs to Rs.25,000 and that may be in relation to each of the parties, assessed separately, bringing forth a larger amount than Rs.25,000 by ways of costs in totality and adopting that rule, we may award suitable costs to the petitioners in their first Constitutional petition. However, such a course need not be adopted because in the exercise of the Constitutional jurisdiction of this Court, the procedural powers of the Court cannot be controlled by a sub-constitutional legislation such as the Code of Civil Procedure. Not being thus bound by the restrictions in Section 35-A of the Code of Civil Procedure, we impose costs in the sum of Rs.50,000."
In view of hereinabove referred judgments, we are of the considered opinion that the cost including compensatory cost as well as the exemplary cost can be imposed by High Court in its writ jurisdiction. Now we would like to advert to the second proposition as to against whom (State/Department) or person/public functionary such cost can be imposed. In this regard we would like to place reliance on a judgment by the Honourable Supreme Court reported as the Postmaster General, Northern Punjab and Azad Jammu and Kashmir, Rawalpindi v. Muhammad Bashir 1998 SCMR 2386, Inayatullah v. Sh. Muhammad Yousuf 1997 SCMR 1020 and State of U.P. v. Manohar AIR 2005 SC 488.
Similarly, cost can also be imposed against person/public functionary under writ jurisdiction. In this regard we are guided by following reported judgments.
(1) Province of Balochistan v. Murree Brewery Company Ltd. PLD 2007 SC 386.
(2) Inayatullah v. Muhammad Yousuf 1997 SCMR 1020.
(3) Khurshid Ahmed Naz Faridi v. Bashir Ahmed and 3 others 1993 SCMR 639.
On perusal of above referred judgments, it transpires that the High Court in its writ jurisdiction can award cost, compensatory cost as well as exemplary cost/penal cost in appropriate cases. It also emerges that such cost can be recovered from State/Department instead of delinquent public officer, as the State/Department may recover the same from the delinquent officer. Exemplary or penal costs are imposed on the delinquent public functionary and is required to be recovered from such person.
Under the circumstances, we are of the considered opinion that in the instant petitions the petitioners are entitled for the claim of cost as well as compensatory cost. Looking at the facts and circumstances of these instant petitions, we would direct the respondent department to deposit Rs.20,000 (Rupees Twenty Thousand) each towards actual cost of the petition and Rs.25,000 (Rupees Twenty Five Thousand) each towards compensatory cost with the Nazir of this Court who after proper verification disburse the same to the petitioner. We are restraining ourselves from imposing exemplary/penal cost on the delinquent public functionaries, who by abusing the authority have dragged the petitioners to instant litigation. However, we would direct the respondent department to initiate departmental inquiry against the delinquent officers and if delinquent officers are found to be guilty of such misconduct, then besides any disciplinary action deemed necessary, the cost so imposed may be recovered from them. Accordingly, both the petitions along with the listed applications are disposed of in the above terms. Before parting with this order we would like to express our appreciation to Mr. Faisal Siddiqui, learned Amicus Curiae, for the valuable assistance provided in this case.
(R.A.) Order accordingly.
PLJ 2010 Karachi 112
Present: Faisal Arab, J.
NATIONAL BANK OF PAKISTAN KARACHI--Decree-Holder
versus
Messrs BACHANI SUGAR MILLS LTD. and 6 others--Judgment-Debtors
Execution Appl. No. 24 of 2006 and C.M. As. Nos. 448, 521, 615, 661 and 663 of 2009, decided on 3.3.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R.83(3)--Execution of decree--Sale of entire assets--Objection--Effect--Value of entire property (Mill) ordered to be sold was four times of the decretal amount--Plea raised by the petitioner was to postpone the entire sale as the sale of only a part of assets would be sufficient to satisfy the entire decretal amount--Validity--Partial sale would be sufficient to cover the decretal amount--High Court accepted plea raised by the judgment debtor and directed that proclamation of sale in respect of plant and machinery of the mills as well as other assets that were movable should be issued first--Separate bids for certain items of plant and machinery which were to be mentioned to the Nazir of the Court by the judgment debtor had also to be invited--Where judgment-debtor had become unable to make up the deficiency, only then fresh order for issuance of proclamation of sale for the land and building of judgment-debtor should be made. [P. 117 & 118] D, F & G
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R.83(3)--Execution of decree--Sale of entire assets--Disproportionate--Effect--Sale of assets should not be disproportionate to the object of execution proceedings, i.e., the discharge of the obligation under the decree--Judgment-debtor would be well within his right to oppose sale that was excessive, i.e., disproportionate to the amount sought to be recovered. [P. 116] E
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R.83(3)--Execution of decree--Sale of attached property--Delivery of possession and appointment of security guard--Effect--Decree-holder sought appointment of security guards at the sugar mills (attached property) in order to secure the fixtures/fittings, plant and machinery and other equipments--Plea raised by the decree-holder was that the judgment debtors had attempted to remove certain machineries and valuables in order to defeat the recovery of the decretal amount and the Nazir of the Court should be directed to take over possession of the mills and to prepare an inventory--Validity--High Court allowed applications filed by decree holder and directed the Nazir of the Court to take possession of the mills, prepare inventory of the machineries and to depute guards at the mills. [Pp. 115 & 118] A, B & I
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R.83(3)--Execution of decree--Postponement of sale--Grant of time--Effect--Sufficient time had already been granted to the judgment debtor to raise the decretal amount--No further time could be allowed. [Pp. 115 & 118] C & H
Mr. Salim Salam Ansari and Amir Malik, Advocate for Decree Holder.
Mst. Sofia Saeed Shah, Advocate for Judgment Debtors.
Mr. M. Masood Ghani for Auction Purchaser.
Date of hearing: 3.3.2010.
Order
The present execution application arises from a decree passed in Banking Suit No. B-196 of 2000. The decree-holder seeks recovery of the decretal amount of Rs.41,462,802. Vide order dated 23-12-2008 this execution application was allowed and the Nazir of this Court was directed to attach the mortgaged properties and then sell them through public auction in order to realize the decretal amount. On the date of the auction i.e. 11-5-2009 only one bidder came forward and tendered his offer of Rs. 175 million for the entire project of judgment-debtor No. 1 i.e. land, building and plant and machinery equipment and other assets and a deposit of 25 % of the bid amount was also made with the Nazir. Then through an urgent hearing application bearing C.M.A. No. 583 of 2009 the auction-purchaser sought confirmation of sale in his favour. This application was fixed in Court on 2-6-2009 and that very day when only urgent application was listed for hearing, the sale was confirmed in favour of the auction purchaser. The judgment-debtor challenged the order dated 2-6-2009 in High Court Appeal bearing No. 181 of 2009 on the ground that it was passed while taking up urgent application moved by the auction-purchaser without affording any opportunity of hearing to the judgment-debtors and the same being violative the principles of natural justice be set aside.
On 16-6-2009 High Court appeal came up for hearing before Division Bench. The counsel for the decree-holder as well as the auction-purchaser frankly conceded to the legal position that order dated 2.6.2009 was passed without giving the opportunity of hearing to the judgment debtors and agreed that the Division Bench may set aside the order dated 2-6-2009 and direct the parties to appear before the Single Judge on 19-6-2009. On the basis of such joint statements of the counsel for all the parties including the auction purchaser the order dated 2.6.2009 was set aside by the Division Bench and all pending applications were directed to be disposed of before taking up the matter for confirmation of sale.
On 19-6-2009 the learned Single Judge directed that all pending applications be fixed for hearing on 30-6-2009. On this date the case could not proceed and was adjourned to 2-7-2009 on which date it transpired that some of the pending applications had become infructuous and were therefore dismissed as such. On 24-12-2009 when the remaining applications bearing C.M.A. Nos. 448, 521, 661 and 663 all of 2009 came up for hearing. The counsel for the decree holder, the judgment debtors and the auction-purchaser appeared and stated that all pending applications be disposed of simultaneously. In support of their respective contentions, they filed written arguments and thereafter the matter was reserved for orders.
All pending applications are being disposed of through this common order.
In C.M.A. No. 448 of 2009 that was filed on 29-4-2009, the judgment debtors have taken the plea that no notice under Order XXI, Rule 66 was served upon them, no decretal amount was mentioned in the advertisement that was published for sale of the mortgaged assets and value of the assets that are being put to sale was also not mentioned.
C.M.A. No. 521 of 2009 was filed on 20-5-2009. wherein the decree holder sought appointment of security guards at the Sugar Mills in order to secure the fixtures and fittings, plant and machinery and other equipments as according to the decree-holder, the judgment-debtors were attempting to dispose them of in order to defeat the recovery of the decretal amount.
CM. A. No. 615 of 2009 was filed by the decree-holder on 6.6.2009 seeking direction to the Nazir to take over possession of the mills and prepare an inventory as the judgment-debtors have attempted to remove certain machineries and valuables but the guards of the decree holder, posted at the mills prevented them from doing so.
C.M.A. No. 661 of 2009 was filed by the judgment-debtor on 18-6-2009 seeking postponement of the sale and grant of reasonable time to enable the judgment debtors to raise the decretal amount.
C.M.A. No. 663 of 2009 was filed by the judgment-debtors on 18-6-2009 seeking postponement of the sale as according to them proceeds from the sale of certain machineries only would be sufficient to satisfy the decree.
The counsel for the decree-holder has opposed the applications filed by the judgment-debtors on the ground that any objection to the execution proceedings can be entertained by executing Court only after the judgment-debtors have deposited in Court the decretal amount as envisaged under Order XXI, Rule 23A of Civil Procedure Code.
The judgment-debtors have moved two applications bearing C.M.As. Nos.661 and 663 of 2009 both under Order XXI, Rule 83 of Civil Procedure Code.
Applications that were moved by the judgment-debtors cannot be equated with the objections as envisaged under Order XXI, Rule 23A of Civil Procedure Code. Order XXI, Rule 83 of Civil Procedure Code only facilitates and enables the judgment-debtor to satisfy the decree in various manners mentioned therein. Sub-rule (1) of Order XXI, Rule 83 entitles the judgment-debtor to seek postponement of sale of any property mentioned in the proclamation of sale if he satisfies the Court that there are reasons to believe that decree could be satisfied through mortgage, or lease or private sale of any of his property or part thereof on such terms and for such period as it thinks proper to enable the judgment-debtor to raise decretal amount. Hence very object of Order XXI, Rule 83 of Civil Procedure Code is to allow a judgment-debtor to satisfy the decree in any of the modes provided in the said rule which may suit him provided always that he satisfies the executing Court that there are reasons to believe that judgment-debtor would raise the amount by adopting such mode. Thus, the provisions of Order XXI, Rule 83 themselves provide for recovery of decretal amount and cannot be equated with the objections as envisaged under Order XXI, Rule 23A. Therefore, when a judgment-debtor is only seeking postponement or adjournment of sale on any reasonable ground or is asking the Court to sell a particular asset and not all, then such request should not be regarded as an objection within the meaning of Order XXI, Rule 23A, C.P.C. for which the entire decretal amount is required to be first deposited in Court. The word objection as envisaged under Order XXI, Rule 23A C.P.C. means to dispute the very right of the decree holder to get the decree executed. In other words raising objection under Order XXI, Rule 23A, C.P.C. means putting up resistance to the execution proceedings itself, which is not the object in the two applications. In these two applications, the judgment-debtors only seek some time to satisfy the decree and also want that decree be satisfied from the sale of certain assets only. Such a request cannot be termed as an objection to the execution proceedings within the meaning of Order XXI, Rule 23A, C.P.C. and no deposit of decretal amount is required from the judgment debtors.
In the present case a sum of 42 million rupees are required to be recovered to satisfy the decree whereas an offer of 175 million was received for sale of entire sugar mills that includes its land, building, plant and machinery, equipment and other assets. No doubt to effect recovery of decretal amount, the decree-holder is well within his rights to procure an order for sale of mortgaged assets through auction proceedings but where sale proceeds of any part of the mortgaged or charged assets put to sale are sufficient enough to cover the decretal amount, then all assets of the judgment-debtor should not be put to sale. The sale of assets should not be disproportionate to the object of execution proceedings i.e. the discharge of the obligation under the decree. A judgment debtor would be well within his right to oppose sale that is excessive i.e. disproportionate to the amount sought to be recovered. The executing Court must ensure that recovery is made from sale of such assets only proceeds of which would be sufficient to discharge the obligation of the judgment-debtor under the decree. In order to recover the decretal amount, there could be several mortgaged or charged assets available for sale but this does not mean that all such assets in there entirety should be put to sale. At the request of the judgment-debtor, the executing Court must first satisfy itself that sale proceeds of any particular asset or a set of assets out of several assets would be sufficient to discharge judgment-debtor's obligation under the decree. Merely because offers for sale of all assets were invited it does not mean that executing Court must confirm their sale in there entirety. Where the offer is many times the amount sought to be recovered and partial sale would generate sufficient amount to cover the decretal amount then the executing Court must stay its hands from selling all assets of the judgment debtor. Thus where there are reasons to believe that sale of only one or a set of assets would fetch sufficient amount to cover the decretal amount then in the first instance only such assets should be sold. As the extent of the sale of judgment-debtor's assets has to be proportionate to the amount sought to be recovered it is for this reason Order XXI, Rule 55 of Civil Procedure Code envisages that upon satisfaction of the decree, the order of attachment of judgment debtor's assets that may have been passed to effect recovery stands automatically discharged. In other words, the recovery of the decretal amount immediately extinguishes the decree and other attached or mortgaged or charged assets stand released/redeemed. Therefore, the executing Court must keep this object before it and any reasonable request for partial sale of mortgaged or charged assets, which is not intended to obfuscate the execution proceedings or is not intended to unnecessarily cause delay, should be considered by the executing Court. Whether such a request is reasonable or not, it is for the executing Court to decide, keeping in view the circumstances in which request for partial sale or postponement or adjournment of sale is made.
Though sub-rule (3) of Rule 83 of Order XXI, of Civil Procedure Code provides that nothing in Rule 83 shall apply to sale of property directed to be sold in execution of a decree which is mortgaged or on which the decree-holder holds a charge but this does not mean that the executing Court shall provide no opportunity to judgment debtor to settle the decretal amount before the mortgaged or charged assets are put to sale or generate funds from the sale of only such mortgaged assets, proceeds of which would be sufficient to satisfy the decree. The basic object of this sub-rule is that where the decree provides for recovery of the decretal amount from the sale of charged or mortgaged assets then the request of the judgment-debtor to get the recovery effected from some other property of the judgment debtor shall not be considered. Nothing beyond this.
In the present case a sum of 42 million rupees are required to be recovered and the value of entire worth of the mills is well above 4 times of the decretal amount i.e. more than 175 million rupees. In this background, the judgment debtors were well within their rights to ask the Court to sell only part of the assets, sale proceeds of which would be sufficient to satisfy the entire decretal amount. After going through the applications filed by the judgment-debtors this Court finds that an opportunity to raise decretal amount through partial sale of mortgaged or charged assets be granted as there is overwhelming possibility that partial sale would be sufficient to cover the decretal amount and the need to sell the entire mills inclusive of land and building may not arise.
Keeping in view the worth of the mills and the amount that is required to be recovered, C.M.A. No. 663 of 2009 is allowed. In the first instance proclamation of sale in respect of plant and machinery of the mills as well as other assets those are movables shall be issued. Separate bid for certain items of plant and machinery that are to be mentioned to the Nazir by the judgment-debtor No. 1 are also to be invited. If the offers for the sale of any of the above referred two sets of assets are not sufficient enough to cover the decretal amount and still there remains a shortfall in the decretal amount and the judgment debtors are unable to make up for the deficiency, only then fresh order for issuance of proclamation of sale for the land and building of the judgment-debtor No. 1 shall be made. Needless to mention that before any offer of plant and machinery, equipment and other movable assets of judgment debtor No. 1 is accepted by the Nazir, if the judgment-debtors deposit the decretal amount in Court in terms of the decree, then the decree would stand satisfied and the order of attachment and take over of the mills shall stand withdrawn in terms of Order XXI, Rule 55 of Civil Procedure Code. In so far as C.M.A. 662 of 2009 is concerned, sufficient time has already elapsed and in case the judgment-debtor intended to raise the decretal amount they would have already done so by now. No further time could be allowed. CM. A. 661 of 2009 is therefore dismissed.
In view of above order on CM. A. No. 663 of 2009 and the fact that when Nazir invited bids, the Chairman of judgment-debtor No. 1 was also present in the auction proceedings and had raised no objection, C.M.A. No. 448 of 2009 has become infructuous and is dismissed as such.
With regard to the rights of an auction-purchaser, suffice to state that order of acceptance of sale in favour of the auction-purchaser that was passed on 2-6-2009 was set aside by a Division Bench of this Court vide order dated 19-6-2009 in High Court Appeal No. 181 of 2009 with the consent of the counsel for the parties including the auction-purchaser and the judgment debtors were given the opportunity to put forward their case in the applications that they had moved in the present execution proceedings.
With regard to C.M.A. Nos.521 and 615 of 2009 filed by the decree holders, vide order dated 9-6-2009 Nazir was directed to take possession of the mills, prepare inventory of the machineries and depute guards at the mills. The order dated 9-6-2009 is hereby confirmed and C.M.As. Nos. 521 and 615 are disposed of accordingly.
In view of the above discussion, C.M.As. Nos.448 and 661 of 2009 stand dismissed whereas C.M.As. Nos.521, 615 and 663 of 2009 stand allowed.
(R.A.) Order accordingly.
PLJ 2010 Karachi 119
Present: Faisal Arab, J
MUHAMMAD RAFIQUE--Plaintiff
versus
Dr. QADIR ALI KHAN and another--Defendants
Suit No. 457 of 2004, decided on 6.5.2010.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Specific performance of agreement to sell--Availability of money with buyer--Willingness to complete the agreement--Precondition--Where there is clear refusal on the part of seller to complete sale transaction, then there is no occasion for buyer to show that he has cash available with him to purchase the property--Test of being ready and willingness is to be judged only when purchaser calls upon the seller to complete transaction and buyer avoids or refuses to come forward and completes the sale transaction. [P. 123] A
Contract Act, 1872 (IX of 1872)--
----S. 55--Fixing of time as essence of contract--Principle--Where there is failure on the part of buyer to complete transaction and time is also not made essence of contract then it is for the seller to make time essence of contract by fixing reasonable time for performance of contract, whereafter if buyer fails to complete the transaction, the contract comes to an end. [P. 123] B
PLD 1962 SC 1 ref.
Contract Act, 1872 (IX of 1872)--
----S. 12--Specific performance of agreement to sell--Rescission of agreement--Plaintiff filed suit before expiry of time fixed for completing the transaction as the defendant refused to sell the suit property and sought cancellation of sale agreement--Validity--Contract could come to an end without notice where buyer himself had refused to complete the transaction--Notice for termination of contract was dispatched to plaintiff four days after expiry of contract period without granting any time to plaintiff to complete the transaction--Neither the suit was filed prematurely nor there was failure on the part of plaintiff to complete the sale transaction, on the contrary it was the defendant who prior to expiry of date of agreement had second thought on account of family pressure and refused to perform his part of obligation--High Court directed the defendant to transfer the suit property in the name of plaintiff--Suit was decreed. [P. 123] C & D
PLD 1959 Kar. 629; 2007 YLR 1027; 1999 MLD 3345; 2004 MLD 1033; AIR 1930 Pat. 121; PLD 1986 SC 497; 2005 YLR 1905 and AIR 1927 Pat. 121 ref.
Mr. Neel Keshav, Advocate for Plaintiff.
Mr. Fazl-e-Ghani, Advocate for Defendant No. 1.
Defendant No. 2 Ex parte.
Date of hearing: 6.5.2010.
Judgment
The case of the plaintiff is that he entered into an agreement for purchase of suit property i.e., house bearing No. B-26, measuring 400 Sq. Yd., in Block-A, situated at KDA Officers Co-operative Housing Society Ltd., Karachi, for a total sale consideration of Rs.97,75,000. Prior to entering into sale agreement on 23-1-2004, the plaintiff paid Rs. 1,50,000 as earnest money to the Defendant No. 1 and at the time of execution of sale agreement a further sum of Rs.8,50,000 was paid to the Defendant No. 1. In all one million rupees were paid and the balance sale consideration amount of Rs.87,75,000 was to be paid within 105 days from the date of the execution of sale agreement i.e., upto 8-5-2004. It is further the case of the plaintiff that before the expiry of the date of performance of the agreement, the Defendant No. 1 refused to sell the suit property and sought cancellation of the sale agreement which compelled the plaintiff to file this suit on 29-4-2004 i.e., 10 days before the expiry of time fixed for completing the transaction. At the time of filing of this suit, the plaintiff obtained injunction order which was granted subject to deposit of remaining sale consideration in cash. Subsequently this order of deposit was modified and 25% amount was allowed to be deposited in cash and for the remaining 75% amount, security was to be furnished. The case of the Defendant No. 1 is that the plaintiff did not have the money to complete the transaction on or before the cut off date i.e. 8-5-2004 and therefore, the Defendant No. 1 served legal notice on 12-5-2004 rescinding the contract. It was argued that the plaintiff is not entitled for the relief of specific performance of contract.
(1) Whether any cause of action has accrued to the plaintiff?
(2) Whether instant suit by plaintiff has not been filed prematurely, dishonestly and with mala fide intention to cover his own default in performance of the agreement dated 23-1-2004?
(3) Whether the plaintiff has fulfilled/complied with the terms and conditions of the sale agreement dated 23-1-2004?
(4) Whether the Defendant No. 1 has rightly rescinded the sale agreement dated 23-1-2004?
(5) What should the decree be?
First issue was not pressed as admittedly agreement was executed. The only question that is to be decided is whether the plaintiff has demonstrated that he was ready and willing to perform his part of contract and it was Defendant No. 1 who failed to perform his contractual obligation under the sale agreement. Counsel for the plaintiff has referred to cross-examination of the Defendant No. 1 wherein it was admitted by the Defendant No. 1 that before the expiry of the time fixed for performance of the agreement i.e., 8-5-2004 there was a meeting at the house of the Defendant No. 1 wherein his family members were present and they informed the plaintiff that they are not agreeable on selling the suit property. It has also come on record in the cross-examination of the Defendant No. 1 that another meeting also took place with the estate broker Amjad wherein son of the Defendant No. 1 and his friend went to the broker Amjad so that he may persuade the plaintiff to agree on putting an end to sale agreement. Thus it has come in evidence that prior to expiry of date for the performance of the contract, it was the Defendant No. 1 who sought cancellation of the contract which prompted the plaintiff to file present suit prior to cut off date i.e., 8-5-2004. It has also come in evidence that when the plaintiff entered into sale agreement, he arranged sale consideration by selling a plot of 400 sq. yd., in the neighbourhood of suit property. Counsel for the Defendant No. 1 in reply has argued that the plaintiff failed to demonstrate that he had entire sale consideration with him. He argued that no notice was issued to the Defendant No. 1 calling upon him to complete the sale transaction. He further contended that while obtaining injunction order from this Court, only 25% of the remaining sale consideration was deposited and the balance was deposited in 2006 and this delay by itself shows that the plaintiff did not have entire sale consideration with him to complete the sale transaction. He argued that on the other hand the Defendant No. 1 from his conduct has demonstrated that he neither sold suit property to any one else nor invited offers for the same. He therefore submitted that the suit may be dismissed.
Learned counsel for the Defendant No. 1 relied upon PLD 1959 Karachi 629, 2007 YLR 1027, 1999 MLD 3345, 2004 MLD 1033, AIR 1930 Patna 121, PLD 1986 SC 497 and 2005 YLR 1905. In the first case it has been held by this Court that buyer has to show that he is ready and willing to perform his part of obligation on the date on which payment is to be made under the agreement to sell. Second case pertains to grant of injunction. It was held that since the plaintiff has not complied with the directions to deposit the sale transaction in Court, he was not entitled for grant of interim relief. Interim injunction granted earlier was thus vacated. In the third and fourth case it has been held that where buyer has himself never approached the seller to complete the sale transaction, he has failed to establish his ready and willingness to perform his part of contract. In the fifth case it has been held that the plaintiff has taken no step after expiry of sale transaction to come forward and seek performance of the contract. In the case of AIR 1927 Patna 121, it was held that ready and willingness has to be demonstrated at all material times. Same principle has been laid down by this Court in a Supreme Court case reported in 2005 YLR 1905.
In the present case, it has come on record that before expiry of the date of performance, the plaintiff has admittedly approached the Defendant No. 1 for seeking completion of the transaction but it was the Defendant No. 1 and his family members who refused to complete the sale transaction and sought cancellation of contract. It has also come on record that son of the Defendant No. 1 and his friend approached the estate agent in order to get sale transaction cancelled as the family members of the Defendant No. 1 had second thoughts as they decided not to sell the suit property. In view of this evidence where there is categorical refusal on the part of seller to honour his contractual commitment, the plaintiff deemed appropriate not to wait further for seeking completion of transaction as it would have been an exercise in futility. On the basis of categorical refusal prior to cut off the date, the plaintiff was fully justified in filing the present suit. The fact that at some stage while seeking injunctive order, extension in time for deposit of amount was sought by the plaintiff, cannot be regarded as failure of the buyer to demonstrate his ready any willingness to perform his part of contract. The question of examining ready and willingness of the buyer becomes material when the seller has himself not refused to complete the transaction, which is not the case here. Here there was categorical refusal to perform on the part of the Defendant No. 1. Thus where there is clear refusal on the part of the seller to complete the sale transaction, then there is no occasion for the buyer to show that he has cash available with him to purchase the property. Test of ready and willingness is to be judged only when purchaser calls upon the seller to complete the transaction and the buyer avoids or refuses to come forward and completes the sale transaction. It is an admitted position that time was not made essence of the contract. Where there is failure on the part of the buyer to complete the transaction and time is also not made the essence of contract then it is for the seller to make time essence of the contract by fixing reasonable time for perfirmance of the contract whereafter if buyer fails to complete the transaction, the contract comes to an end. In the case reported in PLD 1962 SC 1, it has been held that it is for the seller to make time essence of contract by first calling upon the buyer to complete the transaction within reasonable time. Otherwise contract stands terminated if the buyer fails to complete the transaction in spite of grant of reasonable time. A contract also comes to an end without notice where the buyer himself refuses to complete the transaction, which is not the case here. In the present case the notice for termination of contract was dispatched to the plaintiff by the Defendant No. 1 on 12-5-2004 i.e., after 4 days of expiry of contract period without granting any time to the plaintiff to complete the transaction. In view of this factual position, neither suit was filed prematurely nor there was failure on the part of the plaintiff to complete the sale transaction. On the contrary it was the Defendant No. 1 who prior to expiry of date of agreement had second thought on account of family pressure and refused to perform his part of obligation. Therefore Issue Nos. 2 and 3 answered accordingly.
Rescission of contract by the Defendant No. 1 through notice dated 12-5-2004 was therefore contrary to the principles laid down in the Supreme Court's judgment reported in PLD 1962 SC 1. Hence the suit is decreed. The Defendant No. 1 is directed to transfer the suit property in the name of the plaintiff within 30 days. In case the Defendant No. 1 fails to transfer the same, Nazir of this Court shall execute sale-deed on behalf of the Defendant No. 1 in favour of the plaintiff and upon execution of sale-deed, Nazir shall pay the amount already deposited with him to the Defendant No. 1 along with profit accrued thereon. The alternate prayer for damages is denied.
(R.A.) Suit decreed.
PLJ 2010 Karachi 124 (DB)
Present: Gulzar Ahmed and Shahid Anwar Bajwa, JJ.
SALMAN ANSARI--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Islamabad--Respondent
Const. P. No. D-1375 of 2010, decided on 28.5.2010.
Constitution of Pakistan (1973)--
----Arts. 197 & 199--Constitutional petition--Appointment of judges--Notification, legality of--Petitioner was appointed as Addl. Judge of High Court for a period of one year--While his period as Addl. Judge of High Court was extended for six months--Petitioner was appointed as permanent Judge of High Court but on the basis of judgment passed by Supreme Court he ceased to be the Judge of High Court--Validity--Notification was without lawful authority and therefore, of no legal effect and the same was the position of notification which was also without lawful authority--Such was the natural, logical and clearly spelt out effect of judgment passed by Supreme Court, therefore, contention of petitioner that notification dated 2-8-2009 was without lawful authority and of no legal effect was without any substance because notification merely performed an administrative chore which executive was duty bound to perform in terms of the judgment passed by Supreme Court--Petitioner was never a permanent Judge of High Court, he was appointed as Addl. Judge vide notification dated 15-9-2007--Petitioner took oath on 17-9-2007 and his tenure as Addl. Judge came to an end on 16-9-2008, and after that date petitioner had never been a Judge or Additional Judge of High Court--Petition was dismissed. [Pp. 130 & 132] A & B
PLD 2009 SC 879 fol.
PLD 1998 SC 161; PLD 2009 Kar. 408 and PLD 2010 SC 61 rel.
Mr. Abrar Hasan, Advocate for Petitioner.
Date of hearing: 28.5.2010.
Order
Shahid Anwar Bajwa, J.--Facts giving rise to this petition are that the petitioner was enrolled as an Advocate by Sindh Bar Council in 1974. The petitioner practised till 1991 when he was taken in employment as Additional District and Sessions Judge. The petitioner was promoted as District and Sessions Judge in 1997 in which capacity he held various posts. On 15-9-2007 vide Notification No. F.5(1)/ 2007-A-II issued by the Law, Justice and Human Rights Division, Government of Pakistan, the petitioner was appointed as Additional Judge of Sindh High Court for a period of one year w.e.f. the date he took Oath of his office. Upon taking of Oath of his office on 17-9-2007 the petitioner assumed the office of Additional Judge of this Court. The petitioner continued as Additional Judge of this Court. On November 3, 2007, Chief of Army Staff issued the Proclamation of Emergency. The Provisional Constitutional Order 1 of 2007 as also the Oath of Office (Judges), Order of 2007 were also issued by General Pervez Musharaff in his capacity of Chief of Army Staff. Various other constitutional instruments and Presidential Orders followed and their consequence was that Judges of the superior Courts were required to take fresh Oath under the PCO and such Judges who did not take such Oath or who were not called to take oath ceased to be Judges of their respective Courts. The petitioner refused to take oath under the PCO 2007. Consequently, on December 3, 2007 Notification No. F12(4)/2007.A.II was issued by the Law, Justice and Human Rights Division. It was stated that the petitioner as well as eleven other Judges of this Court had ceased to hold office of Judge of High Court of Sindh w.e.f. 3-11-2007. Upon restoration of Constitution, Notification No. F.I(2)/08.A.II was issued by the Law, Justice and Human Rights Division on August 26, 2008. It was stated in the Notification that in exercise of powers conferred by Article 197 of the Constitution, the President was pleased to "re-appoint" the petitioner and two others "former deposed Additional Judges" of Sindh High Court to be Additional Judges of this Court with effect from the date of taking oath of their office for the period mentioned in the Notification dated September, 15, 2007. Since the period mentioned in the Notification dated September 15, 2007 was one year, therefore, the implication taken from the Notification dated August 26, 2008 was that the petitioner would continue to be Additional Judge of this Court from the date of Notification dated August 26, 2008 till September 16, 2008 i.e. upon completion of one year from the date he took oath as Additional Judge in the first phase. This Notification was followed by a fresh Notification of September 15, 2008. Through this Notification tenure of office of petitioner as Additional Judge was extended for a period of six months. On 17-3-2009, yet another Notification was issued and the petitioner was appointed as a Judge (i.e. permanent Judge) of this Court. In consequence of this Notification petitioner took oath as a permanent Judge of this Court. On July 31, 2009, short order was announced by the honourable Supreme Court of Pakistan in the case of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Human Rights Division, Islamabad and others PLD 2009 SC 879. Upon such announcement, on August 2, 2009, a Notification was issued by Ministry of Law, Justice and Human Rights Division. The Notification reads as under:--
"In pursuance of judgment of the Full Bench of Supreme Court of Pakistan dated 31st July, 2009, in Constitutional Petitions Nos. 9 and 11 of 2009 (Sindh High Court Bar Association and Mr. Nadeem Ahmed, Advocate v. Federation of Pakistan), the President is pleased to approve that the following Judges of High Court of Sindh shall cease to hold their offices with immediate.
1 .......................
2 .......................
4 .......................etc.
(i) Learned counsel referred to para 22 and para 193 of the judgment of the honourable Supreme Court in Sindh High Court Bar Association's case (supra) and contended that since the petitioner was a permanent Judge of Sindh High Court in terms of Notification dated March 17, 2009 and since he had taken Oath as permanent Judge of Sindh High Court, para 193 was not attracted to the case of the petitioner.
(ii) Learned counsel submitted that in terms of judgment of the honourable Supreme Court in the case of Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice, Human Rights and Parliamentary Affairs, Islamabad and others, PLD 1998 SC 161 (with reference to Page 355) there must have been a direction issued to the Federal Government to de-notify the petitioner's name as a permanent Judge of this Court and since no such direction was issued in the case of Sindh High Court Bar Association (supra) the Notification dated August 2, 2009 is without lawful authority and of no legal effect.
(iii) That the short order of the Honourable Supreme Court of Pakistan was announced on 31-7-2009 which was a Friday and the impugned Notification was issued on 2-8-2009 which was a Sunday and this Notification, therefore, was issued in haste and in a mechanical manner and is, therefore, void for that reason. In this regard, learned counsel referred to a judgment of a Full Bench of this Court in the case of Sindh High Court Bar Association through Honorary Secretary v. Federation of Pakistan through Ministry of Law and Justice Islamabad and 4 others PLD 2009 Karachi 408.
(iv) The petitioner was not a party in the proceeding before the honourable Supreme Court of Pakistan and therefore, no adverse inference against the petitioner could be drawn from the judgment of the Supreme Court.
(v) Without having resort to procedure prescribed under Article 209 of the Constitution of the Islamic Republic of Pakistan the petitioner could not have been removed from his office of permanent Judge of this Court by a mere Notification by a Government bureaucrat. He submitted that his illegal removal from the office was in gross violation of the Constitution. In this regard, he referred to Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary, Law, Justice and Human Rights and others, PLD 2010 SC 61.
22(1). the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Court and the Judges of the High Court who were declared to have ceased to hold their respective offices in pursuance of the aforementioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;
22(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justice of High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3-11-2007 to 22.3.2009 (both days inclusive) are hereby declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
Reverting to the cases of the Respondents Nos. 3 and 4, it may be noted that they were appointed as Additional Judges of the High Court of Sindh for a period of one year vide Notification dated 15th September, 2007 on the recommendation of the then Chief Justice of High Court of Sindh and the Chief Justice of Pakistan. They took oath of their office on 18th September, 2008. However, in pursuance of the actions of 3rd November, 2007 they were declared to have ceased to hold office vide notification dated 3rd December, 2007 because they complied with the order dated 3rd November, 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's case and as a consequence did not make oath under PCO No. 1 of 2007 read with Oath Order, 2007. In pursuance of the declaration made in this judgment in respect of the actions of 3rd November, 2007, all Judges who were declared to have ceased to hold office, are to be deemed never to have ceased to be such Judges. Moreover, all such Judges including the Respondents Nos. 3 and 4 have been restored to the position they were holding prior to 3rd November, 2007. Their reappointment vide notification dated 26th August, 2008 and extension of tenure for a period of six months vide notification dated 15th September, 2008 were of no consequence because such purported appointments were made in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for the said appointments. Accordingly, their reappointment and extension of tenure for a period of six months have been declared to be unconstitutional and of no legal effect. So, the tenure of their original appointment as Additional Judges expired on 17th September, 2008. The recommendations made by the Chief Justice, High Court of Sindh (Anwar Zaheer Jamali, CJ,) vide his letter dated 10th September, 2008 for extension of the tenure of the Respondents Nos. 3 and 4 as Additional Judges for a period of one year, and subsequently by letter dated 25th February, 2009 and further reiterated in letter dated 13th March, 2009, for their appointment as Judges of that Court under Article 193 of the Constitution were also invalid and of no consequence because his own appointment as Chief Justice was not proper on account of invalid consultation by Abdul Hameed Dogar, J. In this view of the matter, the judgments and orders passed and the proceedings taken in the case and/ or any other acts done by the Respondents Nos. 3 and 4 during the period from 17th September, 2008 onward until they worked as such Additional Judges would not be affected on the principle laid down in Asad Ali's case (supra). It may be observed here that the matter of appointment of the respondent of the Respondents Nos. 3 and 4 as permanent Judges, or extension in their tenure as Additional Judges was never considered by the proper judicial constitutional consultees, viz. Chief Justice of High Court and the Chief Justice of Pakistan."
A cumulative reading of the judgment in general the above two paras in particular indicates that it has been, conclusively, authoritatively and unambiguously rather in ringing tones, held by the Supreme Court of Pakistan that:--
(a) Mr. Justice Iftikhar Muhammad Chaudhry was never lawfully removed from the office of Chief Justice of Pakistan on November 3, 2007 and, therefore, continued to be Chief Justice of Pakistan all along.
(b) Since office of the Chief Justice of Pakistan never fell vacant any Notification or appointment of any other person as Chief Justice of Pakistan is without lawful authority, unconstitutional, void ab initio and of no legal effect.
(c) Any appointment made in any High Court or the Supreme Court whether of a Judge or of a Additional Judge or of Chief Justice of a High Court or any extension in the tenure of any Additional Judge during the period between 3-11-2007 and 22-3-2009 (both days inclusive), since it has been without consultation with the lawful Chief Justice of Pakistan, would be without lawful authority and of no legal effect and for all intents and purposes (except protecting judgments and orders etc. by such illegally appointed appointees), it is to be presumed and treated as if no such person has ever been appointed as a Judge or an Additional Judge or Chief Justice and in case of extension no such extension has been given.
As far as case of present petitioner is concerned he was appointed as Additional Judge vide Notification dated September 15, 2007. This was an appointment after consultation with lawful Chief Justice of Sindh High Court (Mr. Justice Sabihuddin Ahmed) and lawful Chief Justice of Pakistan (Mr. Justice Iftikhar Muhammad Chaudhry). It was therefore a lawful appointment. The Notification dated December 3, 2007 by which Notification petitioner and 11 other Judges, in terms of the provisions contained in the Oath of Office (Judges) Order were declared to have ceased to hold offices of Judges of High Court is of no legal authority whatsoever and therefore, it is to be assumed and treated as having never been issued. Since by Notification dated August 26, 2008, the petitioner was reappointed "for remainder period to which he was appointed under Notification September 15, 2007" no legal consequences flows out of his Notification after judgment of the Supreme Court in Sindh High Court Bar Association's case (Supra) because since their removal by Notification dated December 3, 2007 was illegal they in law continued to be Judges all along till September 16, 2008 i.e. for a period of one year for which period they were appointed in consultation with lawful Chief Justice of Sindh High Court and the lawful Chief Justice of Pakistan.
Notification dated September 15, 2008 by which notification tenure of the present petitioner was extended by six months is a Notification without lawful authority because neither the Chief Justice of the Sindh High Court at the time was a lawful Chief Justice because he had not been appointed in consultation with the lawful Chief Justice of Pakistan nor the person who was performing function of the office of Chief Justice of Pakistan was lawful Chief Justice of Pakistan. Notification dated September 15, 2008 is Notification without lawful authority and therefore, of no legal effect. Same is the position of Notification dated March 17, 2009. This is the natural, logical and clearly spelt out effect of judgment dated 31-7-2009 passed by the honourable Supreme Court. Therefore, the contention of the learned counsel that Notification dated August 2, 2009 is without lawful authority and of no legal effect is without substance because the Notification merely performs an administrative chore which the executive was duty bound to perform in terms of the judgment of the Supreme Court in Sindh High Court Bar Association's case.
Second contention of the learned counsel was with reference to Malik Asad Ali's case, in Malik Asad Ali's case while appointment of Mr. Justice Sajjad Ali Shah, as Chief Justice of Pakistan, was declared invalid and unconstitutional and it was held that Mr. Justice Sajjad Ali Shah ceased to hold office of Chief Justice of Pakistan, the Federal Government was directed to de-notify appointment of Mr. Justice Sajjad Ali Shah as Chief Justice of Pakistan. Contention of the learned counsel was that since no such direction for de-notification has been issued in Sindh High Court Bar Association's case, issuance of Notification by the executive on August 2, 2009, is without lawful authority. The contention is misconceived. In the case of Malik Asad Ali, it was only a case of Chief Justice of Pakistan, which was being considered and therefore, specific direction was stated in Para 143. In the case of Sindh High Court Bar Association it is not a case of a single Judge rather broad principles regarding legality of the appointments and extensions during the period between 3-11-2007 and 22-3-2009 was considered and they were held to be illegal and unconstitutional. The Hon'ble Supreme Court has very clearly held in Sindh High Court Bar Association's case in Para.22(i), 22(ii) that all such appointments are unconstitutional, void ab initio and of no legal effect and such appointees ceased to hold the office forthwith. The petitioner clearly falls within the stipulation made in these Paras as firstly his tenure was extended during the period in-question between i.e. 3-11-2007 and 22-3-2009) and then he was made a permanent Judge during the said period. Therefore, both extension as well as act of making the petitioner a permanent Judge were unconstitutional, void ab initio and of no legal effect and consequently the Notification dated 2.8.2009 is held to be in conformity with the terms of the judgment of the Supreme Court and the executive by issuing this notification has committed no illegality.
Third contention of Mr. Abrar Hassan is also without force. His contention was that judgment in Sindh High Court Bar Association's case (supra) was announced on 31-7-2009 which was a Friday and the impugned Notification was issued on 2-8-2009 which was a Sunday and therefore, the action was taken in haste. He relied upon the following observation from the opinion of Mr. Justice Mushir Alam in the case of Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 Karachi 408. In the reported case there was a recommendation by Chief Justice of Sindh High Court which was not agreed to by the Governor Sindh and the Chief Justice of Pakistan and then the President of Pakistan, the moment he received the advice, issued the Notification and it was in this context of difference of opinion between two Chief Justices that it was observed that it seemed from the record nothing was available to substantiate that the President made any attempt to reconcile the two views or to record reasons for the particular view taken by him that it was held that action was taken post haste. In the present matter a judgment had been passed by the Supreme Court on 31-7-2009 and the Notification issued by the Government, the learned counsel has failed to demonstrate, as to in what respect the Notification is not in accordance with the judgment of the honourable Supreme Court. If an executive functionary promptly obeys an order by a Court and acts in accordance with the orders of the Court it cannot be argued that though it acted in accordance with the Court but it should have awaited for so many days before acting.
Next contention of the learned counsel that the petitioner was not a party in the proceeding before the Supreme Court and therefore, no adverse inference could have been drawn from the judgment of the Supreme Court against the petitioner. The contention is again misconceived. If the executive has acted in accordance with the judgment of the Supreme Court and if the petitioner has a grievance the forum available to him is to approach the Supreme Court. This Court in this petition is only required to see whether action of the executive is with lawful authority or not. Action of the executive in this case is backed by a clear and lucid judgment of the honourable Supreme Court.
A short shrift may be given to the last argument of the learned counsel for the petitioner that since the petitioner was permanent Judge of this Court, therefore, he could not be removed without resorting to the procedure prescribed under Article 209 of the Constitution. The argument of the learned counsel would have been perfectly valid he had been able to establish that he had been lawfully appointed as permanent Judge in this Court. We have already held above that it has been held by the honourable Supreme Court of Pakistan in Sindh High Court Bar Association's case that all such appointments and extensions made and given between 3-11-2007 to 22.3.2009 are, in the words of the honourable Supreme Court, "unconstitutional, void ab initio and of no legal effect". Since appointment of the petitioner as a permanent Judge is void ab initio, it is not available to the petitioner to argue that since he was a permanent Judge without resorting to Article 209 he could not be removed. The petitioner was never a permanent Judge of this Court. As far as law is concerned the petitioner was appointed as an Additional Judge vide Notification dated September 15, 2007. He took Oath on September 17, 2007 and his tenure as an Additional Judge came to an end on September 16, 2008. After that date as far as law and the Constitution are concerned the petitioner has never been a Judge or an Additional Judge of this Court.
For the above reasons, this Constitutional Petition is dismissed in limine along with listed applications.
(R.A.) Petition dismissed.
PLJ 2010 Karachi 132
Presaent: Mushir Alam and Aqeel Ahmed Abbasi, JJ
NAZIMUDDIN AHMED--Appellant
versus
AINUDDIN AHMED and 2 others--Respondents
High Court Appeal No. 403 of 2008, decided on 29.1.2010.
Limitation Act, 1908 (IX of 1908)--
----Art. 91--Limitation--Cancellation of document--No claim in suit--Art. 91 of Limitation Act, provides three years would not govern the suit--Limitation in the instant case would be governed under Art. 210 of Limitation Act, which provide six years from the date when the right to sue accrued. [P. 137] A
Limitation Act, 1908 (IX of 1908)--
----Arts. 91 & 120--Specific Relief Act, (I of 1877), Ss. 39 & 42--Law Reforms Ordinance (XII of 1972), S. 3--Intra-Court Appeal--Declaration of title and cancellation of document--Benamidar, suit against--Limitation--Suit was dismissed by Single Judge on the ground that it was barred under Art.91 of Limitation Act, 1908--Validity--First application was filed by plaintiff on 15-12-1996, to authorities requesting not to issue any duplicate document to defendant--Sale agreement was executed by defendant on 30-1-1997, representing himself as owner, which document had come to the notice of plaintiff much later--Reckoning six years limitation from application dated 15-12-1996, cut off date for suit of such nature would be expiring on 13-12-2002--Limitation for cancellation of transfer in favour of buyer was to be reckoned within six years from the date of knowledge of disputed entry in the record of rights as maintained by authorities--As the disputed entry in record of rights was 26-5-1997, therefore, under Art. 120 of Limitation Act, 1908, time would run out on 26-5-2003 for declaration of title--Suit was filed on 28-11-2002 and it was well within the period of limitation--Right to sue accrued to real owner against Benamidar, when hostile claim of ownership by Benamidar/ostensible owner had come to the knowledge of real owner--Single Judge of High Court did not properly consider factual position narrated in plaint in the context of cause of action and evidence available on record, thus judgment was on wrong assumption in its entirety, therefore, the same was set aside and suit was decreed in favour of plaintiff--Division Bench of High Court directed the authorities to mutate plot in-question in favour of plaintiff--Intra-Court Appeal was allowed. [P. 137] B & C
PLD 1957 Dacca 575 at 585 and 1995 MLD 397 403 rel.
Mr. I.H. Zaidi, Advocate for Appellant.
Nemo for Respondents Nos. 1 and 2.
Mr. Manzoor Ahmad, Advocate for Respondent No. 3.
Date of hearing: 12.11.2009.
Judgment
Mushir Alam, J.--Appellant above-named has impugned the judgment dated 3-11-2008 handed down by learned Single Judge of this Court in Suit No. 1220/2002 whereby the said suit was dismissed being hit by Article 91 of the Limitation Act.
Facts as may be necessary to attend the controversy in the instant appeal, appears to be that in the year 1983 the plaintiff applied for allotment of plot in the name of his brother the Defendant No. 1 himself, however, ballot was drawn only in favour of the brother, the Defendant No. 1. Plot No. 39, Block-I, Scheme-36, Gulistan-e-Johar, Karachi, measuring 400 square yards was allotted on 26-3-1985. It is the case of plaintiff entire consideration was made by him, which fact was acknowledged by Defendant No. 1, who had executed the Declaration of Gift dated 12-11-1992 Exh.P/20 and all the other necessary documents to acknowledge the right and title of the plaintiff in the subject property (Exhs.P/21 to P/26). It is the case of plaintiff that being in service of PIA was posted to India in 1997. He remained posted out of Pakistan up to 1999.It was further asserted that taking advantage of his absence from Pakistan, his brother turned hostile and managed to obtain transfer of the said plot in favour of Defendant No. 2 on the basis of forged declaration and manipulated documents. Plaintiff on coming to know of such mischief, approached the Defendant No. 3 i.e. KDA succeeded by CDGK through various applications are representation first being letter dated 15-12-1996 (Exh.P/13), however KDA, paid no heed and entertained Defendant No. 1 and transferred plot in favour of Defendant No. 2. On the follow-up by the plaintiff, the KDA the Defendant No. 3 cancelled the transfer in favour of Defendant No. 2 on 10th January 1998 Exh.P/38 and restored Defendant No. 1 as owner, which cancellation was challenged by the Defendant No. 2 in Suit No. 95 of 1998 Exh.P/39. Appellant joined the suit, filed written statement, and defended his position as stated above. The suit was dismissed for non-prosecution on 28-10-1998 Exh.P/46. Plaintiff informed the KDA, the Defendant No. 3 of such orders and through letter dated 21-6-2000 Exhs. P/47, P/48. However, CDGK (succeeding KDA) informed the plaintiff through reply dated 21-6-2000 reiterated on 29-5-2001, Exhs.P/49, P/59 "that the plot still stand in the name of Mr. Ainuddin (original allottee), thus you may decide your matter amicably through Court of law, till such time no action will be taken in this regard".
It is the case of plaintiff that the CDGK the Defendant No. 3 on the ill-advise of its law officer again restored the property in favour of Defendant No. 1 on 28-10-2000 Exh.P.50. Several protests yielded no result and the plaintiff was advised to approach the Civil Court for redressal, therefore, the suit was filed seeking declaration of his ownership of the property in addition to damages and compensation for mental torture and financial expenses.
From the record, it appears that Defendants Nos. 1 and 2 were served in suit and declared ex parte on 12-1-2004. The Defendant No. 3 contested the suit, filed the written statement and did not raise any question of limitation. Only defence raised was that the property was transferred in favour of Ahmed Yar Khan, the Defendant No. 2, on the basis of legal opinion from the law department. The evidence of plaintiff was recorded on commission. The defendants chose not to appear or lead any evidence. The case came up for final arguments when the learned Judge in Chamber heard the plaintiff and dismissed the suit on the ground of limitation through impugned judgment dated 3-11-2008.
Mr. I.H. Zaidi, learned counsel for appellant, contended that the Issues were struck down on 7-3-2005. Since no issue of limitation was raised, therefore none was framed nor there was any occasion to lead any evidence on such issue. It was argued that the Court misdirected itself on the basis of wrong assumption and decided the suit being barred by limitation. According to the learned counsel, the Court has erred in computing the limitation from 15-8-1996 on the assumption that such fact has been narrated in Para. 6 of the plaint. Learned counsel took us to Para.6 of the plaint, which is also reproduced in Para. 2 of the impugned judgment. It was urged that the plaintiff had simply narrated the facts and chronology of the events. When the plaintiff learnt that the Defendant No. 1 on the basis of false declaration claimed the duplicate documents and later sold the property to Defendant No. 3 through sale agreement dated 30-1-1997. It is contended that the representation of plaintiff bore fruit and the property was reverted back to its original position i.e. in favour of Defendant No. 1 on 10-1-1998 and the plaintiff was pursuing the matter with the defendant and the cause of action accrued when the property was again transferred in favour of Defendant No. 2 on the ill-advise of legal counsel of Defendant No. 3. Plaintiff filed the Suit No. 1220 of 2002 on 28-11-2002.
It was argued that the suit is not hit by Article 91 of the Limitation Act, which provides three years limitation to seek cancellation of document. Mr. Manzoor learned counsel for the CDGK; the Respondent No. 3 supported the impugned judgment of the trial Court. He however, stated that any order passed by this Court will be followed. We have heard the arguments and perused the record.
From record it appeared that notice through courier was served at the address of Respondents Nos. 1 and 2 on 23-2-2009 and 27.2.2009 respectively, again it was delivered through courier at Respondents Nos. 2 and 3 on 29-4-2009. Notice was pasted on 7-5-2009 several attempts by the bailiff shows that family members of the respondents refused to receive the notices. In this view of the matter and in consideration of the sub-rule (3) to Rule 14 of the Order XLI, C.P.C. (Sindh Amendment), where the respondent who have made no appearance before the trial Court at hearing, whose decree is assailed before the appellate Court, the appellate Court may dispense with service on such absenting respondents. In instant matter since the Defendants Nos. 1 and 2 (Respondent Nos. 1 and 2 herein) were ordered to proceed ex-parte on 12-1-2004 by the trial Court. Therefore, on 1-10-2009 were deemed expedient to dispense with any further service on said Respondents Nos. 1 and 2 and directed to proceed with the matter in their absence.
The reliefs claimed by the plaintiff are couched in the following terms:--
"(a) Declare that the plaintiff is the real owner of the said plot and direct cancellation of the transfer in favour of Defendant No. 2;
(b) Permanently restrain the Defendants 1 and 2 from claiming any right title or interest in the said plot;
(c) Judgment and decree for a sum of US$ 8100 against Defendant No. 1 as recovery of amount received as loan;
(d) Award compensation against the defendants jointly and severally to the tune of Rs.5 million for causing mental torture and financial expenses;
(e) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case; and
(f) Cost of the suit."
From the perusal of the prayer clauses, it is clear that the plaintiff in addition to declaration as to title has also sought cancellation of transfer in favour of Defendant No. 2 as notified on 26-5-1997. Plaintiff has sought declaration of his title as actual owner against the Defendant No. 1 being ostensible owner, no period of limitation is provided in the Limitation Act for a suit of the nature. Suit to seek declaration of title against a benamidar is governed under Article 120 read with Section 18 of the Limitation Act, right to sue would accrue and six year limitation in such case would commence from the time hostile or fraudulent assertion of the benamidar first became known to the person injuriously affected. Right to sue for declaration of title would accrue to the affected person within six years of knowledge of the such entry in the record of title by the authority under law enjoined to maintain and keep such record under Article 120 of the Limitation Act.
Article 120 of the Limitation Act, 1908 reads as follows:
Description of suit Period of limitation Time from which period begins to run
From the material on record, Exhibit P/31 dated 15-12-1996, available at Page 189 of the Court file, it transpires that the plaintiff notified the defendant not to issue the duplicate documents to the Defendant No. 1 as all the original documents pertaining to the plot are with him. The plaintiff requested the Defendant No. 3 on 23-5-97 to keep the matter pending till end of May 1997 (Exh.P/33) as he is posted to India. However, the Defendant No. 3 notified the plaintiff through letter dated 26-5-1997 that property has been transferred in the name of Defendant No. 3. Later plaintiff obtained the documents Exhibit No. P/27 i.e. sale agreement dated 30-1-1997, available at Page 159 of the Court file, wherein the Defendant No. 1 posed himself to be the owner of subject property and agreed to sell the same to Defendant No. 2. It may be observed, that the Defendant No. 1 being ostensible owner had no right or authority to sell the subject property. Claim in suit is not for cancellation of documents therefore, Article 91 Limitation Act providing three years would not govern the suit. Limitation in instant suit would be governed under residuary Article 120 of the Limitation Act, 1908 which provide six years from the date when the right to sue accrued. In the instant case from evidence on record first application by the plaintiff to Defendant No. 3, as stated above, was through Exhibit No. P/31 dated 15-12-1996, wherein KDA was requested not to issue any duplicate documents to the Defendant No. 1. The Defendant No. 1 executed sale agreement representing himself as owner on 30-1-1997. Which document came to the notice of the plaintiff much later. However taking worst case and reckoning six years limitation from Exhibit No. P/31 dated 15-12-1996, the cut off date for the suit of the nature would be expiring on 13-12-2002 and limitation for cancellation of the transfer in favour of Defendant No. 2 would be reckoned within six years from the date of knowledge of impugned entry in the record of rights as maintained by the competent authority, which in instant case is 26.5.1997 under Article 120 of the Limitation Act for last mentioned relief time would run out on 26-5-2003. The suit was filed on 28-11-2002, well within the period of limitation. As observed above right to sue accrues to the real owner against the benamidar, when hostile claim of ownership by the benamidar/ostensible owner comes to the knowledge of the real owner. (One may see Nazir Ahmed Seran v. Benoya Bhuson Saha PLD 1957 Dacca 575 @ 585 and Abdul Rashid Velmi v. Habibur Rehman 1995 MLD 397 @ 403).
(R.A.) Appeal allowed.
PLJ 2010 Karachi 138
Present: Faisal Arab, J.
In the matter of: SUCCESSION OF THE ASSETS, SECURITIES, PROPERTIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNAVI
S.M.As. Nos. 64 of 2005, 142 of 2007, decided on 20.1.2010.
Succession Act, 1925 (XXXIX of 1925)--
----Ss. 278 & 372--Succession--Post retirement benefits--Distribution of immovable properties of deceased among all his legal heirs--Widow of deceased was exclusively entitled to receive all service benefits to which the deceased was entitled which could be defined as employer's grant or concession under the service rules--Being beneficiary was entitled to it the exclusion of all other heirs of her deceased--Deceased was employee of bank and died issueless, leaving behind mother, one widow, one brother and four sisters--Brother of deceased sought letter of administration as well as succession certificate in relation to movable and immovable assets left by deceased--Validity--Any financial benefit which an employee could claim from his employer in his lifetime and had also become payable in his lifetime was to be treated as absolute right of employee and if any benefit or any part of it remained unpaid during his lifetime then the same would become heritable and was to be distributed among all his heirs--Service benefit of an employee, which had not fallen due in his lifetime and being a grant or concession on the part of employer of whatever amount, the same would become payable after the death of employee to be distributed only to those members of family who were entitled for the same as per rules and regulations of service--It was the discretion of employer to make rules and regulations in relation to any grant or concession that was intended to give to an employee or after his death to any member of his family--Benefits such as special retirement benefits, special compensation, group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grants and concession on the part of employee and payable after the death of employee could not be treated as heritable by all heirs of employee but were to be distributed to those who were entitled to it under the rules and regulations of service provided by employer--High Court directed to distribute the assets of deceased accordingly. [P. 139 & 142] A, B & C
PLD 1974 SC 185; PLD 1982 FSC 143 and 2005 SCMR 512: ref.
PLD 1991 SC 731.rel
Mr. Umer Lakhani and Syed Nasir Hussain, Advocates for Petitioners.
Mr. Rizwan Ahmad Siddiqui and Saeedul Hasan, Advocates for Objectors.
Date of hearing: 20.1.2010.
Order
Javed Iqbal Ghaznavi died issueless on 1-12-2003. He was survived by his mother Sardar Rehmat Begum, one widow Rehana Ghaznavi, one brother Pervez Iqbal Ghaznavi and four sisters Sardar Shamim Akhtar, Sardar Qadim Akhtar, Sardar Naeem Akhtar and Sardar Ameen Akhtar. Through this petition the brother of the deceased sought letter of administration as well as succession certificate in relation to moveable and immovable assets left by his deceased brother Javed Iqbal Ghazanavi.
There is no controversy with regard to the distribution of immovable properties of the deceased among all his heris. However, the widow of the deceased claim that she is exclusively entitled to receive all such service benefits to which the deceased as Assistant Vice-President of Muslim Commercial Bank was entitled which could be defined as employer's grant or concession under the service rules and she being the beneficiary is entitled to it the exclusion of all other heirs of her deceased husband.
Similar controversy is involved in another SMA bearing No. 142 of 2007.
The controversy being purely of legal nature needs no evidence but can be resolved by examining the nature of benefit in order to determine whether it is a heritable benefit or is to be paid to only those who have been made its beneficiary by the employer under the service rules and regulations.
In support of their respective contentions, the counsel for the parties have relied upon the cases of Amtul Habib and others v. Musarrat Parveen and others reported in PLD 1974 Supreme Court 185; Mirza Muhammad Amin v. Government of Pakistan reported in PLD 1982 FSC 143; Federal Government of Pakistan v. Public-at-large reported in PLD 1991 Supreme Court 731 and Ameeran Khatoon v. Mst. Shamim Akhtar and others reported in 2005 SCMR 512.
In the cass reported in PLD 1974 Supreme Court 185 the issue that came before the Hon'ble Supreme Court was whether the person who has been nominated by the deceased employee as beneficiary of the property after him was entitled to be declared owner to the exclusion of the other heirs of the deceased employee and the Hon'ble Supreme Court held that unless a nomination amounts to a valid gift inter vivos, it cannot pass title to the nominee nor can the making of a nomination give the right to the nominator to change the law of succession at his own choice. It was further held in the said case that a nomination can neither be treated as a will nor a gift nor a trust but is merely a mandate, the validity of which expires with the death of the mandator. It was also held in this case that the 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. The nominee only can collect as a trustee the amount for the benefit of all persons entitled to inherit from the deceased employee. Thus, the nomination cannot be treated as a gift or a will but it only gives the right to the nominee to receive the benefits as trustee of all the other heirs.
In the case reported in PLD 1982 Federal Shariat Court 143, the issue with regard to distribution of provident fund, death gratuity and family pension came up for decision and it was held that provident fund, if not paid to a deceased employee during his life time, become part of heritable asset and despite nomination by the deceased employee is to be distributed among all the heirs according to the personal law of the deceased employee. However, with regard to entitlement of death gratuity and family pension, it was held that these financial benefits are to be treated as a gift or concession given by the government in order to maintain the widow or certain members of the family of the deceased and therefore are not heritable by all the heirs of the deceased but are payable only as per the rules which governs the distribution of death gratuity and family pension.
In the case reported in PLD 1991 Supreme Court 731 the five member's bench of the Shariat Appellate Court while discussing entitlement of benevolent fund held that had the employee reached his age of superannuation and thereafter died, nothing would have become payable from the Benevolent Fund and therefore such a benefit which does not translate into a debt of the deceased employee against the employer cannot form part of the estate of the deceased so as to become distributable among all his heirs.
In the case reported in 2005 SCMR 512 the Division Bench of the Honourable Supreme Court while recognizing the principle laid down by the five member bench of the Shariat Appellate Bench of the Supreme Court in the case of Federal Government of Pakistan v. Public-at-Large reported in PLD 1991 Supreme Court 731, mistakenly interpreted it conversely which appears to be typographical error as service benefits granted towards Benevolent Fund or Group Insurance were not treated as heritable benefits in terms of the principle laid down in PLD 1991 Supreme Court 731.
On the basis of terms and conditions of service or under any law or an award, an employee may become entitled to certain financial benefits. Some of these financial benefits are of a nature that they become payable to the employee at the time when his service comes to an end, whereas some benefits are those that are paid from time to time to an employee after his service has come to an end and under the service rules and regulations have to be continued even after his death to certain members of his family. Then there are some financial benefit which on account of death of an employee, while in service, become payable in lump sum to certain members of the family of the deceased employee. Generally all financial benefits that an employer pays under rules and regulations of service to an employee or after his death to certain members of his family are categorized as pensionary or retirement benefits, gratuity, death gratuity, death compensation, provident fund, benevolent fund, group insurance, medical grants, benefits under an award etc.
Whether an employee dies while in service or dies after his service has come to an end, in both the cases there can be a situation where he may not have received certain financial benefits from his employer that had already accrued to him before his death. Such unpaid financial benefits i.e. those benefits that had already accrued to an employee during his lifetime but remained unpaid to him shall become part of the estate of the deceased employee and are to be distributed among all his heirs according to the personal law of the deceased employee and it matters not whether any of those financial benefits falls under any of the two categories of benefits defined by Shariat Appellate Bench of the Honourable
Supreme Court in the case of Government of Pakistan v. Public-at-large reported in PLD 1991 SC 731. The reason being that any of the two categories of financial benefits upon their accrual i.e. upon becoming due for payment to the employee himself had become absolute right of the deceased employee during his lifetime. It was the right of the deceased employee to receive such accrued benefits in his lifetime but on account of his death he could not receive them. All such dues after the death of the employee have to be treated as part of his legacy and inheritable by all his heirs. Thus all financial benefits that had already accrued on the date of the death of the deceased employee and were payable to him but remained unpaid during his lifetime would become part of his estate and are to be distributed among all his heirs. However, the financial benefits that have accrued after the death of the deceased employee need to be first classified on the basis of interpretation given in the case of Government of Pakistan v. Public-at-large reported in PLD 1991 Supreme Court 731. If a financial benefit is definable under the category of a grant' orconcession' on the part of the employer as interpreted in the forgoing referred case, then if such benefits have accrued for payment after the death of the employee, then the same is not to be treated as part of the estate of the deceased employee as they on the basis of principle laid down in PLD 1991 Supreme Court 731 are not heritable benefits.
Such financial benefits being grant or concession of the employer and have become due for payment after the death of the deceased cannot be regarded as absolute right of the employee to receive it from the employer during his lifetime. Such benefits cannot be treated as `Tarka' i.e. stated of the deceased but grant or concession of the employee and having become due for payment after the death of an employee are to be payable to such persons only who are made beneficiaries of such benefits under the rules and regulations of service. The persons who are otherwise heirs of the deceased employee but not described as beneficiaries of such benefits cannot claim any share in such benefits.
Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remain unpaid during his lifetime when the same becomes heritable and is to be distributed amongst all his heirs. However, a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer, then whatever amount that become payable after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service. It is the discretion of the employer to make rules and regulations in relation to any grant or concession that is intended to give to an employee or after his death to any member of his family.
Thus benefits such as special retirement benefits, special, compensation group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grant and concession on the part of employee and payabale after the death of the employee cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulation of service provided by the employer. Let the service benefits be distributed in terms of this order.
Both the SMAs stand disposed of accordingly.
(R.A.) Order accordingly.
PLJ 2010 Karachi 143 (DB)
Present: Gulzar Ahmed and Irfan Saadat Khan, JJ .
KARIM DAD KHUSHK--Appellant
versus
UNITED BANK LIMITED--Respondent
1st Appeal No. 40 of 2009, decided on 29.1.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. III, Rr.1, 2 & O. XXIX, R.I--Suit by company--Signing of plaint by authorized agent of company--Copy of power of attorney not filed along with plaint, but filed subsequently--Validity--If plaint was not competently filed, then such anomaly could be rectified subsequently--Suit would not become incompetent on account of subsequent filing of such copy. [P. 146] A
2005 CLD 854 rel.
2008 CLD 576; 2009 CLD 856 and 2005 CLD 1473 distinguished.
Mr. Waqar Ahmed Siyal and Tauseef Ahmed, Advocates for Appellant.
Mr. Khalid Mehmood Siddiqui, Advocate for Respondent.
Dates of hearing: 15, 18 and 22.1.2010.
Judgment
Gulzar Ahmed, J.--By this appeal appellant has challenged the judgment and decree dated 15-9-2009 passed by learned Judge, Banking Court IV, Karachi, by which the suit for recovery filed by the respondent was decreed.
Learned counsel for the appellant has contended that the appellant had applied to the respondent for grant of Car Loan, which was sanctioned and Purchase Order was issued by the respondent in favour of the appellant, which required making of down payment of Rs. 122368. He contended that as the appellant was not in a position to make such down payment, the appellant asked one Mumtaz Wassan to obtain cancellation of purchase order. He contended that the said Mumtaz Wassan instead of getting the purchase order cancelled, took the delivery of the car and this was done with collusion of bank staff. He further contended that statement of account filed with the plaint is not in accordance with Section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) and relied upon the case of Klb-e-Hyder and Company (Pvt.) Ltd. v. National Bank of Pakistan 2008 CLD 576 and Faysal Bank Ltd. v. Genertech Pakistan Ltd. 2009 CLD 856. He further contended that Purchase Order was conditional as delivery was to be effected on the instructions of customer and that the bank has not filed any document to show that car was delivered to the appellant. In this respect he relied upon the case of Messrs Prime Road Ways and 2 others v. United Bank Ltd. and 2 others 2005 CLD 1473. He contended that the appellant had made complaints to the bank as well as the police officials but nothing was done and then the appellant approached the Banking Ombudsman, who also filed the appellant's complaint. He finally contended that the suit was not competently filed as the power of attorney was filed subsequently.
On the other hand, Mr. Khalid Mehmood Siddiqui, counsel for the respondent has contended that Mumtaz Wassan was not an employee of the respondent but rather a friend and roommate of appellant and that the appellant had availed the facility of car Loan and was liable to make payment against such loan and that the statement of account was in accordance with the Ordinance and so also the suit was competently filed. He further contended that appellant has filed some additional documents with the appeal, which he had not filed with the Banking Court and that the appellant has even suppressed the fact of making of complaint to the Banking Ombudsman and passing of order by it from the Banking Court. He further contended that appellant himself is an Audit Officer of Grade-17 in the Accountant General Office, Sukkur and that it is not possible that he did not know the consequences of non-repayment of the advanced amount to him.
We have considered the submission made by learned counsel and have gone through the record.
It appears that appellant had applied to the respondent for grant of Car Loan, which was sanctioned to him and Purchase Order was also delivered to the appellant. As the appellant failed to pay the instalments, the respondent filed a suit for recovery with statement of account. The appellant filed an application for leave to defend the suit to which replication was filed by respondent. The application for leave to defend the suit was dismissed and suit was decreed by the impugned judgment and decree.
In the application for leave to defend the suit, the appellant has admitted the fact of availing the facility of Car Loan from the respondent and has not disputed the claim of respondent but has taken the plea that due to hardship and financial problems he had approached one Mumtaz Wassan, working with the respondent as Sale Agent in Car Financing Division, Karachi, who availed the facility of loan for the appellant and cancellation of Purchase Order and that the appellant paid Rs.6,000 to the Agent of respondent towards cancellation fee of Purchase Order and also signed on a paper for further action. The appellant has further taken a stand that in September, 2006 he learnt that Purchase Order has not been cancelled and respondent has delivered the car to someone else, upon which the appellant filed a complaint dated 15-9-2006 with the respondent against the Sales officer with allegation that fraud had been played by the sales officer and action be taken against said sales officer and the car be recovered from him. The appellant has further taken the stand that the has filed complaint dated 3-5-2007, 28-5-2007 before DSP, Bin Qassim Town Karachi and SHO, Steel Town, Karachi against the Sales officer and further complaint dated 10-5-2009 was also filed with the Chief of CPLC, Karachi. The appellant has further taken the stand that as no action was taken against the Sales Officer he filed complaint dated 11-6-2007 with the President of respondent. The appellant has further taken the stand that respondent has committed illegality and fraud by delivering the car to its Sales Officer and that he neither made down payment nor deposited the instalment.
The respondent in its replication has specifically denied that Mumtaz Wassan was working with the respondent as Sales Agent. The respondent further denied making of complaints by appellant to the respondent or to the Police.
From above narration, it is apparent that appellant has not disputed the fact of availing Car Loan from the respondent and that he has received the Purchase Order. On receipt of Purchase Order, appellant claims that he has not deposited the down payment nor has deposited the instalment and has rather allowed Mumtaz Wassan to have the delivery order changed to his own name and after this appellant remained quiet and did not approach the respondent to ascertain as to whether the delivery order has been changed to the name of Mumtaz Wassan or not and as to what is the position regarding payment of dues. It is when the respondent contacted the appellant to pay the dues that appellant alleges to have sent the complaint regarding fraud having been committed by Mumtaz Wassan labelling him as sales agent of the respondent. In the letter dated 15-9-2006, addressed to the Zonal Manager of the respondent, filed as annexure `F' with the appeal, the appellant has stated that "I hereby further clarify that Mr. Mumtaz Wassan remained my class fellow, roommate at school and friend also, so on that basis I have committed a blunder of keeping blind faith on him which resulted in a fraud." Thus as per appellant's own assertion in his above letter he has made some transaction with Mumtaz Wassan being his class fellow, roommate and friend and without taking any action against Mumtaz Wassan, he has started blaming the respondent to the extent of alleging that its official had committed fraud with him. Appellant has also approached the Banking Ombudsman, who through its order dated 13-12-2007 informed the appellant that appellant has some mutual understanding with Mumtaz Wassan and bank has no involvement in the transaction and through further letter dated 15.7.2008 informed the appellant that as he has admitted having applied for loan and signing of bank documents, there is no fault and wrong doing by the bank and the case was closed.
On the point that the statement of account filed with the plaint is not in accordance with Section 9(2) of the Ordinance, the learned counsel for the appellant has contended that it does not contain the account number. The appellant does not appear to have taken this objection in his application for leave to defend the suit. We have, however, examine the statement of account filed with the appeal as annexure `D' and find that it specifically contains the number of account namely "Auto Loan No. AUT-00049542". The statement of account further carries the certificate as is required by sub-section (2) of Section 9 of the Ordinance.
As regards the plea of the appellant that suit was not competently filed, the plaint itself shows that it is signed by Safeer Ullah Abbasi and Rizwanul Haq Siddiqui, who are Attorneys of the respondent. Merely for the reasons that copies of power of attorney were filed subsequently will not make the suit incompetent as it is now established law that even if the plaint is not competently filed, such anomaly can be rectified subsequently. Reference in this regard is made to the case of Habib Bank Ltd. v. Messr ESS EMM ESS Corporation Pakistan Ltd. and 5 others 2005 CLD 854.
In view of such facts and circumstances available on the record and the law, there appears to be no basis for appellant to dispute his liability to the respondent. The judgments cited by the appellant counsel have no application to the case in hand as the facts and circumstances of those cases are different from the present one.
On 22nd January 2010, after hearing the counsel for the parties, through our short order we have dismissed this appeal. Above are the reasons for the same.
(R.A.) Appeal dismissed.
PLJ 2010 Karachi 147
Present: Shahid Anwar Bajwa, J.
Mst. MUSSARAT and 2 others--Petitioners
versus
MUHAMMAD NAEEM and another--Respondent
C.P. Nos.S-107 and 13 of 2008, decided on 2.10.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Dowry articles, recovery of--Onus to prove--Shifting of onus--Suit for recovery of dowry articles was decreed in favour of wife by Family Court--Order passed by Family Court was set aside by First Appellate Court--Plaintiff failed to prove dowry articles--Validity--Father of plaintiff appeared as supporting witness and stated that at the time of her marriage he had given his daughter dowry articles worth more than Rs.500,000/- and brother in law of defendant received the same--Having asserted such facts, plaintiff discharged her onus to prove and it was for defendant to lead evidence in rebuttal or to shake evidence of plaintiff through cross-examination--Defendant failed to lead evidence in rebuttal, therefore, he had to bear the consequences--Unless Court had come to the conclusion that value claimed in dowry articles was so disproportionate to the known sources of income of family of bride or items were so out of scene with the situation and standard of living of the family, it would be reasonable for Family Court to require plaintiff before it to produce proof of income of her family--It was not alleged, and even if it was alleged, since defendant did not produce any evidence, therefore, no such burden of proving income of parents of bride could be lumped at the door of helpless woman--Same principle would be held true regarding independent witness regarding purchase of dowry articles--High Court found it unfair that after lapse of more than ten years to hold plaintiff only entitled to recovery of articles because ten years was a long period of time and many of the articles might not have been left with any value in them, therefore, High Court ordered defendant to pay a sum of Rs. 400,000/- to plaintiff in lieu of dowry articles--Petition was allowed accordingly. [Pp. 152, 153 & 154] A, B & D
2004 YLR 2541; 1992 CLC 1940; 2006 MLD 563; PLD 2004 Lah 249; NLR 1985 SCJ 128; NLR 1992 Civil 542; 1990 CLC 1011 and PLD 1997 Lahore 633 ref.
Constitution of Pakistan (1973)--
----Art. 199--Constitutional petition--Maintainability--Questions of fact--Scope--High Court, in exercise of constitutional jurisdiction, should be reluctant to enter upon questions of fact--Where it appears to be clear misreading of evidence and non-reading of evidence by First Appellate Court and propositions of law with respect to nature of proof being not in accordance with dictates of law and Constitution, jurisdiction under Art. 199 of the Constitution can be exercised. [P. 153] C
Mirza Sarfraz Ahmed, Advocate for Petitioner (in C.P. No.S-13 of 2008) and for Respondent (In C.P. No.S-107 of 2008).
Syed Fazal Hassan Jillani, Advocate for Petitioner (in C.P.No.S-107 of 2008) and for Respondent (in C.P. No.S-13 of 2008).
Date of hearing: 2.10.2009.
Order
By this order I intend to decide Constitutional Petition No. S-13 of 2008 (Muhammad Naeem v. Mst. Musarrat and others) and Constitutional Petition No. 107 of 2008 (Mst. Musarrat v. Muhammad Naeem). Both these petitions have arisen out of the same order.
Mst. Musarrat is petitioner in C.P.No.S-107/2008 and Muhammad Naeem is Respondent No.l in that petition. Although this order shall decide both the petitions I shall refer Mst. Musarrat as the petitioner and Muhammad Naeem as the respondent.
Brief facts not disputed between the parties are that a marriage was contracted between the petitioner and respondent on 22.2.1998. Very soon thereafter relationship between the parties turned sour and it is stated by the petitioner, that she was turned out of her husband's house in July 1999. Eventually petitioner filed suit for Khula bearing Suit No.489/2000. The said suit was decided in favour of the petitioner by IIIrd Family Judge Karachi East vide judgment dated 28.6.2001, decree was issued accordingly on 5-7-2001 and the marriage was dissolved. Petitioner also filed suit for recovery of dowry articles. The suit was registered as Family Suit No. 914/2001 and vide order dated 25-1-2003 the suit was decided and the petitioner was held entitled to receive back her dowry articles. She was however held not entitled to receive valuation of her dowry articles. Being aggrieved by this order appeal was filed by the respondent. The appeal was registered as Family Appeal No.36/2003. The appeal, was accepted, order of Family Judge was set aside and the matter was remanded to the Family Court for passing fresh judgment, keeping in view all the evidence available on record.
During second round of litigation an application for permission to produce original documents was filed by the petitioner. It was stated in the application that either instead of original duly signed list, photocopies of unsigned duplicate of the list were filed. It was sought through the application to place on record the signed copies of the first six pages of list of dowry articles. Counter-affidavit to this application was filed. Vide order dated 23-9-2005 while 7th page of the list was held to be a list of gift items and not dowry articles. Consequently first six pages were brought on record. Thereafter on 26-11-2007 the suit was decided as follows:--
"In light of the above discussion made on Issues Nos. 1, 2,3 & 4 are that the plaintiff is entitled to receive back her dowry articles as per list annex P1 to P6' discussed, alternatively she shall be entitled to receive the valuation of her mentioned dowry articles in annexP1 to P6' amounting to Rs. 150,000 only."
"Hence in view of above my humble opinion that the respondent has failed to prove that her parents given her dowry articles as per list Exh.P/24. However, the appellant admitted that some articles were given as dowry and he is ready to return the same and the page of list of dowry written in handwriting was duly signed by Yasin therefore, respondent is entitled only for the recovery of her dowry articles as per page of list which is written in handwriting and is signed by one Yasin. The impugned judgment is therefore modified to the extent of above."
The learned counsel for the petitioner has assailed the order of the Appellate Court on primarily four grounds, (i) According to him the learned appellate Court has held that the petitioner has not been able to show any source of income from which the said dowry articles were purchased by her father, (ii) No independent witness has been produced to prove of purchase of dowry articles, (iii) While 7th page of the list of dowry articles (which is handwritten page) bears signature of uncle of the respondent, the first six pages which are typed pages do not bear any signature. The learned Appellate Court in this regard has failed to take into consideration the documents produced with the application referred to earlier. (iv) That evidence was led by the petitioner. However, witnesses of the petitioner was not cross-examined and no evidence whatsoever in rebuttal was led. It is contended in that view of this situation the trial Court has rightly accepted the evidence.
In support of his contention that it is not a requirement that an independent witness be produced in family related matters, the learned counsel relied upon Muhammad Saleem Akhtar v. Judge, Family Court and others 2004 YLR 2541. He further relied upon Zubair Akbar v. Mst. Mehreen Hayat and others 1992 CLC 1940. In support of the contention that unchallenged evidence should have been accepted, the learned counsel relied upon Saifur Rehman v. Anarkali and 2 others, 2006 MLD 563. In support of his contention that the Family Court can award compensation in lieu return of dowry articles, the learned counsel relied upon Muhammad Akram v. Mst. Shahida Parveen and others PLD 2004 Lah 279, Major Milton Godwin Shamas v. Mst. Crenza Samuel, NLR 1985 SCJ 128 and Ashiq Ali v. Mst. Rasoolan Bibi, NLR 1992 Civil 542. The learned counsel consequently prayed that the order of the learned Family Court is in accordance with the evidence and the law and therefore order of the Appellate Court be set aside and order of the Family Judge be up-held.
Learned counsel for the respondent in rebuttal primarily raised the following points:--
(i) That in the first round of litigation the appellate Court had directed the trial Court, while remanding the matter for passing fresh judgment keeping in view all the evidence available on the record.
(ii) The trial Court could not have taken into consideration documents submitted afterward. He further submitted that the order dated 23-9-2005 passed by the learned Family Judge on application for permission to produce the original documents clearly stated that P7 is not a dowry item and PI to 6 were taken on record. In spite of this the learned Appellate Court, in its order allowed return of dowry items mentioned in the same P 7. Thus, though the trial Court had held the items mentioned in P 7 were not dowry items but were gift items, the Appellate Court without recording any reason had rendered the findings that the petitioner is entitled to return of items stated in P7.
(iii) The learned counsel relied upon Manzoor Hussain Khan v. Mst. Asia Begum and 21 others, 1990 CLC 1014 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lahore 633 to contend that petitioner had to stand on her own legs and just cannot carry the case on account of no cross-examination and no evidence in rebuttal by the respondent.
I have considered the arguments advanced by the learned counsel and have also gone through the record as well proceedings of the case. Before I proceed further a few words about the judgments cited by the parties.
In Muhammad Saleem Akhtar's case decided by an Honourable Single Judge of Lahore High Court, it was a suit for recovery of dowry articles and the amount was stated in the suit. It was contended by the petitioner/respondent in that matter that since no one had appeared to prove the preparation of that list, the solitary statement of the plaintiff was incorrectly believed by the learned Family Judge. The High Court held the list of dowry articles if exhibited in evidence without its scribe, no grievance could be made as to its inadmissibility or its having not been brought on the record in accordance with provisions of Qanun-e-Shahadat Order, 1984. It was further held that it was not necessary in all cases that more than one witness should be produced to prove the case. Siafur Rehman's case was decided by the Division Bench of Peshawar High Court. It was against a suit arising out of family matter and for recovery of dowry articles. In that matter the plaintiff appeared as her own witness and also produced her father and maternal uncle who had fully substantiated her claim. Since evidence had gone un-rebutted, Division Bench of Peshawar High Court did not interfere with findings arrived at by the lower forums. In the third mentioned Zubair Akbar's case, it was a suit for dissolution of marriage. A Single Judge of Lahore High Court after closure of evidence of the wife and after a couple of adjournments were granted to the husband, closed his side. It was held that matter of adjournment and closing of evidence is within discretion of the Court and such discretion had been reasonably and judiciously exercised by the Court. Nothing turns on in Ashiq Ali's case.
The case law cited by the respondent in rebuttal is in respect of provisions of the Qanun-e-Shahadat Order, 1984. They pertain to execution of documents and proof regarding execution of such documents. The learned counsel very frankly conceded that under Section 17 of the Family Courts Act, 1964, provisions of Qanun-e-Shahdat Order, 1984 are not applicable to proceedings before the Family Court. Therefore the case law is distinguishable.
The bone of contention between the parties is 7 pages of documents produced by the petitioner as Exhibit P/24. When these documents were originally produced the copies did not bear signature of any recipient. When the matter was remanded to the trial Court by the Appellate Court, through an application signed copied of first 6 pages were submitted and they were taken on record vide order dated 23.9.2005 whether the signed copies were genuine or were a forgery or a subsequent manipulation is a question of fact. The onus to prove such forgery etc, could have been discharged only by the respondent because it is the respondent who alleged forgery and the respondent did not lead any evidence in this regard. Contention of counsel for the respondent is that it was responsibility of the petitioner to prove and the petitioner should stand on her own legs and cannot carry her with her merely on the ground of lack of evidence or no evidence heaving been led by the respondent. There cannot be any cavil with the proposition that the plaintiff has to make her case stand on its own legs and cannot rely upon weaknesses or lack of evidence of the defendant. However, in this case petitioner in her evidence clearly stated as follows:--
"At the time of my marriage my parents given me dowry articles worth of Rs.5,00,000. I produce my original vouchers and receipt of my dowry articles."
The petitioner's father appeared as supporting witness and stated that at the time of her marriage he had given his daughter dowry articles worth more than 5,00,000. He further stated that brother-in-law of the defendant Muhammad Yaseen Khan had received the same. Having asserted these two facts the petitioner discharged her onus to prove and it was for the respondent to lead evidence in rebuttal or to shake evidence of the petitioner through cross-examination. The respondent failed to, or at least chose not to, do so and therefore, must bear consequences.
Family matters need a certain degree of sensitivity. Be the matter relating to child custody, dower, dissolution of marriage or any respect the Court should demonstrate due degree of sensitivity and should attempt to decide the matter at the earliest. It is unfortunate that subject matter of these Constitutional Petitions has dragged on for almost 10 years. Mandate of Constitution of the Islamic Republic of Pakistan is that where under Article 25 of the Constitution equality of all citizens is ordained it is provided that special provisions for the protection of women and children may be made. That should be the spirit in deciding family matters and interpreting family laws.
Learned Appellate Court had held that the petitioner has not been able to show any source of income from which the said dowry articles were purchased by her father. Unless a Court comes to the conclusion that the value claimed in the dowry articles is so disproportionable to the known sources of income of family of the bride or the items are so out of syne(sic) with the situation and standard of living of the family, in my opinion it would not be reasonable for the Family Court to require the applicant/wife before it to produce proof of income of her family. Since it is not alleged, and even if it were alleged, since the respondent has not produced any evidence, in my opinion no such burden of proving income of parents of the bride can be lumped at the door of the helpless woman. The same principle will hold true regarding an independent witness regarding purchase of dowry articles. I fully subscribe to the view expressed by Honourable Division Bench of Peshawar High Court in Saifur Rehman's case (supra) where the complainant in her own evidence had stated value of dowry articles and had also produced her father who had fully substantiated her claim, as far as, the complainant is concerned she has discharged her burden to prove. Nothing further should be required from her and then it was for the defendant to discharge his burden.
As far as, 7th page of the list of dowry articles is concerned, the learned counsel for the petitioner frankly conceded that these articles cannot be included in the dowry. I have gone through the list and list includes baby clothes and baby toys. I do not think it would be un reasonable to come to a conclusion that a person would give in dowry baby's clothes and baby's toys to his daughter. Having regard to the common course of natural events and human conduct I think I would be justifying in presuming and coming to the conclusion keeping in view Article 129 of the Qanun-e-Shahadat Order 1984 that document page 7 is a list of gift items and is not included in dowry.
The learned counsel for the respondent has firstly relied upon the order passed by the appellate Court in the first round of litigation where the Appellate Court ordered the trial Court to pass fresh judgment keeping in view all the evidence available on record. The learned counsel stated that originally six pages were filed which were not signed and after remand the signed copies were produced. Explanation offered by the petitioner is that copies of duplicates were filed and on pointation signed copies were submitted. I have looked at those documents and they are computer print outs and keeping in view all the other evidence. I do think there was reason for the Courts below to disbelieve these documents. I am conscious of the fact that in exercise of constitutional jurisdiction the High Court should be very reluctant to enter upon questions of fact but in this case there appears to be a clear misreading of evidence and non-reading of evidence by the lenrned Appellate Coiirt as well as the propositions of law stated by the Appellate Court with respect to the nature of proof in such like matters do not appear to me to be in accordance with the dictates of law and the Constitution.
The trial Court has decreed that either the goods be returned or an amount of Rs.4,50,000 be paid. The marriage took place in 1998 and suit for Khula' was filed in 2000. It seems fair to allow depreciation of 20% for a period of two years i.e. 10% per year. It would be unfair after a lapse of more than 10 years to hold petitioner only entitled to recovery of the articles because 10 years is a long period of time and many of the articles might not have been left with any value in them therefore, in my opinion, it would be fair and reasonable if an amount of Rs.400,000 is ordered to be paid by the petitioner/husband to the respondent/wife. Both the constitutional petitions are disposed of in the above terms. The parties are left to bear their own costs.
(R.A.) Order accordingly
PLJ 2010 Karachi 154
Present: Shahid Anwar Bajwa, J.
Mst. SHAHNAZ GHULAM RASOOL--Petitioner
versus
MUHAMMAD SHAKEEL AHMAD SIDDIQUI and 2 others--Respondents
C.P. No.461 of 2009, decided on 12.112009.
Guardians and Wards Act, 1890 (VIII of 1890)--
----Ss. 12 & 25--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Custody of child--Word "religion" used in S.17 of Guardians and Wards Act, 1890--Scope--Nature of profession of parents of minor--Desirability--Minor son was more than seven years of age and trial Court removed him from the custody of mother and handed over to father--Upheld by First Appellate Court--Validity--Word "religion" used in S.17 of Guardians and Wards Act, 1890, was to be given its wider interpretation and not narrowing it down to sects and sub-sects in deciding custody of a minor, it would be of no relevance as to which sect did the father belong and as to which sect did the mother belong--Trial Court had extensively dealt with all questions--High Court disagreed with the observation of Guardian Judge that mother was running a tuition centre and domestic beauty parlour and, therefore, it was not conducive to minor--High Court directed trial Court to stay away from judgmental observations about professions which were permitted by law--While accepting application for custody of minor, two courts below had given cogent reasons after having appreciated the evidence--Minor appeared before Trial Court and clearly stated that his father loved him and he also stated that his grandmother also loved him--High Court in exercise of constitutional jurisdiction declined to interfere in concurrent findings of fact by two courts below--Petition was dismissed. [P. 164] A
1988 SCMR 1359; PLD 2008 Kar. 499; 1994 MLD 1098; 2000 YLR 3046; 2003 YLR 1105; 2008 SCMR 480; 2008 SCMR 488; PLD 1988 Kar. 252; 1980 CLC 785; PLD 2008 Kar. 198; 1974 SCMR 279; PLD 1964 SC 260; PLD 1974 SC 139; 2007 YLR 2982; PLD 1978 Kar. 328 and PLD 1996 SC 801 ref.
Khawaja Naveed Ahmad, Advocate for Petitioner.
Mr. Muhammad Nouman Jamali, Advocate for Respondent No.1.
Date of hearing: 23.10.2009.
Judgment
Brief facts giving rise to this constitutional petition are that petitioner (since it is a matter relating to custody of a child I will refer to her as "the mother") married Respondent No. 1 (hereinafter referred to as "the father") on 25-9-1998. Out of this wedlock on 18-8-1999 son Munib A. Siddiqui was born. Application No. 1180/2004 under the Guardians and Wards Act was filed by the father. It was stated in the application that marriage was dissolved in 2004 by way of Khula'. It was stated by father in the application that on 18-6-2003 mother left her husband's house along with minor child. It is alleged by wife that on 18-6-2003 she was turned out of the house. In any case she has been living with her parents since 18-6-2003. Since father was not paying maintenance charges of child, on application the Family Court directed the father to pay maintenance charges of Rs.2,000 per month. Advocate for mother said in this case actual expenses are Rs.7,000 per month but he frankly conceded that maintenance charges allowed by the Court have not been challenged by the mother. He stated that balance expenses are being borne by the mother. Trial Court vide its order April, 26, 2008 granted to mother right of interim custody of minor from 7-00 p.m. on each Saturday to 7-00 p.m. of the following day. Mother was also allowed custody of minor on first day of occasion of each Eid. Permanent custody of minor was given to father. Regarding welfare of minor it was observed as under :--
"The case of the petitioner is based on two main points that the respondent who is real mother of the minor is a woman of harsh nature, ill temperament and uncompromising evidence and further she has got no adequate financial means and proper time to meet the upbringing and welfare of minor. In this connection he has proved his case to a larger extent. According to the petitioner, the respondent left his house along with minor without his permission in his absence and came to reside with her brother. In this connection he tried his level best to bring about compromise with her but all went in vain. While respondent deposed that she was turned out by the petitioner in three wearing clothes along with minor. The petitioner has produced applications to S.H.O. Super Market regarding the removal of custody of the minor by the respondent which are self-explanatory and surprisingly such application has not been denied by the respondent side in evidence and resultantly they are admitted as true. The petitioner further submitted that he approached to the respondent and her brother for compromise and again such contention of the petitioner has not been specifically denied by the respondent and the same are admitted as true. The decision of concerned U.C. Nazim which has been relied upon by the petitioner has also not denied by the respondent. The respondent made allegations of maltreatment against the petitioner but no Oral/Medical proof has been furnished by her. Even her advocate failed to argue in relation of maltreatment meanwhile his arguments. There is no mentioning of specific date and time and witnesses of such maltreatment. The respondent has herself admitted that petitioner properly maintained minor before separation therefore, the reason of maltreatment is out of understanding. The Respondent Nowhere in her pleadings and evidence has taken plea that the petitioner is either jobless for having minor financial means. The respondent has herself admitted that she becomes angry soon. It is also admitted fact that this was second marriage of the respondent and same remained unsuccessful. She has got another child/son from her previous husband to support/afford. She runs a beauty parlour and a tuition center at home and that is the only means for maintenance of her both sons. The evidence of the petitioner in relation to his compromising efforts, his proper maintenance of his wife and son, his financial earning has remained confidence-inspiring since he has got an attractive job in Agha Khan Hospital and thereafter runs a Dawakhana in evening. His witnesses have supported him on martial points while the whole case of the respondent is outcome of improvements omissions and contradictions.
It has been admitted by the respondent that she has got a house of two rooms where she runs beauty parlour as well as tuition center, hence such atmosphere is not conducive for the welfare of the minor and further the respondent saves short time to meet the welfare of her two sons. On the other hand she has admitted herself that house of the petitioner is very much spacious consisting of four rooms.
It has been contended by the respondent that mother of the petitioner is above 80 years of age hence she is not in position to grow up minor betterly in comparison to her. Contrary to this respondent herself admitted in her cross-examination that mother of the petitioner does cooking even to this age. This appears that re-course be made to the health of a person and not age. Moreover, the minor is above 8 years of age and at this juncture he needs not primary type of care as in age of 2, 3 years.
More importantly, the petitioner has contracted no marriage after Khula' taken by the respondent which shows love of the petitioner towards the minor which is very much necessary for his physical, social, mental and psychological welfare.
Last but not the least, the minor is above 7 years of age and in this connection it is settled principle of Islamic Sharia that custody of male child be given to the father except exceptional circumstances arise which may otherwise disentitle him from custody of minor. In this case no such exceptional circumstances arise and further leaving Hazanat right the welfare of the minor lies with the father. There is valuable rich and sacred concept, behind right of Hazanat provided by Islam which cannot be repugnant to the principle of welfare of minor. The minor has attained 8 years of age and here he needs iron but kind hand of his father who can protect him in street, in school, in game shops, in markets etc. from his possible involvement and company in criminal minded people and un-civilized society and the same cannot be done by a household lady which remained failed in her both the marriages and these days runs a beauty parlour and a tuition center at her two rooms house. The law ruling submitted by the petitioner side are very much consistent with the case in hand while law citations relied upon by the respondent side are irrelevant."
Being aggrieved by the order of the trial Court mother filed appeal. Appellate Court vide order dated 27-7-2009 dismissed the appeal. Being aggrieved by the order this constitution petition has been filed in this Court.
Learned counsel for petitioner/mother made following submissions:--
(i) Child has been living with the mother all along.
(ii) Every child's first and inseparable attachment is with his mother. Father comes thereafter.
(iii) Father has not shown sensitivity and concern for child as he has been paying meagre amount of Rs.2,000 per month for maintenance of child which amount is totally inadequate.
(iv) Even if trial Court ordered for Rs.2,000 per month and even after this order was accepted as it was not be challenged by mother. It was duty of father to show required degree of sense and sensitivity.
Learned counsel for petitioner relied upon Ch. Nazir Ahmed v. Additional District Judge III, Sahiwal and others 1988 SCMR 1359; Saad Amanullah Khan V. IVth Senior Civil Judge, (South) Karachi and 3 others PLD 2008 Kar. 499; Mst. Zainab Bibi v. Rehmat Ali and 2 others 1994 MLD 1098; Mst. Farah Waqar v. Dr. Waqar Ahmed Khan 2000 YLR 3046; Barkat Bibi v. Zahid Perveen and 2 others 2003 YLR 1105;
Learned counsel for Respondent No. 1 made the following submissions:--
(i) There are concurrent findings of fact by the learned Courts below and High Court should be most reluctant to interfere with concurrent findings of fact.
(ii) Although child has been living with mother all along but when child appeared before the trial Court he consented to live with his father and stated that his best friend is a Cat.
(iii) In written statement no ground whatsoever was taken regarding adequacy maintenance expenses paid by father.
(iv) This was the petitioner's second marriage. She has another child from the earlier/(first) marriage by the name "Zeeshan" and petitioner has been taking care of that child during subsistence of his marriage.
(v) Under Muslim Personal Law since the son is for more than 7 years of age father has right to custody of the child.
(vi) No doubt mother is entitled to give reasonable visitation right which rights have been given by Courts below.
Learned counsel for Reasonable No.1 has relied upon: Khan Muhammad v. Mst. Surayya Bibi 2008 SCMR 480; Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Surraya Bibi v. Abdur Rashid 1980 CLC 785; Imran Ali v. Mst. Iffat Siddiqui and 2 others PLD 2008 Kar. 198; Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279; Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Pakistan Tobacco Company Limited, Karachi v. Director of Octroi, Karachi and 2 others 2007 YLR 2982; Messrs Karachi Industrial and Textile Mills, Karachi and another v. Settlement Commissioner (Industries), Lahore and another PLD 1978 Kar. 228 and Sabur Rehman and another v. Government of Sindh and 3 others PLD 1996 SC 801.
I have considered submissions made by the learned counsel. I have also gone through record of petition as well as case-law cited by learned counsel for the parties.
On 21-10-2009 when both the learned counsel concluded their arguments it was ordered that petitioner along with her son be present in Court on 23-10-2009. On that date petitioner and her son came to the Court. I spoke to child. He appeared to be well behaved child, receiving good education and having opportunity for developing of a well rounded balanced personality. I cannot say that he was being neglected in any manner.
Before I refer to the case law I must express my personal anguish. In Holy Qur'an ALLAH ALMIGHTY says that everybody is born from a father and a mother. Both have equal responsibility for bringing up of child. Whereas child is a gift of Allah to the parents, it is an onerous responsibility of every father and every mother, they are responsible in respect of their children not only in this world but also in hereafter. Marriage may be contracted and marriage may be dissolved but the eternal indissoluble bond that child has with seed of his father and milk of his mother remains unbroken as long as blood courses through veins of body of that child. Therefore, parents while entitled to pleasures of their marriage must also and always remember their responsibilities towards the child. This responsibility does not come to an end when marriage is dissolved: they remain responsible for it. Obviously, distinct or separately responsibilities are determined by Islamic law but, such responsibility does not come to an end with dissolution of marriage. Therefore, a couple which decides to their separate ways though they are perfectly entitled to their such decision in accordance with law, must keep in mind that even after separation they have grave common responsibility and grave common interest. They should remember this interest: Remain separate but conscious of duties for sake of welfare of your child. This should be underlining them in all such situations. Responsibility also includes not to carry the child in the filth of their bitterness and dug heap of their acrimonies.
Proposition of law that in respect of custody of children prime consideration should be welfare of child does not need any authority anymore. The following case law may be referred as illustrative example:--
(i) In Ch. Nazir Ahmed's case the girl child was 14 years old, had been living with her maternal grandmother: both her father and her mother had remarried after their separation. 14 years old girl stated that she is well looked after by her grandmother.
(ii) In Saad Amanullah Khan's case two children were born out of marriage. It was decided on basis of agreement executed and before Supreme Court. Father was given visitation rights.
(iii) In Mst. Zainab Bibi's case there were three minor children one boy and two girls, boy's custody was given to father. It was held that age of boy is not conclusive for judgment as to whom custody should be handed over. If minor has attained age of discretion his consent should be obtained. Matter was consequently remanded.
(iv) In Mst. Farah Waqar's case there were two children boy ten years old and girl of 8 years. Boy was asked by High Court and stated that he would be happy with his mother and maternal grand parents and would not like to go to a boarding school as his father wanted him to.
(v) In Barkat Bibi's case three children were born out of wedlock and after death of father mother stated living with her parents. Thereafter she remarried and the children continued to stay with their maternal grandmother. Mother filed application under sections 17 and 25 of the Guardians and Wards Act for custody of minors against the grandmother. Trial Court ordered that custody of two boys be handed to mother and custody of girl child was given to the grandmother. Appeal was dismissed. In High Court it was contended that mother had practically severed her connection with the minors after her remarriage and minors had reached age discretion had clearly expressed their choice as they wanted to live with their grandmother. High Court held that children had attained age of discretion, remanded the matter.
(vi) In Khan Muhammad's, case two sons and a daughter were born out of their wedlock. After dissolution of marriage father applied for custody of children who were with mother and mother filed application for custody of child who was with father. Applicant's application was accepted and mother's application was dismissed. Mother filed appeal and the same was accepted to the extent of custody of two children already with her but her application for custody of third child was rejected. Writ petition was rejected. It was observed by the Honourable Supreme Court that right of father being natural guardian of the minors is subject to welfare of the minor because overriding fundamental and paramount important consideration is always welfare of the minors.
(vii) In Imran Ali's case mother had filed application that she may be appointed guardian of ward, two children and be given custody. Application was decided in favour of mother and appeal was dismissed., In High Court writ petition was filed by father, High Court made the following observations:
"I have given full consideration to the arguments of learned advocates for the parties and have gone through the entire evidence. Admittedly Ali Muhammad is aged about 8 years old and Hyder Ali is about 5 and a half years old and the petitioner is the real father and is a Ismaili Aga Khan Shia and he has sufficient means to look after the welfare of the minors so also to grow up the minors in better atmosphere as per his own sect. From the record it appears that the minors used to go to school prior to handing over the temporary custody to the Respondent No. l. Thereafter, there is no evidence available on record whether minors are going to school. It has also come on record that minors are not going to Jamat Khana for their spiritual and religious education. The record reveals that Respondent No. l is residing with her three brothers namely Iqbal Ahmed Siddiqui, Kaleem Ahmed Siddiqui and Azeem Ahmed Siddique, who are her real brothers. It is an admitted fact that Iqbal Ahmed Siddiqui is a convicted person and was in Dubai Jail. The record also shows that the family atmosphere of the petitioner is too better for future growth of the minors as the mother of the petitioner is retired principal of Ibrahim Ali Bhai School, his elder brother is running his own school namely Ameen academy and his second brother is getting education in Australia. From the record it also appears that the petitioner has sufficient source of income to maintain the minors in better way. As far as love and affection is concerned the father and mother have equal love with the children moreso even minors need love, affection, better education, mental and physical health and civil and social atmosphere. It is well-settled principle of law that the children be grown up according to the sect/religion of father. From the record it appears that the minors are not going to Jamat Khana which is a great injustice with the minors as minors are ultimately legal heirs of the petitioner. The minors have to adopt the sect of father, if they are not attending the spiritual classes at the Jamat Khana in future they will not be in a position to mix up with the Aga Khani community that would adversely affect the future career of the minors."
(viii) Regarding scope of interference in writ jurisdiction, although learned counsel referred to a number of authorities but I think reference to only one would be sufficient in Sabur Rehman's case in PLD 1996 Supreme Court 801 at page 809 it is observed as under:--
"From the preceding discussion it follows that the High Court while examining a case in exercise of its power of judicial review under Article 199 of the Constitution will normally not interfere with a finding of fact recorded by a Tribunal of exclusive jurisdiction where such finding of fact is based on evidence. The sufficiency or otherwise of the evidence in such cases are not open to be gone into by the High Court. However, where finding of facts recorded by the tribunal of exclusive jurisdiction is based on no evidence, such findings loses its binding effect as the tribunals of exclusive jurisdiction are equally bound by the rule that all findings on questions of fact must be based on legal evidence. Therefore, a finding of fact recorded by Tribunal of exclusive jurisdiction without evidence, is a finding without jurisdiction which binds on one. Similarly a finding of fact recorded by a Tribunal of exclusive jurisdiction by misreading the evidence or by ignoring the material evidence on record, will be open to interference by the High Court in exercise of its jurisdiction under Article 199 of the Constitution. The learned judges of the Division Bench though did not reach any different conclusion on the scope of interference by the High Court in exercise of its power of judicial review, with a finding of fact recorded by a Tribunal of exclusive jurisdiction it declined to interference with the convictions and sentences awarded by the Special Military Court for the following reasons:--
We have examined the evidence in the light of the above authorities and principles and are of the view that even after the exclusion of the confession it cannot be said that there is no evidence to justify the impugned order. Nor the learned counsel for the petitioners have pointed out to the blatant misreading of evidence manifesting denial of justice."
"17. Matters to be considered by the Court in appointing guardian:
(2) In considering what will be for the welfare of the minor the Court shall have regard to the age, sex, and religion of the minor the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property."
Learned counsel for Respondent No. 1 emphasized that one of the fact to be considered by the Court is "Religion of the minor". Learned counsel submitted that in present case petitioner/mother belongs to Ismaili Shia sect and Respondent No. 1/father belongs to Sunni sect. Contention of the learned counsel was that minor should be brought up in Sunni environment and not in Ismaili Shia environment and expressly placed reliance in this regard in Imran Ali's case, quoted above. In my opinion, a Muslim is a Muslim and that should be it. Quaid-e-Azam Muhammad Ali Jinnah was once asked as to which sect did he belong and he very bravely stated that he belonged to the same sects as that Prophet Hazrat Muhammad (Sallala-ho-Alahe Wasallam). I do not think, while deciding question of custody to minor, it should be of any relevance as to which sect the parent in question belonged I do not agree with observations in respect of the relevance of sect made by Mr. Justice Muhammad Afzal Soomro in Imran Ali's case. In my opinion word Religion used in section 17 of the Guardians and Wards Act is to be given its wider interpretation and not narrowing it down to sects and sub-sects. Therefore, in my qpinion it would be of no relevance of whatsoever in deciding custody of a minor, as to which sect did the father belong and as to which sect did the mother belong.
However in this case learned trial Court has extensively dealt with all the questions. Although, I do not agree with observations of the learned trial Court that mother is running a tuition center and domestic beauty parlour and therefore it would not be conducive to minor. Court should stay away from judgmental observations about professions which are not permitted by law.
While accepting this application two Courts below have given cogent reasons and after having appreciated the evidence. I do not think, in exercise of constitutional jurisdiction any ground is made out for disturbing concurrent findings recorded by the two Courts below. The child, as I stated above, appeared in this case clearly stated that his father loves him (he also stated that his mother loves him more, but that is obvious in almost all cases) and he also stated that his grandmother also loves him. For the above reasons this writ petition is dismissed. The parties shall bear their own costs.
(R.A.) Petition dismissed.
PLJ 2010 Karachi 165
Present: Mushir Alam and Tufail H. Ibrahim, JJ.
ZAINAB GARMENTS (PVT.) LTD. through Chief Executive and others--Petitioners
versus
FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Works, Islamabad and another--Respondents
Constitutional Petitions Nos.D-70 of 2005 and D-942 of 2007, decided on 5.7.2010.
Karachi Development Authority Order--
----S. 40(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petitions--Commercialization of plot--Notification--Principles--Petitioner applied for commercialization and they required fee, which was not paid--Decision of superior Courts, implementation of--Grievance of petitioner was that authorities had demanded commercialization charges which was against the decisions made by superior Courts--Validity--Once an area was declared commercial by law, there was no requirement to apply and observe any requirement, which otherwise were required to be observed and followed to obtain conversion of individual residential into commercial property--No need to pay conversion fee, as property in question stood converted by operation of some rules and or notification issued under authority of law--When a road had been declared commercial on issuance of notification, there would be no question of commercialization fee--Petition was allowed. [P. ] A, F & G
2005 CLC 759;1998 MLD 1818; 2005 CLC 694; 2006 YLR 3209 and 2007 YLR 3113 rel. 1998 MLD 1818; 2005 CLC 694; 2006 YLR 3209; 2007 C1C 1568; 2009 YLR 1254; 2008 SCMR 133; 1999 SCMR 2089; PLD 1995 SC 423; 1995 SCMR 362 and 1995 SCMR 387 ref.
Public Functionaries--
----Dispensation of justice is not alone the function of Court, public functionaries are equally responsible to treat all the citizen placed in similar circumstances alike. [P. ] B
2009 SCMR 1; 1996 SCMR 1185; 2001 PTD 1 and 1995 SCMR 387 rel.
Interpretation of Law--
----Though, under trichotomy of power, it is the legislature, that makes the law, executive through public and statutory functionary makes policies and implement law, whereas enunciation, interpretation and exposition of law is the function of Judiciary. [P. ] C
Constitution of Pakistan, 1973--
----Arts. 189 & 201--Judgment in rem--Principle--Where any law, statutory rule etc. on being challenged, is interpreted and decided one way or the other by superior Courts, then such interpretation, application of law, rule etc., not only decides the right of the person who had approached the Court of law but is also judgment in rem as regards interpretation and application of impugned law, statutory rule etc. applied by concerned public, statutory agencies, authorities, bodies and functionaries etc.--Judgment of High Court and Supreme Court to the extent it decides a question of law or is based upon principle of law or enunciate/interpret law, statutory rule etc. is not only binding on all subordinate Courts? tribunals but is also binding on all public and statutory functionaries etc.--Such judgment hold good and should be applied by all such public and statutory functionaries etc. to all persons or class of persons affected by such law, rule etc. without forcing or driving such person to obtain re-affirmation of legal position already declared by superior Courts in earlier round of litigation to which such person was not a party, unless such decision is revisited by Court in review, revision, appeal or larger bench has taken a different view. [P. ] D
2009 SCMR 1; 1996 SCMR 1185; 2001 PTD 1 and PLD 1998 SC 64 rel.
Constitution of Pakistan, 1973--
----Arts. 10-A & 25--Dispensation of justice--Equality of citizens--Extending of similar relief--Scope--All persons placed in a similar situation, affected by any law, statutory rule, regulation, notification or policy etc., are to be treated even handedly and in like manner--Public functionaries, invariably derive and force every person affected by law, statutory rules, etc. to approach the Court of law to obtain similar relief rather than extending similar relief by itself on the basis of principle of law that has been earlier set at rest--Such conduct of public functionaries is neither desirable nor can be approved as it negates even handed dispensation of justice and meting out equal treatment as mandated per Articles 25 and 10-A of the Constitution. [P. ] E
1995 SCMR 387 rel.
Mr. Latif A. Shakoor, Advocate for Petitioner (in C.P. No. 70 of 2005).
Mr. Ashraf Mughal, D.A.G. for Respondent No. 1 (in C.P. No. 70 of 2005).
Mr. Manzoor Ahmed, Advocate for Respondent No. 2 (in C.P. No. 70 of 2005).
Mr. Shakeel Ahmed, Advocate for Petitioner (in C.P. No. 942 of 2007).
Mr. Sartaj Ahmed Malkani, Advocate for Respondents Nos. 2 and 3. (in C.P. No. 942 of 2007).
Dates of hearing: 28.4.2010.
Judgment
Mushir Alam, J.--Through this common judgment we intend to decide C.P.No. 70/2005 and C.P. No. 942/2007 as the point in issue is common.
In C.P. No. D-70/2005, petitioner claims to be the owner of Plot No. 2-A, Molana Muhammad Ali Johar Memorial Cooperative Housing Society, Karachi. Subject plot abuts main Drigh Road now Shahra-e-Faisal, Karachi. Petitioner applied for the commercialization of the plot to the Respondent No. 1, Federation of Pakistan through Secretary, Ministry of Housing and Works. Respondent No. 1 demanded commercialization charges at Rs.3500 per square yard to consider the case and forward it to KDA/KBCA for issuance of NOC. It is the case of petitioner that the petitioner applied for the approval of building plan but it was declined as no commercialization charges were paid by the petitioner. Petitioner did not pursue the matter further. It appears that in the meantime KDA through Notification dated 20-7-1998 commercialized the road where the subject plot is situated. Petitioner claimed commercialization without payment of any commercialization fee in view of judgment rendered in the case of S.M. Aslam v. KBCA (2005 CLC 759), in cited case a learned Division Bench of this Court held that there is no need to get the NOC from the lessor i.e. CDGK for commercialization of plots abutting on declared commercial roads by virtue of notification, issued in exercise of power under Section 40(3) of KDA Order, therefore, question of seeking permission of KBCA for commercialization and or payment of commercialization fee would not arise. Petitioner claims that his plot is also situated on the declared commercial road, therefore the petitioner is neither obliged to apply for commercialization nor liable to pay commercialization fee nor same could be recovered by the CDGK.
In C.P.No. 942 of 2007 petitioner claims to be the owner of Plot No. 19-A, Block-6, PECHS, Karachi, abutting Shahra-e-Faisal, which is declared commercial road. Petitioner also relies on the case of S.M.Aslam v. KBCA (2005 CLC 759). It is further pointed out by the learned counsel that through the judgment in S.M.Aslam case has been impugned before the apex Court but no restraining orders have been obtained, therefore, this Court is bound by the earlier judgment rendered by a Bench of this Court in the case of S.M.Aslam (supra).
Mr. Manzoor Ahmed, counsel for CDGK has strenuously argued that notification dated 20-7-1998 on which the judgment is based has not been gazetted, such aspect was not considered by the learned Bench, therefore, the judgment in S.M. Aslam v. KBCA (2005 CLC 759) is per incuriam and is of no legal significance. He strenuously argued that in terms of Article 140-A of the Constitution of Pakistan, the devolution of powers has been made on the Local Government, and such powers are exercisable under the Sindh Local Government Ordinance 2001. It was emphatically urged that in terms of Section 192, Zila Council is competent to issue Land Conversion Policies & Regulations and CDGK through Resolution No. 383 dated 6-1-2004, approved "Change of Land Use and Master Planning-2003, Bye-laws-2003" (for brevity sake hereinafter abbreviated as Bye-Laws 2003), therefore, the notification, resolution, bye-laws regarding change of land use, issued by the defunct KMC, KDA, KBCA, Malir or Lyri Development Project issued earlier even otherwise, stands superseded. Mr. Manzoor Ahmed fairly conceded that the Shahra-e-Faisal, where both the properties referred to above are situated, are also included in the list of declared commercialized road under the Bye-laws 2003, but subject to payment of commercialization fee.
We have heard the arguments and perused the record.
As the fact show that through Notification dated 20th July, 1998 commercialization of plots/land was allowed on six roads, which were declared commercial by Government of Sindh in 1989 viz (i). Shahra-e-Pakistan, Teen Hatti Bridge to Scheme 16, (ii) University Road (Scheme 24/36), (iii), Nazimabad "A" Road (left side of Main Road towards Paposh Nagar and extension up to Lasbella Bridge on left side, (iv), Rashid Minnas Road (Scheme No. 16/36 (v), Shahra-e-Faisal, and Tariq Road and its extension up to Bhadurabad Commercial Area and Sindhi Muslim Society up to Shahra-e-Faisal, (subject Notification issued by the Government of Sindh, is placed on record in C.P. 70/09 alongwith the statement dated 8-3-2006. (for brief history of commercialization one may refer to publication of "Bye-laws, CDGK, compiled by Mr. Manzoor Ahmed Principle legal adviser CDGK, published by CDGK page No. 49). In said Publication of CDGK, said Notification dated 20th July, 1998, has been acknowledged to be issued by the Government of Sindh.
In Constitutional Petition No. D-70 of 2005, the petitioner had applied for commercialization on 22-7-2002 to the Ministry of Housing and Works and in response dated 24-9-2002 they were required to pay commercialization fee, which was not paid. The petitioner had again applied for change of land use on 17-4-2004 as per Annexure `A' to the comments filed by CDGK in accordance City Council Resolution No. 383, dated 6-1-2004. It was, therefore, urged by the Counsel for the CDGK that the petitioner is liable to pay the commercialization fee as per prescribed rate and no exception could be taken.
Properties in C.P. No. D-942/2007 and C.P. No. D-70/2005 abut main Shahra-e-Faisal, Karachi, which has since been declared commercial road alongwith five other roads under Proposal or Tazweez No. 1 under the Change of Land Use Bye-laws 2003 as stated above and the commercialization is not claimed as per Notification dated 20-7-1998. Therefore, the contention of Mr. Manzoor, learned counsel for CDGK as regard the publication or otherwise of a Notification dated 20-7-1998 which was subject-matter in S.M.Aslam v. KBCA (2005 CLC 759) is of no avail.
Contention of Mr. Manzoor, that Notification dated 20th July, 1998 stands superseded on the approval of Bye-laws 2003 on 6-1-2004, therefore, benefit of such notification cannot be given was aptly attended in the case of S.M.Aslam 2005 CLC 759 in para 10 at page 764, the Court resounding the principles of Section 6 of the General Clauses Act, 1897, and Section 4 of the Sindh General Clauses Act, 1956 held "Once a vested right has accrued in favour of a party under a statute, which statute is subsequently repealed, such right cannot be disregarded ....., it was further observed "owners having their properties on six different roads which were declared commercial would remain intact and such roads and properties on them would continue to have the status of commercial premises irrespective of repeal of KDA Order". Therefore, such arguments of Mr. Manzoor, having been dealt in the cited case need no further deliberation.
The principle laid down in the S.M. Aslam v. KBCA (2005 CLC 759) case is that since the area has been notified as commercial, per Notification dated 28 July, 1998 there would be no question of payment of commercialization fee and the Court directed the KBCA to examine the concept plan for raising commercial construction and no further NOC for commercialization of plot in dispute is required from CDGK. It may be observed that there is chain of authorities where the superior Courts have held that where the area has been commercialized by the competent authority, then authority or any objector cannot press into service that each of the plot owner of the declared area should invite objection before putting the property for commercial use, as in the case of Ardashir Cowasjee v. Clifton Cantonment Board 1998 MLD 1818, GB Resolution No. 220, whereby 15 different areas were declared commercial, came up for consideration (see para 9, @ 1822, in Para 27 @ 1827 the Court was convinced that the Governing Body was competent to pass such resolution. In the case of Irfan v. KBCA 2005 CLC 694, a learned Division Bench of this Court observed that in para 18 of the judgment reported as Excel Builder case (1999 SCMR 2089), the conversion of residential plot on main road into commercial plots were not found to be questionable act. In the case of S.M. Aslam v. KBCA (2005 CLC 759), learned DB of this Court, on the basis of Notification dated 12-2-1998 issued by the Provincial Government declaring six roads of Karachi as commercial, held in para 8 at page 763 that "there arises no occasion for the petitioners to seek change of land use as the status of subject plot already stood changed from residential to that of commercial on issuance of said Notification" in Para 13 it was held "Again in the circumstances there would be no question of payment of commercialization fee". In the case of Arshad Abdullah v. Government of Sindh 2006 YLR 3209, same learned DB followed its view as expressed in the case of S.M.Aslam v. KBCA 2005 CLC 759, it was further observed that one out of four amalgamated plots do not face the commercialized road, would not be treated as commercial, for which procedure prescribed may be followed. In Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113, in para 14 at page 3119 learned DB in consideration of fact that per Notification dated 20-7-1998 six roads were declared commercial by the Sindh Government, therefore petitioners' claim of hearing before conversion of subject plot was not conceded and the Petition was dismissed. In Navaid Hussain v. Jehangir Siddiqui 2007 CLC 1568, in para 4 at page 1571, Resolution 383 dated 6-1-2004, was considered and it was held that "once an area is declared as commercial then commercial activities are required to be carried out in accordance with law, without any hindrance". In Syed Tahir Hussain Mehmoodi v. Tayyab 2009 YLR 1254, learned single bench followed the cases discussed herein. In the case of Haji Amin v. Navaid Hussain 2008 SCMR 133, seven-member Bench of honourable Supreme Court, in paragraph 8 at page 140 of the judgment repelled the objection that the commercialization was done without public notice, in view of the fact that subject road was declared commercial vide Sindh Government Gazette Notification dated 12-2-2004. In the case of Excel Builders v. Ardashir Cowasjee 1999 SCMR 2089 commercialization of entire Clifton road, pursuant to Resolution No. 220 dated 11-5-1980, came up for consideration, before the apex Court and no exception was taken.
In terms of the dicta laid down in the case of Multiline by the apex Court that earlier judgment of Division Bench in the High Court on the same point is binding upon the other Division Bench, only exception is where the Bench is inclined to take a different view in which eventuality, proprietary demands that request for the constitution of a larger bench should be made (see Multiline Associates v. Ardershir Cowasjee PLD 1995 SC 423 = 1995 SCMR 362).
In our opinion, ratio laid in the case of Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113, (para 14 at page 3119) and S.M. Aslam v. KBCA (2005 CLC 759) on the strength of Notification dated 20.7.1998, is that once the area is declared commercial by law, there is no requirement to apply and observe any requirement, which otherwise are required to be observed and followed to obtain conversion of individual residential into commercial property, and there is no need to pay conversion fee, as property stand converted by operation of some rules and or notification issued under authority of law.
In the instant case also admittedly both the properties are situated on a road, (namely Shahra-e-Faisal), which was originally declared as commercial as per Notification dated 20-7-1998, and subsequently it was reaffirmed under Tazweiz No. 1 (proposal No. 1) approved by the City District Council, on the recommendation of Committee under Bye-laws 9 of Change of Land Use and Master Plan Bye-Laws 2003. It may be observed in terms of Bye-Law No. 1-5 ibid change of land use shall not be permitted unless the area is declared commercial area or where the property is situated on less than 100 feet wide road. In cases where the area is not declared commercial, procedure provided for seeking conversion or change of land use for the individual plot owners is provided under Bye-law No. 3, which inter alia require, application for change of land use on prescribed form to be made simultaneously to the concerned Union Council and Master Plan CDGK, along with copy of advertisement in two news papers after inviting objection and other codal formalities permission may or may not be granted. However, where the City District Council on the recommendation of the Committee as per Bye-law 9, ibid allows change of land use, formalities required under Bye-law No. 3 ibid would not be applicable.
In the instant case both the properties are situated on Shahrah-e-Faisal, of which change of land uSe has been approved by the City District Council, therefore, the case of the petitioners is at par with the case of Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113 and case of S.M. Aslam v. KBCA (2005 CLC 759), and other case referred to in Paragraph No. 7 above.
In the case of Sikander A Karim v. State 1995 SCMR 387, at page 411, it was held "the decision of Supreme Court, in so far it decides a question of law or is based upon or enunciate a principle of law is binding on all Courts in Pakistan. The decisions on question of laws or enunciation of principle of law are the generalization of the question and principles. There can be no generalization of the fact and circumstances of any case and therefore, provide no guidance in the other cases. On the other hand, the generalized principle of law or generalized enunciation of principle of law or generalized enunciation of principle of law govern all those who fall within such generalization (Underlined to add emphasis).
In the case of Government of Punjab v. Seema Parveen (2009 SCMR 1), principle laid down in the case of Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Punjab (1996 SCMR 1185) was reaffirmed wherein it was held that if a Tribunal or Supreme Court decides a point of law relating to the terms; and conditions of a civil servant who litigated and there were other civil servants who may not have taken any legal proceedings in such a case justice and rules of good governance demands that benefit of the said decision be extended to other civil servants also who may not be parties to the litigation instead of compelling them to approach the Tribunal or other legal forums as all citizens are equal before the eye law and entitled to equal protection of law under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
In the case of Maqbool Textile Mills Ltd. v. Federation of Pakistan 2001 PTD 1, it was further held in paragraph 11 at page 6 that "All pronouncements by superior Courts, interpreting specific provisions of law have retrospective effect. The judgment of the Supreme Court declaring certain provision of law, to be inapplicable to a class of assesses is a judgment in rem. It means that even if the petitioner had not filed the said constitutional petition they were entitled to the refund of turn over tax, either voluntarily paid or coerced by the department. In such situation, any payment made by the assessee or received by the department could not be termed, as past and closed transaction. The retention would be unjustified, in view of the law laid down by the Supreme Court in re Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64" (underlined to add emphasis).
The principle deducible from reading Sikander A. Karim v. State 1995 SCMR 387, Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Punjab (1996 SCMR 1185) Government of Punjab v. Seema Parveen (2009 SCMR 1) and Maqbool Textile Mills Ltd. v. Federation of Pakistan 2001 PTD 1. Dispensation of justice is not alone the function of Court, public functionaries are equally responsible to treat all the citizen placed in similar circumstances alike. Though, under trichotomy of power, it is the legislature, that makes the law, executive through public and statutory functionary makes policies and implement law, whereas enunciation, interpretation and exposition of law is the function of Judiciary. When a particular law, rules, regulation, policy etc. is expounded and enunciated by the superior Court it is binding on all. For the safe, expeditious administration of justice, it the duty of the public and statutory functionary to apply law, rule, regulation, notification or the policy etc. as enunciation, interpretation and expounded by the superior Courts with all its implication and or ramification effecting person or group of person coming within its net, whether they have approached the Court or not.
Public and statutory agencies, authorities, bodies and functionaries etc. like Building Control Authority, City District Government, Board of Revenue, Customs, Excise, Port Trust and Cantonment Board etc. to name a few are regularly confronted with similar proposition and situation, where some law, statutory rule, regulation, notification or policy etc. affects large segment or class of people. It is not always that each and every affected person has the courage and resources to approach the Court challenging the vires, implication or ramification of such law, statutory rule etc. hardly few are able to approach the Court. It is, noted that where any law, statutory rule etc. on being challenged, is interpreted and decided one way or the other by the superior Courts, then such interpretation, application of law, rule etc. not only decide the right of a person who had approached the Court of law but is also, judgment in rem as regards the interpretation and application of impugned law, statutory rule etc. applied by the concerned public, statutory agencies, authorities, bodies and functionaries etc. The judgment of High Court and Supreme Court to the extent, its decides a question of law or is based upon principle of law or enunciate/interpret law, statutory rule etc. is not only binding on all subordinate Courts, tribunals but is also binding on all public and statutory functionaries etc; such judgment hold good and should be applied by all such public and statutory functionaries etc. to all person or class of person affected by such law, rule etc.; without forcing or driving such person to obtain reaffirmation of the legal position already declared by the superior Courts in earlier round of litigation to which such person/s was not a party, unless of course, such decision is revisited by the Court in review, revision, appeal or a larger bench has taken a different view or quoting Saeeduzzaman Siddiqui, J. in Sikandar Karim (1995 SCMR 387 @ 411), "the generalized principle of law of generalized enunciation of principle of law govern all those who fall within such generalization". All persons, placed in a similar situation, affected by any law, statutory rule, regulation, notification or policy etc., are to be treated even handedly and in the like manner. It is regrettably noted that public functionaries, invariably derive and force every person affected by law, statutory rules etc. to approach the Court of law to obtain similar relief rather than extending similar relief by itself, on the basis of principle of law that has been earlier set at rest, which conduct is neither desirable nor could be approved as it negates, even handed dispensation of justice and meting out equal treatment as mandated per Articles 25 and 10-A of the Constitution of Pakistan, 1973.
The principle set-down as already noted in the case of S.M. Aslam v. KBCA (2005 CLC 759) that when a road has been declared commercial on the issuance of notification there would be no question of payment of commercialization fee.
We are bound by the decision of Division Bench, therefore, we allow the petitions, however, subject to the condition that in case apex Court comes to the conclusion despite declaration of an area as commercial, commercialization fee is to be recovered and imposed. Undertaking of the petitioners counsel are recorded that the petitioners shall pay commercialization fee, as may be prevalent on the date of judgment passed by the apex Court. The reason being that since the petitioners will be utilizing their property for commercial purposes without payment of the commercialization fee, which otherwise they would have paid, had the judgment in; S.M. Aslam case was not delivered.
Both the above petitions stand allowed in above terms.
(R.A.)
PLJ 2010 Lahore 1
Present: Mian Saqib Nisar, J.
FAZAL-UR-REHMAN--Petitioner
versus
MUHAMMAD MUBASHAR and another--Respondents
W.P. No. 2960 of 2009, decided on 25.6.2009.
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----S. 22(2)(6)--Constitution of Pakistan, 1973, Art. 199--Eviction petition--Application for leave to defend filed after the period of 10 days as required u/S. 22(2) of the Ordinance--Delay not condoned, eviction order passed--Appeal allowed--Writ petition--The period of ten days has been prescribed by Section 22(2) of the Ordinance itself, with the consequence that in case the leave is not filed within the stipulated period, the tribunal shall pass the final order (as per Section 22(6) of the Ordinance)--Respondent was liable to be straight away ejected in terms of the quoted law. [Pp. 3 & 4] A
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----S. 22(2)(6)--Limitation Act, 1908, S. 5--Ejectment petition--Limitation--Equity--Equity cannot override the law, it has not been shown if the condonation of the delay could be granted to the respondent under any provisions of the Ordinance 2007--It is also not established if Section 5 of the Limitation Act, 1908 is applicable to the Ordinance and could be availed by the respondent--Petition allowed.
[P. 4] B
Mian Khalid Habib Elahi, Advocate for Petitioner.
Mr. Hamid Iftikhar Pannu, Advocate for Respondent No. 1.
Date of hearing: 25.6.2009.
Order
The petitioner brought an eviction petition against the Respondent No. 1 (the respondent) under the Punjab Rented Premises Ordinance 2007 (hereinafter be referred the Ordinance), in which the latter appeared before the Rent Tribunal on 26.2.2008; the case was adjourned to 8.3.2008, when leave application was filed by the respondent, which was beyond the period of 10 days as required under Section 22 (2) of the Ordinance, thus confronted with the above, the respondent moved an application on 28.4.2008 seeking condonation of the delay on the ground that "there is no fault on petitioner's part and even on the part of the petitioner's counsel, it was just bonafide mistake of fact which has caused no prejudice on other party as the petition was fixed for 08.03.08 and no development/proceedings could be made before the date in any case hence its just a technicality nothing more". It is also stated that "the apex Court encourage the disposal of litigation on merits and not on mere technicalities." Be that at it may, the learned Tribunal vide order dated 21.7.2008, by rejecting the application for leave to appear and defend and the other seeking condonation of delay, passed the eviction order and directed the respondent to vacate and hand over the vacant possession of the demised premises to the petitioner within a period of two months. However, strangely the Tribunal still framed the two issues by stating that "since the parties are at variance on the issue of period of default and an amount of arrears of rent, therefore, out of the divergent pleadings of the parties, following issues are hereby framed:--
(1) Whether the respondent is a willful defaulter in payment of rent, if so, at what rate and for what period? OPA
(2) Relief.
The case was adjourned for the evidence of the petitioner on 17.9.2008 on the above issues. Anyhow, the. order of eviction was challenged by the respondent and the appellate forum has concluded that as according to the provisions of Section 21 (2) of the Ordinance, the notice shall be accompanied by the copy of application and the documents annexed with the application, thus "it was the duty of the Tribunal to give the copy of all the documents annexed with the ejectment petition and detail of them must be incorporated in the order sheet. But the order sheet of the learned trial Court is silent in this regard. When the requirement u/S. 21 (2) of the ordinance has not been complied with, so the question of filing of leave to defend the petition u/S. 22 of the Ordinance arises subsequently. In these circumstances in this case the requirement of Section 21 (1 & 2) of the ordinance does not seem to have been fulfilled by the learned Rent Tribunal, therefore, impugned order is not sustainable."
Learned counsel for the petitioner contends that as required by schedule attached to the Ordinance, a copy of the eviction petition and the documents were duly annexed to the notice served upon the respondent and this is so mentioned in the notice; that there has never been any objection by the respondent that notice issued/served was missing in copy/Annexures; it has never been the case of the respondent before the Rent Tribunal when the application for condonation of delay was made; in the memorandum of appeal, no such ground has not been taken, therefore, the appellate forum has transgressed beyond even the case of the respondent to grant him the relief, which is not available.
Heard. There is no grouse of the respondent that the provisions of Section 21 (2) of the Ordinance, were not complied with by the petitioner and the notice received by him was lacking qua the eviction application and/or the documents annexed thereto. It is not the requirement of law that if the respondent of a case has not raised any objection in this regard, the Rent Tribunal shall necessarily specify in the order that the copies have been delivered. To the contrary, the respondent has set out the plea of misunderstanding and sought refuge under the stance that a litigant should not be knocked out on technical grounds. Therefore, the impugned order, which is not even in consonance with the case of respondent is absolutely illegal and unlawful.
Anyhow, it requires to be examined if the time for filing the leave application could be condoned, suffice it to say that the period of ten days has been prescribed by Section 22 (2) of the Ordinance itself, with the consequence that in case the leave is not filed within the stipulated period, the Tribunal shall pass the final order (as per Section 22 (6) of the Ordinance). This has made the noted provisions as mandatory (as consequences of default are clearly provided), resultantly, the respondent was liable to be straightaway ejected in terms of the above quoted law.
The argument of the learned counsel for the respondent that on account of the reasons given in the application for condonation of delay, coupled with the condonation sought on the equitable ground as argued in the Court, the lapse should be over looked, suffice it to say that the equity cannot override the law, it has not been shown if the condonation of the delay could be granted to the respondent under any provisions of the Ordinance 2007. It is also not established if Section 5 of the Limitation Act 1908 is applicable to the Ordinance and could be availed by the respondent.
The other aspect of the matter, which has been noticed by this Court with anxiety that the Tribunal after passing the final order of eviction, has framed the issues and is proceeding to record the evidence of the parties. The counsel for the petitioner has not been able to satisfy as to under what provision of law, it (the Tribunal) could do so, as it was rendered functous officio and could not proceed any further after the final eviction order passed by it. Therefore, the remaining part of the order of the learned Rent Tribunal vis-a-vis the framing of the issues is also set aside. This petition is accordingly allowed and the impugned order of learned ADJ dated 20.12.2008 is set aside as also that of the Tribunal as mentioned above.
(M.S.A.) Petition allowed.
PLJ 2010 Lahore 4
Present: Ijaz Ahmad Chaudhry, J.
GHULAM SHABBIR RAWAN--Petitioner
versus
PAKISTAN TELEVISION CORPORATION LIMITED through its Managing Director, PTV Complex, Islamabad
and 2 others--Respondents
W.P. No. 9376 of 2006, heard on 17.7.2009.
Constitution of Pakistan, 1973--
----Arts. 25 & 199--Civil servant was appointed as associate Engineer (Electronics) on contract basis--Applied for regularization of his services--Continuously deprived of and discriminated while other Associate Engineers who were appointed alongwith petitioner--Held: Contract employees had been admittedly regularized on the direction of the Prime Minister, but in spite of that the petitioner was discriminated only on the ground that he was not appointed before 31st July, 1993--No ground for the refusal as contract employee in service of the PTV were to be treated at per with each other and when the other contract employees had been regularized how the respondents could refuse to regularize the services of the petitioner who was to be treated at par with the other contract employees--Respondent were directed to regularize the services of the petitioner in the same manner in which the other employees of the contract parts were regularized with back benefits--Petition allowed.
[Pp. 8 & 9] A & B
Sheikh Abdul Hameed, Advocate for Petitioner.
Mr. Muhammad Hanif Chaudhry, Advocate for Respondents.
Date of hearing: 17.7.2009.
Judgment
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Ghulam Shabbir Rawan petitioner seeks setting aside of order dated 6.3.1997 together with subsequently impugned order of declining his request of regularization into service dated 15.8.2003 by declaring to be arbitrary, excessive, unlawful and void ab-initio.
The brief facts of the case are that in response to advertisement published in the daily newspaper `DAWN' dated 9.11.1992, for the appointment of Associate Engineer (Electronics) and the petitioner possessing required qualifications and being qualified, applied for one of the post and obtained 71 marks out of hundred and was qualified for the needful and was duly got approved by the Selection Committee as well as by the Managing Director accordingly. However, the respondents ignoring the merits, on the basis of nepotism and favoritism, recruited out some candidates. The petitioner moved an application to the higher authorities and vide order dated 6.2.1994, the petitioner was appointed as Associate Engineer (Electronics) on daily wages at the rate of Rs. 123/- at Television Centre, Lahore. The petitioner claims that despite assurance given by the authorities for the regularization of service of the petitioner, the petitioner was not regularized into service and he has been constrained to move an application to Respondent No. 1 on 14.11.1995, who strongly recommended the case of the petitioner for his regular appointment. It is claimed by the petitioner that during inquiry of the recruitment process in the year 1993 certain demerits, came in light that many of the candidates even not at all possessing the required qualifications were also got appointed by the authorities It is claim of the petitioner that he has been discriminated as other persons had been regularized and the impugned order dated 6.3.1997 is illegal and unlawful which may be declared so, through which services of the petitioner has been terminated.
Report and parawise comments have been submitted by the respondents and according to the report it is denied that the petitioner was selected rather it has been stated that the petitioner obtained 71% marks in interview but the last candidate who was appointed against Punjab quota had secured 74% marks. It is also denied that appointments of Associate Engineers were made on the basis if nepotism, favoritism or against the merit. It is claimed in the comments that on the recommendations of the then Minister for information and Broadcasting, the petitioner was appointed as Associate Engineer (Electronics) on daily wages on 8.2.1994 and it was clearly mentioned in his appointment letter that he would not have any claim for regular appointment on the basis of his engagement on daily wages basis. It is also claimed that no assurance was given to him for regularization of his services, at some later stage rather it was mentioned in the order that his services will not be regularized. It is claimed that regularization of services of some contract employees as stated by the petitioner in the writ petition had applied for the post, who were interviewed by the Selection Board and were selected for the post of Associate Engineer (G-4). They were offered contract employment on 31.7.1990 and posted at different centers. On dissolution of the Government in August, 1990, they were not allowed to join their duties and offer was withdrawn. However, in compliance with Cabinet's decision dated 20.12.1993 they were restored on 12.5.1994. Later on in September, 1995 in the light of Cabinet Secretariat Establishment Division's letter No. 4/2/93/CP/5 dated 8.3.1995, their contractual employment was regularized and case of the petitioner is not at par with the case of the other employees.
Learned counsel for the petitioner contends that the petitioner was appointed on 6.2.1994 and was continuously in service of the respondents and has been discriminated as he was not regularized with others who were regularized.
On the other hand, learned counsel for the respondents contends that the petitioner was not appointed on merit basis, but he had been appointed on the recommendation of the then Minister for information and Broadcasting. It is also contended that the employees who were appointed in response to advertisement published in 1989 had been offered contract employment on 31.7.1990, but due to the change of the government in 1990, they were not allowed to join their duties. However, in compliance with Cabinet's decision dated 20.12.1993, they were restored on 12.5.1994 and their services have been regularized in pursuance of letter of Establishment Division dated 8.3.1995 and the other employees who have been regularized, their case is distinguishable from the case of the petitioner as he was appointed on daily wages in the year 1994 and not in the year 1993.
I have heard the learned counsel for the parties and also gone through the documents attached with this petition.
It is not denied by the respondents that the petitioner had appeared in interview for the post of Associate Engineer (Electronics), which was advertised in the newspaper daily `DAWN' dated 9.11.1992 and he obtained 71% marks. However, claim of the respondents is that last candidate who was appointed against Punjab quota had secured 74% marks. However, it is not denied that the petitioner approached the then Minister for information and Broadcasting, resultantly the Respondent No. 2 vide order dated 6.2.1994 directed for the appointment of the petitioner as Associate Engineer (Electronics), but only on daily wages at the rate of Rs. 123/- at Television Center, Lahore under the administrative control of Respondent No. 3 and also at the same time Respondent No. 2 directed for the holding of inquiry in the earlier recruitment process which was made in response to the above-said advertisement in which the petitioner was not selected. It is claimed by the petitioner that his services were not regularized till the filing of this petition in spite of the fact that other employees similarly appointed on contract basis in the year 1993 and various categories were regularized and the petitioner from the day one had been making applications for his regularization and treating the petitioner at par with the others whose services have been regularized in spite of the facts that their case was not distinguishable from the case of the petitioner, but through the impugned order dated 6.3.1997 services of the petitioner has been dispensed with. However, the said impugned order was suspended by this Court in W.P. No. 9937 of 1997 on 23.4.1997. In the meanwhile, Section 2-A was inserted into Service Tribunal Act, 1997 and as such the petition filed by the petitioner was abated and was disposed of and the petitioner was directed to approach the Federal Service Tribunal. Consequently, the petitioner filed Appeal No. 258 (L)/1999 alongwith the stay application whereupon the petitioner was granted stay and the petitioner was in service.
The petitioner once again filed another appeal before the Service Tribunal against his termination order which was admitted for regular hearing on 19.4.1999 and the petitioner continued in service as operation of the order dated 28.12.1999 was suspended.
Order of the Federal Service Tribunal in favour of the petitioner was presented before respondent for redressal of the grievance of the petitioner as directed, hence, filed this petition.
The main contention of the learned counsel for the petitioner is that other employees who were appointed during the year 1995 as Associate Engineer on contract basis were regularized but the petitioner was continuously deprived of and discriminated having no fault on the part of the petitioner though the direction of the Prima Minister to regularize the services of the contract employees who were appointed on daily wages was not complied with to the extent of the petitioner and he has been discriminated by the respondents in violation of Articles 25 and 27 of the Constitution. In reply it has been admitted by the respondents that all the employees who were appointed in the year 1989 on contract basis on 31.7.1990 on different centers, but they were not allowed to join duty due to the change of the government and offer was withdrawn in compliance of the Cabinet decision dated 20.12.1993 were restored on 12.5.1994 and the contract employees were regularized while the petitioner has not been regularized. It is also admitted by the respondent that M/s Abdul Samad Khan Pasha and Niamat Ullah did not have required qualification, but they were appointed as Associate Engineers against the Punjab quota and services of Abdul Samad Khan Pasha were regularized. It is admitted by the respondents that the Prime Minister of Pakistan had passed orders for regularization of daily wages employees of PTV of July, 1993 and their services were regularized but the case of the petitioner for regularization was not considered as he was appointed after 31st July, 1993 and he was appointed on 6.2.1994. This is no ground for refusal of the respondents to regularized the services of the petitioner as only the pivotal question in this present case is that the other contract employees had been admittedly regularized on the direction of the Prime Minster, but in spite of that the petitioner has been discriminated only on the ground that he was not appointed before 31st July, 1993 and was appointed on 6.2.1994. This is no ground for the refusal as contract employees in service of the PTV were to be treated at par with each other and when the other contract employees have been regularized how the respondents could refuse to regularize the services of the petitioner who was to be treated at par with the other contract employees. Even otherwise, the Government of Pakistan has recently promulgated Sacked Employees (Reinstatement) Ordinance 2009 to provide relief to persons who were appointed in a corporation service or autonomous or semi-autonomous bodies or in Government service during the period from the 1st day of November, 1993 to the 30th day of November, 1996 and were dismissed, removed or terminated from service during the period from the 1st day of November, 1996 to the 31st day of December, 1998.
In such circumstances, the petitioner cannot be deprived of that he does not belong to a specific political party, but he is also citizen of this country and Article 25 of the Constitution directs the executive authorities that nobody should be discriminated. Hence, action of the respondents for not regularizing the services of the petitioner who was also entitled to the same benefit provided to the other employees similarly placed cannot be upheld. Resultantly, this petition is accepted and the respondents are directed to regularize the services of the petitioner in the same manner in which the other employees of the contract posts were regularized with back benefits. This petition is accepted with costs.
(M.S.A.) Petition accepted.
PLJ 2010 Lahore 9
Present: Kazim Ali Malik, J.
MUZAFFAR-UD-DIN KHAN, UNIT MANAGER, NOBAHAR BOTTLING COMPANY, SIALKOT--Petitioner
versus
STATE and another--Respondents
W.P. No. 5114 of 2009, heard on 1.6.2009.
Criminal Procedure Code, 1898 (V of 1908)--
----S. 516-A--Confiscated case property of bottles of substandard quality--Application for custody the bottles before Magistrate--Report of SHO--Request for custody of the recovered bottles was allowed--Application for recalling of the order, dismissed--Revision petition also dismissed-Constitutional petition--Question of--Whether or not the samples had been sent to the laboratory for analysis--Samples had been prepared for the said purpose--Held: Magistrate was required to requisition the report of and analyst--No objection certificate issued by the local police did not provide a basis to Magistrate to pass an order of superdari--Magistrate in fact mortgaged his functions and duties to the police--Additional Session's Judge erred in law while holding that the order of superdari was a judgment, which could not be reviewed--It was an interlocutory order, which could be varied by the trial Court or the revisional Court, if the circumstances so warranted--Petition allowed. [Pp. 15 & 16] A, B, C & D
Punjab Local Government Ordinance, 2001--
----S. 14(2)--Comeptence to check adulterated food items--Powers of--DHO, DSI and Deputy Health Officer are authorized to check adulterated food items. [Pp. 16 & 17] E
PLJ 1980 Cr.C. (Kar) 207, PLD 1979 Lah 613 ref.
Mr. Shahzada Mazhar, Advocate for Petitioner.
Mr. Hasham Sabir Raja, AAG and Ch. Abdul Rashid, Advocate for Respondents.
Date of hearing: 1.6.2009.
Judgment
Brief fact giving rise to this Constitutional petition, may be given first:--
District Officer Health, Sialkot, received a complaint from Nobehar Bottling Company, Sialkot with an allegation, in brief, that Arif Hussain, Respondent No. 2 herein had been selling substandard and injurious to human health cold drinks. The District Health Officer constituted a raiding party, consisting of Muhammad Islam Qamar, DSI, Khalid Javed and Bashir Masih, Sanitary Patrolling Officers, headed by Deputy District Officer (Revenue), Samaryal and raided the business place of the respondent with the name and style of Arain Traders and found huge quantity of bottles of cold drinks lying at a dirty place. In exercise of powers under Section 146-D of the Punjab Local Government Ordinance, 2001, the raiding party prepared samples of the cold drinks of different brands, sealed the godown, wherein the bottles had been stored by Arif Hussain, respondent, and passed on the information to the above effect to SHO, Police Station, Samaryal, Area Magistrate, the DCO and District Nazim, Sialkot. After an hour of the above said exercise, Arif Hussain, respondent, de-sealed the store and took away the bottles lying therein. A case FIR No. 397 dated 05.07.2008 under Section 14(2)(a) of the Punjab Local Government Ordinance was registered with Police Station, Samaryal, district Sialkot, about the above said happening. During the course of investigation, the Investigator recovered 2647 bottles of Pepsi brand from the respondent, which were taken into possession as case property.
The Area Magistrate after examining the report enquired from the SHO as to whether or not the samples of the cold drinks in question had been dispatched to the Test Laboratory and if dispatched what was the report of analyst. Shahbaz, Muharer, same day responded to the query as under:--
The second report by the Muharer was also forwarded by the SHO. The learned Magistrate allowed the request for custody of the recovered bottles vide order dated 15.07.2008 with an observation:--
"Report of the SHO concerned shows that the Police has not sent the said bottles for chemical analysis and stated that he has got no objection if the Superdari application be accepted. There is no other claimant. When the petitioner is owner of the above said Bottles it is think fit for the proper custody of the bottles. In view of what has been discussed above, the Superdari application is hereby accepted subject to his furnishing of surety bond in the sum or Rs.70,000/- with one surety in the like amount to the satisfaction of this Court.
Signature
Dated 15.07.2008 Magistrate Section 30, Daska"
In the above manner, the application for custody of the bottles moved by Arif Hussain, respondent, on 15.07.2008 was allowed the same day and the local police handed over 2646 bottles to the respondent in compliance with the above said order of the Area Magistrate.
On 16.10.2008 Mazar-ud-Din Khan, Manager Naubahar Bottles Agency, Sialkot, at whose instance the raid was conducted, made an application before the Area Magistrate for recalling the order of Superdari on the ground that it had already been established on record that the samples contained sediments not fit for human consumption. The Area Magistrate turned down the request for recalling of order of Superdari by means of order dated 03.01.2009 with an observation:--
"The further ground for recalling of order of superdari of the petitioner is that the report sent to DHO, Sialkot regarding purity of soft drink contained in bottles taken on superdari is reported as containing impure substance. This is not a valid ground for recalling of order of superdari passed in favour of respondent for reason of report of impurity of drinks as given by the testing laboratory. In the circumstances when the respondent has submitted to the Court that he is always ready to present bottles taken on superdari as and when required by Court. I do not feel any need to recalling of order of the superdari, because there is no fear of destruction or tempering with said property. In the light of above said discussion, the petition filed on behalf of the petitioner Muzafar-ud-Din is dismissed. Consigned."
Announced Signature
3.1.2009 Magistrate 1st Class"
"Equity helps vigilant and not dormant and indolent. Moreover, there is no provision of review in the Criminal Procedure Code. Furthermore, the bottles in question are perishable and decayable commodity. Even then the learned Area Magistrate has lime-lighted in its impugned order that the Superdar Arif Hussain has submitted to the Court that he would always be ready to present the bottles taken on Superdari as and when required by the Court. The petitioner can still recourse and resort to the learned Trial Court for presenting bottles in question as case property. Huge number of bottles cannot be kept by the Court in its custody as prayed by the petitioner in the instant revision petition. The case of the parties is yet to be disposed of by the dint of evidence. Moreover, said Arif Hussain, who obtained the bottles on Superdari has not been arrayed and aligned as party to this revision petition. In this sense this revision petition is defective one. The learned Trial Court after discussing all pros and cons besides ins and outs of the matter has rendered the impugned order. There is emerging no material irregularity and illegality in the impugned order."
The petitioner has called in question the legality of above said orders of the Area Magistrate and the Revisional Court by invoking Constitutional jurisdiction of this Court.
The respondent Arif Hussain prayed for temporary custody of the bottles in question under Section 516-A of the Code of Criminal Procedure, 1898, which reads as under:--
"516-A When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of:
Provided that, if the property consists of explosive substance, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances:
Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:
Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court"
Learned counsel for the petitioner has argued that the orders under challenge being violative of statutory provisions of law governing the subject and offensive to the record are liable to be set aside. On the other hand, learned counsel for the respondent has contended that only the Inspectors appointed under Section 17 and 18 of the Pure Stuff (Control) Act, 1958 are authorized to conduct raid and obtain samples of the food suspected to be adulterated or injurious to health and that in exercise of Constitutional jurisdiction this Court cannot rectify even an erroneous decision of the Trial Court or that of the Revisional Court. The learned counsel has further argued that the petitioner sought review of the order of Superdari in utter disregard to the legal principle that review is alien to the criminal law.
(a) Whether an erroneous view taken by the Trial Court or Revisional Court while deciding an application under Section 516-A Cr.P.C is amenable to the Constitutional jurisdiction of High Court.
(b) Whether an order under Section 516-A Cr.P.C amounts to judgment or is an interlocutory order, which can be varied by the Trial Court, even before final disposal of the case, if circumstances so warrant.
(c) Whether District Officer (Health) Sialkot, District Sanitary Inspector, Sialkot, Deputy District Officer (Health), Samaryal and Sanitary Patrolling Officers attached with the office of District Officer (Health) Saialkot were competent to raid premises of the respondent and seize the bottles in question.
7 & 8. Sindh High Court has held in Muhammad Yousaf Vs. Muhammad Iqbal and others (PLJ 1980 Cr. C. (Karachi) 207) that revisional powers under Section 439 Cr.P.C of the High Court are distinguishable from those available under Article 199 of the Constitution of the Islamic Republic of Pakistan as in the former case mistake of fact or law can be rectified, but in the latter case only jurisdictional defect in the impugned order can be interfered with. The Hon'ble Sindh High Court further observed in the precedent case that even an erroneous decision taken by the trial Court or the Revisional Court, while deciding an application under Section 516-A Cr.P.C, cannot be rectified by the High Court in exercise of Constitutional jurisdiction and interference with such order of the Courts below is only permissible where the Subordinate Courts have either exercised jurisdiction which did not vest or exceeded the jurisdiction or failed to exercise the jurisdiction. But, the view of the Lahore High Court is altogether different on the point in issue. In Abdul Rashid Vs. Sessions Judge, Jhang and two others (PLD 1979 Lahore 613), it has been ruled that the High Court would not ordinarily interfere with the discretionary orders passed by the learned lower Courts in the matters of temporary custody of seized property, but this Court has always interfered where the lower Courts passed such orders without considering all the relevant circumstances of the case or passed an order in an arbitrary manner because the discretionary powers are to be exercised on sound judicial principles and not arbitrarily or fancifully. It was also held that High Court would also interfere if the finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent error of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of powers and unreasonable view about the point in issue. Therefore, this Court is fully justified to examine the impugned orders in the light of above parameters in exercise of Constitutional jurisdiction.
Shahbaz Ahmad, Muharer, made a report in response to the order of Area Magistrate that he had no objection if 2646 bottles were given to Arif Hussain on Superdari. The SHO also approved his report. The available record does not tell as to what was the motive and consideration which persuaded and prompted the police officials to issue no-objection-certificate in favour of the respondent/accused against whom the allegation was that he had been selling substandard and injurious to health soda water of different brands. There was no occasion for the Area Magistrate to enquire from the SHO as to whether or not the samples had been sent to the laboratory for analysis because it was already mentioned in the FIR that the samples had been prepared for the said purpose. In the circumstances, the Area Magistrate was required to requisition the report of analyst. Muharer and the SHO reported to the Area Magistrate that the Police had not sent the samples to the Laboratory. In fact the two police officials suppressed, concealed and distorted the true facts in order to facilitate the respondent to obtain bottles in question on Superdari. The Police Officials were required to report that the sample had been sent to the analyst by the Health Department and the result thereof was awaited. The Area Magistrate allowed the Superdari of bottles on the ground that the SHO had not sent the samples for analysis and he had no objection to the acceptance of the request of accused. Had the Area Magistrate bothered to examine the FIR, he would have conveniently learnt that the samples had been sent to the Analyst by the Health department. No-objection certificate issued by the local police did not provide a basis to the Area Magistrate to pass an order of Superdari. He should have declined the request for Superdari by the accused on the basis of available material i.e. FIR, recovery' memo and reference to the Government of Punjab Analyst. It is painful to note that the Area Magistrate in fact mortgaged his functions and duties to the Police.
The petitioner approached the learned Area Magistrate for recalling of the order of Superdari, which had been passed ex parte without notice to the petitioner and the Health Department, on the ground that 2646 bottles of soda water had wrongly been handed over to the respondent on Superdari as the same had been found not fit for human consumption by the Analyst. What a pity! in the opinion of the Area Magistrate the above said plea was not a valid ground for recalling the order of Superdari. I fail to understand as to why the report of analyst dated 19.07.2008 to the above effect did not find favour with the Area Magistrate on 03.01.2009. It is not understandable as to what was the philosophy or wisdom, which persuaded the Area Magistrate to hand over a sizeable number of bottles of soda water on Superdari to the accused, which had already been found not fit for human consumption.
The Revisional Court also endorsed the arbitrary decision of the Area Magistrate. The learned Additional Sessions Judge erred in law while holding that the order of Superdari was a judgment, which could not be reviewed. In fact, it was an interlocutory order, which could be varied by the Trial Court or the Revisional Court, if the circumstances so warranted. I am supported in my view by the case law laid down in Muhammad Yousaf Vs. Muhammad Iqbal and three others (PLJ 1980 Cr.C Karachi 207). The learned Revisional Court failed to exercise the jurisdiction vested in it. Had the Revisional Court examined the controversy with full application of legal and judicial mind, it would not have been difficult for it to understand that there was no factual or legal justification to hand over the bottles of adulterated and injurious to health soda water to the accused against whom the allegation was that he had been selling adulterated soda water to the people. The learned Additional Sessions Judge mechanically observed that the learned Area Magistrate had passed the order of Superdari after discussing all pros and cons besides ins and outs of the matter. Had the Courts below considered prose and cons/ins and outs of the case, they would not have handed over the adulterated, substandard and injurious to health bottles of soda water to Arif Hussain, accused. Hence, I am of the considered opinion that the impugned orders are arbitrary, perverse, offensive to record and the law and thus are amenable to Constitutional jurisdiction of this Court.
It is true that District Health Officer, District Sanitary Inspector, Deputy District Officer (Health) and Central Patrol Officers are not Inspectors under the provisions of Pure Food Laws, but the case in hand had been registered under Section 14(2) of the Punjab Local Government Ordinance, 2001. The District Council, Sialkot in exercise of powers under the provisions of Local Government (Amendment) Ordinance, 2005 authorized the District Health Officer, District Sanitary Inspector and Deputy Health Officer of the Sub-division to act as Inspectors competent to check adulterated food items. Hence, the contention of the learned counsel for the respondent that the District Health Officer and the members of raiding party, were not competent to raid the premises of the respondent, falls to the ground.
For the foregoing reasons, I am of the view that the impugned orders are illegal, void and without lawful authority. I, therefore, accept this petition, set aside the impugned orders and dismiss the application for temporary custody of the bottles in question with a direction to the SHO to recover 2646 bottles from Arif Hussain, respondent, by or before 31.08.2009 and deposit them with the Muharer Mall Khana under intimation to the learned Sessions Judge, Sialkot.
(M.S.A.) Petition accepted.
PLJ 2010 Lahore 17
Present: Zubda-Tul-Hussain, J.
Malik GUL RAIZ AWAN--Petitioner
versus
Mst. ASMA GUL RAIZ AWAN and 2 others--Respondents
W.P. No. 388 of 2008, decided on 10.6.2009.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 9--Meaning & interpretation of the word "ordinarily residing" as contemplated in Section 9 of the Guardian & wards Act--Question, whether temporary removed of minors to Lahore could bestow jurisdiction on Guardian Judge at Lahore--The word "ordinarily" by its dictionary meanings, has been defined as "usually. Commonly, mostly and normally"--Some times it is also used to cannote a thing adopted habitually as a rule by an large--The words "Where the minor ordinary resides" have been used in Ss. 9 and 10 of the Guardians and Wards Act for the purpose of determination of the jurisdiction of the Court to entertain an application regarding the appointment and declaration of the guardians. [P. 19] A
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 9--Question as to what place, the minors ordinarily reside, is a question of fact to be decided on the basis of evidence placed on record. [P. 20] B
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 9--A person or a chilled may have been residing for years at a specific place, his parents may also be the residents of such place, but the situation can radically change if in the circumstances of a family and especially for any substantially need and requirement of the minor, a decision is taken for their shifting to some other place.
[P. 20] C
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 9--Where the children are shifted for the purpose of their education--It they join regular classes in regular and well recognized educational institution at the same time it being the intention of one or of both the spouses to continue their education at such place, the place of their education shall also become the place where they ordinary reside. [P. 21] D
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 9--The expression "ordinarily" might signify a casual dwelling at a place, where mother might bring the children with a positive intention to proved them education--It might not be permanent dwelling place either, but it is definitely not a temporary dwelling as well--Petitioner dismissed. [P. 21] E
Ras Tariq Chaudhry, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 10.6.2009.
Order
The spouses namely Malik Gulraiz Ahmad Awan i.e. the petitioner and the respondent Asma Gulraiz Awan have two minor children namely Parwasha Fatima and Muhammad Qutab Awan out of their wedlock. As ill luck would have it, they could not live harmonious family life and the respondent was constrained to take her residence with her parents, who according to the petitioner were residents of Multan. The minors were also taken by her to the house of her parents. Then cropped up some litigation between them regarding the guardianship of the minors.
On 07.06.2005, the respondent filed an application under Section 7 of the Guardians and Wards Act at Lahore. She also instituted an application under Section 12 of the Guardian and Wards Act, before the learned Guardian Judge, Lahore. On 16.07.2005, the petitioner moved an application under Order VII Rule 11 of the CPC contenting that the minors were ordinarily residing at Multan and as such, the learned Guardian Judge at Lahore lacked jurisdiction to adjudicate in the matter.
The application filed by the petitioner was dismissed by the learned Guardian Judge, Lahore through order dated 14.12.2006. Appeal filed by the petitioner thereagainst was also dismissed by the learned Addl. District Judge, Lahore on 17.10.2007. The validity of both these orders has been questioned in the instant writ petition.
The learned counsel for the petitioner has argued that both the learned Courts were misled in the interpretation of the provisions of Section 9 of the Guardians and Wards Act. The learned counsel submitted that immediately before the institution of the application by the respondent before the learned Guardian Judge Lahore, the minors and their mother were residing in District Multan, which was the place, where they were "ordinarily residing" and the temporary removal of the minors to Lahore could not bestow jurisdiction on the learned Guardian Judge, Lahore for the trial of the application filed before it. According to the learned counsel, the words "ordinarily resides" have a different connotation in contradistinction with the temporary or the permanent place of residence. He contended that immediately before their removal to Lahore and prior to the institution of the application before the learned Guardian Judge, Lahore, the minors were putting up at Multan alongwith their mother and as such, the place of their residence could not be stretched to Lahore as the place where they ordinarily reside, because they had been taken to Lahore with ulterior motive to divest the Court of Learned Guardian Judge, Multan of the jurisdiction to try and adjudicate upon the matter of guardianship relating to the minor children of the parties.
The respondent was, at one stage, represented by her learned counsel namely Mr. Qamar-uz-Zaman, Advocate but since after 03.04.2008, neither the said learned counsel nor the respondent or some other counsel has appeared on her behalf. Accordingly, ex-parte arguments have been heard.
The word "ordinarily", by its dictionary meanings, has been defined as "usually, commonly, mostly and normally." Sometimes it is also used to connote a thing adopted habitually as a rule by and large. The words "where the minor ordinary resides" have been used in Section 9 and 10 of the Guardians and Wards Act for the purpose of determination of the jurisdiction of the Court to entertain an application regarding the appointment and declaration of the guardians. It inter alia provides that if the application is with respect to the guardianship of the person of the minor, it shall be made, to the District Court having jurisdiction in the place where the minor "ordinarily resides" (the emphasis is provided).
Such residence means residence in fact and not merely the residence in law such as for the purpose of domicile etc. The contention of the respondent as it seems from her pleadings is that the minors are not simply residing at Lahore, but they are also admitted to certain prestigious educational institutions, by which perhaps the respondent intended to show that Lahore was the place of residence of, the minors for all intents and purposes within the meanings of Section 9 ibid.
It can hardly be disputed that for the purposes of Section 9 of the Guardians and Wards Act, the words "ordinarily resides" are not synonymous to the occasional or temporary residence. The provisions of Section 9 (1) have to be given ordinary and usual meaning connoting some habitat in contradistinction with the occasional or temporary residence. It may also be appreciated that the words "ordinary residence" also do not equate with the word "ordinarily resides" as used in Section 9(1) ibid. The ordinary residence is the one, which generally has a permanent character and makes the residents available in normal course of life. As against it, ordinarily resides, despite being a usual residence, may have a little bit different level of permanency. The question as to what place, the minors ordinarily reside, is a question of fact to be decided on the basis of evidence placed on record.
As per the contention of the learned counsel for the petitioner, in Section 9(1) ibid, the emphasis undoubtedly is on the minor's place of residence, to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued, but the recent removal of the minor to a different place, cannot be termed as the place, where the minor "ordinarily resides?. It cannot be disputed in so far as the academic interpretation of the provisions is concerned. But even this proposition has to be understood in the peculiar circumstances of every case. The words "ordinarily resides", of-course, do not mean temporary dwelling, because the temporary removal or dwelling at the place, implies the cessation of such dwelling on a short interval. All these meanings have to be assigned to the case in hand in the light of its own relevant circumstances.
A person or a child may have been residing for years at a specific place, his parents may also be the residents of such place, but the situation can radically change if in the circumstances of the family and especially for any substantial need and requirement of the minor, a decision is taken for their shifting to some other place. One example of such a case may be that where because of differences with the husband or for any other excuse, a wife may opt to live at some place other than the place, where she had been living with her husband and she also takes the children with her. Another incident of such situation can be the need and requirement of a spouse or of the children. If one of the spouses moves to a place for earning his livelihood and the transfer is not for a short-specified time, his residence at the new place can be called the place where he ordinarily resides. Another example, which may have a direct reference to the case in hands, is where the children are shifted for the purpose of their education. If they join regular classes in regular and well recognized educational institution at the same time it being the intention of one or of both the spouses to continue their education at such place, the place of their education shall also become the place where they ordinarily reside.
It has of-course to be seen whether in this process, their residence at the place of their school is merely temporary or they have been shifted with determination to live and continue their education there. There is no doubt that in the present case, the minors were shifted from Multan to Lahore, but the simple fact of their shifting cannot mean anything for or against any of the parties. It would in-fact be the intention with which they have been shifted to Lahore, which shall determine as to whether they are ordinarily residing at Lahore. If they are staying at Lahore, but are going back to Multan on weekly holidays, this position will not provide jurisdiction to the learned Court under Section 9(1) of the Guardians and Wards Act, but if they are "permanently" residing at Lahore and their mother is also there to look them after, the educational institutions, which they have joined have the name and fame in the society, the circumstances would lead to conclude that they have not simply been removed from Multan for defeating the ends of justice or requirements of Section 9(1) of the Guardians and Wards Act. It would rather be a place where they are ordinarily residing and thus, the learned Guardian Judge at Lahore shall have the jurisdiction to entertain and decide the matters of their guardianship.
The expression "ordinarily resides" may signify a casual dwelling at a place, where mother may bring the children with a positive intention to provide them education. It may not be permanent dwelling place either, but it is definitely not a temporary dwelling as well. If the mother, as in this case is evident from the record, shifted the minors to Lahore for providing them better chance of education and subsequently also acted upon such intention and got the children admitted in the prestigious educational institutions, the circumstances would lead to the only conclusion that the minors had been shifted to Lahore, which has to be construed as the place, where they "ordinarily reside."
In view of the above, the contentions raised in the petition are not tenable. The learned Guardian Judge, Lahore rightly assumed jurisdiction in the matter. The application filed by the petitioner under Order VII Rule 11, CPC was rightly dismissed by the learned Guardian Judge. Similarly, the dismissal of appeal was also in accordance with the law. The impugned orders dated 14.12.2006 and 17.10.2007 are unexceptionable.
The writ petition is therefore, dismissed. There shall be no order as to the costs.
(M.S.A.) Petition dismissed.
PLJ 2010 Lahore 22
Present: Hasnat Ahmad Khan, J.
Col. GHAZANFAR ABBAS--Petitioner
versus
KHALID MAHMOOD and 5 others--Respondents
E.P. No. 196 of 2008 & C.M. No. 1 of 2008, decided on 11.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. IX R. 2 & O. XVII R. 3--Representation of the People Act, 1976, S. 64--Election petition was dismissed under Order IX Rule 2 and Order XVII Rule 3 of CPC r/w Section 64 of the Representation of the People Act, 1976--Application under Section 151, CPC for the restoration of the same--Validity--Neither the petitioner nor his Counsel opted to submit their own affidavits--Held: Supreme Court would treat the application is not supported by any affidavit--Election petition dismissed in default can be restored by the Election Tribunal, but that can only be done if the application for restoration of the election petition discloses genuine and sufficient reasons for restoring the same. [Pp. 25 & 26] A & B
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Provision of CPC--Applicability--Election petition could not be dismissed under the provisions of CPC--Object of legislature to decide the election petition--Scheme of law, as given by the legislature, reveals that its object is that the election petitions should be decided within minimum possible time--Object of the legislature to decide the election petition as expeditiously as possible is that the elected candidate instead of being entangled in the litigation should be allowed to concentrate on serving his constituency and playing his meaningful and effective role in the legislation. [P. 26] C
Representation of the People Act, 1976--
----S. 64--Under Section 64 of the Representation of the People Act, the tribunal shall have all the powers of a civil Court trying a suit under the CPC. [P. 26] D
Mr. Arshad Qayyum, Advocate for Petitioner.
Mr. Muhammad Ghani, Advocate for Respondent No. 1.
Date of hearing: 11.5.2009.
Order
Through this application a prayer has been made to restore the main Election Petition, which was dismissed vide order dated 10.10.2008.
The facts giving rise to the filing of the instant application were/are that the applicant filed an Election Petition under Section 52 of the Representation of People Act, 1976, against the respondents. The said petition came up for hearing before me on 30th of May, 2008, on which date an order was passed to issue notices to the respondents at the expense of the petitioner through registered post along with A.D. for 20.6.2008. However, the petitioner failed to deposit the expenses for issuance of process against the respondents. Nevertheless, on the request of the learned counsel for the petitioner, another opportunity was granted to the election petitioner for payment of necessary expenses within two days, and the hearing of the case was put off till 4th of July, 2008. On the said date of hearing Respondent No. 2 was proceeded against ex parte.
Insofar as rest of the respondents are concerned, an order was passed for their service through substituted means, i.e. publication in `Daily Khabrain' at the expenses of the petitioner.
It appears that the petitioner failed to comply with the said order. Nevertheless, a Power of Attorney was filed on behalf of Respondent No. 1 on the next date of hearing, i.e. 12-9-2008. On the said date of hearing no one appeared on behalf of the petitioner, rather learned counsel for the petitioner sent a written request for adjournment on the ground of his pre-occupation before the Hon'ble Supreme Court at Islamabad, but considering the office report regarding the failure of the petitioner to deposit the necessary expenditures for service of respondents through publication, the petitioner was granted one last opportunity to do the needful in terms of order dated 4th of July, 2008. However, once again the petitioner failed to deposit the necessary expenditure for issuance of process fee. Adding to his difficulties, when the case came up for hearing on 10-10-2008 no one appeared on behalf of the petitioner before this Tribunal, and once again an application was submitted by the learned counsel for the petitioner for an adjournment on account of his pre-occupation before the Hon'ble Supreme Court, the petitioner himself, however, failed to appear before this Tribunal, and hence failed to provide any explanation for his failure to pay the necessary expenses for citation. As the petitioner had failed to avail the last opportunity for depositing the process fee, I declined the request for adjournment and proceeded to dismiss the election petition under Order IX, Rule 2 and Order XVII Rule 3, C.P.C., read with Section 64 of the Representation of People Act, 1976 due to non-compliance of the orders dated 4th of July, 2008 and 12th of September, 2008.
In the said backdrop the instant application was filed by the petitioner.
In support of this application learned counsel for the petitioner has contended that the provisions of Order IX, Rule 2 and Order XVII Rule 3, C.P.C are not applicable to the proceedings being conducted by the Election Tribunal, hence the order dated 10-10-2008 is coram non judice; that failure of the petitioner in depositing the expenses for publication was not a willful default rather it occurred due to the lack of petitioner's contact with his counsel; that non-compliance of the order was not a deliberate act.
This application was duly contested by Respondent No. 1, according to whom, after dismissal of the Election Petition, this Tribunal has no power to restore the same. Respondent No. 1 further averred that, from day one the petitioner showed irresponsible attitude and the main Election Petition was never pursued diligently; that considering the fact that the petitioner had failed to comply with the orders passed by this Tribunal time and again, this Tribunal had no option but to dismiss the election petition.
While supplementing the averments made in the instant application, learned counsel for the petitioner has contended that it is wrong to contend that this Tribunal has no jurisdiction to restore the Election Petition after its dismissal on the technical grounds. Learned counsel has placed reliance on the case of Fakhar Imam v. Muhammad Raza Hayat Haraj (2009 CLC 1). Learned counsel for the applicant further adds that though the provisions of CPC are not stricto senso applicable to the Election Petitions, but the principles of CPC can be followed during the trial of Election Petitions, therefore, according to learned counsel for the petitioner, the application in hand, which has been filed under Section 151, C.P.C., is fully maintainable.
While controverting the said arguments, learned counsel for the respondent has prayed for dismissal of the application in hand.
Heard. Record perused.
A perusal of the order-sheet of this Election Petition would make it crystal clear that, from day one, the Election Petition had not been pursued by the petitioner diligently rather he had been pursing the case negligently, carelessly, leisurely and indifferently. On the first date of hearing, while issuing notices to the respondents, the petitioner was directed to deposit the expenses for issuance of the notices, but he failed to do so. Nevertheless, he was granted an opportunity to do the needful. Consequently, he furnished the necessary expenses on the basis of which notices were issued to the respondents out of whom Respondent No. 2 was proceeded against ex parte vide order dated 4th of July, 2008. Since rest of the respondents could not be served through ordinary means, therefore, an order was passed for their service through substituted means, i.e. publication in `Daily Khabrain', but the petitioner failed to pay the necessary expenses for citation, and instead of doing the needful on the next date of hearing, learned counsel for the petitioner sent a written request for adjournment on the ground of his pre-occupation before the Hon'ble Supreme Court. No one appeared on behalf of the petitioner on the said date, but in the interest of justice this Tribunal entertained the written request of learned counsel for the petitioner and adjourned the case for 10th of October, 2008. On the said date of hearing the Election Petition could have been dismissed due to default of payment of process fee, but in the interest of justice, instead of dismissing the same on the said ground, the petitioner was afforded one last opportunity to deposit the process fee for citation. However, once again the petitioner failed to do the needful, rather on the next date of hearing once again no one appeared on behalf of the petitioner and a written request for an adjournment made by the learned counsel for the election petitioner was received. Considering the irresponsible conduct of the petitioner, the election petition was dismissed under Order IX, Rule 2 and Order XVII, Rule 3 of C.P.C. read with Section 64 of the Representation of People Act, 1976, due to non-compliance of the orders dated 4th of July, 2008, and 12th of September, 2008. Even after the dismissal of the election petition the petitioner failed to show any sense of responsibility which is clear from the fact that, while submitting the application in hand, the petitioner failed to submit his own affidavit, so much so the application in hand was not signed by the petitioner himself, rather it was signed by the learned counsel for the applicant. Another factor, which shows the petitioner's irresponsible attitude of the highest degree, is that while submitting the application in hand an affidavit of one Muhammad Munir Ansari, who claimed himself to be a clerk of the learned counsel for the petitioner was submitted along with this application. The affidavit of the clerk, that too a short one, cannot advance the case of the petitioner either. In this case neither the petitioner nor his learned counsel opted to submit their own affidavits, therefore, I would treat that the instant application is not supported by any affidavit.
Insofar as the plea that the election petition could not be dismissed under the provisions of C.P.C, is concerned, it would be interesting to note that on one hand the petitioner is claiming that the provisions of C.P.C, are not applicable in this case, but on the other the instant application by itself has been submitted under Section 151, C.P.C. It is true that in view of the case-law cited by the learned counsel for the petitioner the Election Petition dismissed in default can be restored by the Election Tribunal, but that can only be done if the application for restoration of the election petition discloses genuine and sufficient reasons for restoring the same. However, in the instant case, as observed above, the petitioner has failed badly to show any reasonable ground or good cause for allowing this application. The scheme of law, as given by the legislature, reveals that its object is that the Election Petitions should be decided within minimum possible time. The object of the legislature to decide the election petition as expeditiously as possible is that the elected candidate instead of being entangled in the litigation should be allowed to concentrate on serving his constituency and playing his meaningful and effective role in the legislation. The purpose of the legislature is that possibility of losing of his seat should not hang over the elected representatives like the sword of Damocles.
Coming to the petitioner's contention that the main petition could not be dismissed under the provisions of CPC, suffice it to observe that under Section 64 of the Representation of People Act the Tribunal shall have all the powers of a civil Court trying a suit under the CPC, therefore, no illegality was committed by this Tribunal while dismissing the application under the relevant provisions of C.P.C.
Insofar as the conduct of the petitioner is concerned, at the cost of repetition it is observed that from day one he failed to pursue this petition diligently. Paragraph-2-A(c) of the application in hand clearly reveals that the learned counsel for the petitioner failed to deposit the requisite expenses in terms of the orders passed by this Court due to the lack of communication between the petitioner and his counsel, a fact which clearly reflects that the petitioner was not even in touch with his learned counsel for pursuing the election petition. As mentioned above, he did not even bother to sign the application in hand, nor did he submit his affidavit along with this application. Be that as it may the petitioner has failed to show any cause at all, let alone a sufficient cause or even a good cause for acceptance of this application, consequently, the application in hand is dismissed.
Office is directed to communicate the instant order to the Hon'ble Chief Election Commissioner and also forward the complete record of main petition, as well as this application, immediately u/S. 76 of the Representation of People Act, 1976.
(M.S.A.) Application dismissed.
PLJ 2010 Lahore 32 (DB)
Present: Maulvi Anwar-ul-Haq and Ali Akbar Qureshi, JJ.
ABDUL SHAKOOR--Appellant
versus
Mst. ASGHARI BEGUM (deceased) through her Legal Representative--Respondents
RFA. No. 145 of 1994, decided on 18.11.2008.
Suit for Declaration--
----Suit for declaration and possession, decreed by trial Court--Objection with regard to jurisdiction of civil Court--Preliminary issue was with regard to jurisdiction--Objection that finding on preliminary issue having not been questioned earlier, the matter cannot be reopened in instant appeal--Held: The issue is one of the many issues arising in the suit--Although it was decided first yet an appeal could not have been filed as no decree one way or the other had been passed--Appeal lies only against decree, which was passed after deciding all other issues in the suit. [P. 36] A
Cooperative Societies Act, 1935--
----Ss. 70 & 70A--Declaration is sought vis-a-vis denial of title by the appellant--Question of title involved in instant case can be decided only by civil Court and not by any officer under Co-operative Societies Act--None of the two provisions are, therefore, attracted in any manner. [P. 37] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 84--Objection regarding absence of authority in trial Court to compare the signatures is baseless--Under Art. 84 of the Qanoon-e-Shahadat Order, a Court has the necessary power to compare the signatures--RFA dismissed. [P. 39] C
1997 SCMR 976 Ref.
Mr. Maqbool Elahi Malik & Mr. Umar Riaz, Advocates for Appellant.
M/s. Ikhtisar Ahmad & Ms. Tehseen Irfan, Advocates for Respondent No. 1 (L.Rs).
Mr. Ghazanfar Khalid Saeed, Advocate for Respondents No. 2 and 3.
Nemo for Respondent No. 4.
Dates of hearing: 18.11.2008, 25.11.2008 and 26.11.2008.
Judgment
Maulvi Anwar-ul-Haq, J.--On 3.2.88 Mst. Asghari Begum the deceased Respondent No. 1 (now represented by her L.Rs, hereinafter to be referred as the plaintiff) filed a suit against the appellant and the other respondents. It was stated in the plaint, that Respondent No. 4 is a registered Cooperative Society. The plaintiff was member of the said Society and held a share vide certificate issued on 16.3.43. Vide resolution dated 18.4.43 she was allotted a plot measuring 6 kanals bearing No. 10-A Model Town Lahore (hereinafter to be referred as the suit plot). She paid the price and was delivered possession. The plot was demarcated on her application on 23.5.62 and she constructed a wall after permission accorded by Respondent No. 4 on 14.2.74. In para-4 of the plaint it was explained that after independence of the country the Cooperative Model Town Society was declared to be evacuee vide order dated 6.9.60 of the Custodian of evacuee property but it was directed that a new Society be formed and Respondent No. 4 was registered accordingly in the year 1962. The appellant started claiming the title in the suit plot declaring that the same has been transferred to him under Displaced Persons (Compensation and Rehabilitation) Act, 1958. He also approached Respondent No. 4 for transfer of the plot in his name and to be registered as shareholder in place of the plaintiff. He was provisionally admitted as a member but all this was done without any notice to or knowledge of the plaintiff. Reference was made to letter issued by Respondent No. 2 on 15.7.86 verifying the transfer of the suit plot to the appellant. She filed an application before Respondent No. 2 for recalling the orders. Her plea was that the documents being relied upon by the appellant are forged and fabricated, as corresponding entries in the relevant register were not available. Respondent No. 2. however, disposed of the matter holding that he has no jurisdiction and that the plaintiff may approach the Civil Court. Thereafter several reasons have been stated alleging that documents of transfer are fabricated documents. She then filed W.P. No. 95-R-87 in this Court, which was withdrawn, as matter was subjudice in the Civil Court as she had already filed a suit for permanent injunction to protect her possession. Temporary injunction was issued in the suit filed on 10.12.86 but she was dispossessed on 22.1.87. Learned counsel state that the contempt proceedings are pending and had been adjourned sine die. A decree for declaration and permanent injunction and possession was accordingly prayed for. The Respondent No. 4 filed a written statement taking an objection that statuary notice under Section 70 of the Cooperative Societies Act, 1925 has not been served and Court has no jurisdiction in view of Section 70-A of the said Act. However, the fact that the plaintiff was a member holding a share and that she was transferred the suit plot was admitted. It was also admitted that that the appellant was admitted as member provisionally and ultimately the transfer was effected on the basis of PTD issued in his favour.
The appellant in his written statement questioned the jurisdiction of Civil Court. According to him the plot was transferred to him vide PTD dated 21.10.62. It was explained that the plot was put in auction and was purchased by him and that he is in possession since 21.10.62. This written statement was filed on 5.6.88. Later he amended his written statement with permission of the Court and amended written statement was filed on 2.7.91. In this written statement it was stated that the plaintiff had sold the suit plot to Maya Devi on 14.7.47 and it was transferred in favour of the said vendee and as such constituted evacuee property when Maya Devi left Pakistan.
I may note that a preliminary issue was framed regarding the objection to jurisdiction, which was answered in favour of the plaintiff on 30.2.90. Thereafter following issues were framed:--
Whether the suit is barred by time? OPD
What is the nature of property in dispute? Evacuee or not? It effect? OP Parties.
Whether the Defendant No. 4 is entitled to special costs? OPD
Whether No notice wider Section 70 of Cooperative Societies Act, 1925 was served, If so, its effect? OPD
Whether the jurisdiction of this Court is barred under Section 70-A of Cooperative Societies Act, 1925? OPD.
Whether the plaintiff has no cause of action against the Defendant No. 3? OPD
Whether the plaintiff is owner of the property in question ? OPP
Whether the plaintiff is entitled to the possession of suit property? OPP
Relief.
Evidence of the parties was recorded. The learned trial Court answered all the issues in favour of the plaintiff and decreed the suit on 19.5.94.
Learned counsel for the appellant contend that the property having been treated as evacuee expressly by the Custodian under Administration of Evacuee Property Act, 1957, Civil Court had no jurisdiction. According to them even if, it be found that the treatment was erroneous, Civil Court will be lacking jurisdiction. Rely on the case of Muhammad Din and 8 others v. Province of the Punjab through Collector and others (PLD 2003 Lahore 441), that the jurisdiction of the Civil Court was additionally barred under Section 70-A of the Cooperative Societies Act, 1925 and suit itself was not competent in the absence of notice under Section 70 of the said Act. On merits it is argued that lawful transfer of the property in favour of the appellant stood proved by the copies of the record produced by the plaintiff herself. According to the learned counsel the learned trial Court proceeded on a very dangerous course while comparing the signatures of the plaintiff lady with those available on documents Ex. P21 and Ex.P23. Rely on the case of Mst. Riffat Jehan and another v. Habib Bank Ltd. and 10 others (2005 CLD 941). The learned counsel for the settlement department while conceding that the PTD and PTO are forged documents as per record of the said department yet presses the said that objection as to the jurisdiction of the Civil Court raised by the learned counsel for the appellant. Learned counsel for the plaintiff, on the other hand urges that the property was never treated as evacuee by the Custodian and as such the jurisdiction of the Civil Court is not barred. It has also been tried to be argued that since the decision recorded on the preliminary issue was not questioned the appellant cannot be allowed to press the same in this appeal. As to the said second contention reply is that the suit was not at all filed against the respondent Society who was impleaded just a proforma and in fact no relief was sought against the said Society. It is case of title pure and simple, which can only be determined by the Civil Court, and notice is not necessary. On merits the learned counsel has taken me through the entire documentary evidence on record to demonstrate inherent forgery and fabrication in the matter of transfer documents relied upon by the appellant. It has been vehemently argued that the documents saw light of the day for the first time in the year 1986 and there is no explanation reasonable or otherwise for the same. In the matter of exercise undertaken by the learned trial Court while comparing the signatures, learned counsel contends that the Court had lawful authority to do so.
We have gone through the records of the trial Court with the assistance of the learned counsel for the parties. The material contents of the pleadings have already been reproduced above. So far as the question of jurisdiction is concerned, we are not in agreement with the learned counsel for the plaintiff that finding on preliminary issue having not been questioned earlier, the matter cannot be reopened in this appeal. The said issue is one of the many issues arising in the suit. Although it was decided first yet an appeal could not have been filed as no decree one way or the other had been passed. The appeal lies only against the decree, which was passed after deciding all the other issues in the suit. We accordingly proceed to examine the said question. It is admitted on all hands that the Custodian of Evacuee Property West Pakistan passed an order on 6.9.60, whereby Cooperative Model Town Society was declared to be evacuee. Although this order does not form part of the record yet a copy has been shown to us by the learned counsel for the plaintiff. According to the contents of this order the question as to the status of the Society arose in a suit filed by it against the Punjab National Bank Ltd., Lahore, for recovery of money. A reference was accordingly made by the Civil Court. Deputy Custodian vide order dated 11.6.53 held that the Society is not an evacuee concern. Additional Custodian refused to confirm the order and came to the conclusion that it is an evacuee concern. Learned Custodian dismissed the revision petition filed by the Society. However, while doing so it was held as follows: "The effect of the dismissal of this revision petition would be that Cooperative Model Town Society Limited will be treated as an evacuee and the shares of evacuee members of this society would continue to vest in the Custodian. The assets of the society being evacuee property would also vest in the Custodian." Thereafter a scheme of management was proposed and prohibition was placed on transfer of such plots as belonged to the Society.
It will, thus, be seen that the Custodian treated the Society as an evacuee concern. However, the property treated as an evacuee was share of the evacuee members and assets of the Society, which were to vest in the Custodian and to be managed as proposed in the said order. It is admitted position on record that a Member of the Society was required to hold at least one fully paid up share of the Society and to own at least one building plot in Model Town. It is admitted position on record that the plaintiff owned a share in the said Society and also owned suit plot at the time the said order was passed. In fact she continued to hold the said share and said plot till 1986 when the appellant was admitted provisionally as member with reference to the transfer documents. It is but apparent on the face of the said order that neither the share nor the plot held by the appellant was ever treated as evacuee property by the Custodian and consequently never vested in the said office. So far as the said judgment in the case of Muhammad Din and 8 others v. Province of the Punjab through Collector and others (PLD 2003 Lahore 441) is concerned it refers to treatment of the property as evacuee which may be erroneous. In the present case the property was not treated as evacuee even erroneously. The Civil Court, therefore, has the jurisdiction to decide the matter. Reference be made to the cases of Muhammad Ismail v. Abdul Haq and others (2001 SCMR 1350) as also Abdul Khaliq Abdul Razzaq v. Kishanchand and others (PLD 1964 S.C 74).
Coming to the objection with reference to Section 70 and 70-A of the Cooperative Societies Act, 1925. We have referred to the plaint in some detail above. We do not find any relief being claimed against the Society. The declaration is sought vis-a-vis denial of title by the appellant. Needless to state that the question of title involved in this case can be decided only by Civil Court and not by any Officer under the said Act. None of the two provisions are, therefore, attracted in any manner.
Coming to the main question involved in the suit covered by Issue No. 7 and consequently by Issues No. 2 and 8. There is absolutely no dispute whatsoever that the plaintiff was the owner of the suit plot being a transferee from respondent Society vide resolution dated 18.4.1943 and that she had paid the entire price and was put in possession of the plot. It is specifically mentioned in para-5 of the plaint that the name of the evacuee owner was not mentioned in the PTD. In the written statement filed by the appellant on 5.6.88 it was stated that the plot was treated as an evacuee property under the Pakistan Administration of Evacuee Property Act, 1957 and the plaintiff did not avail any remedy. It was almost three years thereafter in the written statement filed on 2.7.91 that a plea was taken that the plot was treated as evacuee because the plaintiff had sold the same for a consideration of Rs. 9000/- to Mrs. Maya Devi on 14.7.47 and it was transferred to the said vendee and this is borne out on the record of the respondent Society Order dated 27.3.62 alleged to have been passed by D.S.C narrated that Cooperative Model Town Society Limited Lahore, was declared an evacuee under Pakistan Administration of Evacuee Property Ordinance, 1949 and Plot No. 10-A was put to auction and has been purchased by Abdul Shakoor and the same is confirmed. In this order like in the first written statement reliance was on the treatment of the respondent Society as an evacuee concern. We have already referred to the order of the Custodian above. The ownership of the plot by the appellant had the reference to the share held by her in the Society and the said order only treats the share held by non-muslim evacuee to be an evacuee property. It is no body's case that the suit plot was asset of the respondent Society.
Apart from the fact that all orders and proceedings alleged to be recorded by the Settlement Authorities were so recorded on a day, which happened to be Sunday and regarding which there is no denial, bid sheet Ex. PW2/5 recording proceedings of the auction is dated 5.3.62 whereas it has been recorded on proforma which was printed on 28.5.62 i.e more than two months after the said date. This is apparent on the face of said document. The PTD does not disclose name of the evacuee owner. The record was produced by the plaintiff through Abdul Majeed Qadri, Superintendent PW-2. He has stated that Plot No. 10-A does not find any mention in the survey register for Model Town Society for Block ABCD. There is no mention of the PTD in the register of CSCF while register CSC-4 is not available. There is no mention of the date of auction in the relevant register. Copy of the bid sheet has not been issued by his office. The compensation book against which the dues are stated to have been settled is also not available and according to record it pertains to Karachi. He further stated that every participant in the auction has to obtain a token number and to pay fee and there is no entry of any token number or fee paid qua the said auction. In his cross-examination he stated that there are no orders for conferment of permanent right in the file. He also stated that no auction list regarding block-A of Model Town Society is available in his record. He expressed inability to confirm that mark "A" is correct copy of the auction list. He gave numbers of all the plots in Model Town Society in register CSC-4 and Plot No. 10-A is not included in the same.
Abdul Shakoor appellant himself appeared in the witness box as DW-1 but in response to every question in cross-examination pertaining to the merits of the case opted to express ignorance. Stating that his father used to look after the affairs. Haji Abdul Manan stated to be attorney of the appellant appeared as DW-2 and made a meaningless statement expressing ignorance in response to material questions. At the same time stated that whatever he knows was conveyed to him by the appellant.
The said plea taken by the appellant in his amended written statement revolves around documents Exs.P21 and P23. Ex.P21 is an application dated 15.7.52 by the plaintiff stating that she owns Plots No. 27-A and 10-A and that she has sold Plot No. 10-A to Mrs. Maya Devi for Rs. 9000/- on 14.7.47 and that she has migrated to India and let Plot No. 10-A be placed at the disposal of the Custodian of evacuee property. Ex.P23 is a transfer form dated 14.7.47 purported to be executed by the plaintiff and said Mrs. Maya Devi. Muhammad Ibrar record keeper, Model Town Society has appeared as PW-3 and has stated that Exs.P21 and P23 are present in record but the receipt register is not available in the record. According to him in the entire record there is no proceedings recorded on the said documents. He stated in his cross examination that Abdul Shakoor appellant filed an application for membership on 28.5.86 appended PTD and after verification membership was given to him.
It is stated case of the plaintiff that the said two documents were planted in the record. Her son and attorney Aziz-ud-Din appeared as PW-4 and stated that Ex.P21 and Ex.P23 do not bear the signatures of his mother.
It is established on record that the said Maya Devi was owner of another plot bearing No. 127-D vide document Ex.P30 and that she was also a member of the Society. The application filed by her is Ex.P31. Apart from the fact that the signatures of the plaintiff lady on the said documents do not tally with her admitted signatures particularly with references to the word "Asghari", document Ex.P23 is purported to be signed by Maya Devi in Urdu whereas her signatures on the proved document Ex.P31 are in Hindi. The afore noted contention of the learned counsel as to the absence of authority in the learned trial Court to compare the signatures is baseless under Article 84 of the Qanun-e-Shahadat Order, 1984 a Court has the necessary power to compare the signatures. Reference be made to the case of Ghulam Rasool and others v. Sardar-ul-Hassan and another (1997 SCMR 976).
The learned trial Court is also justified in wondering as to why Maya Devi who admittedly became an evacuee proceeded to purchase property plan month of July 1947 when it is in the public knowledge that the partition plan had already been announced by the lord Mountbatten, Viceroy of India on 3.6.47 and British Parliament proceeded to pass the Indian independence Act, 1947 on 18.7.1947.
Having, thus, examined the records, we do agree with the learned trial Court that the said transfer documents and connected papers are forged and fabricated and so is the case with documents Ex. P21 and Ex. P23.
In view of whatever has been discussed above, this RFA is dismissed with costs throughout.
(M.S.A.) RFA dismissed.
PLJ 2010 Lahore 39 (DB) [Bahawalpur Bench Bahawalpur]
Present: Maulvi Anwar-ul-Haq & Ali Akbar Qureshi, JJ.
Mian FARID-UD-DIN MASOOD and 6 others--Petitioners
versus
FEDERAL LAND COMMISSION, ISLAMABAD and 6 others--Respondents
W.P. No. 197 of 2006, decided on 14.1.2009.
West Pakistan Land Reforms Rules, 1959--
----R. 12--Land Reforms Regulations 1972, Para 32--Constitution of Pakistan, 1973, Art. 199--Constitutional petition calling in question the validity of the order of chief land commission while exercising the suo moto powers conferred upon him under the West Pakistan Land Reforms Rules, 1959 and Para 32 of the Land Reforms Regulations, 1972 declared the gift mutation void and unlawful--Power of suo moto--Held: Although by way of an amendment, the powers of review was taken off but the provisional powers are still existing in the statute--Revision powers can be exercised on the application of an aggrieved person or by the revisional authorities suo moto even after the period stipulated in the law because of the fact, that it is supervisory jurisdiction which can be exercised to rectify the jurisdictional defect, illegality, irregularity, if committed while passing the order--Petition dismissed. [P. 48] A
PLD 1990 SC 95, rel.
Mr. Abdul Qayyum Awan and Mian Nisar Ahmad, Advocates for Appellant.
Mr. Rizwan Mushtaq, AAG for Respondents.
Date of hearing: 14.10.2009.
Judgment
Ali Akbar Qureshi, J.--The petitioners through this Constitutional petition have sought the invalidation of orders dated 5.1.2004 and 29.9.2005 passed by Respondents No. 2 and 3 respectively, whereby the aforesaid respondents while exercising the suo moto revisional powers declared the gift made on 7.12.1958 and its Mutation No. 736 dated 7.12.1958, by the declarant (Maj. Shamas-ud-Din Muhammad) in favour of his wife Mst. Sardar Jehan Begum, invalid and void.
The facts as stated in the instant petition are that Maj. Shamas-ud-Din Muhammad, predecessor-in-interest of the petitioners filed declaration Form L.C.I and L.C.II under the West Pakistan Land Reforms Regulation 1958. The said declarant while filing the declaration Form included an area of 1786 Kanals 4 Marlas situated in Mauza Lal Baghali, Tehsil Lodhran District Multan, which land, according to the petitioners, had been filed been gifted by Maj. Shamas-ud-Din Muhammad in favour of his wife Mst. Sardar Jahan Begum vide Mutation No. 736 dated 7.12.1958. The Deputy Land Commissioner, Bahawalpur who was competent to determine the holding of the declarant, vide order dated 24.6.1959 determined the holding of the declarant including the area of aforesaid gift mutation equivalent to 62478 produce index units and the declarant was allowed to retain an area equivalent to 36000 Produce Index Units including the area involved in the gift-deed under para-8 and 9 (a) of the Regulation ibid and resumed the remaining area in favour the Government. The said Deputy Land Commissioner vide order dated 20.10.1959 also allowed the declarant to retain further area equivalent to 2839 Produce Index Units and vide order dated 22.8.1962 the declarant was also allowed to retain 3-Acres land.
The area resumed from the declarant including area of 6000 Kanals was jointly owned by the declarant and his two brothers. The area resumed from Maj. Shamas-ud-Din Muhammad and his brother was partitioned and resumed area was sold to Ghulam Nabi and others under the sale scheme issued under Para-19 of the aforesaid regulation. Being aggrieved of the said partition Mutation No. 10, Maj. Shamas-ud-Din Muhammad and his brothers filed appeal, which was allowed and a new partition was carried out. The purchaser/Ghulam Nabi and others against the said partition filed revision petition before the Chief Land Commissioner challenging the sanction of partition Mutation No. 11.
The declarant/predecessor-in-interest of the petitioners filed an application on 4.4.1959 to the Deputy Land Commissioner, Multan to the effect that gift Mutation No. 736 of Mauza Lal Baghali be declared as valid because the said gift was made on 9.4.1958. The said application was recommended by the Deputy Land Commissioner with the remarks that the application be accepted. On this, the Land Commissioner, Bahawalpur on 3.4.1962 referred the matter to the Chief Land Commission, recommending that area involved in the said Mutation No. 736 be excluded from the holding of Maj. Shamas-ud-Din Muhammad and he be allowed to make up the deficiency in the permissible ceiling 36000 Produce Index Units out of area resumed from him. The recommendations were accepted by the Chief Land Commission and orders were issued accordingly vide letter dated 27.9.1962 of the Secretary West Pakistan Land Commission.
M/s. Ghulam Nabi and others filed Writ Petition No. 320 of 1963 against the aforesaid orders of the Chief Land Commission but the same was dismissed in default on 12.2.1964. the said Ghulam Nabi sought the review by filing a Review Petition No. 35/1962-63 of the orders of the Chief Land Commissioner contained in the letter of Secretary dated 27.9.1962, the Chief Land Commission passed certain orders and finally ordered that the Review Petition No. 35/1962-63 shall remain pending till the decision of the writ petition by this Court. Consequently, the review petition was revived on the dismissal of the writ petition by this Court.
The review petition was given Fresh No. 16/1970-71 and a Revision Petition No. 196 of 1963-64 filed by the said Ghulam Nabi was also revived against fresh No. 52/1970-71. The aforesaid cases were transferred to the Addl. Chief Land Commissioner, Punjab who vide order dated 3.2.1975 decided the aforesaid revision and two other revisions while exercising the suo moto revisional jurisdiction. The said order of the Addl. Chief Land Commissioner was challenged by Ghulam Nabi etc. before this Court in writ petition and the same was dismissed on 21.9.1982. Ghulam Nabi etc. filed a Civil Petition before the Hon'ble Supreme Court of Pakistan but the same was too dismissed on 30.5.1994.
The Addl. Chief Land Commission by his order dated 28.4.1975 accepted the Review Petition No. 16/1970-71 of Ghulam Nabi etc. and declared Gift Mutation No. 736 dated 7.12.1958 made in favour of Mst. Sardar Jehan Begum of Mauza Lal Baghali as void and also held that the order of Chief Land Commissioner contained in letter dated 27.9.1962 issued by the Secretary West Pakistan Land Commission was incorrect. Against the aforesaid order, Mst. Sardar Jehan Begum in whose favour the Gift Mutation No. 736 was entered, filed Writ Petition No. 2751, the same was allowed by this Court on 20.10.1988 whereby the order of the Addl. Chief Land Commission dated 28.4.1975 was set aside and it was observed that the review petition filed by Ghulam Nabi etc would be deemed to have been pending before the Chief Land Commissioner, Punjab.
The review petition was heard by the Chief Land Commissioner, Punjab who finally accepted the same while exercising the suo moto powers conferred upon him under West Pakistan Land Reforms Rules 1959 read with Para-32 of the Land Reforms Regulations, 1972 by which order the Chief Land Commission observed that Maj. Shamas-ud-Din Muhammad did not mention in his declaration Form that he had gifted an area situated in Mauza Lal Baghali in favour of his wife Mst. Sardar Jahan Begum before the target date of 8th October 1958 as specified in Para-7 (1) of the Regulation 1959, therefore, the Deputy Land Commissioner, Bahawalpur while passing the order on the declaration of Maj. Shamas-ud-Din Muhammad, predecessor-in-interest of the petitioners counted the area of Gift Mutation No. 736 of Mauza Lal Baghali in the holding of Maj. Shamas-ud-Din Muhammad and he was allowed to retain the same within the permissible limit. Further observed in the aforesaid order by the Chief Land Commissioner that neither Maj. Shamas-ud-Din Muhammad nor his wife challenged the order of the Deputy Land Commission in appeal or revision, therefore, the orders of the Deputy Land Commissioner, Bahawalpur attained finality under the 1959 Rules. Finally, the Chief Land Commission held that gift Mutation No. 736 dated 7.12.1958 was void under para-7 (1) of the Regulation 1959 and the executive order issued by the Secretary, West Pakistan Land Commission dated 27.9.1962 was not in accordance with law and the same was too set aside.
The petitioners being dissatisfied of the order dated 5.1.2004 passed by the Chief Land Commissioner, filed a revision petition before the Federal Land Commission, Islamabad. The Federal Land Commission upheld the order passed by the Chief Land Commission and dismissed the revision petition of the petitioner, hence this Constitutional petition.
Learned counsel contended for the petitioner that the order, impugned herein is suffering from jurisdictional defect as the powers of review came to an end on 30.4.1975 by way of an amendment in the Rules Known as West Pakistan Land Reforms Rules, 1959, therefore, the order passed by the respondents while exercising the suo moto powers of review is coram non judice and unsustainable in law. Next contended that Maj. Shamas-ud-Din Muhammad, predecessor-in-interest of the petitioners validly made a gift in favour of his wife namely Mst. Sardar Jehan Begum and the same was also given effect in the revenue record by the concerned revenue authorities while entering Mutation No. 736 dated 7.12.1958 so the same was immune from the scrutiny of the Land Reforms Authorities, therefore, the order to declare the aforesaid gift, void, is against the principle laid down by the Hon'ble Supreme Court of Pakistan in the judgments reported as Muhammad Yousaf Khan v. The Chairman, Federal Land Commissioner and others (1988 SCMR 611), Munir Ahmed and 2 others v. Chairman, Federal Land Commission, Pakistan and another (1994 CLC 20), Federal Land Commission through its Chairman v. Hayat Muhammad Khan and others (1994 SCMR 1112) and Federal Land Commission v. Sardar Muhammad Aurangzeb Khan and 5 others (1997 SCMR 911). Also contended that the proceedings to exercise the suo moto powers were initiated on the application of a person having no locus standi to challenge the validity of the gift-deed or the title, of the petitioners. Learned counsel for the petitioners also added to his argument that on the one hand, the Land Reforms Authority has held in the order, impugned herein that the tenant M/s. Ghulam Nabi etc had no locus standi to challenged the order passed by the Chief Land Commission because the filing of a declaration is a matter between the Government and declarant, but on the other hand has exercised the suo moto powers and passed an order detrimental to the interest of the petitioners. Learned counsel also contended that till today, the land has not been resumed from the petitioners by the Land Commission, therefore, no fresh action can be taken by the Land Reforms Authority as ruled in Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99). As regards the limitation, the learned counsel submitted that the order has been passed regarding the gift mutation after the period of 40 years but no explanation has been given, therefore, all the proceedings concluded by the respondents are liable to be struck down on this score alone. Further contended that before taking the action against the petitioners, no notice has been given to the petitioners, therefore, the order is violative of the principle of audi alteram patram and not sustainable in law.
Conversely, the Assistant Advocate General appeared on behalf of the respondents vehemently opposed the submissions made by the petitioners. Learned Assistant Advocate General contended that the Land Reforms Authority rightly exercised the suo moto revisional powers and declared the gift mutation void made by the predecessor-in-interest of the petitioners Maj. Shamas-ud-Din Muhammad in favour of his wife because the said declarant himself included the land of the said gift mutation in his declaration and further the said gift was made after the target date given by the law, therefore, no illegality or irregularity was committed by the respondents-Land Reforms Authority. Also contended that the petitioners till today have not challenged the order of Deputy Land Commission, Bahawalpur passed in the year 1959 whereby on the basis of the declaration filed by the declarant Maj. Shamas-ud-Din Muhammad deceased counted the area of gift mutation in the holding of Maj. Shamas-ud-Din Muhammad and allowed him to retain the same within the permissible limits, therefore, the petitioners are otherwise estopped by his own conduct to challenged the order, impugned herein. As regard the exercise of revisional jurisdiction or the powers of review, learned Assistant Advocate General submitted that the powers of review is to be exercised in accordance with the facts of the case and relied upon the judgments reported as Siraj Din v. Sultan and others (PLD 1990 SC 95), Qazalbash Waqaf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99), The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas (PLD 1989 SC 550), Falak Sher Khan and another v. Secretary to Government of Punjab Agriculture Department and others (PLD 1989 SC 562), Syed Muzamil Shah and 27 others v. Deputy Land Commoner, Manshera and 3 others (PLD 2001 Peshawar 92), Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26).
We have heard the learned counsel for the parties and perused the record.
From the pleadings of the parties and he arguments advanced by the learned counsel for the parties, we found that following two questions need consideration and adjudication by this Court:--
(i) The validity of the order dated 24.6.1959 passed by the Deputy Land Commissioner, Bahawalpur whereby he determined the holding of the declarant including the area of gift Mutation No. 736 dated 7.12.1959.
(ii) The suo moto exercise of power of review in the presence of an amendment in Para 29 Proviso 3rd of the Land Reforms Act, 1977.
The provisions relating to the suo moto revisional powers/review provided in the law of Land Reforms are as under:--
Rule 12 of the Punjab Land Reforms Rule, 1972:
(a) By the aforesaid provisions, the remedy of review was provided by the legislature and the powers were conferred on the specified officers of the Land Reforms Authority. This substantive remedy remain in the field till 30th of April 1975 but thereafter the same was taken of from the statute by adding a new proviso by way of an amendment published on 10th of August 1977.
(b) Para 29 of the Land Reforms Regulations 1972 (Martial Law Regulation 115)
Para 29 of the aforesaid regulations deals with the revisions, punishments and procedure. This para also confers powers of revision of any order on the Government or any person authorized by it in this behalf to call for record of any case or proceedings under the regulation which is pending or has been disposed of by the Authorities given in the aforesaid paras. The relevant proviso to the instant case are as under:--
Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it--
(a) of its or his own motion, after the (30th day of November 1976,) or
(b) on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order."
Although, the legislature by amending proviso 3rd (a) has taken away the powers of review but in para-b of the aforesaid proviso, it is provided that an aggrieved person may file an application within the time stipulated therein to the revisional authority to revise any order.
Section 24 of the Land Reforms Act, 1977:--
The aforesaid section confers the powers on the Land Reforms Commission to review a case or a clause of cases decided by it before or after the commencement of this Act, if directed by the Federal Government.
Land Reforms Regulations 1972 (Para 25) (3) (b) Regulation 11 Review, Regulation 12 Revision:
Through the aforesaid regulations, the powers of review and revision were given to the Land Reforms Authority in certain cases.
"Para 32 of Land Reforms Regulation, 1972 has the effect of incorporating with certain modifications the provisions of Land Reforms Regulations, 1959 in Land Reforms Regulation, 1959 in Land Reforms Regulation of 1972 and making the Authorities under latter Regulation competent to deal with the matter uncontrolled by it as if the liabilities etc, had been incurred under the Regulation, 1959.
In the first place, clause (b) of sub-paragraph (2) of paragraph (32) preserves the obligation or liability accrued or incurred under Land Reforms Regulation of 1959 and the operative portion enjoins that any remedy may be instituted or enforced as if the Land Reforms Regulation of 1972 had not been made. Paragraph 32 has the effect of incorporating with certain modifications the provisions of the Land Reforms Regulation of 1959 in Land Reforms Regulation of 1972 and making the authorities under the latter Regulation competent to deal with the matter uncontrolled by it as if the liabilities etc had been incurred under the Regulation of 1959."
The aforesaid para confers the powers upon the Land Reforms Authority deal with the matter incurred under the Land Reforms Laws.
As regards the exercise of powers of review by the Land Reforms Authority, we have been guided and enlightened by the judgment delivered by the Hon'ble Supreme Court of Pakistan in PLD 1990 SC 95 wherein while dealing the suo moto exercise of powers of review. It is observed as under :--
PLD 1990 SC 95
"An interested person cannot claim as of right review of an order passed earlier if his application has become barred by time. However, when a statutory functionary is given power to review his own order or revise an order without any time limit that power can be equated with inherent power possessed by a Civil Court under Section 151, CPC., or by a Criminal Court under Section 561-A, Cr.P.C., to do complete justice or advance the cause of justice. Therefore, the Land Commissioner could review the order passed by him or his predecessor-in-office at any time if illegality of the order was apparent on the face of the record and justice was done to the appellant irrespective of the fact that his application had been barred by time."
Although, by way of an amendment, the powers of review was taken off but the revisional powers are still existing in the statute. There is no cavil with the proposition that the revisional powers can be exercised on the application of an aggrieved person or by the revisional authorities suo moto even after the period stipulated in the law because of the fact, that it is supervisory jurisdiction which can be exercised to rectify the jurisdictional defect, illegality, irregularity, if committed while passing the order.
The learned counsel for the petitioner mainly argued the case on the strength of an amendment gazetted on 10th of August 1977 whereby the Rule 12 of Punjab Land Reforms Rules was amended and the powers of review under the aforesaid Rule came to an end on 30th of April, 1975 but has not denied, that the declarant/predecessor-in-interest of the petitioners originally included the land allegedly mutated by way of gift by the declarant in favour of his wife Mst. Sardar Jehan Begum and the order passed by the Deputy Land Commissioner in the year 1959 on the said declaration, was not challenged before an forum, therefore, the effort to exclude the gift land from the declaration by way of an application is based on mala fides with the intention to deprive the State from the land which has been vested in the State by operation of law.
The Hon'ble Supreme Court of Pakistan in the judgment supra (PLD 1990 SC 95) has dealt with this proposition and finally held that the revisional jurisdiction/powers of review can be exercised even after the time frame given in the law.
The learned counsel for the petitioner, even otherwise has failed to substantiate his argument by referring anything contrary to the record.
For the foregoing reasons, we are not convinced with the argument advanced by the learned counsel for the petitioner.
Resultantly, this petition is dismissed with no order as to costs.
(M.S.A.) Petition dismissed.
PLJ 2010 Lahore 49
Present: Abdul Sattar Goraya, J.
Rana ZILADAR KHAN--Petitioner
versus
PROVINCE OF PUNJAB through Collector Sialkot and others--Respondents
C.R. No. 1887 of 2007, heard on 29.5.2009.
Punjab Land Acquisition Rules, 1983--
----R. 14--Suit for declaration that the land-in-dispute was acquired in bad faith and the plaintiff is entitled to return of the same--Land was acquired by the Punjab Government to establish a colony but thereafter, the Scheme was abolished and possession of the property remained with the suitor--Suit decreed by trial Court--On appeal suit was dismissed--Revision petition--Held: Rule 14 of the Punjab land Acquisition Rules, 1983 empowers the Court to return the land if it is not utilized for a purpose it is acquired--If the land has not been utilized for a public purpose it was acquired and it becomes surplus, the land shall be reverted to the original owner--No doubt that the owner cannot comely the Government to return the land and it is a matter of discretion, which should, however, be, exercised very fairly keeping in view the facts and circumstances of the case--Sufficient evidence has been brought on the record that the land had not been utilized for establishment of Jinnah Colony and is still lying vacant--On the part of the department, the petitioner-plaintiff suffered a tremendous loss and due to arbitrary exercise on the part of the department, he had been deprived of his bread and butter--Revision Accepted. [P. 52] A & B
PLD 1993 SC 455, rel.
Mian Tahir Maqsood, Advocate for Petitioner.
Mr. Amjad Ali Chattha, Assistant Advocate General for Respondents.
Date of hearing: 29.5.2009.
Judgment
By means of this revision petition, the judgment & decree dated 19.07.2007 of the learned Additional District Judge, Sialkot has been brought under impeachment.
The facts in brief are that the land measuring 8-kanals 9-marlas situated in the revenue estate of Village Goalian Tehsil Daska District Sialkot, fully described in the plaint, was owned by the suitor and vide Mutation No. 176 dated 15.09.1990, the said land was acquired by the Punjab Government of establish a Jinnah Colony but thereafter the Colony Scheme was abolished and possession of the property remained with the suitor. Claim of the petitioner was that the property was acquired way back on 15.09.1991 but it was not utilized in any scheme till the date of institution of the suit i.e. 13.02.1999. The petitioner retained the property and declaration was claimed that the land-in-dispute was acquired in bad faith and he is entitled to return of the same. There has been a hot contest and the averments contained in the written statement were denied by the respondents. Divergent pleadings of the parties gave rise to as many as nine issues including one of relief. Issues No. 5 & 6 are the core issues in the whole case. The learned trial Judge answered these issues in favour of the suitor. Issue No. 8 was also decided in a manner that subject to deposit of the amount which the petitioner received, he is entitled to the decree prayed for. Issued No. 1,3 & 4 were answered in the negative. On Issue No. 2 it was said that Court fee of Rs. 4,375/- be affixed on the plaint. Issue No. 7 was also answer in the negative. Resultantly, the suit was decreed in favour of the petitioner. The judgment & decree dated 31.10.2005 was brought under challenge before the learned Additional District Judge, Sialkot who vide his judgment & decree dated 19.07.2007 accepted the appeal and set aside decree of the learned trial Judge.
Learned counsel for the petitioner states that when the property of the petitioner was not utilized period of three years under the agreement, the property was to be returned to the original owner on the same price on which the acquisition was made. Bitterly argued that almost nine years elapsed but the property was not utilized in Jinnah Abadi Scheme. It is asserted that the Scheme was abolished and till today, the property is lying available and has not been utilized by the Provincial Government.
Learned Assistant Advocate General appearing on behalf of the respondents supported the impugned judgment & decree of the learned Additional District Judge almost for the same reasons which weighed with the learned lower appellate Court in passing the judgment.
I have given conscious thought to the arguments of both the parties and perused the available record.
This is outright case of the petitioner-suitor that the land was acquired nine years ago for establishment of Jinnah Abadi Scheme but the Scheme was dropped and the land was not utilized in the Scheme. It has been argued with full vehemence that complete exercise on the part of the respondents is based on mala fide. Three witnesses were got examined by the suitor in support of his contention and all of them are unanimous on the point that the possession is still available with the petitioner. In the written statement, it was not denied that the Colony has not been established. DW-1 being the sole witness has been examined who stated that an amount of Rs.58,093/- had been paid to the petitioner. He further stated that title and possession qua the property in dispute and lastly testified by the Provincial Government could not be utilized for any other purpose what to talk of the purpose for which the land was acquired. During the course of cross-examination, the said witness admitted in clear terms that till today no Colony has been established. He further stated that as per the record, possession is with the Provincial Government.
In Paragraph 9 of the impugned judgment, the learned lower appellate Court recorded findings which are reproduced hereunder:
"In whole of the Land Acquisition Act, there is no provision on the basis of which it could be held that the land must go back to the person from whom the same was acquired if the land is not utilized for the purpose, for which the same was acquired. The findings of the learned trial Court are, thus without any substance. The learned trial Court has decided Issues No. 5 and 6 beyond the pleadings of the parties and on the basis of conjectures and surmises. The findings of the learned trial Court on Issues No. 5 and 6 are not sustainable able and same are reversed."
In any event the position, therefore, which emerges is that the learned lower appellate Court has gone by the consideration that there is no provision in the Land Acquisition Act, 1984 which empowers the Court to return the land if it is not utilized for a purpose it is acquired. It is pointed-out that Rule 14 of the Punjab Land Acquisition Rules, 1983 is there which will come in aid of the petitioner. In the cases prior to the year 1983 when the Rules were not framed, Financial Commissioner's Standing Order No. 28 Para 100 is there which in terms provides a complete Scheme for restoration of the unutilized land of the previous owner. Rule 14 ibid is reproduced hereunder:
"14.(1) Where any land has been acquired for any Department of the Government or a local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposable of the same in accordance with the order of Government.
(2) The disposal of land under sub-rule (1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs as under:--
(i) Free of cost to the original owners or their heirs, if compensation for the acquisition of land has not been paid.
(ii) On refunding the amount paid as compensation less then 15 percent granted for compulsory acquisition, if the original landowners or their heirs have already received cash compensation in respect of their land. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it.
(3) Where the original land-owners or their heirs where provided alternate land in lieu of their acquired land, such land shall not be restored to them, but shall be utilized or disposed of by the Board Revenue in accordance with the policy of the Government regarding disposal and alienation of lands."
If the land has not been utilized for a public purpose it was acquired and it becomes surplus, the land shall be reverted to the original owner. No doubt that the owner cannot compel the Government to return the land and it is a matter of discretion, which should, however, be, exercised very fairly keeping in view the facts & circumstances of the case. Similar question arose in Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others (PLD 1993 Supreme Court 455) before the apex Court wherein it was held:--
"However, me may observe that the discretion vested in the Government under the above paragraph is to be exercised fairly and reasonably, and not arbitrarily or capriciously. The present case stands entirely on different footing inasmuch as the competent authority decided to restore the unutilized land to the previous owners, so much so the survey was carried out; the amounts refunded by the previous owner were calculated and the notices were issued under above Paragraph 100 of the Order to the previous owners, though they were not served. The appellants failed to bring on record any material to indicate that the above decision of restoring the unutilized land to the previous owners was rescinded by the competent authority".
The learned Additional District Judge in fact, framed a summary point and non-suited the petitioner for the reasons which are non-existent on the record. Sufficient evidence has been brought on the record that the land had not been utilized for establishment of Jinnah Colony and is still lying vacant. On account of the mal-administration on the part of the Department, the petitioner-plaintiff suffered a tremendous loss and due to arbitrary exercise on the part of the Department, he had been deprived of his bread & butter. In faithful compliance of the decree passed by the learned trial Judge in his favour. The amount has been returned.
(M.S.A.) Petition accepted.
PLJ 2010 Lahore 53
Present: Ijaz Ahmad Chaudhry, J.
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Incharge Real Estate Department, Lahore--Petitioner
versus
PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through its Chairman and another--Respondents
Petition No. 115/C of 2006, decided on 26.5.2009.
Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993--
----S. 11--Provisional Constitutional Order (1 of 1999), Art. 5-A(1)(2)--Originally u/S. 11 of Punjab Undesirable Co-operative Societies (Dissolution Act), 1993, no limitation had been provided for filing a petition against the order of judicial officer or action of PCBL but through Ordinance No. LIII of 1999 period of 60 days was provided to challenge the order of judicial officer or action of PCBL before the co-operative judge--Ordinance was promulgated on 9th October, 1999 providing the time for filling petition u/S. 11 of Act, 1993 within 60 days and the Ordinance was still in force when Provisional Constitutional Order 1 of 1999 was promulgated and Art. 5-A(1)(2) have validated the Ordinance which were in force or which were promulgated after the Provisional Constitutional Order 1 of 1999.
[P. 55] A
2007 CLC 1542, Reliance.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Petition was time barred--Section 5 of the Limitation Act, does not apply as Punjab Undesirable Co-operative Societies (Dissolution) Act 1993 is a special law and unless it is specifically mentioned that Section 5 of the Limitation Act, shall apply delay cannot be condoned--Petition dismissed. [P. 56] B
Mr. Irfan Khalil Qureshi, Advocate for Petitioner.
Mr. Ahmad Hassan Anwari, Advocate for PCBL.
Date of hearing: 26.5.2009.
Order
Through this petition under Sections 11 of the Punjab Undesirable Co-Operative Societies (Dissolution) Act, 1993, State Life Insurance Corporation of Pakistan has challenged the order dated 1.4.2006 passed by the Chairman PCBL.
At the very outset of the arguments question has been raised about the maintainability of this petition and for dismissal of the same by the learned counsel for PCBL on the ground that time for filing of petition under Section 11 of the Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 against the order of PCBL is 60 days but it has been filed after more than 90 days, hence, this petition may be dismissed.
On the other hand, learned counsel for the petitioner contends that the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 which provided time for filling petition within 60 days through Ordinance No. LIII of 1999 had been promulgated on 9.10.1999 while General Pervaiz Musharraf had taken over the charge on 12.10.1999 and assemblies were dissolved and the said Ordinance automatically elapsed after three months as per Article 123 of the Constitution. He also contends that under Article 270-AA only those enactments were saved, which had been promulgated after the military regime while this Ordinance had been issued earlier thereto, which is no more in the field and the question of limitation does not arise.
In response to this argument, learned counsel for the respondent has argued that this Ordinance had been protected under Article 270-AA of the Constitution of Islamic Republic of Pakistan, 1973, he has also relies upon Provisional Constitution (Amendment) Order No. 9 of 1999 and Article 5-A(1) thereof provides that an Ordinance promulgated by the President or by the Governor of the Province shall not be subject to the limitation as to its duration prescribed in the Constitution while sub-clause (2) of the said Article 5-A makes the provisions of the said clause (1) applicable to an Ordinance issued by the President or by the Governor which was in force immediately before 14.10.1999 and it clearly shows that the earlier enactments were also protected. Relies upon Rana Zulfiqar Versus Judicial Officer/ Liquidator, Punjab Cooperative Board for Liquidation (2007 CLC 1542, in support of his contention.
I have heard the learned counsel for the parties and also gone through the case law cited by the learned counsel for the parties. There is no dispute that originally under Section 11 of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 no limitation had been provided for filing a petition against the order of Judicial Officer or action of PCBL but through Ordinance No. LIII of 1999 period of 60 days was provided to challenge the order of Judicial Officer or action PCBL before the Co-operative Judge. The said Ordinance was promulgated on 9th October, 1999 providing the time for filing petition under Section 11 within 60 days and the said Ordinance was still in force when Provisional Constitutional Order 1 of 1999 was promulgated and Article 5-A(1) (2) ibid have validated the Ordinances which were in force or which were promulgated after the Provisional Constitution Order 1 of 1999. Even otherwise said questions have already been resolved in Rana Zulfiqar Versus Judicial Officer/Liquidator, Punjab Cooperative Board for Liquidation (2007 CLC 1542) and the relevant portion is reproduced as under:--
"Coming to the said second contention of the learned counsel, the said Ordinance was promulgated on 9.10.1999. After whatever happened on 12.10.1999 proclamation of emergency was issued on 14.10.1999 and the Officer holding the posts of Chairman, Joint Chief of Staff Committee, Chief of Army Staff as also Chief Executive of the country promulgated a Provisional Constitutional Order No. 1 of 1999. Article 5-A(1) provides that an Ordinance promulgated by the President or the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the Constitution. Sub-clause (2) of the said Article 5-A makes the provisions of the said clause (1) applicable to an Ordinance issued by the President or by the Governor which was in forced immediately before 14.10.1999. Article 270-AA of the Constitution protects the said Provisional Constitution Order and consequently the said Ordinance till such time that it is altered reviewed or amended by the competent Authority. No such action has been taken till date by the said competent Authority as defined in the said Article 270-AA. The provisions prescribing the limitation having been so validated, the application filed beyond the said period of limitation was correctly dismissed by the learned Cooperative Judge as being barred by time. The writ petition is accordingly dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2010 Lahore 56 [Rawalpindi Bench Rawalpindi]
Present: Syed Hamid Ali Shah, J.
ABDUL GHANI--Appellant
versus
RANA MUHAMMAD BASHIR--Respondent
R.S.A. No. 194 of 1982, decided on 10.10.2008.
Punjab Pre-emption Act, 1913--
----S. 7--Evidence Act, 1872, S. 43--Custom of pre-emption prevails in a particular Mohallah or a sub-division within the meanings of Section 7 of Act, the proof of an adjoining area or neighboring mohallah or sub-division carries no value--It can be a supplementary proof and by itself is not sufficient to establish the existence of custom in neighboring sub-division--Held: Proof of prevailing custom, us relate to the town where town is not divided in to sub-division and in such circumstances, the inquiry cannot be confined to a particular Mohallah or street. [P. 58] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 56--Evidence Act, 1872, S. 43--Exception clause--Judgment, decree or order, which relates to a matter of public nature--Existence of a right of way or of a general custom or usage, fall as within the exception clause of S. 43 of the Evidence Act, 1872 and Art. 56 of Qanoon-e-Shahadat Order, 1984--Such decisions are relevant and can be considered even when they are not produced formally in evidence--Appeal dismissed. [Pp. 61 & 62] B & C
1985 SCMR 81 & AIR 941 Privy Council 21, rel.
Ch. Mushtaq Ahmad Khan, Advocate for Petitioner.
Mr. Mujeeb-ur-Rehman Kiyani, Advocate for Respondent.
Date of hearing: 2.7.2008.
Judgment
Backdrop of the instant controversy is that Abdul Ghani appellant filed a suit for pre-emption against the respondent regarding the suit land situated in Abadi Naya Mohalla, Jhelum bearing No. B-IV-4.S.9 and B-IV.S.10. The land was originally owned by Asmat Ara and was sold through three separate sale-deeds registered on 26.01.1976. The possession of the suit property was delivered to the vendees. Pre-emptor claimed his superior right, being co-owner and having common wall. The respondent resisted the suit and denied superior right of the pre-emptor. Learned trial Court, after framing eight issues, recorded evidence of the parties, and on conclusion of the trial, granted decree of pre-emption to the pre-emptor/plaintiff, vide judgment and decree dated 16.09.1981. The respondent successfully assailed the judgment and decree of learned trial Court before learned First Appellate Court. Learned lower appellate Court, while accepting the appeal set aside the judgment and decree of learned trial Court and upheld the finding of the trial Court. Regular second appeal, challenging the appellate decree, was accepted vide judgment dated 19.03.2001, wherein the judgment and decree of trial Court was upheld. The judgment of this Court, in regular second appeal, was challenged before the Hon'ble Supreme Court in Civil Appeal No. 3217/2001 where, by consensus, the judgment of this Court was set aside and the case was remanded back to this Court, for decision afresh.
Learned counsel for the appellant has contended that learned appellate Court while passing the impugned judgment and decree, has considered Peeran Ghayab ( ) and Naya Mohalla ( ) as one locality, while these are two different localities. It is contended that judgment dated 21.10.1959 (Exh.D-2) pertains to Peeran Ghayab and finding therein has no application to the case in hands. Learned counsel has vehemently argued that judgments, which the lower appellate Court, has discussed in the impugned judgment, cannot be received in evidence in the form of additional evidence. He added that when these judgments were received, then providing an opportunity to the petitioner for rebuttal, was the right course, which was not adopted. Having not done so, learned Court has committed procedural mistake. Learned counsel, after having gone through Exhibits P-7 and 8 has submitted that Naya Mohalla is in existence since 1984. Learned counsel has submitted that learned appellate Court, while differing, with the finding of learned trial Court, was under an obligation to gave reasons in it's judgments, on the points of variance. Learned counsel, in support of this contention, has referred to the case of "Mr. Haji Khan and 11 others Vs. Mir Aijaz Ali and 2 others" (1981 SC 302).
Learned counsel for the respondents fully supported the judgment and has contended that case has been remanded to this Court for a decision on the point as to whether any custom, relating to the right of pre-emption existed in Naya Mohalla. Learned counsel went on to argue that existence of custom is required under law to be in existence, prior to 1905 i.e. the time when old law existed. Learned counsel supported this contention by referring to the cases of "Dr. Iqbal Ahmad Chaudhry Vs Muhammad Inayat through Legal Heirs and another" (1993 SCMR 1477). Learned counsel discussed and went through Exh.P-4, a judgment dated 15.05.1667 rendered in RSA No. 58/1965, wherein a property situated in Naya Mohalla, Jhelum was in issue. He has contended that the pre-emptor, in these proceedings, had placed reliance on all the documents and evidence, which the appellant (in the case in hands) has placed reliance. It has been held in RSA No. 58 that no custom regarding pre-emption was in existence in this locality. Learned counsel has stated that identical issue came up for consideration in the judgments in the cases of "Diwan Chand Vs Nizamdin and others" (AIR 1923 Lahore 443) and "Lal Chand and others Vs Hans Kumar and others" (AIR 1926 Lahore 108) and it was held in these judgments that no custom of pre-emption, was prevailing in the locality. Learned counsel then referred to the case of "Lal Chand Vs Kartar Singh" (AIR 1947 Lahore 265), wherein, relying upon Punjab Pre-emption Act (I of 1913), it was found by the Court that there is no evidence of a prevailing of pre-emption in the locality. Learned counsel while discussing the oral testimony of the witnesses, has submitted that PW-1 (Abdul Karim) is 74 years of age and is ignorant about any custom of pre-emption in the locality. Learned counsel then went through the statement of PW-2 who stated that a suit for pre-emption was filed against him, which was decreed in the year 1973. Statement of PW-3 pertains to another property, which has no nexus with the property, subject matter of the suit property.
Heard learned counsel for the parties and record perused.
The only question which requires determination, in the instant controversy pertains to the existence or otherwise of the custom of pre-emption on under Punjab Pre-emption Act, in "Nia Mohallah Jhelum." In considering that custom of pre-emption prevails, in a particular Mohallah or a sub-division within the meanings of Section 7 of Act I of 1913, the proof of an adjoining area or neighboring Mohallah or sub-division, carries no value. It can be a supplementary proof and by itself is not sufficient to establish the existence of custom in neighboring sub-division. It is also well settled that proof of prevailing custom, must relate to the town where town is not divided into sub-division and in such circumstances, the inquiry cannot be confined to a particular Mohallah or street. The onus to prove prevailing custom lies heavily on the plaintiff. With these settled principles. I will proceed to decide the case, in hands.
This fact is mentioned in various judgments that "Nia Mohallah", which was also known as "Shamali Mohallah" or "Upperla Mohallah" is situated in Abadi of "Piran Ghaib".
Mr. M.B.Kol in his judgment dated 3.4.1905 described the city of Jhelum as a comparatively New Town and gained it's importance after British occupation, Jhelum, as it appears in the judgment in the case of Lal Chand and others (AIR 1926 Lah. 109), was a town of recent growth, Jhelum was notified as a Town vide the Punjab gazette Notification No. 677 dated 10.11.1908. It had not been divided into sub-divisions. The only recognized sub-division was "Machine Mohallah" (the information appears in AIR 1937 Lahore 443). While deciding Civil Appeal No. 218 of 1898 titled as "Bahawal Bukhsh Vs. Muhammad Bukhsh", Divisional Judge Jhelum, in his judgment dated 26.10.1898, expressed that "Nia Mohallah" grew and formed the suburb of Jhelum by 1898. Strangers acquired the land and had built their houses. The land of "Piran Ghaib" at the relevant time, was predominantly agricultural land. "Nia Mohallah" came into existence, after 1860 and from perusal of Ex.D-4, the Mohallah falls within the vicinity of Abadi " Piran Ghaib".
The question of prevalence of the custom of pre-emption in "Nia Mohallah", remained in issue before various Courts, more than once. It will be appropriate to mention how this issue was dealt by the Courts:--
(i) "Munshi Chiragh Din Vs Fazal Karim" The pre-emption suit decided on 28.2.1959 by Ch. Abdur Rehman Bhatti Admn. Civil Judge Jhelum, who dismissed the suit. His judgment was challenged in appeal, which befel the same fate on 21.10.1959 and decision of learned trial Court was upheld. The decree of learned trial Court and the appellate decree was challenged in RSA No. 58/1960, which was decided by Mr. Justice S.A. Mahmood of this Court (as his lordship then was). The R.S.A was dismissed vide order dated 15.5.1967. This being latest judgment by this Court, wherein the question of existence of a custom of pre-emption in "Nia Mohallah" Jhelum came-up for consideration and it was held that no custom of pre-emption prevailed in "Nia Mohallah."
(iv) In Civil Appeal titled "Bahawal Bukhsh vs. Muhammad Bukhsh" (Appeal No. 218/1898), it was observed by Divisional Judge, Jhelum in his judgment dated 26.10.1898 that not a single instance had been quoted to prove such a custom in this suburb (Nia Mohallah of Jhelum). It was held that plaintiff failed to prove that custom as to the existence of the right of pre-emption in "Nia Mohallah".
(iii) In Civil Appeal No. 440/6 of 1904 titled "Abdul Majeed and others Vs. Abdur Rehman and others", Additional Divisional Judge vide judgment dated 22.6.1905 found that there is no proof of existence of custom of pre-emption in Jhelum Town.
(iv) Civil Appeal No. 160 of 1910 titled "Allah Ditta Vs. Diwan Mehndi Khan and others" was decided by Divisional Judge Jhelum on 31.5.1911, holding therein that no custom for pre-emption exists in "Shumali" "Upperla" or "Nia Mohallah".
(v) "Farzand Ali Vs. Habib Ullah and others" (Civil Appeal No. 163/1905) came up for decision before Mr. M.B.Kol, Divisional Judge, Jhelum, who in his decision dated 31.5.1911 based his conclusion on two earlier decisions of the Divisional Judges and found that in "Nia Mohallah" Jhelum City, the existence of custom of pre-emption has not been proved.
(vi) A specific question as to the existence of custom of pre-emption with regard to a House in "Mouza Dhoak Abdullah" situated at 400 yards from "Nia Mohallah" in "Mouza Piran Ghaib", in a pre-emption suit, came up for consideration before learned Civil Judge in the case of "Ghulam Muhammad Vs. Muhammad Razzaq" Mr. Atta ul Mohsin, learned Senior Civil Judge, Jhelum in his judgment dated 1.6.1981 answered the question in negative.
Besides the above, the Civil Courts in various other civil suits, after framing specific issue, on the existence of custom of pre-emption in "Nia Mohallah" have been examining the issue. Mr. Abdur Rehman Bhatti while dealing with the suit of pre-emption pertaining to a suit property in Mohallah Malahan, has also held that custom of pre-emption existed in that Mohallah. Admn. Civil Judge Jhelum in another suit titled as "Monshi Chiragh Din Vs. Fazal Karim" decided on 28.9.1959 held that custom of pre-emption existed in Nia Mohallah. While holding so, he based his findings on his previously decided civil suit, which was decreed on 19.7.1958. This decision was assailed in appeal and judgment dated 28.9.1959 was set-aside by the appellate Court, wherein it was held that custom of pre-emption does not exist in Nia Mohallah, rather it did not exist generally in the down of Jhelum. Mr. Munir Ahmad Mughal, Civil Judge Jhelum while deciding suit titled "Sheikh Abdul Vs. Muhammad Rafique found that custom of pre-emption existed in Nia Mohallah in Jhelum City. While passing the judgment the above judgments were not before him and the matter was decided without considering these judgments. In another case, it was observed by the Civil Court that custom of pre-emption prevails. Mr. Hassan Nawaz Chaudhry, then Civil Judge/Senior Civil Judge in his decision dated 22.2.1976, while Folding that custom of pre-emption generally prevailed in the Town of Jhelum decreed the suit of the pre-emptor with regard to properly situated in "Mohallah Misterian".
For the purpose of determination of the existence or otherwise of the custom of pre-emption, in Nia Mohallah Jhelum, two judgment require specific mention Civil Appeal titled "Bahawal Bukhsh Vs. Muhammad Bakhsh" which was decided on 20.10.1898, wherein it was held by Divisional Judge that no custom of pre-emption prevails in Nia Mohallah Jhelum. Learned Divisional Judge examined that Nia Mohallah was not in existence in the year 1860, but ever since, it has grown in existence and formed part of Jhelum Town. There was hardly a single instance of special custom regarding pre-emption. The judgment is by this Court. The only case, which was decided by this Court, was RSA No. 58/1996 titled "Chiragh Din Vs. Fazal Karim" decided by Mr. Justice S.A Mehmood, as his lordship then was. It has been held there in that no custom of pre-emption existed in Nia Mohallah or Shamali Mohallah and also that Custom of pre-emption did not exist throughout the town of Jhelum. In these two decision of which one is most ancient and the other is the recent one, the question of prevailing of custom of pre-emption was answered in negative.
The above judgments, although by the Courts of first instance, cannot be ignored as the adjudication pronounced in these judgments is upon the status of matter of public nature. A judgment, decree or order, which relates to a matter of public nature e.g. the existence of a right of way or of a general custom or usage, falls within the exception clause of Section 43 of the Evidence Act, 1872 and Article 56 of Qanun-e-Shahadat Order, 1984. Such decisions are relevant. While holding so, I am fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of "Ata Muhammad and 6 others Vs. The State" (1985 SCMR 181). The similar view has also been taken by the Privy Council in the case of "Mt. Subhani and others Vs. Nawab and others" (AIR 1941 Privy Council 21).
Viewing the case of the appellant and the evidence produced by him in favour of existence of custom of pre-emption and comparing the same with reference to the aforementioned judgment, it is concluded that appellant has failed to prove that custom of pre-emotion prevailed in the Nia Mohallah Jhelum. The witnesses of the appellant have not stated anything with reference to any official record or on the basis of a authentic material that custom of pre-emption prevails. I have no hesitation to hold that custom of pre-emption in Nia Mohallah did not exist at the time of enforcement of the Act of 1913.
I am not convinced with arguments of learned counsel for the respondent that by printing the appellant to place on record certain judgments, the Court has not provided opportunity to the plaintiff to rebut the same and cross-examine the witnesses. These judgments, which relate to a question general nature, are relevant and can be considered even when they are not produced formally in evidence.
For the foregoing, this appeal is without any merit and the same is accordingly dismissed, with no orders as to the costs.
(M.S.A.) Appeal dismissed.
PLJ 2009 Lahore 62 [Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
AHMAD KHAN--Petitioner
versus
AKHTAR HUSSAIN--Respondent
C.R. No. 310 of 2009, decided on 15.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Case was remanded to Executing Court with direction to frame additional issue and decide objection petition as well as execution petition--Assailed--Suit for possession was decreed on the basis of compromise--Petitioner applied for preparation of decree sheet which was later on dismissed for non-prosecution--Execution petition was time barred and a fresh decree sheet was got prepared by decree-holder by making mis-statement--Petition was time barred and a fresh decree sheet was got prepared by decree-holder by making mis-statement before Court and there was resettlement between the parties through which the decretal amount was returned to decree holder--Executing Court held an inquiry--Execution petition was rejected by Executing Court--First appellate Court remanded the case--Challenge to--Validity--Executing Court while rejecting execution petition did not give any observation regarding oral assertion of judgment debtor and that order was not challenged in appeal nor cross objection in appeal--In presence of first decree sheet there was no need to get prepared the second one--Photo state copy of decree sheet was produced for showing that decree sheet was prepared earlier and decree holder filed a time barred execution petition by getting a fresh decree sheet which was obtained on basis of misstatement--Held: Executing Court cannot hold inquiry on a photo stat copy and cannot refuse to allow the execution petition validly filed on the basis of certified copy of decree sheet--Debtor could not produce any evidence regarding return of decretal amount to plaintiff--Further held: On basis of mere oral assertion of defendant the execution proceedings cannot be delayed further on basis of fake and ambiguous photo state of decree sheet. [P. 65] A & B
Mr. Amin-ud-Din Khan, Advocate for Petitioner.
Mr. Muhammad Amir Bhatti, Advocate for Respondent.
Date of hearing: 15.6.2009.
Order
This order shall dispose of Civil Revision Nos. 310-2009 and 229-2009 arising out of the same impugned judgment.
Through the above said civil revision petitions order dated 12.3.2009 passed by Addl. District Judge, Dera Ghazi Khan has been assailed by which he accepted appeal filed by Ahmad Khan petitioner of Civil Revision No. 310-2009 and remanded the case to the Executing Court with direction to frame additional issue and decide objection petition as well as execution petition afresh in accordance with law.
Brief facts of the case as stated by counsel for the petitioner are that petitioner's suit for possession through pre-emption against respondent Akhtar Hussain was decreed on 22.12.1996 on the basis of compromise effected between the parties. The petitioner applied for preparation of decree sheet of judgment dated 22.12.1996 which was later on dismissed for non-prosecution. The petitioner again filed another application for said purpose and decree sheet in above said suit was prepared on 23.12.2004. The petitioner after getting certified copy of decree sheet filed execution petition in the Executing Court on 3.1.2005. The respondent also filed an objection petition on the ground that execution petition is time barred and a fresh decree sheet has got prepared by the decree-holder by making mis-statement before the Court and there was re-settlement between the parties through which the decretal amount was returned to the decree-holder by the judgment-debtor and this was the reason that the execution petition was not filed within time. The execution petition as well as objection petition were contested by the parties and Executing Court held an inquiry after framing issues from divergent pleadings of the parties. The learned Executing Court rejected the execution petition filed by the petitioner vide order dated 26.5.2008. The petitioner filed appeal against the said order before the District Judge Dera Ghazi Khan and an application for holding of an inquiry regarding fabrication of decree sheet was also filed. The learned Addl. District Judge held an inquiry on application of the petitioner and remanded the case to the Executing Court for framing of additional issue vide judgment dated 12.3.2009, hence these civil revisions.
Counsel for the petitioner contends that the Executing Court has erred in law by holding inquiry as the Executing Court cannot go beyond the decree and the events after passing of decree could not be inquired into by the Executing Court like a Civil Court because the Executing Court cannot take the role of Civil Court. He submits that the Executing Court was bound to execute the decree on the basis of decree sheet filed by the decree-holder. Further submits that even in the pre-emption suit there was no need to file execution petition for execution of decree. The revenue filed staff could correct its entries in the light of decree sheet of Civil Court. He relied on 1972 SCMR 237, 1982 CLC 2395, 2004 MLD 402 and PLD 2006 Lahore 1000. He submits that the learned appellate Court erred in law while remanding the matter to the trial Court for recording of evidence after framing of additional issue. He submits that no order could be passed mere on the oral assertion of a party. The execution petition was filed for execution of a consent decree. Admittedly the judgment-debtor had made statement before the Court for receiving of decretal amount and he also withdrew zar-e-soim deposited by the plaintiff. His version that he after re-settlement with the plaintiff had returned the decretal amount to decree-holder seems to be un-plausible. He submits that the First Appellate Court was competent to determine the issue itself. The all material was available and specially keeping in view the inquiry conducted by the same Court there was no need to remand the case to the executing Court.
On the other hand learned counsel for respondent Akhtar Hussain and the petitioner of Civil Revision No. 229-D-2009 contends that to the extent of assertion of counsel for Ahmad Khan that the Addl. District Judge was fully empowered to decide the matter he concedes the arguments that appellate Court should decide/determine the issues itself instead of remanding the case to the Executing Court. However, he opposed the contentions of the counsel for Ahmad Khan that the matter may not be decided by this Court and to remand it back to First Appellant Court for its decision on merits. He submits that Ahmad Khan decree-holder has obtained another decree sheet through mis-statement as the same was issued much earlier and executing petition was time barred. He submits that the Executing Court may determine question relating to the decree. He relied on 1989 SCMR 640.
I have heard counsel for the parties and perused the record. The ground taken by the judgment debtor in his objection petition that he had returned the decretal amount to the decree holder as a result of re-settlement between the parties has no avail because no receipt or any other document has been produced by the judgment-debtor, even the Executing Court while rejecting execution petition of Ahmad Khan did not give any observation regarding oral assertion of the judgment-debtor and that order was not challenged by him in appeal nor cross-objection in the appeal of Ahmad Khan were filed. The other ground taken by Akhtar Hussain is that in the presence of first decree sheet there was no need to get prepared the second one. He produced a photo stat copy of decree sheet showing that the decree sheet was prepared earlier and decree-holder filed a time barred execution petition by getting a fresh decree sheet which was obtained on the basis of mis-statement. An inquiry was held on the application of Ahmad Khan in which three witnesses were examined, all of them are consistent that neither application form for certified copy was available nor was mentioned in the concerned register. The copying clerk deposed that the said photo stat was not prepared by him and stamp reflects on the photo stat did not of copying agency. In the circumstances there was no decree sheet except produced by Ahmad Khan decree-holder and Executing Court was bound to allow the same in the absence of any other decree sheet. The Executing Court cannot hold inquiry on a photocopy and cannot refuse to allow the execution petition validly filed on the basis of certified copy of decree sheet. Akhtar Hussain judgment debtor could not produce any evidence regarding return of decretal amount to the plaintiff. on the basis of mere oral assertion of the defendant the execution proceedings cannot be delayed further on the basis of fake and ambiguous photo stat of decree sheet.
For what has been stated above Civil Revision No. 310-D-2008 filed by Ahmad Khan is allowed. The order dated 26.5.2008 passed by Executing Court and order dated 12.3.2009 passed by Addl. District Judge are hereby set aside. The execution petition filed by Ahmad Khan judgment-debtor is allowed. The Executing Court shall proceed further in the matter in accordance with law. The Civil Revision No. 229-D-2009 is dismissed. Parties are left to bear their own costs.
(R.A.) Order accordingly.
PLJ 2010 Lahore 65
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
AZMAT SHER QAISRANI--Petitioner
versus
GOVT. OF PUNJAB, etc.--Respondents
W.P. No. 4891 of 2007, decided on 21.4.2009.
Constitution of Pakistan, 1973--
----Art. 212--North West Border Military Police Act, 1904, S. 6--Constitutional petition--Bar of--Maintainability of--Civil servant--Petitioner having requisite qualifications was recruited and was promoted as Acting Charge Jammadar--Name of the petitioner was recommended for promotion on regular basis by competent authority to Govt. of Punjab--No action was taken--Challenge to--Relaxation of provision of Recruitment Policy--Validity--Petitioner being civil servant had not prayed for his promotion or any other relief which comes under the terms and conditions of service, so no question of bar of Art. 212 of Constitution arises--That was a writ for quo warranto, which can only be filed by an interested person--Petitioner being member of Tumman Qasrani and working as Jammadar on a vacant seat and expecting his regular promotion for said seat, had challenged appeal of respondent, so the petition was maintainable.
[P. 68] A
North West Border Military Police Act, 1904--
----S. 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment of subordinate officers--Relaxation of recruitment policy--Name of the civil servant was recommended for promotion on regular basis by competent authority to Govt. of Pb.--No action was taken--Challenge to--Validity of--Senior commandant was competent authority in case of appointment of subordinate officer--Respondent had transgressed from his authority and passed the order without jurisdiction, in relaxation of recruitment policy which was politically motivated depriving the petitioner from his fundamental rights--Writ petition was allowed. [P. 68] B
Mr. Qamar-uz-Zaman Butt, Advocate for Petitioner.
Malik Waqar Haider Awan, Advocate for Respondent No. 5.
Mr. Mubashar Latif Gill, AAG for others Respondents.
Date of hearing: 21.4.2009.
Order
Brief facts stated by learned counsel for the petitioner are that the petitioner having requisite qualifications was recruited on 15.01.2008 as Dafadar being the member of Tumman Qasrani in Border Military Police D.G. Khan. Latter on he was promoted as Acting Charge Jammadar against a post falling within the quota of Tumman Qasrani since March, 2005. learned counsel for the petitioner states that Border Military Police is a creation of the North-West Border Military Police Act, 1904. The competence of the various authorities has been defined in the said Act, 1904 as well as the D.G. Khan Border Military Police and Baloch Levy Service Rules, 1935. The authority of appointment regarding subordinate officers is prescribed under Section 6 of the Act, 1904 according to which the Senior Commandant, Border Military Police, D.G. Khan is the competent authority regarding appointment of posts of Jammadar and Subedar. The name of the petitioner was recommended for promotion on regular basis by the competent authority to the Government of the Punjab in 2004. The Commandant, Border Millatry Police D.G. Khan in this regard issued letters dated 27.09.2004 and 08.06.2004 but no action was taken on the pretext that rules have not yet been duly notified in the official gazette.
On 21.09.2007 the Secretary Government of the Punjab Home Department appointed Respondent No. 5 Noor Khan Qasrani as Jammadar in Border Military Police D.G. Khan against a vacant post of Tumman Qasrani in relaxation of provision of recruitment policy. The petitioner has challenged that order on the grounds that appointment of Respondent No. 5 by Respondent No. 1 is without lawful authority which has been made against vacant post of Tumman Qasrani whereas the said post has already been occupied by the petitioner since March, 2005 and he is performing his duties as Jammadar and that the order is patently illegal as the same has been passed in relaxation of provision of recruitment policy dated 02.08.2005. The same is illegal and ultra vires as the post was not advertised in prescribed manner. The Home Secretary has encroached rather transgressed his power and authority in passing the impugned order in a slip-shod manner and he had deviated from law laid down by the superior Court. The impugned order was manipulated through political influence as the same was passed on the advice of principle Secretary to the Chief Minister, Punjab. Learned counsel for the petitioner also challenged the concern of Respondent No. 5 with the Tumman Qasrani as he is not resident of the area and also was over age at the time of his appointment. Learned counsel for the petitioner has relied on the unreported judgments of this Court passed in WP No. 1656-S/1994 and ICA No. 90/2003.
On the other hand learned counsel for Respondent No. 5 with the help of Assistant Advocate General has opposed the arguments of learned counsel for the petitioner and states that this writ petition is not maintainable on the ground that petitioner is civil servant and the dispute relates to the terms and conditions of service which could not be raised in constitutional petition being barred under Article 212 of the Constitution of Islamic Republic of Pakistan 1973. He further states that petitioner is Dafadar when Respondent No. 5 has been appointed a step higher as Jammadar from different quota on temporary basis due to shortage of staff in the area and Chief Minister under Rule 23 of Punjab Civil Servants (Appointment and Conditions of Service Rules, 1974), can relax the rules. He adds that as the petitioner is not aggrieved person so the writ petition is not maintainable. It is stated that amendment in Border Military Policy Act 1904 has been introduced through Punjab Bordar Military Police (Amendment Act 2007) when the rules are under preparation. According to the Section 5 of Act Government has power to appoint senior commandant and other superior officer in the Bordar Military Police. The appointment order of Respondent No. 5 was quite legal and there was no violation of the recruitment policy.
I have heard the arguments of learned counsel for the parties and have gone through the parawise comments as well as record available on the file.
Since the petitioner being civil servant has not prayed for his promotion or any other relief which comes under the terms and conditions of service, so no question of bar of Article 212 of the Constitution of Islamic Republic of Pakistan arises. This is a writ for quo warranto, which can only be filed by an interested person. The petitioner being member of Tumman Qasrani and working as Jammadar on a vacant seat since March 2005 and expecting his regular promotion for said seat, has challenged appointment of Respondent No. 5, so this writ petition is maintainable.
According to Section 6 of the Act 1904, Senior Commandant is the competent authority in case of appointment of subordinate officers. The Respondent No. 1 has transgressed from his authority and passed the impugned order dated 21.09.2007 without jurisdiction, in relaxation of recruitment policy which is politically motivated depriving the petitioner from his fundamental rights. So this writ petition is allowed and order dated 21.09.2007 passed by Respondent No. 1 is declared null and void, without lawful authority, violative to the law and result of political motivation and is set-aside.
(R.A.) Petition allowed.
PLJ 2010 Lahore 68
Present: Nazeer Ahmad Ghazi, J.
SAJID IQBAL--Petitioner
versus
STATION HOUSE OFFICER, P.S. MIANA GONDAL, DISTRICT MANDI BAHA-UD-DIN and 3 others--Respondents
W.P. No. 9992 of 2009, decided on 15.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898)--S. 364-A--Constitutional petition--Order passed by Justice of Peace was challenged--No cognizable offence was made out--Alternate adequate Inspite remedy of report submitted by sub-inspector wherein, it had been mentioned that neither any infant child was abducted nor she was killed--Allegations were found totally false and baseless against the petitioner--After a lapse of about six months that female child had been murdered by the petitioner--Validity--No cognizable offence was made out--Law provides the alternate adequate remedy, if respondent, so advised, she was at liberty to avail the same--Malafide was floating on the basis of the facts of the case, application before Justice of Peace had been used as a device to drag the petitioner, therefore, order was declared to be illegal and same was set aside--Petition was allowed. [P. 70] A
Mr. Fayyaz Ahmad Ranjha, Advocate for Petitioner.
Mr. Asif Mehmood Cheema, DPG for Respondents.
Mr. Bashir Ahmad Rai, Counsel for Respondent No. 2 with in person.
Date of hearing: 15.7.2009.
Order
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Petitioner Sajid Iqbal son of Ghulam Muhammad has assailed the order dated 7.4.2009, passed by the learned Justice of Peace/ASJ, Mandi Baha-ud-Din (Respondent
No. 3).
The learned counsel for petitioner submits that the impugned order, on the face of it, is illegal and purpose of the complainant/Respondent No. 2, namely Mst. Tahira Batool in this case was just to drag, humiliate and victimize the petitioner to settle the scores regarding the differences between her and the present petitioner. Further contends that, in fact, in this case, the petitioner married with the complainant on 14.2.2008 with her own consent and free will against the wishes of her parents.
It has transpired from the record that due to said marriage parents of Complainant/Respondent No. 2 were against her and this was the reason that she filed a complaint against her father namely Bashir Ahmad and her real brother namely Muhammad Ashraf under Sections 506/452 PPC in the Court of learned Judicial Magistrate, Bhalwal District Sargodha. Afterwards, six months of the wedlock of the spouses a female baby was born on 2.9.2008, who died on the same day because it was premature delivery.
Subsequently, on 4th of March 2009 complainant Mst. Tahira Batool moved an application before the learned Justice of Peace which is appended with this petition as Annexure "D" for registration of the case under Section 364-A PPC, whereupon, the learned Justice of Peace called report from the concerned I.O., who in compliance with the said order of the learned Justice of Peace, submitted his reply dated 24.3.2009, wherein, it was specifically mentioned that as the relations between the spouses became strained therefore, at the behest of her parents, Mst. Tahira Batool had moved the application.
As the learned Justice of Peace was transferred and new incumbent took over the charge of the Court, therefore, another report was submitted by Amjad Asif, S.I. on 18.5.2009, wherein, it has been specifically mentioned that neither any infant child was abducted nor she was killed and during investigation, the allegations were found totally false and baseless against the present petitioner. But, inspite of this, the learned Justice of Peace passed the impugned order dated 7.4.2009.
From the perusal of the record, it is manifest that from 2.9.2008 till 4th of March, 2009 no application or complaint was filed before any authority regarding the depth or murder or abduction of the said infant child. It is not understandable, however, all of a sudden, it was dawned upon the petitioner, after a lapse of about six months, that female child had been murdered by the petitioner.
According to the Investigating Officer present in Court, Respondent No. 2 remained in the house of the petitioner for six months and two days even after the death of the infant baby. This assertion/finding of the I.O. rings true, keeping in view the whole gamut of the case, that relations between the spouses became strained and differences arose between them, therefore, with a view to drag the petitioner in frivolous litigation, the complainant had lodged the application before the Justice of Peace.
It is indispensable to mention here that the complainant/Respondent No. 2 suppressed the material facts of filing the writ petitions and complaint against her own family members to protect herself and the petitioner. This factum also proves that the complainant has not duly informed the learned Justice of Peace of the suppressed facts and kept him oblivious.
From the perusal of the record no cognizable offence is made out. However, the law provides the alternate adequate remedy, if respondent, so advised, she is at liberty to avail the same.
Viewed above, the mala fide is floating on the basis of the facts of the case, the application before the Justice of Peace/ASJ Mandi Baha-ud-Din filed by complainant/Respondent No. 2 has been used as a device to drag the petitioner, therefore, the order dated 7.4.2009 is declared to be illegal and the same is set-aside.
With the above observations, this writ petition is allowed.
(R.A.) Petition allowed.
PLJ 2010 Lahore 71
[Multan Bench Multan]
Present: Ijaz Ahmad Chaudhry, J.
MULAZIM HUSSAIN--Petitioner
versus
DIRECTOR GENERAL AGRICULTURAL RESEARCH, A.A.R. INSTITUTE FAISALABAD and 3 others--Respondents
W.P. No. 6062 of 2009, decided on 30.7.2009.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Constitutional petition--Bar to--Maintainability--Civil servant--Petitioner was transferred from his parent functional unit--Appeal before labour Appellate Tribunal which was dismissed--Challenge to--Question of--Petitioner was a civil servant and due to bar contained u/Art. 212 of Constitution, petition was not maintainable. [P. 72] A
Mr. Khalid Farooq, Advocate for Petitioner.
Mr. Tariq Murtaza Khan Malazai, Advocate for Respondent
No. 4.
Date of hearing: 30.7.2009.
Judgment
Mulazim Hussain petitioner has challenged the order dated 7.8.2008 passed by Director General Agricultural (Research), Faisalabad through which the petitioner who is Laboratory Attendant, Pesticide Quality Control Laboratory, Multan has been transferred from to his parent functional unit and posted as such in the office of the Director, Regional Agricultural Research Institute, Bahawalpur.
The petitioner earlier filed petition against the said order before the Punjab Labour Court, Multan which was dismissed vide order dated 2.6.2009. Against the said order the petitioner preferred appeal under Section 54 of the Industrial Relations Act, 2008 before the Punjab Labour Appellate Tribunal, Lahore which was also dismissed vide judgment dated 29.6.2009.
Learned counsel for the petitioner contends that the petitioner is a lower grade employee and has been transferred from Multan to Bahawalpur, which order is illegal and unlawful and may be set aside as under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has to be treated in accordance with law.
Learned counsel for the respondent claims that transfer of the petitioner was passed with the consent of the petitioner and the writ petition may be dismissed.
I have heard the learned counsel for the parties and also gone through the documents attached with this petition. The petitioner is a civil servant and due to the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, this petition is not maintainable which is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 72
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
RUQIYA BIBI--Petitioner
versus
STATE and others--Respondent
W.P. No. 3250 of 2009, decided on 18.5.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Justice of Peace--Report qua cognizable offence--Validity--No report was necessary for passing order on the application u/S. 22-A, Cr.P.C. by Justice of Peace, if contents of application disclose commission of a cognizable offence but if the report is called from SHO before issuance of direction on the application, the same may be taken into consideration by Justice of Peace--Such direction could not be passed mechanically and without examining facts of the case especially in the case of criminal have been registered against alleged abductee. [P. 74] A
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 22-A--Constitutional petition--Justice of Peace--Order passed by Justice of Peace was challenged--Availed alternate remedy of filing private complaint--Adequate and efficacious relief--Registration of criminal case--If High Court through constitutional jurisdiction issues a direction for registration of criminal case the same can cause humiliation for opponent party--So direction on such application will amount to abuse of process of law which shall cause illegal harassment under the legal cover because when a criminal case is registered against a citizen he is put into terror of being interrogated truthlessly, who also might be called to police station by an unscrupulous police officer--No direction for registration of case should have issued by High Court in its constitutional jurisdiction--Petitioner can initiate criminal proceedings by filing a private complainant as observed by Justice of Peace which is also an adequate and efficacious relief to petitioner--Petition was dismissed.
[P. 75] B & C
Mr. Abdul Aziz Khan Niazi, Advocate for Petitioner.
Mr. Haider Zaman Khan Lodhi, Advocate for Respondent No. 6 and 8.
Mr. Mubashir Latif Gill, AAG for State.
Date of hearing: 18.5.2009.
Order
Petitioner has challenged order dated 16.4.2009 passed by Justice of Peace, Sahiwal through which he declined to issue direction for registration of criminal case on the application of the petitioner and advised her to avail alternate remedy of filing private complaint.
Learned counsel for the petitioner contends that petitioner filed an application before Respondents No. 2 Justice of Peace seeking direction to Respondent No. 4 SHO for registration of case against Respondents No. 5 to 8. Justice of Peace called report from concerned police station which was submitted on 3.3.2009. He adds that police submitted a false report with the collusion of Respondents No. 5 to 8 and that there was no need of report from the police and straight away the SHO was to be directed for registration of case as the contents of application
On the other hand learned counsel appearing on behalf of Respondents No. 5 to 8 submits that the impugned order passed by Justice of Peace is based on reasons. The justice of Peace rightly relied on the report submitted by the police which is comprehensive. He further contends that petitioner filed application under Section 22-A Cr.P.C. as a counter blast of case F.I.R No. 54/2009 dated 10.2.2009 under Section 489-F Police Station city Sahiwal registered on the statement of Muhammad Sarfraz, Respondent No. 6 Respondent No. 7 Muhammad Ayyaz was implicated being real brother of Muhammad Sarfraz, complainant of above said criminal case. He submits that Muhammad Idrees Respondent No. 8 has also advanced Rs. 20,00,000/- to Muhammad Hassan Shahid, alleged abductee against which a cheque was issued to him by the said Muhammad Hassan Shahid. He submits that Muhammad Hassan Shahid son of the petitioner who has been allegedly abducted by Respondents No. 5 to 8 is nominated accused of so many criminal case registered against him by the different persons. Learned counsel for the Respondents No. 5 to 8 has placed-on the record copies of criminal cases registered against Muhammad Hassan Shahid, detail of which is as below:--
(i) FIR No. 54/2009 dated 10.2.2009 P.S City Sahiwal by Respondent No. 6
(ii) F.I.R No. 63 of 2009 dated 10.2.2009 under Sections 420/406 PPC, P.S. Galla Mandi, Sahiwal by Main Riaz Ahmad.
(iii) F.I.R No. 46 dated 10.5.2009 under Section 489-F PPC Police Station Civil Lines, Sahiwal by Respondent No. 5.
(iv) F.I.R No. 52/2009 dated 17.5.2009 under Section 489-F PPC, Civil Lines District Sahiwal by Respondent No. 8.
Three criminal cases out of four have been registered against Muhammad Hassan Shahid, alleged abductee on the statements of Respondents No. 5, 6 and 8. He further submits that keeping in view the report of police and circumstances of the case if this petition is allowed and a false criminal case for alleged abduction of Muhammad Hassan Shahid is registered against the Respondents No. 5 to 8, they shall suffer an irreparable loss and injury to their honour and dignity as they are respectable citizen of Pakistan being well known business men in the area and registration of false criminal case shall create harassment for them.
For what has been discussed above I find no reason to interfere in the impugned order. This petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 75
[Rawalpindi Bench Rawalpindi]
Present: Nasir Saeed Sheikh, J.
Syed KHURSHEED ALAM--Petitioner
versus
LEARNED RENT CONTROLLER/CIVIL JUDGE RAWALPINDI
and another--Respondents
W.P. No. 2663 of 2009, decided on 16.10.2009.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Urban Rent Restriction Ordinance, 1959, S. 13 Constitutional petition--Interlocutory order--Competency of--Forty opportunities were provided to tenant to produce and complete his evidence and during entire period only one witness was produced before Rent Controller--Validity--While exercising the jurisdiction under Art. 199 of Constitution, High Court had to see the competency of the writ petition as well as the pointing out of some illegality in order challenged in petition--Held: Whereby the right to produce evidence by petitioner/tenant was closed by Rent Controller after giving numerous opportunities to him--Order passed by Rent Controller was an interlocutory order and writ was not competent against such an order--Petition being incompetent was therefore, dismissed. [Pp. 77 & 78] A & B
2003 YLR 1722 (DB), 2006 YLR 841 & PLD 1995 Lah. 392, Ref.
Mr. Iqbal Ahmad Dhudhi, Advocate for Petitioner.
Mr. Sana Ullah Zahid, Advocate for Respondent No. 2.
Date of hearing: 16.10.2009.
Judgment
The petitioner in this case is a tenant in property bearing House No. A/102-1, Satellite Town, Rawalpindi which was leased out to him by Respondent No. 2 vide written lease agreement dated 3.6.1995. An ejectment petition under Section 13 of Punjab Rent Restriction Ordinance was instituted on 4.1.2003 against the petitioner by Respondent No. 2 before the learned Rent Controller Rawalpindi in which present petitioner submitted a written statement dated 20-5-2003 contesting the said application. Learned Rent Controller framed the following issues:--
Whether the respondent has committed default in the payment of rent? OPD.
Whether the respondent has impaired the value of the rented premises through addition/alteration without consent of the petitioner? OPA.
Whether the petitioner is in need of the property for his personal use bonafidely ? OPA.
Whether the petition is liable to be accepted? OPA.
Whether the petition is not maintainable in its present form? OPA.
Whether the petitioner has no cause of action to file the instant petition ? OPR
Whether the petitioner is estopped to file this petition to his words and conduct? ORP.
Relief.
The parties were directed to produce their evidence by the learned Rent Controller Rawalpindi. Respondent No. 2 landlord completed his evidence and in January 2007 the Rent Controller called upon the petitioner tenant to produce his evidence. During all this period only RW-1 was produced by the petitioner tenant in his evidence and numerous opportunities were allowed to him to complete his evidence but in spite of all this the evidence was not completed by the petitioner tenant. It was 10th of September 2009 when the case was adjourned with the consent of the parties giving final opportunity to the petitioner tenant to produce evidence on 17.9.2009. It is on 17.9.2009 again no evidence was produced before the Rent Controller and only an Accountant of the petitioner tenant was in attendance. It was stated on behalf of the petitioner tenant that the learned counsel who was to appear in this Court was not available because he was sitting in Aitekaf. Learned Rent Controller closed the right of the petitioner tenant to produce evidence and the case was fixed for final arguments. This order dated 17.9.2009 closing the evidence of the petitioner tenant has been assailed through this writ petition.
A notice was issued to Respondent No. 2 landlord through an order dated 30-9-2009 and the learned counsel for Respondent No. 2 has rendered appearance.
Learned counsel for the petitioner contends that only one opportunity be given to the petitioner to produce evidence. Learned counsel for Respondent No. 2 has opposed the present writ petition by contending that forty opportunities were given to the petitioner tenant to produce his evidence before the Rent Controller out of which ten opportunities were given as the last opportunity and the petitioner tenant did not care for completing his evidence. It was then submitted by the learned counsel for the Respondent No. 2 that oral assertion of the petitioner tenant that his learned counsel was not available on the date without any affidavit from the learned counsel for the petitioner tenant being placed on the record of the case does not carry any value. It was further contended by the learned counsel for the Respondent No. 2 that instant writ petition is not competent as it is against an interlocutory order of learned Rent Controller and he has relied upon the following judgments in support of his contentions 2003 YLR 1722 DB, 2006 YLR 841 and PLD 1995 Lahore 392.
I have heard the learned counsel for the parties and perused the record annexed with this writ petition. Learned counsel for the petitioner could not point out any illegality in the impugned order dated 17.9.2009 passed by the learned Rent Controller. Learned counsel for the petitioner could not controvert the statement of learned counsel for Respondent No. 2 that in this case forty opportunities were provided to the petitioner-tenant to produce and complete his evidence and during this entire period only one RW-1 was produced before the Rent Controller on behalf of the petitioner tenant. Learned counsel for the Respondent No. 2 further opposed the grant of one opportunity to the petitioner on compassionate ground. While exercising the jurisdiction under Article 199 of the Constitution I have to see the competency of the writ petition as well as the pointing out of some illegality in the order challenged in the writ petition. Learned counsel for the petitioner has not been able to point out any illegality in the impugned order dated 17.9.2009 whereby the right to produce evidence by the petitioner tenant was closed by the learned Rent Controller after giving numerous opportunities to him. The case law produced by the learned counsel for Respondent No. 2 further strengthens the proposition that the order passed by the learned Rent Controller dated 17.9.2009 is an interlocutory order and writ is not competent against such an order.
In view of all above this Court does not feel it as an appropriate case to interfere within the order dated 17.9.2009 passed by the learned Rent Controller. The instant writ petition being incompetent is therefore, dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 78 (DB)
Present: Khawaja Muhammad Sharif, C.J. & M.A. Zafar, J.
Brig. (R) KARRAR ALI AGHA--Petitioner
versus
NATIONAL ACCOUNTABILITY COURT NO. II, LAHORE and another--Respondents
W.P. No. 10780 of 2007, decided on 1.6..2009.
Pakistan Army Act, 1952 (XXXIX of 1952)--
----S. 92--NAB Ordinance, 1999, S. 2--Promulgation of--Petitioner being holder of public office, misused his authority and accumulated assets disproportionate to his known sources of income--NAB filed a reference before Accountability Court--Petitioner was retired from Pakistan Army before promulgation of NAB Ordinance, 1999--No action had been taken within a period of six months--Under Section 92 of Army Act, where an offence had been committed by any person while subject to Army Act, and has seized to be so, he can be kept in military custody, tried and punished for such offence as if it continued to be so subject but he can be tried for an offence unless his trial had commenced within six months after he had seized to be subject to Army Act--Held: No action under the Army Act, had been taken against the petitioner within a period of six months. [P. 81] A
Constitution of Pakistan, 1973--
----Arts. 12 & 199--Pakistan Army Act, S. 92--NAB Ordinance, 1999 (amending) Ordinance, (CXXXIII of 2002), S. 5(m)(iv)--Promulgation of--Protection against retrospective punishment--Applicability of NAB Ordinance--Interpreted by superior Courts--Validity--All laws shall apply prospectively viz. from the date of their promulgation and hence a person cannot be punished for an offence which did not exist on the statute book on the date when it was committed and also cannot be sentenced to a punishment higher or different than what was provided in the law at the time of crime. [P. 83] B
National Accountability Ordinance, 1999--
----Ss. 2 & 5(m)(iv)--(Amendments through Ordinance, (IV of 2000) and (XXXIII of 2002)--Retrospective application from 1.1.1985--Offences and punishment provided in the body of Ordinance on the day when it was promulgated on 16.11.1999--Validity--Where new offences are created alongwith corresponding punishments or new punishments are provided for existing offences by virtue of amendments in the ordinance, they would not apply retrospectively so the amendments made through Ordinance (IV of 2000, and Ordinance, XXXIII of 2002) will not apply retrospectively relating to persons added in definition of holder of public office for the purpose of trying them by a Court constituted under NAB Ordinance, they can only be tried by Accountability Court relating to the offence after the dates and not for the offence prior to that. [P. 83] C
Mr. Taffazal H. Rizvi, Advocate for Petitioner.
Mr. Ali Tipu Khan, D.P.G. for Respondents.
Date of hearing: 19.5.2009.
Order
Brief facts of the case are that the petitioner is a retired Army Officer, who served in Pakistan Army as commissioned officer from 22.4.1962 and retired as Brigadier on 30.12.1989. He while serving as Commander Corps, Signals, in Headquarter-4, Corps Lahore was appointed as Vice Chairman of Lahore Cantt. Cooperative Housing Society, now the Defence Housing Authority on part time basis from December, 1983 to March, 1986 in addition to his regular duties.
On receiving the information that the petitioner being holder of public office, misused his authority and accumulated assets disproportionate to his known sources of income, investigation was conducted by NAB and during investigation, it revealed that on first January, 1985 the petitioner had net saving of Rs.4,21,94,300/- from his salary including Rs.9,60,000/- received by him as advance rent of building at Plot No. 137-I, D.H.A., Lahore in December, 1984. The petitioner also owned plots, one allotted to him in Maleer Cantt. in 1976, which he sold in 1993 and the other allotted in LCCHS, Lahore in 1984 on which he got his house constructed.
The NAB filed a Reference No. 14/06 before the Accountability Court No. II, Lahore in which the petitioner was summoned to face the trial and during trial Court petitioner moved an application before the learned trial Court under Section 265-K Cr.P.C. seeking his acquittal, which was dismissed, vide order dated 14.4.2007. Feeling aggrieved from the aforesaid order, the petitioner filed Crl. A. No. 543/07 in this Court which was admitted for regular hearing by a learned Division Bench on 26.4.2007, however the same was withdrawn on 7.11.2007 and thereafter the present petition was filed in this Court praying that the proceedings before learned Accountability Court No. II, Lahore in NAB Reference may be declared illegal, void and without lawful authority and the same may be quashed.
Learned counsel for the petitioner submits that the petitioner was retired from Pakistan Army on 30.12.1989, therefore, he cannot be tried under the NAB Ordinance promulgated on 16.11.1999 and even no cognizance can be taken on the basis of later amendment in the Ordinance. He further submits that the petitioner, a retired army officer can not be tried now on the allegations of acquiring assess disproportionate to his net sources of income which he can not be reasonable account for or that no maintained standard of living beyond his known sources of income. He submits that these allegations are no offence under the Army Act and even it is an offence under Army Act, trial under the Army Act cannot take place after the expiry of six months in view of Section 92 of the Army Act. According to learned counsel, allegations do not constitute any offence even under the Co-operative Societies Act 1925. Lastly, by referring Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, he submits that the petitioner can only be punished according to the law prevailing on the day when he allegedly committed the offence.
On the other hand, Special Prosecutor submits that through an amendment, in the NAB Ordinance by amending Ordinance No. CXXXIII Of 2002 dated 23.11.2002, a person having held an office in Cooperative Societies is a holder of public service within the meaning of Section 5(m)(iv) of the NAB Ordinance. He further submits that through amending Ordinance No. IV of 2000 dated 3.2.2000 "a person who served in and retired or resigned from or has been discharged or dismissed from Armed Forces of Pakistan", was declared to be holder of public office for the purpose of trial under the NAB Ordinance. He further submits that Section 2 of the NAB Ordinance provides for its retrospective application from 01.01.1985. He by placing reliance on a case of M/s Dawood Cotton Mills Ltd. V. Government of the Punjab through Secretary Labour etc., (2001 PLC 630), submits that when the intention of legislature is clear in relation to giving retrospective operation to an enactment then the Courts are bound to give effect to the same.
After hearing learned counsel for the parties and perusing the record we have observed ¦that the petitioner retired from Pakistan Army on 30.12.1989 much before the promulgation of NAB Ordinance, 1999. Under Section 92 of the Army Act, where an offence has been committed by any person while subject to Army Act and has seized to be so, he can be kept in military custody, tried and punished for such offence as if it continued to be so subject but he can be tried for an offence unless his trial has commenced within six months after he had seized to be subject to the Army Act. In the present case, no action under the Army Act has been taken against the petitioner within a period of six months.
The petitioner served as Vice Chairman of Lahore Cantt. Cooperative Society now Defence Housing Authority (D.H.A.) from December, 1983 to March, 1986 but through an Ordinance CXXXIII of 2002 dated 23.11.2002 a holder of office in Cooperative Societies was included in the Section 5(m)(iv) in the definition of Holder of "Public Office".
Under the Ehtisab Act 1997, Army officers were immune from prosecution. Section 2(i)(iv) reads as under:--
"(i)...........
(ii)...........
(iii)..........
(iv) is holding , or has held an office or post in Basic Pay Scale 18 or above in the service of Pakistan, or any service in connection with the affairs of the Federation, or of a Province or of a local council constituted under any Federal or Provincial law relating to the constitution of local council, or in the equivalent pay scale of management in corporations, banks, financial institutions, firms, concerns, undertakings or any other institution, or organization established, controlled or administered by or under the Federal Government or a Provincial Government, other than a person who is a member of the armed forces, or for the time being is subject to any law relating to any of the said forces except a person who is, or has been a member of the said forces and is holding or has held an equivalent post or office in any public corporation, bank, financial institution, undertaking or other organization established, controlled or administered by or under the Federal Government or a Provincial Government."
Even in the National Accountability Ordinance, 1999 promulgated on 16.11.1999, there was no provision for the prosecution of the Ex-Army officer and first time on 3.2.2000, an amendment was made and after amendment Section 5(m)(vi) is as under:--
"Holder of public office" means a person who has served in and retired or resigned from or has been discharged or dismissed from the Armed Forces of Pakistan."
Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 provides protection against retrospective punishment which reads as under:--
"No law shall authorize the punishment of a person:
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."
"Article 12 of the Constitution does not deprive the legislature of its power to give retrospective effect to an enactment, which the legislature is competent to enact. It merely provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of act or omission; or for an offence by a penalty greater than or of a kind different from the penalty, prescribed by law for that offence at the time the offence was committed. Seen in this perspective the act of "willful default", is not an act or omission which was punishable under the law at the time the same was committed but an act or omission committed by "willful default" under Section 5(r) was created. As stated above, it was in the nature of a continuous wrong, which was converted into an offence prospectively i.e. in a case where such wrong/willful default continued even after the expiry of 30-days of the promulgation of the impugned Ordinance and not retrospectively. In other words, it is a case where the punishment is prescribed in relation to the breach of a continuing duty which is not performed even within 30-days after the coming into force of the Ordinance. By no stretch of imagination it could be termed retrospective in operation, particularly, in view of the statement made by Mr. Abid Hasan Minto on behalf of the Federation that no prosecution was launched in respect of "willful default" where re-payment of loan etc. was made good within 30-days of the promulgation of the Ordinance."
It was further held that:--
"The punishment and creation of offences by the impugned Ordinance are concerned, they are protected by Article 12 of the Constitution, in that, under Article 12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for an offence than the one which was available for it when committed."
The aforementioned Article has been interpreted by the superior Courts of this Country to mean inter alia that all laws shall apply prospectively viz. from the date of their promulgation and hence a person cannot be punished for an offence which did not exist on the statute book on the date when it was committed and also cannot be sentenced to a punishment higher or different than what was provided in the law at the time of crime. Although Section 2 of the NAB Ordinance provides for its retrospective application from 01.01.1985, but this is only with reference to the offences and punishment thereof provided in the body of the Ordinance on the day when it was promulgated i.e. 16.11.1999. Where new offences are created along with corresponding punishments or new punishments are provided for existing offences by virtue of amendments in the Ordinance, they would not apply retrospectively, so the amendments made through Ordinance No. IV of 2000 and Ordinance No. CXXXIII of 2002 will not apply retrospectively relating to persons added in the definition of holder of public office for the purpose of trying them by a Court constituted under NAB Ordinance, they can only be tried by the Accountability Court relating to the offence after the said dates and not for the offence prior to that.
Resultantly, the writ petition is accepted and the proceedings before the learned Accountability Court No. I, Lahore against the petitioner in NAB Reference No. 14/06 is declared to be illegal, void and without lawful authority and the same are hereby quashed.
(R.A.) Petition accepted.
PLJ 2010 Lahore 88
Present: Muhammad Ashraf Bhatti, J.
MUHAMMAD SALIM--Petitioner
versus
ADDITIONAL DISTRICT & SESSION JUDGE, TEHSIL FEROZEWALA, DISTRICT SHEIKHUPURA
and 4 others--Respondents
W.P. No. 7818 of 2009, decided on 27.4.2009.
Power of Attorney--
----Un-registered, unattested and unverified special power of attorney--Without proper identification--Value of--Special power of attorney did not appear to have been properly executed and the same being also unregistered was held to be a worthless document hardly creating any valid authority in favour of the petitioner in as much as it was attested by a Notary Public without proper identification--Held: Mere attestation of notary public will not be safe to be relied upon.
[P. 90] A
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Maintainability--Power of attorney--Entitlement of--In absence of verification and without proper probe, the petitioner cannot be treated as a duly authorized agent nor has any vested right enforceable by law entitling him to file a writ petition. [P. 90] B
Mr. Inayat Ullah Khan Niazi, Advocate for Petitioner.
Date of hearing: 27.4.2009.
Order
One Muhammad Salim S/o Muhammad Munir-Respondent No. 3 filed a suit on 17.5.2007 for specific performanee against Muhammad Saleem Son of Din Muhammad, Muhammad Khalid and Muhammad Boota (Respondents No. 4 & 5) through his counsel Mr. Abdul Qayyum Bhatti, Advocate on the strength of agreement to sell (`Iqrarnama') dated 18.9.2002 in respect of the land, fully described in para-1 of the plaint, copy of which is available on record, Respondents No. 4 and 5, claiming bona fide purchasers of the said land, raised objection that the said suit was got filed by Respondent No. 3 in connivance with Muhammad Saleem S/o Din Muhammad now represented by the petitioner Muhammad Manshah, as his alleged attorney/agent vide a special power of attorney executed in his favour on 4.6.2007 (original stands placed on record).
2-A. Arguments heard and available record perused.
As is apparent the controversy arose as to who would represent Muhammad Saleem S/o Din Muhammad before the learned trial Court for `Parvi' of suit filed against him and others. In this respect both the learned Courts below very rightly rejected the claim of the petitioner on the ground that he is not a duly authorized agent of said Muhammad Saleem S/o Din Muhammad which observations/findings gather enough support from the fact that the suit under reference was instituted way back on 17.5.2007 and it was for the first time in May, 2008 when the alleged holder of special power of attorney tendered his appearance to defend the suit on behalf of said Muhammad Saleem. The learned trial Court made efforts to procure his personal attendance but for reasons best known to him and his aforesaid general attorney, he did not bother to appear in the Court to own the said agent or disown Mansab Ali, holder of his general power of attorney. Further, nothing has been placed on record to suggest that the said general power of attorney in favour Mansab Ali had, at any point of time, ever been disowned by Muhammad Saleem S/o Din Muhammad or cancelled or disputed it, meaning thereby that said registered document is still in currency and will remain valid till it is revoked by the principal.
Additionally, special power of attorney does not appear to have been properly executed and the same being also un-registered is a worthless document hardly creating any valid authority in favour of the petitioner in as much as it was attested by a Notry Public without proper identification of the said Muhammad Saleem S/o Din Muhammad. On its margin name of one Muhammad Qaisar, Advocate finds mentioned who had to identify him but he did not sign it as a token of his identification. Therefore, the mere, attestation of Notry Public will not be safe to be relied upon. Even the stamp paper was not purchased by said Muhammad Saleem personally; rather one Muhammad Tufail had purchased it on his behalf, apparently without any authority in absence of any supporting material on record.
All the above peculiar features of the case makes me to understand that the orders dated 21.6.2008 and 12.1.2009 passed by the learned Civil Judge and the learned Additional District Judge respectively are neither illegal nor arbitrary in nature.
Above all, Muhammad Saleem S/o Din Muhammad himself appears to be least interested. Therefore, in absence of verification and without proper probe Muhammad Manshah, the petitioner cannot be treated as a duly authorized agent of said Muhammad Saleem nor has any vested right, enforceable by law entitling him to file a writ petition of the nature before this Court. Further, the issue of appointment or otherwise of an attorney squarely needs evidence which exercise cannot be taken by this Court in the Constitutional petition in hand. So, therefore, finding no good ground to proceed further, the petition in hand is dismissed in limine.
(S.K.A.) Petition dismissed.
PLJ 2010 Lahore 91
Present: S. Ali Hassan Rizvi, J.
GULAB DIN and another--Petitioners
versus
Mst. JANNAT BIBI (deceased) through L.Rs.
and others--Respondents
C.R. No. 892 of 2008, heard on 21.7.2009.
Limitation for inheritance--
----Entitlement of inheritance--Remained successful to prove--Principle of resjudicata--Rights of succession could neither be defeated by law of limitation or on the basis of principle of res-judicata because sharia is a Supreme Law. [P. 96] A
Right of Inheritance--
----To deny the legal right of inheritance--Obduracy--Appreciation of evidence--Petitioners failed to point out any illegality in appreciation of and at last petitioners conceding the real fact that respondent was daughter of deceased but one of their brother had already disposed of her share and to that extent the decree should not be given into effect against them received only--That submission shows their obduracy, to deny the legal right of inheritance. [P. 96] B
Ch. Tanveer Akhtar, Advocate for Petitioners.
Mr. Ghulam Hussain Awan, Advocate for Respondents.
Date of hearing: 21.7.2009.
Judgment
The petitioners challenged the legality and vires of judgment and decree dated 27.9.2005 passed by the learned Civil Judge whereby suit for declaration with permanent injunction was decreed in favour of Respondent No. 1 Mst. Jannat Bibi and dated 24.4.2008 learned Additional District Judge dismissed the appeal.
Brief facts necessary for the disposal of the suit filed by the respondents for declaration with permanent injunction alleging therein that father of the respondent Dondi was allotted the land described in para 1 of the plaint. Respondent No. 1 claimed that Dondi above said was his father who expired in 1957 but Respondents No. 1 to 3 given in plaint got sanctioned Mutation No. 5 dated 6.4.1957 in their favour showing Dondi as issueless. The respondent/plaintiff (Mst. Jannat Bibi) claims that she is a real daughter of Dondi and entitled for 1/2 share from the inheritance of his deceased father. She came into knowledge about the mutation in 1996 when Respondents No. 1 to 3/defendants got exchanged their property through Mutation No. 1703 with Defendants No. 7 to 9. This mutation was challenged in appeal before the Assistant Collector, Sheikhupura. The Assistant Collector accepted this appeal. The respondent in the meanwhile withdrew her civil suit but the appeal of the petitioners/defendants was accepted by the learned Additional Commission (Revenue). The respondent was constrained to file afresh civil suit against Mutation No. 5 dated 6.4.1957, Mutation No. 1703 dated 10.3.1987, Mutation Nos.1800, 23 and 24 as illegal and prayed for decree of declaration with permanent injunction.
The petitioners/defendants jointly contested the suit while Respondent No. 5 Muhammad Boota (purchaser of the land from Muhammad Siddique Respondent No. 3.) filed independent written statement. The petitioners/defendants denied the claim of respondent Mst. Jannat Bibi. In the written statement specifically denied Respondent No. 1 Mst. Jannat Bibi was real daughter of Dondi deceased. Learned trial Court framed the following issues arising out of the pleadings of the parties:--
ISSUES:
Whether the plaintiff is daughter of Dondi deceased? OPP
When did the plaintiff got the knowledge of the fraud committed by the defendants? OPP
Whether the defendant was paying share of produce to the plaintiff? OPP
Whether the Mutation No. 5 dated 6.4.1957 is illegal, based on fraud and collusion hence, liable to be cancelled? OPP
Whether the mutation of Exchange No. 1703 dated 10.3.1988 is liable to be cancelled? OPP
Whether the Mutation No. 23 is liable to be cancelled? OPP
Whether the Mutation No. 24 is liable to be cancelled? OPP
Whether the Mutation No. 1800 is liable to be cancelled? OPP
Whether the plaintiff is in possession of 1/2 share of the disputed land? OPP
Whether the suit is hit by res-judicata? OPD
Whether the suit is barred by time? OPD
Whether the plaintiff is estopped by her words and conduct from filing this suit? OPD
Whether the suit is bad for misjoinder of parties? OPD
Whether the suit is bad for non-joinder of necessary parties? OPD
Whether the suit is mala fide, vexatious and the defendants are entitled for special costs? OPD
Relief.
The evidence of the parties was recorded. The respondent examined Lilu PW. 1, Mehar Din PW.2 and herself as PW.3. The petitioners examined DW. 1 Ghulam Saad, Abdur Rasheed DW.2 and Nanah DW.3. The petitioner as defendant produced in evidence the copy of previous suit filed by respondent titled "Jannat Bibi Vs. Juni etc." as Ex.D.1, copy of application to withdraw the suit as Ex.D.2, copy of general power of attorney as Ex.D.3, copy of plaint titled "Sabir Hussain Vs. Akbar Ali" as Ex.D.4, copy of order dated 22.10.1998 as Ex.D.5, copy of plaint in a suit titled "Jannat Bibi Vs. Akbar Ali" as Ex.D.6, copy of order dated 22.12.1998 as Ex.D.7, general power of attorney as Ex.D.8, copy of cancellation of deed as Ex.D.9, copy of agreement dated 13.10.1997 as Ex.D.10, copy of order of Additional Commissioner, Lahore as Ex.D. 11 and copy of Jamabandi as Ex.D. 12. The respondent/plaintiff was allowed to produce the additional evidence under Order XVIII, Rule 1 CPC and she produced Mutation No. 5 as Ex. P.1, copy of Mutation No. 1800 as Ex.P.2, copy of Mutation No. 24 as Ex.P.3, copy of Mutation No. 1703 as Ex.P.4, copy of Mutation No. 5264 as Ex.P.5, copy of khasra girdawari as Ex.P.6, copy of memorandum of appeal as Ex.P.7 and copy of order of Assistant Collector dated 27.9.1997 as Ex.P.8. The learned trial Court on Issue No. 1 observed the respondent/plaintiff is a daughter of Dondi. Issue No. 2 was decided in the manner that Defendants No. 1 and 2 exchanged the property with Defendants No. 7 to 9 against the right of respondent/plaintiff. Issue No. 3, 4 to 8 were also answered in favour of the respondent/plaintiff. Issue No. 9 was decided that respondent/plaintiff is entitled to her share in the property of her deceased father Dondi being a legal heirs to the extent of her legal share. Issues No. 10 and 11 were decided by the learned Additional District Judge in appeal and the learned trial Court had observed that the judgment and decree of the learned appellate Court is in field, therefore, need no comments. The learned Civil Judge passed the decree in favour of the Respondent No. 1/plaintiff (Mst. Jannat Bibi).
The petitioner/defendant preferred the appeal against the judgment and decree dated 27.9.2005 of the learned Civil Judge while remaining respondents failed to file the appeal which was dismissed and the judgment and decree of the learned Civil Judge was upheld.
It is argued by learned counsel for the petitioners that Defendant No. 3 Muhammad Siddique their real brother had not contested the suit, because he had already sold away his share. That Respondent No. 1 is neither the daughter of deceased Dondi nor was entitled to inherit any share out of his inheritance. The Mutation No. 5 was validly sanctioned in favour of the petitioners. Respondent No. 1 had failed to produce any kind of Nikah Nama of her mother or corroboratory documentary evidence to the effect that she was daughter of deceased Dondi. That both the learned Courts below had failed to appreciate the evidence and have exercised the jurisdiction not vested with it by law. Also argued that the impugned judgments and decrees are result of misreading and non-reading of evidence. No other ground has been pressed.
On the other hand, learned counsel for the respondent argued that the petitioner failed to rebut the evidence of the respondent/plaintiff. Mst. Jannat Bibi was daughter of Dondi deceased whereas the respondents are sons of Munshi. The above said Munshi was real brother of Dondi and the Mutation No. 5 dated 6.4.1957 was got sanctioned by use of deceptive tactics with fraud. The respondent came into knowledge in the year, 1996 when the petitioner and defendant No. 3 Muhammad Rafique exchanged the land with Defendants No. 7 to 9 on 10.3.1988 through Mutation No. 1703 and thereafter defendants Muhammad Siddique (not party) sold his land to Defendants No. 5 and 6 (not party). That she had been receiving share of produce but when Defendants No. 1 to 3 got exchanged the land and denied the share of produce she came into knowledge their fraud and forgery. The respondent filed an appeal before the learned Assistant Collector, which was accepted. The suit filed before the Civil Judge was withdrawn because her grievance was redress but the petitioner/defendant preferred an appeal before the learned Additional Commissioner (Revenue) and the suit, again was necessitated. The right of succession could not be defeated by law of limitation or on the principle of res-judicata. He went on arguing that right of inheritance cannot be deprived merely on account of possession of the co-sharer. The respondent proved by oral and documentary evidence that she is a daughter of Doundi deceased and entitled for share according to Sharia.
Heard. Record perused.
The learned counsel for the petitioners has confined his arguments only on Issue No. 1. My findings on Issue No. 1 is as under.
There is no denial of the fact that Doundi and Munshi were the real brothers. The present petitioners and Muhammad Siddique are sons of Munshi. Respondent No. 1 Mst. Jannat Bibi had expire and now legal heirs are the respondents. Mst. Jannat Bibi claimed herself as real daughter of Doundi whereas the petitioners denied. They claimed the deceased Doundi expired as un-married and issueless. The respondent/plaintiff examined Lilu as PW.1, Mehar Din as PW.2 and herself appeared as PW.3. PW.1 is a closed relative of Mst. Jannat Bibi. He had seen the Munshi real brother of deceased Doundi and also stated that the third brother of Doundi had expired who was residing at that time at Okara. PW.2 Mehar Din was aged about 60/70 years. He replied to a question that the name of the wife of Doundi was not into his knowledge but when Doundi expired the respondent/plaintiff was of young age. The respondent/plaintiff had stated that her brothers Noor Muhammad, Phalia and Nazara expired, after her marriage. Her brother Noor Muhammad was married with Mst. Bano Bibi and after death of her brother, Mst. Bano Bibi married with Nannah (Petitioner No. 2). The petitioner/defendant failed to rebut her evidence, PW.3 in reply of a question, denied the agreement to sell her share to Sabir Munir and Rehana in lieu of Rs.20,00,000/-. This question was asked by learned counsel for the petitioner which itself speaks that she had executed some agreement to sell of her share. Although she denied the execution of agreement to sell and of power of attorney but leads to the conclusion that she always claimed herself as daughter of deceased Doundi. The evidence of the petitioner/defendant failed to point out name of the father of respondent, and did not put even a single question. Another question was put that she had no relation with Doundi deceased but did not asked any question to any PW that Doundi was not married person. The petitioner absolutely failed to rebut her statement with regard to her brothers Noor Muhammad, Phalia and Nazara who had expired, Mst. Bano Bibi widow of her deceased brother Noor Muhammad now is married with Petitioner No. 2 but she had not been produced to rebut the version of respondent. In rebuttal the petitioner examined Ghulam Saad DW.1 who is a tenant of the petitioner/defendant and replied in a question that he is not into knowledge if the respondent/plaintiff is a daughter of Doundi. He also replied to a question if Mst. Zohra Bibi was the wife of Doundi. DW.2 Abdur Rasheed had seen to the Doundi deceased when he was 4/5 years old. This witness conceded that one Lal Ghar is a son in law of respondent/plaintiff but is not into knowledge where respondent resides. Both these witnesses of the petitioners/defendants are not consistent and reliable. The petitioner nowhere could establish that deceased Doundi was not married. There was no rebuttal of the fact that all the sons of the deceased Doundi had expired. The name of the father of the respondent has not even been asked or suggested. Similarly, DW. 3 did not deny the relation of Mst. Zohra Bibi as wife of deceased Doundi. He preferred to reply only that he had not seen her. Ghulab Din petitioner is real brother of DW.3 but did not know even the name of his wife. This witness is not reliable. The other brother of the petitioners Siddique was Defendant No. 3 and he did not file any appeal or revision because in fact had reconciled with himself and accepted the right of respondent.
9A. The strange aspect of the matter is that the petitioners refused to accept the offer of special oath on Holy Quran in trial and at appeal stage. The identity card Ex.P.9 of respondent showing her daughter of deceased Doundi despite knowledge has also not been challenged before any forum and even did not ask any question to say it had been obtained by fraud.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 96
Present: Mian Saqib Nisar, J.
Mst. MUMTAZ BEGUM (deceased) through her Legal Heirs
and others--Petitioners
versus
MUHAMMAD SHAFIQUE and others--Respondents
W.P. No. 11041 of 1994, decided on 27.4.2009.
Fraud--
----Inherent jurisdiction--Fraud vitiates even the most solemn proceedings and that the forum upon which the fraud has been practiced in obtaining the order has the inherent jurisdiction to set aside the same and undo what has been obtained from it through such an act. [P. 101] A
Contract--
----Like a contract, which is the produce of fraud and order procured through fraudulent means is voidable and not void, therefore, or person aggrieved of such an order cannot sit back for indefinite period of time and challenge it at his own choice and convenience on the ground of the general rules that such orders are vitiated. [P. 101] C
Limitation Act, 1908 (IX of 1908)--
----S. 18--Review of mutation on ground of fraud--Rule of limitation and the law in the specific field under which the review of a mutation is being sought cannot be ignored--If the case falls within the purview of Section 18 of the Limitation Act, 1908, its requirement should be specified in the plaint/petition and if a matter is governed by some special law which prescribes its own period of limitation, such law should be followed. [P. 101] B & D
Limitation--
----If a cause is not propounded within the prescribed limitation, a vested right is created in favour of the opposite side. [P. 101] F
Land Revenue Act, 1967 ( of 1967)--
----S. 163--Review application--Limitation--Application can be filed within 90 days from the date of the order under review and if not, the applicant has to satisfy the Revenue Officer that he has sufficient cause for not making the application within specific period. [P. 101] E
Land Record Manual--
----Land Record Manual are the statutory instructions having force of law and are binding upon all the Revenue Authorities. [P. 102] G
Mutation--
----Intricate questions of fraud could not determined by Revenue authorities after lapse of 19 years--Clerical error--Validity--When mutations had taken due effect in succession--Jamabandis and the entire case of the petitioners is not set out on the basis of any clerical error but on the foundation of the fraud such intricate questions of fraud could not be determined by revenue authorities after lapse of 19 years in a summary manner and in summary proceedings and that too without enabling the effected party to produce any evidence.
[P. 103] H
Civil Court--
----Issues involved in the matter can only be resolved by the Civil Court, where the parties shall have full chance of proving and disproving their respective pleas. [P. 103] I
Necessary Party--
----Either necessary or proper party as both the interveners at no stage have assailed the mutation in present matter--Such decision shall cause no prejudice to them if they seek any other remedy available under the laws--Petition was dismissed. [P. 104] J
PLD 1976 SC 435, PLD 1974 SC 291, PLD 1975 Lah. 445, 1984 CLC 1308, 1980 CLC 1551 and PLD 2000 Lah. 1, ref.
Rana Muhammad Sarwar, Advocate for Petitioners.
M/s. Taki Ahmed Khan, Muhammad Zakaria Sheikh and Ch. Shaukat Hayat Wathra, Advocates for Respondents.
Date of hearing: 11.3.2009.
Judgment
The present petition has been filed against the order dated 11.7.1994 passed by the BOR, through which, the order of review regarding the mutation in dispute passed by the District Collector dated 8.4.1986 was set aside. Hence this petition.
Brief facts of the case are:- that the land measuring 101 Kanals and 8 Marlas situated in village Fateh Garh, Tehsil and District Sialkot, was owned by Mst. Zainab Bibi; she died in the year 1962 and mutation of her Inheritance No. 1435 dated 24.11.1965 was attested in favour of her two daughters Mst. Hakoomat Bibi and Mst. Ulfat Bibi, latter never married and obviously was issueless while Mst. Hakoomat Bibi had son namely Muhammad Rafique Respondent No. 4 two daughters Mst. Mumtaz Begum, Petitioner No. 1 and Mst. Irshad Begum, predecessor-in-interest of Petitioners No. 2 to 9. Mutation No. 1635 dated 2.12.1965 was attested in favour of Muhammad Shafique Khan, Muhammad Attique Khan and Muhammad Latif Khan, Respondents No. 1 to 3, (sons of Muhammad Rafique), envisaging the gift of the land, in their favour by Mst. Hakoomat Bibi and Mst. Ulfat Bibi, the ladies had inherited from Mst. Zainab Bibi. On 4.7.1984, one Umaid Ali Khan, Respondent No. 19, filed a review petition challenging both the noted mutations, on the ground that Mst. Zainab Bibi was also survived by Gamoo, Atta Muhammad, Adalat Khan (father of Umaid Ali Khan), Eedo Khan and Natho Khan, her brothers but they have fraudulently been excluded from the inheritance. Likewise, Muhammad Anwar Respondent No. 8, who is the grandson of Gamoo brought another review application on 3.9.1985 to the same effect; besides on the same date, a review petition was filed by Mst. Mumtaz Begum (daughter of Mst. Zainab) challenging the said mutations on the grounds set out in the application; the matter was examined by the Extra Assistant Commissioner Sialkot, who recommended the review; the Assistant Commissioner vide order dated 9.12.1985 agreed with the above. The District Collector thus through its order dated 8,4.1986, directed for the review of the mutations. It may be relevant to mention here that in the orders for the recommendation of the review and for the review thereof, for the reasons given therein, it is particularly held that the Mutation No. 1435 was bogus and fraudulent; this order was challenged in revision by Muhammad Shafique Respondent No. 1 before the Additional Commissioner, which was dismissed on 4.8.1987; the orders were further assailed before the Board of Revenue in revision, which has been accepted through the impugned order dated 11.7.1994. It may be pertinent to mention here that Umaid Ali Khan, Respondent No. 19 and Muhammad Anwar Respondent No. 8 in the meantime withdrew their review applications, as is envisaged by the impugned order and this fact has not been disputed by the contesting parties.
Learned counsel for the petitioners has argued that the Mutation No. 1435 was entered on the information of Muhammad Rafique, grandson of Mst. Zainab Bibi (son of Mst. Hakoomat Bibi) and he never disclosed that Mst. Zainab Bibi, was also survived by her brothers, this is a fraud flouting on the face of the record; besides, said mutation was entered on 12.10.1962 but was sanctioned on 24.11.1965 and no justification and explanation for this delay has been given; about the Mutation No. 1635, which was allegedly entered on 6.9.1965, it is submitted that on the date, India had attacked Pakistan and Sialkot was a battle field, therefore, it is inconceivable, improbable rather impossible that the gift mutation would be entered on a day when the people of the area in order to save their lives were running for a refuge; there is no entry in the "Roznamcha Waqiati about the above mutation; Mst. Hakoomat Bibi and Mst. Ulfat Bibi are not shown to be present on the date of the entry or when the mutation is alleged to have been sanctioned; it is Muhammad Rafique (the real father of the alleged donees), who otherwise was not the attorney of the ladies, informed about the so-called gift and manoeuvred the mutation; no one had ever identified the ladies, such as the Lumberdar or any other respectable of the village before the Revenue Authorities, there is absolutely no evidence, if the two ladies made the gift and delivered the possession to the donees; the donees in the case are the real sons of Muhammad Rafique, who has played the entire fraud for them and it is settled law that no one can be allowed to have the premium of its own fraud. It is also submitted that as per report of the Extra Assistant Commissioner, the order of the District Collector dated 8.4.1986 and the order of Additional Commissioner dated 4.8.1987, it is clear that there is no mention in the requisite record about the entry and also the sanction of the mutation, which are the mandatory requirements of Section 42 of the Land Revenue Act; thus this mutation had no sanctity in the eyes of the law and was rightly ordered to be reviewed; the BOR has illegally and erroneously interfered with the above in the revisional jurisdiction through the impugned order.
Rana Muhammad Sarwar, learned counsel for the petitioners, has vehemently argued that the fraud vitiates the most solemn proceedings and the same forum on which, the fraud has been practiced in procuring the order, has the inherent power and jurisdiction to undo/set aside the same. In this regard, reference has been made on the case reported as Chief Settlement Commissioner Lahore. Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331); there is no limitation for setting aside an order having been procured through the fraud and no sanctity to such order can be attached; no date of making of the oral gift, in whose presence, it was made, the essential requisites of declaration, acceptance and delivery of possession, which are sine qua non for the validity thereof, have been established on the record; he submits that the so called mutation is absolutely fictitious and bogus and it does not pass the test laid down in Azizullah Vs Ghulaman & others (1941 ILT 54), therefore, the said judgment as argued by the respondents' counsel has no application to the case in hand; the wrong mutation confers no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue. Reliance in this behalf, has been placed upon the record on Ghulam Muhammad vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Aswar Muhammad and others Vs. Sharif-ud-Din and others (PLD 1983 SCMR 626) and the Tribunal of a limited or special jurisdiction, has the power to suo motu recall or review an order obtained from it by fraud. Support is drawn from the case reported as Chief Settlement Commissioner Lahore. Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). It is also argued that according to the judgment reported as Ch. Fateh Khan vs. Mst. Shehzad Begum (PLD 1967 W.P (Rev) 9), while interpreting Para No. 7.30 of the Land Record Manual, it has been held that the correction of entries of mutations made wrongfully and procured through fraud or collusion of revenue authorities can be made under the following circumstances:--
(a) Being either themselves duped by fraudulent misrepresentation of facts by the parties interested in acquiring unlawfully gain.
(b) Where revenue authorities are proved to have acted fraudulently or in collusion with parties who have thereby been conferred rights, in revenue record, which they have not infact acquired at all.
In support of his case, he has also relied upon the judgment of the Hon'ble Supreme Court of Pakistan reported as Nawab Ronaq Ali, etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 236).
Conversely, learned counsel for the respondents has argued that in the instant case, mutation has been challenged after a lapse of about 19 years, which already has been given effect in about four jama bandis; no opportunity has been provided to the contesting respondents to rebut the allegations of fraud leveled against them or to prove that the gift was validly made; they were not associated with what ever inquiry was conducted by the Assistant Commissioner, etc, which was on the administrative side; if the application of the petitioner (Mumtaz Bibi) is considered to be a review application, it was hopelessly barred by time; admittedly, there is a dispute between the parties about the validity of the gift, which could only be determined by the Court of a plenary civil jurisdiction; that the Mutation No. 1435 has not been challenged by any other alleged legal heir of Mst. Zainab Bibi; those who had filed the application to assail the same, such as Umaid Ali and Anwar, withdrew from the contest and consequently, there was no reason for setting aside the Mutation No. 1435.
Heard. There is no cavil with the proposition that the fraud vitiates even the most solemn proceedings and that the forum upon which the fraud has been practiced in obtaining the order has the inherent jurisdiction to set aside the same and undo what has been obtained from it through such an act; however, at the same time, the rule of limitation and the law in the specific field under which the review of a mutation is being sought cannot be ignored, furthermore, like a contract, which is the product of fraud and order procured through fraudulent means is voidable and not void, therefore a person aggrieved of such an order cannot sit back for indefinite period of time and challenge it at his own choice and convenience on the ground of the general rules that such orders are vitiated. The challenge has to be subject to the law of limitation, if the case falls within the purview of Section 18 of the Limitation Act 1908, its requirements should be specified in the plaint/petition and if a matter is governed by some special law which prescribes its own period of limitation, such law should be followed. Now considering this case to be one falling under Section 163 of the Land Revenue Act, the application on behalf of the petitioner could be filed within 90 days from the date of the order under review and if not, the applicant has to satisfy that Revenue Officer that he has sufficient cause for not making the application within that period. In the present matter though general allegation about the concealment of the mutation and fraud has been mentioned in the application, but there is no prove on the record to establish the "sufficient cause", moreover, the question of limitation has not at all been adverted to and decided by the Collector in his order dated 8.4.1986, which is against the settled law that if a cause is not propounded within the prescribed limitation, a vested right is created in favour of the opposite side, this glaring error in the order of the District Collector was noticed by the Board of Revenue and his order was set aside.
The contesting respondents are not shown to have ever been associated with the inquiry or given any chance to produce evidence to show that the mutations are valid and not based upon the fraud. It is quite easy to allege fraud but it must be established through evidence. The petitioners produced no evidence in this behalf and the respondents have not been provided with any opportunity, which violates the rules of natural justice. Rather the entire edifice of the order dated 8.4.1986 is structured upon certain assumptions, which were rebuttable in nature if a chance was given to the respondents. Above all, according to Para 7.30 of the Land Record Manual, it is clearly mentioned:--
7.30. Mutation of correction not to be made.--When an entry has been incorporated in the jamabandi a mutation should not be entered up or sanctioned for the purpose of correcting it, except to correct a clerical error (where this cannot be done by a fard badar) or in consequence of a patent fact. The party aggrieved by such an entry must seek his remedy by suit.
It is now settled that no disputed entry in a [jamabandi] should be altered whether on the ground of mistake or of fraud except on the basis of an obvious clerical error or a patent fact. A fact that needs an elaborate enquiry to establish, is not a "patent fact".
When a mutation entry has been incorporated in a [jamabandi] it should not be altered except on the basis of an obvious clerical error or a patent fact. Thus where a mutation was effected several years ago and was incorporated in subsequent [jamabandis] it should not be reversed or reviewed on the ground that it was effected as a result of fraud in collusion with the subordinate revenue staff.
The Land Records Manual are the statutory instructions haying force of law and are binding upon all the Revenue Authorities. The legal status of such instructions can be evaluated from the following dictums of the Superior Courts:--
PLD 1974 SC 291 (Khan Faizullah Khan vs. Govt. of Pakistan through the Establishment Secretary, Cabinet Secretariat and another)
PLD 1976 SC 435 (Sub. Muhammad Asghar. Vs. Mst. Safia Begum and another)
PLD 1975 Lahore 445 (Muhammad Ayyub and another vs. Muhammad Yaqoob and another)
1984 CLC 1308 (Altaf Ahmad Asmat. Vs. Sarfraz Hnssain and 2 others)
1980 CLC 1551 (Muhammad Aslam, etc. vs. Muhammad Ali) and PLD 2000 Lahore 1 (Lever Brothers Ltd and another vs. Government of Punjab through Secretary Health Department and 3 others)
Thus in the circumstances of the case, when the mutations had taken due effect in the successive jamabandis and the entire case of the petitioners is not set out on the basis of any clerical error etc but on the foundation of the fraud, such intricate questions (of fraud, etc) could not be determined by the Revenue Authorities after lapse of 19 years time in a summary manner and in summary proceedings and that too without enabling the effected party to produce any evidence. The Member BOR while passing the impugned order has given following reasons which too my mind are quite apt and cogent:--
The application is hopelessly barred by time
No application for the condonation giving reasons for the delay;
No determination by the District Collector as to why the time was being condoned;
After 20 years mutation has been incorporated in successive jamabandis and it is settled law that long standing entry in the revenue record should not be changed by the revenue officers and for such cases the appropriate forum is the civil Courts.
No exception can be taken to the above order and I am of the candid view that the issues involved in the matter can only be resolved by the Civil Court, where the parties shall have full chance of proving and disproving their respective pleas.
It may not be out of place to mention here that during the course of hearing, CM No. 892 of 2009 has been filed by Munir Ahmad son of Muhammad Ishaque Khan, to be arrayed as party, which was accordingly allowed vide order dated 9.3.2009 and his counsel has been heard in the matter and the judgment was reserved, when on 13.4.2009 another CM No. 1359 of 2009 was filed by Mahmooda Begum and 9 others and the following order was passed:
"The judgment in this case is reserved and I shall consider at the final disposal of the matter, if the applicants are necessary or proper party."
Considering the contents of the above application, I do not find them either necessary or proper party as both the interveners at no stage have assailed the mutation in the present matter, thus CM No. 135/2009 is dismissed. However, this decision shall cause no prejudice to them if they seek any other remedy available under the law.
In the light of what has been stated above, this petition has no merits and the same is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 104
Present: Ijaz-ul-Ahsan, J.
SHAKEEL AHMED--Petitioner
versus
JUDGE FAMILY COURT, LAHORE and 2 others--Respondents
W.P. No. 18781 of 2009, decided on 1.10.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10--(Family Courts (Amendment) Ordinance, (LV of 2002)--Proviso was added--Power to pass a decree for dissolution of marriage forthwith if reconciliation fails--Held: Family Court is not obligated to follow the sequential order given in S. 10 of Family Courts Act, in the event of failure of reconciliation, where a decree for dissolution of marriage is sought on the ground of Khula. [P. 106] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Proviso--Jurisdiction of Family Court--Khula--No scope was left to live together--Validity--S. 10(4) of Family Courts Act, has conferred powers and jurisdiction to dissolve a marriage on the basis of khula, if despite efforts made by it for reconciliation no scope was left for spouses to live together. [P. 107] B
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Scope & object of--Provision was enacted to avoid unnecessary delays which occurred in the past when suits for dissolution of marriage were tried like ordinary civil suits and it took years for such suits to reach a conclusion causing hardship and misery for the woman who was dragged through endless litigation involving a union that had practicals come to an end. [P. 107] C
Khula--
----Dissolution of marriage--Jurisdiction of Family Courts--To suppress such mischief the legislature had enacted S. 10(4) conferring jurisdiction on Family Courts to dissolve the marriage forthwith on the basis of Khula, if despite efforts made for reconciliation the wife refused to reconcile and go back to her husband. [P. 107] D
PLD 1984 SC 549, PLD 1983 Lah. 549, 1999 YLR 875, 2004 YLR 3090, 2005 CLC 909, 2005 YLR 1648, 2005 CLC 1844 & PLD 2007 Lah. 425, ref.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Re-conciliation efforts between the parties had failed--Family Court proceeded to pass an order for dissolution of marriage on the basis of Khula--Validity--Family Court, correctly exercised his jurisdiction to decree the suit u/S. 10(4) of Family Courts Act, on the basis of Khula--Petitioner had not mentioned any thing in the petition which might even remotely suggest, either that there was any defect in pre-trial reconciliation proceedings or that such reconciliation efforts had not failed--Finding of trial Court was unexceptionable and no interference was called for. [P. 107] E
Maintenance--
----Interim maintenance for minor child--Challenge to--Grounds of--Petitioner was unable to pay the amount of Rs. 1500/- per month as his monthly income was only of Rs. 5000/--Validity--Held: Hardly furnishes any justification to withhold payment of maintenance allowance for a minor child--There was sufficient material on record to warrant a tentative assessment of the petitioner's income by Family Court and fixation of tentative maintenance allowance--This has fairly and reasonably been done by Courts below after due application of mind, considering the basic needs of a minor child--Petition was dismissed. [P. 107] F
Mr. Muhammad Sharif Chohan, Advocate for Petitioner.
Date of hearing: 1.10.2009.
Order
This petition arises out of an order dated 30.6.2009 passed by the learned Judge Family Court, Lahore.
Arooj Lateef, Respondent No. 2 herein, was married to the petitioner on 21.10.2007. Differences arose shortly after marriage between the spouses. Arooj Lateef, therefore, filed two suits against the petitioner for dissolution of marriage and maintenance, dowry articles and birth expenses of Rs. 10.000/-. Parties were summoned by the learned Family Judge. The petitioner filed written reply to both the suits. He took legal as well as factual objections/defences in his written replies.
On 30.6.2009 Arooj Latif made a statement before the learned Judge Family Court that she did not want reconciliation with the petitioner and that her suit for dissolution of marriage should be decreed on the basis of Khula. In view of the statement of the plaintiff and having satisfied himself that re-conciliation efforts between the parties had failed, the Judge Family Court proceeded to pass an order for dissolution of marriage on the basis of Khula in terms of Section 10(4) of the Family Courts Act, 1964.
In the other suit for maintenance etc., the learned Judge Family Court passed an order dated 30.6.2009. He fixed tentative interim maintenance allowance for the minor daughter of the parties in the sum of Rs.1500/- per month to be paid by the defendant before 14th day of every month. Although the petitioner has challenged both the aforesaid orders through this petition, the learned counsel did not address any arguments regarding the order relating to fixation of interim maintenance allowance. This Court is, therefore, justified in concluding that he has abandoned that challenge.
As far as the order dated 30.6.2009 is concerned, whereby decree for dissolution of marriage was passed, the learned counsel has argued that the order is illegal. According to him it was passed without providing to the petitioner an opportunity of being heard. The learned counsel has further argued that the provisions of Section 10 of the Family Courts Act, 1964 are mandatory and after a pre-trial hearing as ordained by sub-section (1) and, if necessary, after going through the procedures provided in sub-sections (2) and (3), the Court is required to frame issues and fix a date for recording of evidence. The learned counsel contends that the aforesaid mandatory requirements have not been fulfilled. Hence the order dated 30.6.2009 whereby dissolution of has been ordered is illegal and is liable to be set aside.
I have considered the arguments advanced by the learned counsel for the petitioner. I do not find myself in agreement with his interpretation of Section 10 of the Family Courts Act, 1964 and its proviso. The proviso to Section 10 of the West Pakistan Family Courts Act, 1964, was added by the Family Courts (Amendment) Ordinance (LV of 2002) dated 1st October, 2002. It has an overriding effect. Through the said proviso the Family Court has been granted power to pass a decree for dissolution of marriage forthwith if reconciliation fails. It is quite clear that a Family Court is not obligated to follow the sequential order given in Section 10 ibid in the event of failure of reconciliation where a decree for dissolution of marriage is sought/granted on the around of Khula.
The proviso to sub-section (4) of Section 10 of West Pakistan Family Courts Act 1964 has conferred powers and jurisdiction on Family Courts to dissolve a marriage on the basis of "Khula" if despite efforts made by it for reconciliation no scope was left for spouses to live together. Proviso to Section 10(4) is couched in such language, containing a non-obstente clause giving wide power to the Family Court to dissolve the marriage when facts of the case would permit such course. The provision was enacted to avoid unnecessary delays which occurred in the past when suits for dissolution of marriage were tried like ordinary civil suits and it took years for such suits to reach a conclusion causing hardship and misery for the woman who was dragged through endless litigation involving a union that had practically come to an end. To suppress such mischief the legislature had enacted this beneficial provision conferring jurisdiction on Family Courts to dissolve the marriage forthwith on the basis of "Khula" if despite efforts made for reconciliation the wife refused to reconcile and go back to her husband. In this regard reference can usefully be made to PLD 1984 SC 549, PLD 1983 Lahore 549, 1999 YLR 875, 2004 YLR 3090, 2005 CLC 909, 2005 YLR 1648, 2005 CLC 1844 and PLD 2007 Lahore 425. In all the aforesaid judgments the power of the Family Court to pass a decree for dissolution of marriage, forthwith, on failure of conciliation proceedings has been affirmed. It is evident from a perusal of the order dated 30.6.2009 as well as the statement of Arooj Lateef that pre-trial reconciliation efforts did not succeed. The learned Judge Family Court, therefore, correctly exercised his jurisdiction to decree the suit under Section 10(4) of the Family Courts Act, 1964 on the basis of "Khula". The petitioner has not mentioned any thing in the petition which may even remotely suggest either, that there was any defect in the pre-trial reconciliation proceedings or that such reconciliation efforts had not failed. The finding of the trial Court is unexceptionable and no interference is called for.
As far as the order relating to interim maintenance for the minor child is concerned, the only grounds mentioned in the petition to challenge the same are that the petitioner is unable to pay the said amount as his monthly income allegedly is only Rs. 5,000/- and that the order in Question will strain his financial resources. In the absence of any material on record to support this position, to my mind, this hardly furnishes any justification to withhold payment of maintenance allowance for a minor child. There is sufficient material on record to warrant a tentative assessment of the petitioner's income by the learned Judge Family Court and fixation of tentative maintenance allowance. This has fairly and reasonably been done by the learned Courts below after due application of mind; considering the basic needs of a minor child. Even otherwise, as stated above, the learned counsel has not addressed any arguments against the said order and has skirted repeated inquiries from this Court as to whether or not the said amount is being paid by the petitioner.
In view of what has been discussed above, I do not find any flaw or jurisdictional error in the findings of the learned lower Courts. There is no merit in the petition, it is, therefore, dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 108
Present: Syed Mansoor Ali Shah, J.
CHIEF EXECUTIVE FESCO, FAISALABAD and 2 others--Appellants
versus
NAYAB HUSSAIN--Respondent
FAO No. 312 of 2009, heared on 6.10.2009.
Punjab Consumer Protection Act, 2005 (II of 2005)--
----Ss. 31 & 33--Maintainability of complaint before consumer Court--TO fix damages and award--Jurisdiction--Lack of electricity was causing problem and that adjacent houses have the paid service--Respondent was being deprived of the same--Application for residential electric connection was not being decided--Lack of electricity was causing problem--Complaint was filed before Consumer Court which was decided in favour of complainant--Challenge to--Question of maintainability--Jurisdiction of Consumer Court is different from constitutional jurisdiction--Making an application for electric connection does not make the applicant a consumer and the slow response in deciding the application does not fall under the definition of service for the purpose of Consumer Protection Act--Services in-question is a supply of energy or electricity--Validity--Any administrative step prior to start of actual service is not service and does not fall within the fold of CPA--Consumer Court is to identify a consumer availing service and then if the service is defective, the Consumer Court is to fix damages and award the same--Consumer Court cannot issue a mandamus as has happened in the present case--Held: Where slow response on the application for electric connection was considered to be a matter pertaining to service--Complaint before consumer Court was not maintainable--Appeal allowed.
[Pp. 113 & 114] D
Punjab Consumer Protection Act, 2005 (II of 2005)--
----Ss. 2(c)(k) & 33--Application for electric connection was kept pending and later on at the time of hearing of instant appeal--Complaint was filed before Consumer Court which was decided in favour of respondent/ complainant--Challenge to--In order to invoke the jurisdiction of the Consumer Court, the complainant must first qualify to be a consumer--Held: Respondent/complainant applied for electric connection and his application kept pending and later on at the time of hearing of instant appeal, the respondent, admittedly, was served with a demand notice, which respondent was not able to deposit--At the filing of complaint or during the hearing of instant appeal, respondent never attained the status of consumer--Further held: No relationship of service between the service provider and the respondent consumer. [P. 113] A
Punjab Consumer Protection Act, 2005 (II of 2005)--
----Ss. 13 & 31--Applied for electric connection and his application kept pending--Complaint was filed before Consumer Court--Lack of electricity was causing problem and that adjacent houses have the said service--Validity--U/S. 31 the Consumer Court can stop the defective or faulty service until it achieves the required standard--Appellant in the matter of a basic utility like electricity have no concessional policy for the low-income group of the society and are treating the posh society of the city at per with low income housing within the city--Held: Electrification will not be allowed unless the entire Housing Scheme is first approved in order to discourage mal-practices--Unfortunately, the respondent has limited choice and has to foot the capital cost of a transformer to get electricity for his house or else wait till the entire area is electrified through a proper electrification scheme--Appeal was allowed. [Pp. 113 & 114] B, E & F
Punjab Consumer Protection Act, 2005 (II of 2005)--
----S. 2(k)--Services--Applied for electric connection--Service actually means the supply of energy, which is missing in instant case--Held: No electrical energy is being supplied to respondent, hence, no services are being availed by respondent. [P. 113] C
Mian Ashiq Hussain, Advocate for Appellants.
Mr. Saeed-ul-Hassan Jaffery, Advocate for Respondent.
Date of hearing: 6.10.2009.
Judgment
Brief facts are that a complaint was filed before the Consumer Court by the respondent on 6.6.2009, complaining that his application for a residential electric connection made on 13.4.2009 was not being decided. The complaint further stated that lack of electricity is causing problem and that adjacent houses have the said service, but the respondent is being deprived of the same. The said complaint was decided vide order dated 1.9.2009 in favour of the respondent in the manner reproduced as under:
"Accordingly, the defendants shall now issue demand notice to the consumer/claimant within a period of fifteen days, where after, on deposit of charges of installation by the claimant, the electricity connection shall be installed at the claimant's premises within a period of 15 days restraining myself to grant damages for mental torture and agony as there is no medically recognized psychiatric illness, medical disorder slip from recognized medical practitioner, hence, there is no liability for emotional distress or grief. However, the defendants shall pay legal expenses to the claimant Rs. 10000/- as they have unnecessarily dragged him in this litigation. And they shall also pay local commissioner's fee Rs.1500/- already born by the claimant, total Rs. 11,500 to the claimant. The non-compliance of the order, shall be dealt with u/S. 32(2) PCPA 2005. The claim is disposed of accordingly. File be consigned to the record room after its due completion."
Counsel for the appellants submits that the complaint was not maintainable before the Consumer Court under the Punjab Consumer Protection Act, 2005. He argued that the respondent is not a "Consumer" under Section 2(c) of the said Act. Further, no "Services" have been rendered to the respondent under Section 2(k) of the Act and, therefore, no damages could have been calculated or imposed on the appellants under Section 13 or 31 of the Act. As a result, the Consumer Court had no jurisdiction to pass the impugned order.
The learned counsel for the appellants contends on merits that the area of the respondent is adjacent to Mohallah Sajjadnagar, which is not within the purview of the Electrification Scheme of WAPDA and no Electrification Scheme of WAPDA has yet so far been framed for this area, therefore, no electricity services (or electric supply) has been extended to the respondent. However, counsel for the appellants frankly submits that in case the respondent applies for the said connection, that can be extended to the respondent. It is stated that the cheapest connection is for 10 KVA and costs around Rs. 1,44,000/-.
Counsel for the respondent submits that he had applied for electric connection on 13.4.2009 but was not being issued with a demand notice; but now admits that he was served with demand notice of
Rs. 1,44,000/- on 15.9.2009 (perhaps after the decision of the Consumer Court on 1.9.2009) which the respondent is not in a position to deposit. Counsel for the respondent repeatedly argued that houses adjacent to the house of the respondent have been extended electric connection and discriminatory behaviour has been extended to the respondent. Respondent also referred to the report of the local commission prepared under the order of the Consumer Court, which was read out by the counsel in the Court. The report confirmed that other properties adjacent to the house of the respondent have been given electric connection.
Arguments heard.
Attending to the question of maintainability first.
The preamble to the Punjab Consumer Protection Act (PCPA) states:--
"Preamble:--Whereas, it is expedient to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith. "
"Consumer" means a person or entity who--
(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or
(ii) hires any services for a consideration and includes any beneficiary of such services;" (emphasis supplied).
"Services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include--
(i) the rendering of any service under a contract of personal service;
(ii) the rendering of non-professional services like astrology or palmistry; or
(iii) a service, the essence of which is to deliver judgment by a Court of law or arbitrator."
"Damage" means all damage caused by a product or service including damage to the product itself and economic loss arising from a deficiency in or loss of use of the product or service;
"Liability for faulty or defective services.--
A provider of services shall be liable to a consumer for damages proximately caused by the provision of services that have caused damage."
Order of Consumer Court.--
If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely--
(a) to remove defect from the products in question;
(b) to replace the products with new products or similar description which shall be free from any defect;
(c) to return to the claimant the price or, as the case may be, the charges paid by the claimant;
(d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act;
(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;
(f) to award damages where appropriate;
(g) to award actual costs including lawyer's fees incurred on the legal proceedings;
(h) to recall the product from trade or commerce;
(i) to confiscate or destroy the defective product;
(j) to remedy the defect in such period as may be deemed fit; or
(k) to cease to provide the defective or faulty service until it achieves the required standard."
Perusal of the above provisions shows that in order to invoke the jurisdiction of the Consumer Court, the complainant must first qualify to be a "Consumer". To be a Consumer under the said Act, a person must hire the "Service" for a certain consideration from the service provider. In case there is no Service being availed by the complainant and no consideration being paid in return for the said service, the complainant does not qualify to be a Consumer and, therefore, the matter goes outside the fold of the said Act.
In the present case, the respondent applied for electric connection and his application kept pending and later on at the time of hearing of this appeal, the respondent, admittedly, was served with a demand notice, which the respondent was not able to deposit. At the filing of the complaint or during the hearing of this appeal, the respondent never attained the status of "Consumer". So, in this case, there is no relationship of Service between the service provider and the respondent Consumer. He has not availed of the service from the appellants/service provider and, therefore, is not a consumer under the said Act.
Under Section 13 of the Act, the appellant provider is liable to a Consumer for damages for defective services. Similarly under Section 31, the Consumer Court can stop the defective or faulty service until it achieves the required standard. Definition of Service under Section 2(o) of the Consumer Protection Act, 1986 of India is more elaborate and wholesome. The said definition includes supply of electrical energy as part of the definition of Service and is reproduced hereunder:--
"Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
The above definition supports the argument that Service actually means the supply of energy, which is missing in this case. In the present case electric supply had yet to be extended and, therefore, no electrical energy is being supplied to the respondent hence no services are being availed by the respondent.
Making an application for electric connection does not make the applicant a consumer and the slow response in deciding the application does not fall under the definition of "Service" for the purposes of the Act. The main role of the provider needs to be seen. Applicant is an energy provider and, therefore, the services in question is a supply of energy or electricity. Any administrative step prior to the start of actual Service is not Service under the Act and does not fall within the fold of the CPA.
Jurisdiction of the Consumer Court is different from the constitutional jurisdiction. A Consumer Court is to identify a Consumer availing service and then if the said service is defective, the Consumer Court is to fix damages and award the same. Consumer Court cannot issue a mandamus as has happened in the present case. Where slow response on the application for an Electric Connection was considered to be a matter pertaining to Service. I, therefore, agree with the submission of the counsel for the appellants that the complaint of the respondent before the Consumer Court was not maintainable.
On the factual plane, appellants do not have an Electrification Scheme for the area in question (an area adjacent to Mohallah Sajjadnagar). In the absence of a proper Scheme if there is a request for electric connection, the same can be honoured if the capital cost of the connection is borne by the applicant. As stated above, the appellants are willing to extend the electric connection as also confirmed by the counsel for the respondent. Subject to charges, respondent has already received demand notice of Rs. 1,44,000/- in this regard. I inquired from the counsel of the appellants whether there is a Scheme for electrification of a low-income community, which costs less. Appellants confirmed that there is no such Scheme prepared by the appellants. It is sad to know that the appellants in the matter of a basic utility like electricity have no concessional policy for the low-income group of the society and are treating the posh society of the city at par with the low-income housing within the city.
Counsel for the appellants has also placed on record a Housing Scheme Policy dated 19.4.2008, which states that electrification will not be allowed unless the entire Housing Scheme is first approved in order to discourage mal-practices. Unfortunately, the respondent has limited choice and has to foot the capital cost of a transformer to get electricity for his house or else wait till the entire area is electrified through a proper Electrification Scheme.
In view of the above, this appeal is allowed and the impugned order dated 1.9.2009 is set aside. No order as to costs.
(R.A.) Appeal allowed.
PLJ 2010 Lahore 115
Present: Ijaz-ul-Ahsan, J.
Mst. ROBINA SHAMSHAD--Petitioner
versus
MUHAMMAD HAFIZ and another--Respondents
W.P. No. 13830 of 2009, decided on 13.11.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Proviso--Pre-trial reconciliation efforts failed--Question of--Whether it is incumbent upon the Family Court to pass a decree for dissolution of marriage forthwith in case pre-trial reconciliation efforts fail--Validity--Family Court has been empowered in a suit for dissolution of marriage, on failure of pre-trial reconciliation proceedings to pass a decree for dissolution of marriage forthwith and restore to husband Haq Mehr received by wife in consideration of marriage at the time of marriage. [P. 116] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Scope of--Real intention behind insertion of the proviso was to cut short the process of a protracted trial in suits for dissolution of marriage and save the woman the agony of going through a drawn legal process. [P. 116] B
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Dissolution of marriage--Recovery of gold ornaments--Question of--Whether it is incumbent upon the family Court to pass a decree for dissolution of marriage in case of pre-trial reconciliation efforts fail--Instead of passing a decree for dissolution of marriage, trial Court has proceeded to frame issue--Held: Matter of dissolution of marriage cannot be held up till outcome of the proceedings for recovery of gold ornaments--In case pre-trial reconciliation efforts have failed, Family Court will pass a decree for dissolution of marriage forthwith and restore to husband the Haq Mehr recovered by wife in consideration of marriage. [P. 117] C
Mr. N.A. Butt, Advocate for Petitioner.
Mian Tariq Manzoor, Advocate for Respondent No. 1.
Date of hearing: 13.11.2009.
Order
Short question involved in this petition is whether it is incumbent upon the Family Court to pass a decree for dissolution of marriage forthwith in case pre-trial reconciliation efforts fail.
The learned counsel for the petitioner states that it is common ground between the parties that pre-trial reconciliation efforts failed, however, instead of passing a decree for dissolution of marriage in terms of the proviso to Section 10 of the West Pakistan Family Courts Act, 1964, the learned trial Court has proceeded, to frame issues and is in the process of conducting a trial while keeping the marriage intact. It is submitted that the said act on the part of the learned trial Court is illegal in view of the express powers granted to it by virtue of insertion of the aforesaid proviso by Family Courts Ordinance (Ordinance No. XLV) of 2002 dated 01.10.2002.
The learned counsel for the respondent argues that there is an allegation in the pleadings of the parties that some gold ornaments were given to the bride at the time of her marriage and the respondent is claiming return of said gold ornaments. He argues that as long as the gold ornaments in addition to Haq Mehr received by the bride is not returned the marriage cannot be dissolved.
The proviso of Section 10(4) of the West Pakistan Family Courts Act, 1964 has been examined. It is quite categoric in its intent, purpose and language and is reproduced as follows :--
Section 10(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for [the recording of the evidence[:]
[Provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.]
It is apparent from a plain reading of the aforesaid proviso that the Family Court has been empowered in a suit for dissolution of marriage, on failure of pre-trial reconciliation proceedings to pass a decree for dissolution of marriage forthwith and restore to the husband Haq Mehr received by the wife in consideration of marriage at the time of marriage. The real intention behind insertion of the aforesaid proviso was to cut short the process of a protracted trial in suits for dissolution of marriage and save the woman the agony of going through a drawn legal process. An effort appears to have been made to lessen and relieve the effects of the oft-repeated cliche "Justice delayed is justice denied.
In view of the aforesaid language of the proviso, the arguments of the learned counsel for the respondent that in addition to Haq Mehr, the petitioner is also required to return the gold ornaments received by her during subsistence of marriage does not in my opinion hold any ground. Going beyond the language of the proviso and reading other matters in it will invariably lead to undesirable results which would defeat and nullify the intents and purpose for which the amendment was made. The proviso is in the nature of non-obstente clause and over rides the sequential order given in Section 10(4) of the Family Courts Act, 1964. The act of the Court whereby it has proceeded to frame issues despite failure of reconciliation efforts, is contrary to the dictates of the law and therefore, is without lawful authority and of no legal effect.
As far as the claim of the petitioner for recovery of gold ornaments is concerned, he is free to avail remedies available to him under the law. However, the matter of dissolution of marriage cannot be held up till outcome of the proceedings for recovery of gold ornaments. In case pre-trial reconciliation efforts have failed, the learned family Court will pass a decree for dissolution of marriage forthwith and restore to the husband the Haq Mehr recovered by the wife in consideration of marriage.
In view of the above, this petition is allowed, the impugned order dated 24.06.2009 is set aside. The learned trial Court shall proceed with the matter in light of the above observations. Petition accepted.
(R.A.) Petition allowed.
PLJ 2010 Lahore 117
Present: Ijaz-ul-Ahsan, J.
KHAWAJA M. SHOAIB--Petitioner
versus
NAZIM U.C. and another--Respondents
W.P. No. 17824 of 2009, decided on 2.11.2009.
West Pakistan Family Law Rules--
----R. 3(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Territorial jurisdiction of union council--Notice of divorce was filed by wife--Challenged due to file before a wrong forum--In Nikahnama a right of divorce was delegated--Right of divorce was exercised by the wife--Question of delegation of right of divorce--Confusion regarding territorial jurisdiction of union councils which were adjacent to each other--Notice of divorce was submitted with U.C. No. 98 who refused to accept it citing territorial jurisdiction--Residence of the female was within territorial jurisdiction of U.C. 97--Scope of--Held: The Union Council within whose the jurisdiction the lady exercising the right of divorce resides--Where the nikah was registered or where the husband resides. [P. 120] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Scope and purpose of--To facilitate the woman in exercising her rights and to save her from getting entangled in legal and procedural formalities in approaching different fora and Courts of law for redressal of her grievance--Held: Language of the rule has to be given its literal interpretation and right of divorce exercised either by husband or by the wife has to be notified to the union council where the wife/woman resides at the relevant time. [P. 120] B
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 7 & 8--Muslim Family Laws Rules, 1916, R. 3(b)--Non-delegation of the right of divorce--Prima facie--Right once granted cannot unilaterally be revoked--Question of validity of revocation of right divorce document--Notice of divorce was filed before wrong forum--Nikahnama was registered with U.C. 98 while the lady resides within territorial jurisdiction of U.C. 97--Confusion regarding territorial jurisdiction of both union councils--Union Council entertained the notice and summoned the parties for reconciliation--Petitioner participated in the proceedings--Coram non judice, illegal without jurisdiction--Held: High Court summoned both parties and provided them yet another opportunity to reconcile--Effort did not succeed either--Petitioner appeared to be hell bent on keeping his wife hanging and stuck in legal technicalities and quibbles despite expiry of the statutory period of ninety days--Further held: Procedural formalities are meant to facilitate and not thwart justice--No illegality was found in exercise of his jurisdiction by U.C. 97. [P. 121] C
Mr. Azhar Maqbool Shah, Advocate for Petitioner.
Ms. Shamsa Ali, Advocate for Respondent.
Date of hearing: 2.11.2009.
Judgment
Through this petition the notice of divorce filed by Respondent No. 2 with Respondent No. 1 has been challenged on the ground that it has been filed before a wrong forum. It has been stated that the marriage between the parties was solemnized on 7.12.2008 and Rukhsati took place on 24.12.2008. In the Nikahnama a right of divorce was delegated to Respondent No. 2. This right was exercised by Respondent No. 2 on 8.7.2009.
The learned counsel for the petitioner submits that the marriage took place within the jurisdiction of UC-98 where it was duly registered. Therefore, filing of notice of divorce in UC-97 and all subsequent proceedings undertaken by the said Union Council are coram-non-judice.
The learned counsel relies on rule 3(b) of the West Pakistan Rules under Family Laws to contend that a notice of divorce is required to be filed at the place of residence of the spouse against whom such right is to be exercised. It is further contended by him that the delegation of right of divorce is also challenged by the petitioner on the ground that the said right was not delegated by agreement between the parties and that he signed the Nikahnama in ignorance and without noticing that such right had been delegated in Column No. 18 of the Nikahnama. He further contends that when the petitioner realized that the Nikahnama contained such delegation, he executed a revocation of right of divorce document on 4.7.2009 and communicated it to Respondent No. 2. The learned counsel contends that where the factum of delegation of right of divorce is itself under challenge, the Superior Courts have held that the Union Councils have no jurisdiction to adjudicate upon the matter. Relies on 2000 CLC 202; PLD 2000 Lahore 644 and PLD 1964 (WP) Karachi 306.
The learned counsel for the respondent contests the aforesaid assertions. She submits that the interpretation of Rule 3(b) ibid as asserted by the learned counsel for the petitioner is incorrect. The provisions of the rule apply mutatus mutandis to the wife and she can file such notice at the place where she resides. This is on the same principle that a wife can file a suit for dissolution of marriage in a Family Court within whose jurisdiction she resides. She is not required to file such suit in a Court within whose jurisdiction the husband resides. In view of the fact that respondent resides within the jurisdiction of UC-97, she had correctly filed the notice.
As far as the question of delegation of the right of divorce is concerned, she submits that there was no defect in the original document and the plea has been belatedly taken after the respondent had exercised the right delegated to her to initiate proceedings for dissolution of marriage. It is pointed out that the Nikah was solemnized on 8.12.2008, she sent a notice of divorce on 29.6.2009 and the revocation of divorce document was executed on 4.7.2009. This clearly shows that the revocation document was an afterthought and a reaction to the notice of divorce served by the respondent. She further submits that even otherwise the right once delegated through the Nikahnama cannot unilaterally be withdrawn. The learned counsel also points out that an attempt was made on behalf of the petitioner to seek a restraining order against UC-97 from proceeding in the matter. However, the civil Court had refused to interfere in the matter.
I have considered the arguments advanced by both sides.
Admittedly the Respondent No. 2 resides within the territorial jurisdiction of UC-97. Although the nikah was registered with UC-98 but apparently that occurred on account of some confusion regarding territorial jurisdiction of both Union Councils which are adjacent to each other. It has been stated that the notice of divorce was submitted with UC-98 who refused to accept it citing territorial jurisdiction constrains and advised the respondent to file it with UC-97 within whose jurisdiction the respondent admittedly resides. For the purpose of filing notice of divorce, the Union Council within whose the jurisdiction the lady exercising the right of divorce resides, is in my opinion relevant, notwithstanding where the nikah was registered or where the husband resides. The language of Rule 3(b) of the West Pakistan Rules under Family Laws is quite clear. It has to be interpreted in light of the intent and purpose of the scheme of the Family Laws Ordinance which appears to be to facilitate the woman in exercising her rights and to save her from getting entangled in legal and procedural formalities in approaching different fora and Courts of law for redressal of her grievance. Seen from this angle, I am of the opinion that the language of the rule has to be given its literal interpretation and the right of divorce exercised either by the husband or by the wife has to be notified to the Union Council where the wife/woman resides at the relevant time. As far as territorial jurisdiction is concerned, a woman has the right to approach a Family Court within the limits of whose jurisdiction she resides. I do not see why the principle would be any different in case she exercises her delegated right of divorce. In this regard, the language of Section 8 of the Muslim Family Laws Ordinance 1964 is quite unambiguous. Section 8 provides as follows:--
"Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to the marriage wishes to dissolve the marriage otherwise than Talaq, the provisions of Section 7 shall, mutatus mutandis and so far as applicable, apply, (underlining is mine).
Section 8, read with Section 7 and Rule 3(b) ibid clearly show that in a situation, like the one in the present case, the Union Council within whose territorial limits the woman resides, has the requisite jurisdiction in the matter.
The stand taken by the petitioner regarding non-delegation of the right of divorce, prima facie appears to be self-contradictory. On the one hand he has taken the stance that he did not delegate such right, yet he took steps to revoke such delegation by executing a Revocation of Right of Divorce Document. The said document is not of much help to the petitioner either. The right once granted cannot unilaterally be revoked. The other stance taken by the petitioner that he did not notice the entry in Column-18 of the Nikahnama when he signed the same, until the respondent exercised her right under Column-18, does not hold much water either. There is no explanation why he waited till 4.7.2009 to agitate the matter. Even otherwise it is hard to believe that an educated and mature person would sign such an important document without going through its contents.
It is also significant to note that UC-97 entertained the notice sent by Respondent No. 2, and summoned the parties for reconciliation. The petitioner received notice, appeared and participated in the proceedings. The learned counsel has not been able to point out any prejudice that may have been caused to the petitioner that may furnish grounds for a direction that the entire exercise undertaken by Respondent No. 1 is coram non judice, illegal and without jurisdiction. The union council is exercising its jurisdiction lawfully. It is nobody's case that it is adjudicating the question of validity of the revocation of right of divorce document. The said question is the subject matter of a civil suit pending between the parties in which the learned Court has refused to issue a restraining order against the union council. The notice of divorce was sent by Respondent No. 2 to the petitioner and Respondent No. 1 on 29.6.2009. Respondent No. 1 received the same and summoned the petitioner to appear before him on 8.7.2009. Admittedly the petitioner has knowledge of the proceedings and had the opportunity to participate in the process of reconciliation. Reconciliation did not take place. This Court summoned both parties and provided them yet another opportunity to reconcile. This effort did not succeed either. The petitioner appears to be hell bent on keeping Respondent No. 2, hanging and stuck in legal technicalities and quibbles despite expiry of the statutory period of ninety days.
Procedural formalities are meant to facilitate and not thwart justice. These should not and cannot be allowed by the Courts to be misused to harass, torment and frustrate women, a high percentage of whom constitute the most oppressed segment of our society.
For what has been stated, no illegality is found in the exercise of his jurisdiction by Respondent No. 1. As a result this petition fails. It is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 122
[Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
MUHAMMAD ANWAR KHAN--Petitioner
versus
SABIA KHANAM--Respondent
W.P. No. 2531 of 2009, decided on 28.10.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for recovery of dower comprising a house and gold ornaments, dowry articles--Dower belongs to the father of deceased husband--Entitlement of--In Column Nos. 15 & 16 of the nikahnama gold ornaments and house were settled as dower--House described in nikahnama as dower was owned by father of deceased husband--Question of--Whether wife was entitled to the house as dower, even if it did not belong to her husband--Held: Husband as a rule, cannot give as dower property that does not belong to him but belongs to some one else including his father--An exception of such rule can be found if it is shown that the father of the husband agreed to do so. [P. 125] A
Nikahnama--
----Vicarious liability of father to pay debts of his son--Column Nos. 15 & 16 of nikahnama--Father-in-law can be said to have agreed or consented to give his property as dower to his daughter-in-law--No rule--Validity--A father has vicarious liability to pay the debts of his son in the absence of an agreement to contrary as appears to have been held in case of Muhammad Siddique vs. Shahad-ud-Din--Held: A father assumes direct liability which is different from being liable for debts of his son--Such a consent can be implied and is visible even when the father has not signed or affixed his thumb impression on the nikahnama or document for giving his property to his daughter in law as dower. [P. 125] B & C
Nikahnama--
----Column Nos. 15 & 16--Passive role of bridegroom--House described in nikahnama as dower belong to father-in-law--Nikahnama was not signed by the petitioner/father-in-law--Presence at the time of nikah was admitted--Validity--At the time of nikah in our society the bridgegroom has a passive role--Nikahnama is filled out with consent and instructions of the respective father's of bridgegroom and the bride or in their absence the respective elders of two families--Having knowledge of his house being given as dower--Validity--Inspite of having knowledge that his house had been given as dower in nikahnama, the petitioner never took any steps to take any legal action for exclusion of the house from the nikahnama--Held: Petitioner did not object to his house being given as dower either at the time of nikah or later till the suit by daughter-in-law filed--Further held: The house mentioned in nikahnama as dower for daughter-in-law, even though, it did not belong to the husband of respondent is liable to be transferred to the daughter-in-law as the father-in-law had given his consent for the same. [P. 126] D, E, F & G
Maintenance of minor--
----Liability of grandfather--In absence of father or on the inability of father--Question of--Petitioner as the grandfather of the minor is liable to maintain the minor--Liability of the grandfather to pay the maintenance for the minor would include past maintenance as well as future maintenance as the grand father is responsible to maintain his grand children in absence of the father or on the inability of the father to maintain his children. [P. 126] H
Qazi Muhammad Naeem Qureshi, Advocate for Petitioner.
Ms. Farhana Qamar Rana, Advocate for Respondents No. 1
and 2.
Date of hearing: 28.10.2009.
Order
The brief facts relevant for the disposal of this writ petition are that the marriage between Farrukh Hameed Khan and Respondent
No. 1 was solemnized on 6.8.2000 by means of nikahnama dated 6.8.2000. In column Nos.15 and 16 of the said nikahnama, gold ornaments of 10 tolas and a house were settled as dower to Respondent No. 1. Out of wedlock, Respondent No. 2, Hamza Ali Khan, was born to the couple on 4.6.2003. The marriage between Respondent No. 1 and Farrukh Hameed Khan came to an end on 16.3.2005 when the latter pronounced Talaq. On 27.5.2005, Respondents No. 1 and 2 filed a family suit against Farrukh Hameed Khan for recovery of dower comprising a house and gold ornaments, dowry articles or Rs. 1,59,500/- in lieu thereof, as well as maintenance for Respondents No. 1 and 2. Written statement was filed by the said Farrukh Hameed Khan on 21.9.2005, wherein, he took the stand that he did not own the house, described in the nikahnama dated 6.8.2000, which was being claimed by the Respondent No. 1 as dower.
During the pendency of the suit, the said Farrukh Hameed Khan died on 23.3.2008 and the Petitioners No. 1 to 5, who are the parents, brothers and sister of late Farrukh Hameed Khan, were impleaded as defendants on the application of the Respondent No. 1. After production of the evidence and hearing the parties, the Judge Family Court, Taxila, vide judgment and decree dated 2.4.2009, decreed Respondent No. 1's claim to the extent of the house but her claim for recovery of gold ornaments was dismissed.
By the same judgment and decree the claim of the Respondent No. 1 as to dowry articles was allowed as per the list produced or Rs. 1,00,000/- in lieu thereof and maintenance was also awarded to the Respondent No. 1 for her Iddat period as well as Rs.700/- per month as past maintenance and Rs.1500/- per month as maintenance from the date of judgment and 10 % increase till the age of majority was awarded to the Respondent No. 2. Against the said judgment and decree, appeals filed by the Respondent No. 1 and the petitioner were dismissed by the Addl. District Judge, Taxila, vide judgment and decree dated 4.2.2009. As a result, the findings of the Judge Family Court were up held on all the issues except the recovery of dowry which was settled between the parties on oath of the Holy "Quran".
The instant writ petition calls in question the concurrent findings of the Courts below mainly on the ground that the subject matter of the present lis i.e the house mentioned in the nikahnama, cannot be awarded to Respondent No. 1 on account of dower as it never belonged to the deceased husband of the Respondent No. 1.
It has been contended that the house described in the nakah nama as dower belongs to the petitioner, who is the father of the deceased husband of the Respondent No. 1 and is no way liable to transfer the said house to the Respondent No. 1 as he never agreed to give the house to the Respondent No. 1 as a surety or otherwise. To support the stand point, learned counsel for the petitioner has drawn may attention to the nikahnama dated 6.8.2000 to show that the nikahnama does not bear the signatures or thumb impression of the Petitioner No. 1. It is further contended that even otherwise, there was no agreement verbally or in writing as would indicate that the Petitioner No. 1 agreed to give the house in connection to his daughter-in-law on account of dower. In support of his contention, learned counsel has referred the case of "Muhammad Siddique etc Vs. Shahab-ud-Din etc" reported in "1927 Allahabad Series page 557, Volume (XLIX)" in which it was laid down that a muslim father does not by simply giving his consent to the marriage of his minor son, without making himself a surety, become liable for payment of dower to his daughter-in-law. Learned counsel on the same reasoning has contended that the petitioner cannot be held liable for the debts of their deceased son so far as the maintenance to the minor Respondent No. 2 is concerned.
In response, learned counsel for the respondent contends that the Petitioner No. 1 was present on the occasion of nikah of his son, Respondent No. 1, and the nikah nama was filled out and signed in his presence and with his consent. As such, the Petitioner No. 1 is liable to transfer the house described in the nikah nama to the Respondent No. 1. In support of her contention, learned counsel has referred to (2008 C.L.J. 589) titled "Maj. Rifat Nawaz etc Vs. Mst. Tahira etc" where the Peshawar High Court has decided that a house, described in the nikah nama, which was not owned by the husband but by his father, was liable to be transferred to his wife on account of dower. Learned counsel has also referred to the judgment of the Hon'ble Supreme Court of Pakistan in Civil Petitions No. 126 and 127 of 2009, 2007 C.L.C. 1517 as well as order in Writ Petition No. 398/2009 passed by this Court.
After going through the record and the case law submitted by the counsel for the parties, what needs to be determined is as to whether the Petitioner No. 1 in any manner assumed liability to transfer the house as dower which has been properly described with boundaries in Column Nos.15 and 16 of the nikah nama dated 6.8.2000.
The question that needs to be addressed is whether the Respondent No. 1 is entitled to the house as dower, even if it did not belong to her husband. Of-course, a husband as a rule, cannot give as dower property that does not belong to him but belongs to some one else including his father. An exception of this rule can be found if it is shown that the father of the husband agreed to do so/In the case of "Maj. Rifat Nawaz etc Vs. Mst. Tahira etc" referred to above, the father was held liable to transfer the house described in the nikah nama because he had thumb impressed the nikah nama which was construed as his agreement to give the house as dower.
Besides the nikah nama, there can be some other mode, whereby, a father-in-law can be said to have agreed or consented to give his property as dower to his daughter-in-law. There is no rule that a father has vicarious liability to pay the debts of his son in the absence of an agreement to the contrary as appears to have been held in case of "Muhammad Siddique etc Vs. Shahab-ud-Din etc" (Supra). However, it is altogether a different situation when a father consents to give to his daughter-in-law his property in consideration of her marriage to his son. In such case, a father assumes direct liability which is different from being liable for the debts of his son. Such a consent can be implied and is visible even when the father has not signed or affixed his thumb impression on the nikah nama or any other document for giving his property to his daughter-in-law as dower.
In the present case, the nikah nama has been signed by the Petitioner No. 1, but admittedly he was present at the time of nikah and there is no evidence that the nikah took place without his consent. It is common knowledge that at the time of nikah in our society, the bridegroom has a passive role, in so far as the answers to the questions in the nikah nama are concerned. Rather, the nikah nama is filled out with the consent and instructions of the respective fathers of the bridegroom and the bride or in their absence the respective elders of the two families.
In his cross examination, the Petitioner No. 1 has not only admitted his presence at the time of his son's nikah on 6.8.2000 but has also admitted having knowledge of his house being written in the nikah nama as dower to Respondent No. 1. While admitting having knowledge of his house being given as dower, the Petitioner No. 1 quite unconvincingly stated that he did object to the mention of his house as dower. It sounds inconceivable that the Petitioner No. 1 could not ensure the exclusion of his house as dower when it was being entered in Column Nos.15 and 16 of the nikah nama. As such, the only inference one can draw is that the Petitioner No. 1 agreed to give his house as dower to Respondent No. 1.
It is also to be noted that inspite of having knowledge that his house had been given as dower in the nikah nama dated 6.8.2000 the petitioner never took any steps to take any legal action for exclusion of the house from the nikah nama. In the circumstances, the petitioner did not object to his house being given as dower either at the time of nikah or later till the suit by Respondent No. 1 was filed.
In view of the foregoing, I am of the view that the house mentioned in the nikah nama as dower for Respondent No. 2, even though, it did not belong to the husband of Respondent No. 1 is liable to be transferred to the Respondent No. 1 as the Petitioner No. 1 had given his consent for the same.
As regards the question of the maintenance of the minor, the Courts below have rightly concluded that the Petitioner No. 1 as the grand father of the minor is liable to maintain the minor. The liability, of the Petitioner No. 1 to pay the maintenance for the minor would include past maintenance as well as future maintenance as the grand father is responsible to maintain his grand children in the absence of the father or on the inability of the father to maintain his children.
For what has been discussed above, the writ petition is dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 127
Present: Kh. Muhammad Sharif, J.
Ch. KHALID MUSHTAQ--Petitioner
versus
SPECIAL JUDGE (ADMN.) ANTI-TERRORISM COURT-III, LAHORE and 8 others--Respondents
W.P. No. 7328 of 2008, decided on 12.11.2009.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Anti-terrorism Act, 1997--S. 19--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Direction to submit challan u/S. 365-A in Anti-Terrorism Court--Question of--Jurisdiction to direct the police to submit challan under provision of law--Validity--Anti-Terrorism Court has no powered to issue such type of a direction to the police to submit a challan under a certain provision of law--Impugned order passed by Anti-Terrorism Court directing the investigating agency to submit challan u/S. 365-A, PPC is not sustainable in the eyes of law--Petitioner, if so advised, can approach the trial Court of competent jurisdiction for redress of his grievance at the appropriate stage through proper petition as provided under the law--Petition was accepted. [Pp. 129 & 130] A, B & C
PLD 2008 Lah. 63, PLD 2008 Lah. 523, PLD 2007 SC 31 & 2006 SCMR 276, ref.
Ch. Muhammad Rafique Warraich, Advocate for Petitioner.
Ch. Muhammad Hanif Khatana, Advocate General Punjab.
Kh. Suleman Mahmood, Assistant Advocate General Punjab.
Mr. Muhammad Waseem, Advocate for Complainant.
Date of hearing: 12.11.2009.
Order
This order shall dispose of WP No. 7328/08 (Ch. Khalid Mushtaq vs. Special Judge etc.) calling in question the impugned orders dated 22.2.2008, 29.2.2008 and 7.3.2008 whereby, the learned trial Court (Judge Anti-Terrorism Court-III, Lahore) has directed submission of challan under Section 365-A PPC and WP No. 4820/08 (Ch. Khalid Mushtaq vs. SP (Investigation) whereby quashment of the impugned FIR No. 862/07 dated 26.12.2007, under Section 365-A PPC, PS Faisal Town, Lahore, has been sought.
In the first Constitutional petition (WP No. 7328/08), learned counsel for the petitioner contends that the orders passed by the learned trial Court are without lawful authority; that while doing so, the learned trial Judge has assumed the role of an Investigating Agency and that the learned trial Court has no jurisdiction to direct the police to submit challan under a certain provision of law. In this regard learned counsel has placed on record a copy of the order dated 24.10.2007 passed by a learned Division Bench of this Court in WP No. 1078/07 whereby a similar direction of the learned Special Court was brushed aside. Confronted with the above situation, the learned Advocate General Punjab has frankly conceded that the learned trial Court has no jurisdiction to pass such an order.
On the other hand, learned counsel for the complainant, while defending the impugned orders, contends that under Section 19 of the Anti-Terrorism Act, 1997, the learned trial Court has jurisdiction to supervise the investigation and to pass such an order.
Heard. We have gone through the order sheet of the learned Judge Anti-Terrorism Court containing impugned orders dated 22.2.2008, 29.2.2008 and 7.3.2008 attested copies of which have been placed on the file by the learned counsel for the petitioner. Order dated 7.3.2008 is relevant which is reproduced below:
"As in the original FIR offence u/S. 365-A PPC was mentioned which is a scheduled offence under the ATA 1997, accordingly, firstly it was the duty of the relevant police officer who drafted FIR to add offence u/S. 7(e) ATA which was not done. After that it was the duty of the I.O. to investigate the matter and to bring case before this Court even if no offence u/S. 365-A PPC was made out which was not done by the I.O. The I.O. is directed to prepare the challan u/S. 365-A PPC and sec.7(e) ATA 1997 and submit the same before this Court. After submission u/S. 173 Cr.P.C./challan this Court u/S. 23 ATA shall decide as to whether offence u/S. 365-A PPC is made out or not. For waiting challan, to come up on 14.3.2008".
The learned Advocate General Punjab, who was present in Court in connection with some other case, has been called to assist in the matter. After having gone through the impugned orders, he has frankly conceded that the learned trial Court was not clothed with the authority to pass the impugned order whereby the learned trial Court has directed the police to submit challan against the accused under Section 365-A PPC. We have noted that the learned trial Court has traveled beyond its jurisdiction which was sole job of the Investigating Agency to submit a report under Section 173 Cr.P.C. before the Court of competent jurisdiction having jurisdiction to try the case.
So far as contention of the learned counsel for the complainant that the learned trail Court has power to pass such an order under Section 19 of the Anti-Terrorism Act, 1997 is concerned, we have gone through the said provision of law which does not empower the learned trial Court to issue such type of a direction to the police to submit a challan under a certain provision of law. Learned counsel for the petitioner has rightly given reference to the order dated 24.10.2007 passed by a learned Division Bench of this Court in WP No. 1078/07 a copy of which has been placed on the file, whereby, a similar direction of the learned Special Court was set aside. The said case has been reported as Muhammad Azam vs. Judge, Anti-Terrorism Court, Faisalabad and 6 others (PLD 2008 Lahore 63). The afore-referred view was reiterated in yet another judgment of the learned Division Bench of this Court in Muhammad Yasir vs. The State (PLD 2008 Lahore 523), wherein, while giving reference to Section 19(3) of the Anti-Terrorism Act, 1997 and Muhammad Azam's case(supra), it was observed that the learned Special Court constituted under the Anti-Terrorism Act, 1997, is not vested with the power to direct the Investigating Agency to submit challan after having incorporated the scheduled offence. To further fortify our view, a reference in this regard is given to the case of Muhammad Nasir Cheema vs. Mazhar Javaid and others (PLD 2007 Supreme Court 31), wherein, at page 33, the Hon'ble Supreme Court of Pakistan observed as under:
"6. The only provision relating to the subject which is available in the Code of Criminal Procedure is Section 173 which commands expeditious conclusion of the investigation and further ordains that on conclusion of every investigation, the concerned SHO shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under Section 190 Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the SHO either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner against only such persons as the Court desires or only with respect to such offences as the Court wishes......". (emphasis supplied)
After having gone through the impugned order dated 7.3.2008 (quoted above) passed by the learned Judge Anti-Terrorism Court No. III, Lahore and after having given anxious considerations to the submissions made by the learned counsel for the petitioner, complainant and the learned Advocate General Punjab coupled with fortifying our view by the precedent case law referred to above, this Court is of the considered view that the impugned order dated 7.3.2008 passed by the learned Judge Anti-Terrorism Court No. III, Lahore directing the Investigating Agency to submit challan under section 365-A PPC is not sustainable in the eye of law, therefore, WP No. 7328/08 is accepted and the impugned order is set-aside.
Through WP No. 4820/08, petitioner has sought quashment of FIR No. 862/07 dated 26.12.2007, under Section 365-A PPC, PS Faisal Town, Lahore. We have been informed that the challan in this case has been submitted, therefore, keeping in view the dictum laid down by the Hon'ble Apex Court in Col. Shah Sadiq vs. Muhammad Ashiq and others (2006 SCMR 276), WP NO.4820/08 is disposed of with the observation that the petitioner, if so advised, may approach the learned trial Court of competent jurisdiction for the redress of his grievance at the appropriate stage through a proper petition as provided under the law, as per guidelines enunciated in the above judgment of Hon'ble Supreme Court of Pakistan.
(R.A.) Petition accepted.
PLJ 2010 Lahore 132
[Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
ZAFAR ALI--Petitioner
versus
ADDITIONAL DISTRICT JUDGE--Respondent
W.P. No. 7621 of 2009, decided on 8.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Jurisdiction--Suits for recovery of dower and maintenance allowance--Maintenance allowance was awarded for two minors--No jurisdictional error in two judgments and decrees of Courts below--Concurrent findings--Petitioner has to pay maintenance allowance to his children fixed by trial Courts after correct appraisal of evidence--Maintenance allowance at specific rate was not excessive or harsh in any way--Petitioner was maintaining his other wife but he was not ready to maintain his two minor children which was born out of wedlock of the petitioner--No jurisdictional error in the judgments of the Courts below, in writ jurisdiction, concurrent findings of two Courts below which were based on cogent reasons, on the basis of correct appraisal of evidence where no misreading or non-reading was found, cannot be disturbed in writ jurisdiction--Petition was dismissed. [P. 135] A
Malik Abdul Waheed Awan, Advocate for Petitioner.
Mr. Muhammad Suliman Khan, Advocate for Respondent.
Date of hearing: 8.12.2009
Order
Through this constitutional petition, petitioner Zafar Ali son of Mian Abdul Qadar seeks setting aside of judgments and decrees passed by both the Courts below firstly by Judge Family Court who passed the judgment and decree against the petitioner on 31.3.2009 secondly by the learned Additional District Judge on 9.6.2009.
ISSUES:--
Whether the Plaintiff No. 1 is entitled to decree for the recovery of dower five toolas gold ornaments and four kanals land situated at Peer Abdul Ghafoor Shah District Jhang? OPP.
Whether plaintiffs are entitled for maintenance allowance if so, at what rate and for what period? OPD.
Whether the defendant is entitled to decree for restitution of conjugal rights in his favour and against Plaintiff No. 1? OPD.
Relief.
Respondent/plaintiff produced her evidence on 24.03.2009. She herself appeared as PW-1 and filed her affidavit Ex.P-1. She also examined Rab Nawaz as PW-2 and filed his affidavit Ex.P-2. She also produced "nikahnama" Ex.P-3.
Petitioner/defendant himself appeared before the Judge Family Court as DW-1 and filed his affidavit as Ex.D-1. He also examined Muhammad Nawaz as DW-2, produced attested copy of decree and order dated 29.10.2008 for restitution of conjugal rights passed by learned Judge Family Court as DW-2. He produced photograph of plaintiff as Mark "A".
The learned Judge Family Court in the light of evidence on record and after hearing both the parties vide judgment and decree dated 31.3.2009 decreed the suit of the plaintiff/respondent to the extent of recovery of dower to the extent of 1-1/2 tolas golden ornaments and
4-K of agricultural land and dismissed the suit of the plaintiff/ respondent for recovery of maintenance allowance for her and decreed the suit of the Plaintiff 2, 3 (minors) at the rate of Rs. 1200/- per plaintiff per month from 1.7.2008 till the Plaintiff No. 2 attained the age of 18 years and for Plaintiff No. 3 till her marriage from the date of this judgment and decree with 10% annual increase in the fixed maintenance allowance.
Petitioner/defendant filed an appeal before Additional District Judge Kot Addu on 2.5.2009 against the judgment and decree of the Judge Family Court. Learned Additional District Judge dismissed the appeal vide judgment dated 9.6.2009.
The petitioner assailed judgments and decrees of both the Courts below, contending that petitioner/defendant has very limited resources of income and he is destitute person belongs to low income class of society. He further contends that he has another wife. He has to maintain her first wife and her children and he has to maintain his old age parents. Learned counsel for the petitioner submits that maintenance allowance fixed by both the Courts below is excessive harsh and exorbitant.
On the other hand learned counsel for respondent/plaintiff vehemently supported the judgment of two Courts below. Learned counsel for respondent pointed out that piece of evidence relating to statement of plaintiff about the income of the petitioner was not cross-examined by the petitioner/defendant. That piece of evidence which is not cross-examined will be considered correct. He submitted that the respondent/plaintiff in her statement through affidavit stated that the defendant/petitioner is a man of means and he is able to maintain. Learned counsel contends that minor Mst. Tayyuba and Muhammad Umair two minors are children of petitioner Zafar Ali Khan. He is bound to maintain them even in adverse circumstances. Learned counsel further submitted that writ petition against the findings of Judge Family Court which were upheld by the learned lower Court is not maintainable as there is no jurisdictional error in the two judgments and decrees of two Courts below. Learned counsel for respondent made reliance on 2009 SCMR 1243 "Waqar Haider Butt vs. Judge Family Court and another" in the similar case Judge Family Court had awarded maintenance allowance for two minors. The judgments of two Courts were assailed through constitutional petition which was dismissed and the honourable Supreme Court declined to interfere in the judgment of High Court. The petitioner has to pay maintenance allowance to his own children fixed by the trial Court upheld by the lower appellate Court after correct appraisal of evidence on record. In these days of dearness maintenance allowance at the rate of Rs. 1200/- is not excessive or harsh in any way. It is surprising that the petitioner is maintaining his other wife but he is not ready to maintain his two minor children which were born out of wedlock of the petitioner with Mst. Shazia Bibi.
There is no jurisdictional error in the judgments of both the Courts below. In writ jurisdiction, concurrent findings of two Courts below which are based on cogent reasons, on the basis of correct appraisal of evidence where no misreading or non-reading is found, cannot be disturbed in writ jurisdiction.
In the light of above discussion, this writ petition is dismissed with no order as to cost.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 135
[Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
Ch. MUHAMMAD HANIF--Petitioner
versus
CHAIRMAN FEDERATION OF PAKISTAN--Respondent
W.P. No. 4395 of 2009, decided on 13.10.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 5--West Pakistan Motor Vehicle Rules, 1969, R. 267--Constitution of Pakistan, 1973, Art. 199--Period of limitation for filing an appeal--Appeal before Chairman, Provincial Transport Appellate Authority was time barred--Condonation of delay--Matter of renewal of D-Class wagon stand--Authority unanimously decided to refuse the request of applicant for grant of D-Class wagon stand license--Question of--Whether in West Pakistan Motor Vehicle Ordinance, 1965 is applicable to the proceeding in the matter of license--Held: No provision for application of S.5 of Limitation Act--West Pakistan Motor Vehicle Ordinance, 1969 is a special law, unless there is provision of applicability of Section 5 of Limitation Act, delay in filing the time barred appeal cannot be condoned--Chairman Pb. Provincial Transport Appellate Authority, had rightly dismissed the appeal of the petitioner--Petition was dismissed. [P. 138] A
Sahibzada Mehboob Ali Khan, Advocate for Petitioner.
Mian Hafeez-ur-Rehman, Advocate for Respondent.
Date of hearing: 13.10.2009.
Order
Through this writ petition, the petitioner has prayed for the following relief:--
"In view of the above submissions, it is, therefore, most respectfully prayed that writ petition may kindly be accepted and the impugned orders dated 28.03.2009 passed by Respondent No. 1 and dated 31.7.2007 passed by Respondent No. 2 may kindly be declared as illegal, void ab-initio, without jurisdiction, without lawful authority and of legal effect, hence, the same may kindly be set aside in the interest of justice and order of sanction of D-Class Wagon stand license in favour of the petitioner dated 28.09.2004 may please be renewed/extended."
Brief facts necessitating the filing of instant writ petition are that the matter of renewal of D-Class Wagon Stand, at property situated Khewat No. 67, Khatooni No. 84, measuring 2-Kanals 12-Marlas and 2-Sq. Ft. at Chak No. 145/9-L, Tehsil and District Sahiwal, in the name of the petitioner was pending before Respondent No. 2, District Regional Transport Authority Sahiwal by virtue of remand order by the Chairman, Punjab Provincial Transport Authority, Lahore, passed in Transport Appeal No. 17/2004. This D-Class Wagon stand license was granted by the District Regional Transport Authority Sahiwal in its meaning held on 28.09.2004. The proprietor of another D-Class stand (Lambardar Flying Coach) filed on appeal before the Chairman, Punjab Provincial Transport Authority, Lahore against sanction of this license. The appellate authority set aside the impugned order dated 28.09.2004 in transport Appeal No. 17/2004 on 12.03.2005 with the direction that District Regional Transport Authority Sahiwal should decide the matter afresh after providing proper hearing to the parties. In view of the above direction of the appellate authority the case was considered by the District Regional Transport Authority in this meeting held on 27.03.2006. Both the parties were present and heard in detail. The authority decided to call NOCs afresh. Therefore, NOCs from the local authorities viz EDO (Revenue), TMO are affirmative while DPO Sahiwal has opposed the sanction of D-Class wagon stand. The matter was discussed in detail and record was perused. In this regard, Rule 255(2) of MVR 1969 gave ample guidance. The rule ibid categorically provided that in selecting a site for stand, DRTA shall be guided by the opinion given by the DCO & Superintendent of Police of the area concerned. In the instant case, the report for establishment of stand in favour of applicant was called from the District Police Officer, Sahiwal, who has opposed for the grant of D-Class stand license due to law & order situation in the vicinity. In view of the report of DPO, Sahiwal and the above provisions of law, the authority unanimously decided to refuse the request of applicant for grant of D-Class wagon stand license at Chak No. 145/9-L Tehsil & District Sahiwal.
Learned counsel for the petitioner submits that Tehsil Municipal Administration through Report No. 457 dated 15.09.2006 has recommended for issuance of license with the following conditions:--
"It is submitted that the site of the subject is suitable for wagon stand as required amenities/facilities are properly provided at this stage. It has proper parking space and will have least effect on the traffic on road."
He further submits that the Executive District Officer (Revenue) submitted recommendation in favour of the petitioner but the Respondent No. 2 has refused to renew, D-Class Wagon Stand license through non-speaking impugned ex-parte order dated 31.07.2007. Learned counsel for the petitioner further submitted that petitioner applied D-Class Wagon Stand in Chak No. 145/9-L, Tehsil and District Sahiwal DRTA in 2002; that the authority called for report from the concerned officers including the police; that all the concerned quarter gave report in favour of the petitioner and the application was allowed by the competent authority for D-Class Vagon stand on 28.09.2009; that in appeal the case was remanded to Respondent No. 2 for decision after hearing the parties and on 27.03.2009 parties were heard by Respondent No. 2, however, no decision was taken at that time matter was kept in lingering possession; that fresh report were again called from the concerned quarter; that the N.O.C. from E.D.O. (Works), E.D.O. (R) and T.M.O. were affirmative but Police report was against the petitioner; that earlier District Police Officer, Sahiwal has made report in favour of the petitioner but subsequently, this was in negative on some extraneous reasons: that the competent authority dismissed the application for establishing a wagon stand D-Class against the rejection of application by the competent authority petitioner filed an appeal before the Respondent No. 1, Chairman, Punjab Provincial Transport Appellate Authority, Lahore, who dismissed the appeal of the petitioner being time barred; that the findings of Chairman PTA regarding the presence of the parties as well as the period of limitation for filing an appeal are incorrect and unlawful; under Section 267 of the West Pakistan Motor Vehicle Rules, 1969 time commence not from announcement of order but from receipt of order.
Learned Counsel for the respondents submits that petitioner applied for certified copy of decision dated 31.07.2007 well in time on 06.08.2007 and received the same on 09.08.2007 just after 3 days. Petitioner slept about his rights for a long period did not impugned the order; learned counsel for the respondents fully supports the order dated 28.3.2009; further submits that there is no provision of Section 5 of the Limitation Act in West Pakistan Motor Vehicle Ordinance, 1965 and under the rules.
I have heard the learned counsel for the parties and perused the file.
The decision of the Chairman, Provincial Transport Appellate Authority, Lahore, is based on cogent reason. Respondent received the certified copies of the order in time and filed time barred appeal. Present petitioner Muhammad Hanif filed an application under Section 5 of the Limitation Act for condonation of delay which is established that it was in his mind that appeal before Chairman, Provincial Transport Appellate Authority, Lahore was time barred, when the counsel for the petitioner was confronted with the question whether in West Pakistan Motor Vehicle Ordinance, 1965 is there any provision of application of Section 5 of the Limitation Act, which is applicable to the proceeding in the matter. He had no answer. This Court examined the provisions of Motor Vehicle Ordinance, 1965. There is no such provision for application of Section 5 of the Limitation Act. West Pakistan Motor Vehicle Ordinance, 1969 is a special law, unless there is provision of applicability of Section 5 of the Limitation Act, delay in filing the time barred appeal cannot be condoned. The respondent had rightly dismissed the appeal of the petitioner vide order dated 28.3.2009.
Resultantly, order dated 28.3.2009 passed by the Chairman, Provincial Transport Appellate Authority, Lahore is upheld and the instant writ petition is dismissed with no order as to cost.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 138
[Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
MUHAMMAD ISHAQ--Petitioner
versus
MANZOOR AHMAD and others--Respondents
Civil Revision No. 709-D of 2009, decided on 10.11.2009.
Punjab Pre-emption Act, 1991--
----S. 13--Civil Procedure Code, (V of 1908)--S. 115--Civil revision--Performance of talb-e-muwathibat and talb-e-ishhad--Concurrent findings--Petitioner being shafi shareek, shafi khaleet and shafi jar brought a suit for possession through preemption in Civil Court--Actual sale price of disputed property was fixed as Rs. 25,000/- wherein amount of mortgage was also included, but to defeat the right of pre-emption of plaintiff ostensible sale price of Rs. 26,000/- was shown--No illegality or irregularity in the judgments of Courts below which were based on best appraisal of evidence--Concurrent findings of Courts below with regard to performance of talbs--Held: Performance of talb-e-muwathibat, which is basic ingredient to prove the performance of talb-e-muwathibat, date of issue of notice and performance of talb-e-ishhad in terms of S. 13 of Pre-emption Act was not proved--Unless there is jurisdictional defect in orders passed by Courts below, High Court cannot interfere in the concurrent findings in exercise of power u/S. 115, CPC--Civil revision was dismissed.
[Pp. 141 & 142] A & B
PLD 2007 SC 302, 2007 SCMR 926, 2007 SCMR 270, PLD 2005 SC 418 & 2003 SCMR 83, rel.
Ch. Muhammad Sana-ul-Haq, Advocate for Petitioner.
Date of hearing: 10.11.2009.
Order
Through this civil revision under Section 115, CPC, petitioner Muhammad Ishaq son of Munshi Khan, calls in question the judgments and decrees dated 10.11.2008 and 11.08.2009, respectively passed by Civil Judge, Chichawatni, District Sahiwal, and Additional District Judge, Sahiwal. Through the former judgment dated 10.11.2008 the learned Civil Judge dismissed the suit of the petitioner filed for possession of the land in dispute through pre-emption, whereas through the latter judgment and decree dated 11.08.2009, appeal filed by the petitioner against the judgment and decree of the civil Judge dated 10.11.2008 was dismissed.
Brief facts of the case leading to the filing of this Civil Revision are that land measuring 03 kanals 04 Marlas, situated in Khewit No. 280, Khatuni No. 870, Khasra No. 26/15,2/2, in Chak No. 95/12-L, Chichawatni, District Sahiwal was jointly owned by Muhammad Iqbal, Muhammad Ishaq sons of Munshi Khan, and Muhammad Aslam as well as Muhammad Akram son of Mushtaq Ahmad. Muhammad Iqbal Khan sold his share of 01 kanal and 01 Maria to respondents Manzoor Ahmad and Muhammad Amin sons of Faqir Muhammad vide Mutation No. 1985 dated 26.03.1999. The petitioner-plaintiff Muhammad Ishaq son of Munshi Khan, being Shafi Shareek, Shafi Khaleet and Shafi Jar, brought a suit for possession through pre-emption in the Civil Court on 29.5.1999 relating to the said sold land measuring 01 Kanal 01 Marla alleging that the same had been sold secretly vide the above mutation to the said respondents Manzoor Ahmad and Muhammad Amin. It is alleged in the plaint of the suit that the actual sale price of the disputed property was fixed as Rs. 25,000/- wherein amount of mortgage was also included, but to defeat the right of pre-emption of the plaintiff-petitioner ostensible sale price of Rs. 26000/- was shown; that the defendants-respondents or the vender did not give any notice to the respondent-plaintiff regarding the sale. The defendants respondents filed written statement, necessary issues were framed by the trial Court, evidence of the parties was recorded. Plaintiff-petitioner produced five witnesses as well as documentary evidence Exh.P.6 to Exh.P.9. On behalf of the defendants-respondents DW-1 and 2, namely, Muhammad Tufail and Manzoor Ahmad (defendant) were produced. At the conclusion of the trial the learned trial Court dismissed the suit of the plaintiff-petitioner vide judgment and decree dated 10.11.2008.
The learned trial Court decided pivotal Issue No. 5 regarding performance of Talbs against the petitioner-plaintiff observed as under:--
"The plaintiff while appearing as PW-1 stated that the mutation was got executed quarter to five years prior. Muhammad Sharif PW-2 stated that the plaintiff/PW-1 came to know regarding the mutation after 4/5/6 days after passing the mutation and the same came in the knowledge of the plaintiff five years or quarter to five years prior. He admitted in his cross-examination that the plaintiff came to know regarding the mutation after 5/7 days of passing of same whereas the date of passing the mutation is admittedly 23.3.1999. Hanif Khan stated that the plaintiff came to know regarding the mutation of the suit property quarter to five years prior. The evidence of PW-1, PW-2 and PW-3 was recorded on 20.03.2004 whereas the date of knowledge of mutation has been given as 14.05.1999 in the plaint. There are serious contradictions regarding Talb-i-Muwathibat and no PW has narrated that it was 14.05.1999 when the plaintiff got knowledge of the sale of the suit property.
The plaintiff stated in his plaint that he along with others went to the defendants to make Talb-e-Ishhad after four days by 14.05.1999 and then he went to Sahiwal for posting the notice under registered cover A.D. PW-1 in his cross-examination stated that he did not know that how much notices were prepared. He also has no knowledge that he signed how much notices. He admitted that he did not send separate notices to the defendants. PW-2 admitted in his cross-examination that he did not affix thumb impression except one page. He also stated that Hanif Khan PW-3 also did not sign on any other paper except one. PW-3 in his examination-in-chief stated that they went to the defendants next day from knowledge of the mutation. He stated that the original one was posted in the post office and the notice Exh.P/1 is not the original one. He also admitted that he signed only one page. Exh.P.4 and Exh.P.5 are the receipts of registered cover produced by the plaintiff. Exh.P./1 is the original notice and Exh.P.7 is also original notice. PW-1 do not know that how much notices were prepared whereas PWs-2 and 3 stated that they affixed thumb impressions and signed only on one page. Both the notices Exh.P./1 and Exh.P.7 carries original signatures and original thumb impressions. If only one notice was made and the same was posted to the defendants from where Exh.P./1 and Exh.P.7 came. There is no corroboration in the statements of all the three PWs and in this way the Talb-i-Ishhad also could not be proved by the plaintiff."
The appeal filed against the judgment and decree of the Civil Court by the petitioner-plaintiff was dismissed by the learned Additional District Judge as aforesaid.
Learned counsel for the petitioner-plaintiff argued that both the Courts below wrongly dismissed the suit and appeal of the petitioner. The plaintiff had succeeded in establishing the performance of necessary demands, i.e. Talb-e-Muathibat and Talb-e-Ishhad. Further submits that to prove the Talbs witnesses were produced who had signed the notice of Talb-e-Ishhad. He prayed that the findings of the learned trial Court as well as of the learned lower appellate Court on Issue No. 5 relating to fulfillment of Talbs was wrongly decided against the plaintiff-petitioner, so the judgments of both the Courts below are based on mis-reading and non-reading of evidence, and they should be set aside and per-emption suit of the plaintiff-petitioner should be accepted.
I have heard the learned counsel for the petitioner. The learned counsel badly failed to point out any illegality or irregularity in the judgments of the two Courts below, which are based on best appraisal of evidence. There are concurrent findings of two Courts below with regard to the performance of Talb-e-Muwathibat and Talb-e-Ishhad. I have gone through the contents of the plaint. In para-5 of the same exact time of performance of Talb-e-Muwathibat, which is basic ingredient to prove the performance of Talb-e-Muwathibat, date of issue of notice and performance of Talb-e-Ishhad in terms of Section 13 of the Pre-emption Act is not proved. Reliance is placed on the case of Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302). Finding of the learned trial Court rightly was upheld by the learned Additional District Judge.
When there are concurrent findings with regard to facts and law, unless there is jurisdictional defect in the orders passed by the two Courts below, the High Court cannot interfere in the said concurrent findings in exercise of power under Section 115, CPC. Reliance is placed on the cases reported in 2007 SCMR 926(a), 2007 SCMR 870 (e), PLD 2005 SC 418 and 2003 SCMR 83. There is no jurisdictional defect in the orders of both the Courts below. The findings of both the Courts below are based on cogent reasons. There is also no illegality or irregularity in the said judgments.
For the reasons discussed above, I find no force in the civil revision, which is dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 142
Present: Abdul Sattar Goraya, J.
SARDAR KHAN--Petitioner
versus
BASHIR AHMED--Respondent
C.R. No. 1499 of 2003, heard on 7.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Punjab Pre-emption Act, 1991--S. 13(1)--Civil revision--Notice of talb-i-ishhad was not given and it was not received by vendee and requisite performance of talbs were non-existent--Divergent pleadings--An appeal was taken against the impugned judgment by vendee which was accepted by First Appellate Court--Lacuna or error in completing the formalities necessary to be done by law--Photo stat copy of the notice which was not believed to be correct--Validity Photo copy of the notice sent to respondent the witness of which had been produced in evidence, could not be said to be a copy other than one dispatched to the addressee--Whem the receipt of the postal department which was proved to be unambiguous evidence witness, a strong presumption arises that the notice must have been received by addressee and if some one has not received the notice and the same was returned in original for any reason, the petitioner suitor cannot be blamed--Held: Photo copy of the notice brought on record was sufficient evidence to determine that talb-e-ishhad had been performed and the photo copy can be accepted as a valid truth.
[P. 146] A & B
2008 SCMR 1444, ref.
Punjab Pre-emption Act, 1991--
----S. 13(1)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Talb-e-muwathibat--Presumption--All villagers know to the date of sale-deed--Necessary presumption would be that the petitioner had a notice of sale transaction--Held: Other people of village had got knowledge, it does not mean that the petitioner had also knowledge of the sale--Knowledge of other person cannot be presumed to be knowledge of the suiter--Revision was accepted. [Pp. 146 & 147] C
Chaudhry Muhammad Rafique Warraich, Advocate for Petitioner.
Sardar Muhammad Ramzan, Advocate for Respondent.
Date of hearing: 7.05.2009
Judgment
By means of this revision brought under Section 115, C.P.C., the judgment & decree dated 17.07.2003 of the learned Additional District Judge, Kharian have been brought under impeachment.
"1. Whether the plaintiff has got superior right to pre-empt the suit land? OPP
Whether the plaintiff has performed Talbs in accordance with law? OPP
Whether ostensible sale price of Rs. 22,50,000/- was fixed and paid in good faith as consideration of the suit land? OPD
What is market value of the suit land? OPPs
Whether the defendant is entitled to get incidental charges in case the suit is decreed? If so to what extent? OPD
Whether the plaintiff has got no cause of action and locus-standi to bring this suit? OPD
Whether the plaintiff is estopped by his word and conduct to institute this suit? OPD
Whether the suit does not lie? OPD
Whether the suit is time barred? OPD
Whether the plaintiff has not deposited Zar-i-Some as ordered by the Court: If so, its effect? OPD
Whether the suit is not properly valued for the purpose of Court fee? OPD
Whether the plaintiff has waived his right of pre-emption? OPD
Whether the suit is false, based on mala fide and the defendant is entitled to get special costs? OPD
Relief.
Issues No. 1 & 2 are the core issues in the whole case. Onus of these two issues was proposed upon the plaintiff. While returning finding on Issue No. 2, the learned trial Judge came to the conclusion that the necessary Talbs have been performed in accordance with law and nothing has been brought out on record by the defendant to reach at a conclusion that there was some lacuna or error in completing the said formalities necessary to be done by law. Issue No. 1 in respect of superior right was also answered in favour of the petitioner by having held that according to the Jamabandi for 1993-94 (Exh. P-3), the suitor is Shareek Khata. Issues No. 3 and 6 to 13 were also answered against the defendant. Onus of Issue No. 4 was proposed upon both parties and it was held that the market price has been correctly shown as Rs. 22,50,000/- in the sale deed. On Issue No. 5, it was held that the vendee is entitled to receive apart form the amount shown in the deed, the necessary expenses incurred by the vendee and he is also entitled to receive an amount of Rs. 20,02,500/- from the petitioner. In nutshell, the suit was decreed subject to deposit of Rs. 22,50,000/- and the incidental charges as determined under Issue No. 5. An appeal was taken against the said judgment & decree by the vendee, which was accepted by the learned Additional District Judge, vide his judgment & decree dated 17.07.2003.
Learned counsel for the petitioner states that the learned Additional District Judge while passing the impugned judgment & decree based his decision on extraneous considerations and the conclusion drawn by him is running counter to the evidence available on the record. Further argued that Talb-i-Ishhad and all the necessary Talbs were performed in accordance with law but the learned Additional District Judge while passing the impugned judgment & decree altogether set-up a new case to the advantage of the vendee-respondent which even otherwise is not available on the record.
Conversely, the learned counsel for the respondent argued that the impugned judgment & decree passed by the learned Additional District Judge is rich in detail and came out with the plea that the Talb-i-Ishhad was not performed according to the requirements and standard fixed in Section 13(1)(b) of the Punjab Pre-emption Act, 1991.
I have given conscious thought to the arguments made by learned counsel for the parties and with their able assistance have gone through the record available before me.
The learned Additional District Judge while reversing decree of the trial Court, focused his decision on the point that the sale deed was made through a registered instrument and the witnesses admitted that all the villagers knew the registration of the sale-deed. It was emphasized that since all villagers knew with regard to the date of sale-deed, the necessary presumption would be that the petitioner had a notice of the sale transaction on 26.07.1993 but he sent a notice on 26.08.1997. The stance taken by the suitor that he gained knowledge on 23.08.1997 was held to be incorrect. Concluding Paragraph 10 of the judgment of the learned Additional District Judge is relevant which is reproduced:--
"It is an admitted fact that the sale made through a registered sale-deed and the P.W-3, P.W-4 and P.W-5, all have admitted that all the villagers knew at the time of registration of the sale-deed that the property had been sold out means that at the time of registered sale-deed i.e. 26.7.1997, all the villagers knew that the property had been sold and the plaintiff respondent sent a notice on 26.8.1997 whereas he had said that he came to have the knowledge of the sale-deed on 23.8.1997 which fact is not supported by his own evidence if all the villagers knew that the property had been sold through registered sale-deed at the time of registration of the sale-deed i.e on 26.6.1997 then it is not possible considering our set up of villages' life style that plaintiff/respondent could not had got the knowledge of the sale-deed."
"We have heard learned counsel for the petitioners and have also gone through the impugned judgment as well as the case law being relied upon by the learned counsel. It is to be noted that as far as P.W.1 Zeenat Khatoon is concerned, she has tendered copy of notice which was in her possession, after sending the original to the petitioners, therefore, in our opinion, the Court was legally right to accept its Photo-stat copy and on this score, no point is made out for grant of leave to appeal. The judgment being relied upon by the learned counsel is distinguishable, in view of the facts and circumstances of instant case."
Ghulam Abbas and another vs. Manzoor Ahmad and another (2008 SCMR 1366) and Khuda Bakhsh vs. Muhammad Yaqoob etc. (1981 SCMR 179) are also quoted with advantage.
Learned Additional District Judge in my considered view has altogether set-up a new case to the advantage of respondent-vendee which otherwise is not spelled out from the record. The evidence on the point of Talb-i-Muwathibat is consistent and there is no discrepancy in it. The presumption drawn by the learned Additional District Judge that since other people of village had got knowledge, it does not mean that the petitioner had also knowledge of the sale. Knowledge of other persons cannot be presumed to be a knowledge of the suitor. This is for the first time, a new interpretation of Section 13(1) of the Punjab Pre-emption Act has been brought on the record. The impugned judgment and decree in any case is not sustainable at law.
For what has been stated above, the revision petition is accepted with costs and the impugned judgment & decree dated 17.07.2003 passed by the learned Additional District Judge are set-aside with costs and that of the learned trial Court dated 29.11.2002 are restored.
(R.A.) Revision accepted.
PLJ 2010 Lahore 147
Present: Ijaz-ul-Ahsan, J.
Mst. ZAHIDA PARVEEN--Petitioner
versus
MUHAMMAD NAWAZ and another--Respondents
W.P. No. 20752 of 2009, decided on 25.11.2009.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Application for custody of minor son was dismissed--After dissolution of marriage both parties had re-married--Custody of the minor was sought on the ground that the minor's mother was residing with her husband, who was labourer and had no permanent source of income--First appellate Court handed over the minor to respondent Father of the minor--Challenge to--Validity--Minor was about 8 years old-child was kept in an environment of uncertainly and there were flaws in his educational foundation and upbringing the entire structure of his personality as well as his career in future was likely to be effected--Held: Neither the petitioner nor her husband had a stable income and the fact that she had left the minor to be raised by her old father did not anger well with the goal of providing a conducive environment for a child to grow up--It was obligation of the father to provide adequate funds by way of maintenance to the mother to meet the needs of the child--Further held: Considering the financial situation of the mother and in presence of an illiterate step father, who had no source of income, the possibility of such funds being misapplied cannot be ruled out.
[P. 150] A
Custody of Minor--
----Financially sound--No child from second marriage--Minor was about 8 years old--Direct supervision of real father--Father is a teacher in school--Can keep the child with him for a major part of the day and be a good role model for him--Validity--It would be possible for him to keep the minor with him in his school, supervise his activities and directly take care of his educational, financial, psychological and emotional needs--Held: Male minor need a father or a father figure in their lives for proper and healthy development of their personalities--It would be doing the child a dis-service if he were to be deprived of the opportunity of growing up with the support, in the company and under the direct supervision of his real father.
[P. 150] B
Custody of Minor--
----Step mothers are not Ginderalla's step mother--Question of living with a step mother--Minor was age of 8 years old--Possibility of ill treatment--All step mothers are not Ginderalla's step mothers--Such type casting in human relationships should be avoided, unless there is any direct evidence of cruelty or ill will--Child being of school going age will spend most part of the day and most part of the week in school in an academic environment under the supervision of his father--Possibility of ill treatment, even if existence in facts and circumstances of the present case is quite remote. [Pp. 150 & 151] C
Custody of Minor--
----Welfare of the minor--Question of custody--Determination--Adequate visiting right--Being financially stable and employed in a school is in much better position to meet the material needs of the child--Validity--Educational needs of the minor have not been properly catered for by the petitioner--Despite being about 8 years old, the child was still in class-I and appears to had been admitted in school in order to avoid a plea being taken by the father that child was not being sent to school was in a much better position to meet the material needs of the child--High Court can also provide better guidance and supervision as compared to husband or father of the mother--Need of the minor for maternal love and affection can be met by providing adequate visiting rights to the mother so that she can spend a reasonable amount of time with the minor. [P. 151] D
Raja Qamar Tabbasum, Advocate for Petitioner.
Ch. Muhammad Adrees, Advocate for Respondents.
Date of hearing: 25.11.2009.
Order
The petitioner challenges order dated 31.8.2009 passed by the learned Addl. District Judge, Gujrat, through which he set aside order dated 11.6.2009 passed by the learned Judge Family Court, Gujrat whereby respondent's application for custody of his minor son was dismissed.
The respondent filed an application under Section 25 of the Guardian & Wards Act against the petitioner and Bahadar Khan for obtaining custody of his minor son Hassan Nawaz, who was born on 1.1.2002. The marriage between the parties had earlier been dissolved on 26.5.2005. The record indicates that after dissolution of marriage both parties have re-married. Custody of the minor was sought by the respondent on the ground that the petitioner was residing with her husband, who was a labourer and had no permanent source of income and they were both illiterate. Further according to the allegations contained in the application, the petitioner had left the minor child with her father who was not in a position to take care of the minor whose health was suffering and the minor was not being brought up in a healthy and congenial atmosphere. Respondent No. 1 claimed that he is an educated person, owns agricultural property and is also employed as a school teacher. He is in a much better position to provide a healthy and conducive atmosphere for a young child to grow up. Since he teaches in a school, he can keep the child with him for a major part of the day and be a good role model for him. Despite having contracted second marriage, Respondent No. 1 claimed that his second wife is unable to bear a child and the minor will not be subjected to the proverbial step motherly treatment.
The parties adduced oral as well as documentary evidence before the trial Court. The position taken by the Respondent No. 1 before the trial Court did not prevail. The application was dismissed and the custody of the minor was handed over to the petitioner by the learned Family Court. The aforesaid order was challenged in appeal before the learned Addl. District Judge, Gujrat. Vide order dated 31.08.2009, the appeal filed by Respondent No. 1 was accepted, the judgment and decree of the Family Court was set aside and custody of the minor was ordered to be handed over to Respondent No. 1. This order has been challenged before this Court by the mother, who has been deprived of the custody of her 8 years old son.
The learned counsel for the petitioner submits that the Respondent No. 1 has contracted second marriage and does not care about the welfare of the minor. The petition for custody was just a device to avoid payment of maintenance. Further submits that the minor is deeply attached with his mother, who is taking good care of him and is educating him in a proper manner. Adds that poverty of the mother cannot be made basis for taking away custody, if it is otherwise in the interest and welfare of the minor.
The learned counsel for Respondent No. 1 has supported the order of the learned appellate Court. He submits that the order is legally sound and is based upon evidence on record. From the material on record it is evident that the welfare of the minor vests in his custody being handed over to the respondent.
I have heard the learned counsel for the parties and have also examined the record with their assistance. It is evident that the minor is now about 8 years old. He is at an age when the environment that he lives in and the role models that he has, are of paramount importance. In addition, this is a stage when foundation of his educational career is being laid. In case the child is kept in an environment of uncertainty and there are flaws in his educational foundation and upbringing the entire structure of his personality as well as his career in future is likely to be effected. It has come in the evidence that neither the petitioner nor her husband have a stable income and the fact that she has left the minor to be raised by her old father does not augur well with the goal of providing a conducive environment for a child to grow up. It is correct that it is the obligation of the father to provide adequate funds by way of maintenance to the mother to meet the needs of the child. Yet, considering the financial situation of the mother and in the presence of an illiterate step father, who has no source of income, the possibility of such funds being misapplied cannot be ruled out.
On the other hand the record indicates that the Respondent No. 1 is financially sound. He owns agricultural land and is employed as a school teacher. Despite having re-married, he does not have any child from the second marriage. It would be possible for him to keep the minor with him in his school, supervise his activities and directly take care of his educational, financial, psychological and emotional needs. Boys of that age need a father or a father figure in their lives for proper and healthy development of their personalities. Therefore, unless there are compelling circumstances to the contrary, which are not present in the instant case, it would be doing the child a dis-service if he were to be deprived of the opportunity of growing up with the support, in the company and under the direct supervision of his real father.
As far as the question of living with a step mother is concerned, it may be stated that all step mothers are not Cinderella's step mothers. Such type casting in human relationships should be avoided, unless there is any direct evidence of cruelty or ill will. Even otherwise the child being of school going age will spend most part of the day and most part of the week in school in an academic environment under the supervision of his father. Therefore, the possibility of ill treatment, even if existent in the facts and circumstances of the present case is quite remote.
It is settled law that the paramount consideration in determining the question of custody is the welfare of the minor. It is noticed from the record that the educational needs of the minor have not been properly catered for by the petitioner. Despite being about 8 years old, the child is still in class-1 and appears to have been admitted in a school in order to avoid a plea being taken by Respondent No. 1 that the child is not being sent to school. Further Respondent No. 1, being financially stable and employed in a school is in a much better position to meet the material needs of the child. Respondent No. 1 in the opinion of this Court can also provide better guidance and supervision as compared to the husband or father of the petitioner, both of whom appear to be illiterate. In addition the need of the minor for maternal love and affection can be met by providing adequate visitation rights to the petitioner so that she can spend a reasonable amount of time with the minor. This aspect has been addressed by the learned first appellate Court by directing that the petitioner is entitled to meet the minor on first Sunday of every month from 11:00 a.m. to 2:00 p.m. I would add that the minor should also be sent to live with the mother (if she so desire for a period of one week during winter vacations and two weeks during summer vacations.
The learned counsel for the petitioner has not been able to convince me that the learned first appellate Court has acted illegally or in excess of its jurisdiction or there is any jurisdictional error in the impugned order. I am, therefore, not inclined in exercise of constitutional jurisdiction of this Court to interfere in the findings of the learned first appellate Court, except to the extent mentioned above. This petition is, therefore, partly allowed in the aforesaid terms.
Petition partly allowed.
(R.A.) Petition allowed.
PLJ 2010 Lahore 151
Present: Syed Mansoor Ali Shah, J.
Mst. NUSRAT RAFI--Petitioner
versus
EXECUTIVE DISTRICT OFFICER (EDUCATION), FAISALABAD
and 3 others--Respondents
W.P. No. 16557 of 2009, decided on 3.12.2009.
Educational Institution--
----Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Application was rejected on the ground that the petitioner did not possess a master's degree on the last date of filing application--Petitioner had fully complied with all the requirements of the advertisement--Petitioner had qualified M.Sc before the date of application and was awaiting her detailed result card--Application cannot be rejected when the same was initially entertained after having taken all steps required for evaluating--Principle of locus poententiae--Policy for recruitment for educator in government school--Violation of--Validity--Members of recruitment committee shall assess the eligible candidate and evaluate their abilities as per evaluation form--Verification of certificate shall be done by D.D.O. within three months after joining of the selected candidates and finally clause of policy sets out that policy aims for provision of better qualified educator in public school--Real cut off date is the date when the evaluation process is set in motion--Held: Impugned order is in violation of policy as well as substantive process of evaluation and has unlawfully attached undue importance to date of application--Further held: Petitioner after having submitted her documents had acquired the vested right as well as legitimate expectations that her case be considered for evaluation--Documents were supplied before the evaluation process was set in motion, her vested right and legitimate expectations could not be taken away by the impugned order--Impugned order is unlawful base on irrelevants consideration, unnecessary technical and is violation of Recruitment Policy and is therefore, set aside--Respondents were directed to consider her case for appropriate appointment in accordance with law so that the real purpose of selecting the best teachers and imparting of education to the students is not hampered any further--Petition accepted.
[Pp. 154 & 155] A, B, C & D
2005 SCMR 351, 2005 YLR 1703, rel.
Mr. Mubeen-ud-Din Qazi, Advocate for Petitioner.
Kh. Salman Mehmood, AAG, Mian Mazhar-ul-Haq & Muhammad Luqman, Litigation Officer for Respondents.
Date of hearing: 19.10.2009.
Judgment
Brief facts of the case are that the petitioner on the basis of an advertisement dated 29th of April, 2009 issued by the District Education Officer (Respondent No. 2)/Chairman Selection Committee, District Faisalabad, for various posts including the post of Secondary School Educator SSE (Computer Science) in the column relating to precise basic qualification it was stated that anybody holding M.Sc. (Computer Science) will be preferred. According to the advertisement, the last date for submission of applications for the said post was 14.5.2009. It was also stated in the advertisement that alongwith the application certified copies of the testimonials including educational qualification will be submitted. The petitioner submitted her application for the said position on 14.5.2009 and a receipt bearing Diary No. 8082 was issued to the petitioner. The petitioner also appended certificate of domicile, result card of Intermediate Annual Examination 2004, result card of Secondary School Certificate Annual Examination 2002, result intimation card of the Bachelor of Art Annual Examination 2006 and provisional result intimation of the Intermediate Part-I and II Annual Examination 2004. This was supported by a certificate dated 09.05.2009 issued by the Chairman Department of Computer Science, University of Agriculture, Faisalabad, which certified that the petitioner completed her M.Sc. (Computer Science) and had obtained 3.43/4.00 CGP and, as per University Regulations, result will be notified fortnightly.
Thereafter before interview of the petitioner on 28.6.2009 the M.Sc. result/official transcript was issued on 27.6.2009 to the petitioner which states that the result was notified on 15.5.2009. Thereafter a merit list was prepared for Samundri Town and the petitioner was placed at No. 2 on the Merit List with a grand total of 62.56 points. The petitioner contends that the person appearing at Serial No. 1 of the Merit List declined to join the said service and, therefore, for practical purposes the petitioner stood at No. 1 on the Merit List. However, vide order dated 5.9.2009 issued by Respondent No. 1 the application of the petitioner was rejected on the sole ground that the petitioner did not possess a Master's degree on the last date of filing application.
First submission of learned counsel for the petitioner is that no one can be sacrificed on the alter of technicalities. Further submits that petitioner's application cannot be rejected subsequently when the same was initially entertained after having taken all the steps required for evaluating it. He has also placed reliance on the principle of locus poenitentiae and relief on re. Miss Breshna Hag Tareen vs. Selection Committee, Bolan Medical College Quetta and others, (2005 SCMR 351). Further submits that petitioner was placed at No. 2 of the Merit List while person at No. 1 declined to join the service, the petitioner's position on the Merit List does not affect any other candidate for the said post. It is also submitted that petitioner is the only candidate who possesses degree of M.Sc. (Computer Science) in the entire Merit List prepared for the Samundri Town. Further contends that there are 34 posts for Samundri Town to which only 18 candidates qualified. He also referred to the policy dated 23rd August, 2008 issued by the government of the Punjab, School Education Department and referred to Clause 7-A of the Policy learned counsel contends that it has been clearly provided in Annexure-B to the said policy that preference should be given to the candidates of M.Sc. with Computer Science. Further contends that the petitioner has to earn livelihood and the same is being denied to her by rejecting her application. To support his contention learned counsel has relied upon re. Zahra Zando vs. King Edward Medical College, Lahore and 2 others, (2005 YLR 1703). Lastly argued that the case of the petitioner should be dealt with as a special case being one of extreme hardship.
Learned law officer supported the impugned order.
Arguments heard and record perused.
Perusal of the advertisement shows that the petitioner had to submit her application latest by 14.5.2009 alongwith her educational testimonials and other necessary particulars like the experience certificate, nikahnama, identity card, domicile certificate, etc. The petitioner filed her application on the said date alongwith her testimonials and including a certificate issued by the University of Agriculture, Faisalabad certifying that the petitioner had completed her M.Sc. Computer Science on 5.5.2009 and had obtained 3.43 Cumulative Grade Point (CGP). Therefore, the petitioner had fully complied with all the requirements of the advertisement.
It is important to note that the petitioner had qualified her M.Sc. Computer Science on 5.5.2009 before the date of application and was simply awaiting her detailed result card/transcript which was to be issued by the University and was not within her control to procure the same, therefore, the impugned order dated 5.9.2009 stating that the result of M.Sc. (CS) Degree of the petitioner was notified on 15.5.2009 and the result issued on 10.6.2009 are irrelevant considerations.
Even otherwise, the date for filing the application in the advertisement appears to be an administrative/secretarial act, whereby the relevant testimonials/documents of the candidates are being collected for the purposes of evaluation to be done by the concerned Selection Committee later on, therefore, the date of application cannot be considered to be substantive cutoff date or a date after which the case of the petitioner cannot be processed. At least, in the instant case, the advertisement does not specify or underline the importance of the said date and, therefore, the said date has no more importance than that of administrative convenience. A perusal of the Policy for Recruitment for Educators in Government School (2008-09) dated 23.8.2008 attached with the comments of the respondents actually lays down the substantive purpose and procedure of evaluation of the candidates for the post of SSE. The said Policy provides in Clause 8 that there shall be a Selection/Recruitment Committee. Further, in clause 10 (xiv) it states that the Members of the Recruitment Committee shall assess the eligible candidates and evaluate their abilities as per Evaluation Form. Sub clause (xvii) states that verification of certificates/degrees shall be done by the DDO concerned within three months after joining of the selected candidates and finally Clause 2 of the Policy sets out that the Policy aims for provision of better qualified Educators in public schools. Therefore, the real cutoff date is the date when the evaluation process is set in motion. The case of the petitioner is that much before the interview even the result card was supplied to the respondents and it is clear from the merit list, in which the name of the petitioner appears, that during the evaluation process all the documents of the petitioner were in place and, therefore, she secured 62.6 points as her grand total as opposed to one Saima Latif, who stood at Serial No. 1 with 66.35 points. The impugned order is in violation of the Policy mentioned above as well as the substantive process of evaluation and has unlawfully attached undue importance to the date of the application i.e. 14.5.2009. Respondent EDO (Education) in the impugned letter has given effect to form and not to the substance. It has been noted in PLD 1975 SC 678 that "mere technicalities unless offered and insurmountable hurdle should not be allowed to defeat the ends of justice" and then in PLD 1963 SC 382 "any system which by giving effect to the form and not to the substance, defeats substantive rights is defective to that extent. The ideal must always by a system that gives to every person what is his." Reliance is also placed on PLD 1994 Lahore 55.
The petitioner after having submitted her documents had acquired the vested right as well as legitimate expectations that her case be considered for evaluation. As the documents were supplied before the evaluation process was set in motion, her vested right and legitimate expectations could not be taken away by the impugned order.
For the above reasons, the impugned order is unlawful, based on irrelevant consideration, unnecessarily technical and in violation of the Recruitment Policy and is, therefore, set aside. The position of the petitioner at Serial No. 2 of the merit list is restored and the respondents are directed to consider her case for appropriate appointment in accordance with law so that the real purpose of selecting the best teachers and the imparting of education to the students is not hampered any further.
(R.A.) Petition accepted.
PLJ 2010 Lahore 156
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
Mst. FAHIM MUMTAZ--Petitioner
versus
SECRETARY--Respondent
W.P. No. 256 of 2009, decided on 18.6.2009.
Writ of Quo Warranto--
----Bar under Art. 212 of Constitution of Pakistan--Being interested party can file writ of quo warranto--Notification was challenged--Civil servant was not eligible for seat allocated for subject specialist but was accommodated due to non-availability of suitable candidate--Objection of jurisdiction--Challenged the posting of civil servant on the ground that civil servant was not eligible for the same--Bar under Art. 212 of Constitution does not come in the way of writ of quo warranto--Petition was allowed. [P. 157] A
Syed Muhammad Ameen Shah, Advocate for Petitioner.
Mr. Muhammad Javed Iqbal, Advocate for Respondent No. 4.
Mr. Mubasher Latif Gill, AAG for Respondent.
Date of hearing: 18.6.2009.
Order
Through this petition the petitioner has challenged Notification No. SO (S-VI)6-62/2008 dated 25.09.2008 issued by the Secretary (Schools) Respondent No. 1 through which Respondent No. 4 was posted as Senior Subject Specialist Government Girls Elementary College, Nawan Shaher, Multan vice Mst. Farzana Mamin Senior Subject Specialist who was going to retire from government service on 22.10.2008.
"It has been observed with deep concern that some of the District Authorities are making postings/transfers without keeping in view the status of the post as identified by the Government of the Punjab Education Department vide Notification No. SE 25.5/2002 dated 10.1.2004, causing problems in adjusting the teachers/officers on their promotion from RS-17 to RS-20. Similarly the Subject Specialists are being posted as Headmasters/Headmistresses/Deputy DEOs and Vice-versa without fulfilling the condition of serving for 10 years as such as prescribed in the recruitment rules and transfer policy 2000 or the Subject Specialists are being posted/adjusted against the posts not matching with their subjects. The context of recruitment rules 1989 is reproduced below:--
"Subject Specialists shall not be eligible for posting as Headmasters/Headmistress/Deputy District Education Officers unless they have served as Subject Specialists for a period of ten years. Similarly Headmasters/Headmistress."
The word "shall" used in the above quoted rule denotes that it is mandatory to follow without its and buts".
Report and parawise comments were called from the respondents. It is submitted that no application from the petitioner was received by them. It is however conceded that Respondent No. 4 was not eligible for the seat allocated for Subject specialist in Urdu but she was accommodated due to non-availability of suitable candidate. The objection of jurisdiction was also raised that petitioner being civil servant cannot file this constitutional petition.
I have heard learned counsel for the parties and perused the record.
This is writ of quo warranto through which the petitioner has challenged the posting of Respondent No. 4 on the ground that she is not eligible for the same. The petitioner being interested party can file this writ petition. The bar under Article 212 of the Constitution of Islamic Republic of Pakistan does not come in the way of writ of quo warranto. Respondent No. 1 has conceded this fact in Paragraph No. 5 of parawise comments that Respondent No. 4 was not eligible however she was posted against the vacant seat on 25.09.2008 because at that time no other candidate was available for posting against said vacancy.
For what has been discussed above, this writ petition is allowed. The notification dated 25.09.2008 issued by Respondent No. 1 is hereby set-aside. The respondents are directed to consider candidature of the petitioner for posting against the above said post in accordance with law.
(R.A.) Petition allowed.
PLJ 2010 Lahore 158
[Multan Bench Multan]
Present: Ijaz Ahmad Chaudhry, J.
MUZAFFAR ALI KHAN--Petitioner
versus
BOARD OF INTERMEDIATE & SECONDARY EDUCATION LAHORE through its Chairman and another--Respondents
WP No. 8664 of 2007, decided on 3.7.2009.
Educational Institution--
----Calendar of Board of Intermediate and Secondary Education--Chapter 5 R. 14--Cancellation of result card of matriculation examination--Using unfair means in intermediate examination--Powered of Board to quash the result of a candidate--Petitioner having been found using unfair means was declared disqualified by the committee for further six examination--Past and closed chapter--Validity--No document had been shown that Board had already declared that any candidate subsequently found to have been used unfair means even after a period of 30 years in any examination would be liable for cancellation of his earlier academic certificates--Nothing had been brought to the notice of the Board that petitioner had obtained the matriculation certificate by using unfair means as well--Held: Order for cancellation of matriculation certificate of the petitioner was not sustainable--Examination of matriculation had no nexus with intermediate examination and both being different entitles--Further held: Petitioner could not be penalized by cancellation of his matriculation certificate as well in which there was no sort of allegation against the petitioner--Order for cancellation of matriculation certificate of the petitioner cannot be sustained--Petition was accepted. [Pp. 160 & 161] A & C
PLD 2004 SC 25, ref.
Mr. Qaiser Mehmood Sara, Advocate for Petitioner.
Sheikh Shahid Waheed, Advocate for Respondents.
Date of hearing: 3.7.2009.
Order
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks setting aside of the order dated 22.06.2007. passed by the respondents through which matriculation result card of the petitioner earlier passed by him in the year 1978 has been cancelled.
Briefly the facts narrated in this petition are that the petitioner had applied for taking intermediate examination held in the year 2004 against Roll No. 34445 at D.G. Khan Board of Intermediate and Secondary Education. The petitioner having been found using unfair means was declared disqualified by the committee for further six examinations and an FIR was also got registered against the petitioner. The above said Board informed the respondents Board about the conduct of the petitioner and recommended for cancellation of result card of matriculation examination of the petitioner, which he had passed in 1978 and the respondents after seeking legal advice have cancelled the result card of matriculation of petitioner.
Learned counsel for the petitioner contends that respondents could not cancel the result card of matriculation of the petitioner as the petitioner had already been punished by the D.G. Khan BISE for the alleged fault on his part and the action of the respondents for cancellation of the result card is illegal and unlawful; that order has been passed by the respondents without affording opportunity of hearing to the petitioner, which cannot be maintained in the eyes of law. Relies upon 2001 CLC 759.
Conversely learned counsel for the respondents contends that the judgment cited by the learned counsel for the petitioner has been over ruled by the August Supreme Court of Pakistan through case reported in PLD 2004 SC 25; that under Chapter 5 Rule 14 of the Calendar of the Board of Intermediate & Secondary Education, Lahore the Board is empowered to cancel the result card of the petitioner; and that the petitioner was found to have used the unfair means in the examination, who does not deserve for any leniency and this petition may be dismissed.
I have heard the arguments of learned counsel for the parties and the law cited by them.
It is not denied that the petitioner had passed his matriculation examination in the year 1978. Subsequently the petitioner appeared in the Intermediate Examination from D.G. Khan BISE held in the year 2004 and was allotted Roll No. 34445, who was found having used unfair means for which he has already been punished by restraining him from appearing in the examination of intermediate for six times, but the BISE on the receipt of information that the petitioner had used unfair means in intermediate examination in the year 2004 has cancelled the matriculation certificate of the petitioner, which he had cleared in the year 1978. Learned counsel for the respondent has relied upon Chapter 5 Rule 14 of the Calendar of the Board of Intermediate and Secondary Education, Lahore, which is reproduced here as under:
"The Board shall have the power to quash the result of a candidate at any time after it has been declared:
(1) if he has been disqualified for using unfair means in the examination; or
(2) if a mistake is found in his result; or
(3) if it is found that he was not eligible to appear in the examination; or
(4) for any other reason that may be determined by the Board;"
From the bare perusal of the above rule it is clear that clauses (1) to (3) relates to the same examination on having found the same the Board is empowered to quash the result of a candidate, which is not case of the petitioner and only clause (4) has to be interpreted.
"From a perusal of the above noticed rules governing the `Parts System' of the Intermediate Examination, the scheme which emerges is that the two Parts of Intermediate Examination are not two independent examinations and were in fact the parts, as the nomenclature itself indicates, of the same Intermediate Examination which was to be held with a gap of 12 months as compared to the earlier scheme in which the examination of the different papers of different subjects was held with a gap only of days. Therefore, we find that the view expressed by the learned Single Judge of the Lahore High Court that Part 1 Examination of the Intermediate Examination was an independent entity was not correct and consequently it could not be said that the said part of the Examination in question, once taken, could be treated as a past and a closed transaction for all the purposes.
In the cited case it has been held that the examination conducted in parts is not independent to each other and the fault committed by the candidate in any Part of the examination would affect the whole examination. Consequently it could not be said that the result of the First Part of the Examination having once been declared had become a past and a closed transaction, which could not be cancelled on account of a candidate having found using unfair means in any of the papers of the Second Part of the same examination. However, here the position is different. The examination of matriculation had no nexus with the Intermediate examination and both being different entities, the petitioner could not be penalized by cancellation of his matriculation certificate as well in which there was no sort of allegation against the petitioner.
(R.A.) Petition accepted.
PLJ 2010 Lahore 161
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD YASIN and 8 others--Petitioners
versus
ABDUL HAMEED and others--Respondents
C.R. No. 1895 of 2001, heard on 9.7.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Mutation of inheritance--Dead persons were shown as alive and mutation was attested--Entitlement of share--Signatures were obtained through maneouvering--Admission in the case was made in the ground of appeal and ground of revision which documents were not required to be verified on oath unlike a plaint or a written statement--Admission was found to be factually incorrect with reference to evidence recorded in the case--Validity--A plaint was part of pleadings and admission made in the pleadings were species which were binding and can be used against the maker of the same--Held: Admission was wrong but he failed to do so as he was unable to state the dates of oath of the person and further relied upon hearsay attributed by him to his father--Revision was dismissed.
[P. 164] A & B
PLD 1975 SC 311, rel.
Mirza Hafiz-ur-Rehman & Mr. Inayat Ullah Ch., Advocates for Petitioners.
Ch. Muhammad Jehangir Wahlah, Advocate for Respondents.
Date of hearing: 9.7.2009.
Judgment
On 19.2.1991 Respondents No. 1 to 13 filed a suit against Inayat Ali predecessor-in-interest of the petitioners as well as the remaining respondents. In the plaint it was stated that the last male owner of the suit land mentioned in plaint was Moula Bukhsh, who died on 29.7.53. The father of the said plaintiffs died on 6.10.56 while Ali Muhammad father of the said Inayat Ali died on 19.3.63 while Ilam Din predecessor-in-interest of the remaining respondents died on 16.12.52 and Fazal Din and Nawab Din died before independence of the country while Karam Din died in the year 1951. Latter three persons died issueless and unmarried and as such on the death of Moula Bukhsh only Wali Muhammad and Ilam Din were surviving heirs. However, in mutation of Inheritance No. 163 attested on 13.10.60 all the said dead person were shown as alive and mutation was attested accordingly, whereas the plaintiffs on the one hand and Inayat Ali on the other were only legal heirs entitled to « share each. The plaintiffs and Inayat Ali filed a suit against the remaining respondents on 25.5.78 seeking a declaration that Ilam Din having died before Moula Bukhsh was not entitled to inherit a share in the estate of Moula Bukhsh. This suit was decreed on 29.9.79 but Inayat Ali got Mutation No. 1387 attested whereby 5/6 share was mutated in his favour and 1/6 in favour of the plaintiffs. Then there is reference to another suit, which was earlier filed and withdrawn with permission to file a fresh. A declaration was sought accordingly and setting aside of Mutation No. 1387 attested on 31.12.87 was prayed for. The suit was contested only by Inayat Ali. His plea was that all the said four brothers, namely, Ilam Din, Fazal Din, Nawab Din and Karam Din died somewhere between 13.10.60 and 19.3.63. It was asserted that mutation 163 was got entered by Abdul Hameed, plaintiff himself. The filing of the suit by both the parties and fact that it was decreed was not denied. However, it was stated that Mutation No. 1387 is lawful. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 31.3.97. A first appeal filed by the plaintiff was allowed by a learned Additional District Judge, Faisalabad, on 27.6.01, who partly decreed the suit. I may note here that after examining the evidence the learned Additional District Judge held that Ilam Din was not alive when Moula Bukhsh died and further that parties i.e plaintiff and Inayat Ali will inherit the estate of Fazal Din and Nawab Din equally, while estate of Karam Din will go to Inayat Ali exclusively.
Learned counsel for the petitioners have argued that the suit was barred by time and they rely on the case of Muhammad Hussain etc. v Muhammad Shafi etc. (NLR 2008 AC (S.C) 379). Further contention is that admission made by Inayat Ali would be relevant only for the purpose of suit filed by the parties jointly and not for this suit which had to be decided on the basis of evidence recorded therein. Reliance is placed on the case of Muqarrab Hussain through L.Rs and another v Pirzada Muhammad Rafiq (2001 YLR 1103). Learned counsel for the plaintiffs supports the impugned judgment and decree of the learned Additional District Judge, Faisalabad, with reference to evidence on record.
I have gone through the copies of the records. The learned Additional District Judge has primarily relied upon Ex.P5, which is plaint in the suit admittedly filed jointly by Inayat Ali and the plaintiffs. He was duly confronted with said plaint and he admitted that he was plaintiff in the case but proceeded to state that his signatures were obtained through some maneouvering. It is stated in para-11 of the said plaint that share of brothers of Ilam Din who are dead has already devolved upon the plaintiffs in the said suit, Ex.P5. The bald allegation of Inayat Ali DW-2 would be of no avail as he is defending the mutation that was attested with reference to the decree passed in the said suit filed by him alongwith plaintiffs. Apart from this he was confronted and he stated that he has no personal knowledge of date of death of Fazil Din, Ilam Din, Karam Din and Nawab Din but these were told him by his father that he has not produced their death certificates. In response to further cross examination he stated that he does not remember the dates of death of the said persons.
Coming to the said judgment in the case of "Muqarrab Hussain through L.Rs the admission in the said case was made in the ground of appeal and ground of revision which documents are not required to be verified on oath unlike a plaint or a written statement, besides the said admission was found to be factually incorrect with reference to the evidence recorded in the said case. In the present case the admission has been made in a plaint admittedly filed by Inayat Ali alongwith plaintiffs. Needless to state that a plaint is part of pleadings and admission made in the pleadings are species which are binding and can be used against the maker of the same and as held in the case of Ahmad Khan v Rasul Shah and others (PLD 1975 S.C. 311). Besides, he was given a chance by the cross-examiner to show that admission was wrong but he failed to do so as he was unable to state the dates of death of said person and further relied upon hearsay attributed by him to his father.
So far as the question of limitation is concerned, the suit filed by both the contesting parties had been decreed. The grievance arose because of the mutation attested on 31.12.87. The suit filed on 19.2.91 was, therefore, well within time prescribed by Article 120 of the Limitation Act, 1908. Civil revision is accordingly dismissed but without any order as to costs.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 164
Present: Ijaz-ul-Ahsan, J.
UNILEVER PAKISTAN FOODS LIMITED, KARACHI through its Company Secretary--Petitioner
versus
CHAIRMAN, ENVIRONMENTAL TRIBUNAL, GOVERNMENT OF PAKISTAN, LAHORE--Respondent
W.P. No. 22311 of 2009, decided on 17.11.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXIX, R. 1--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Subscription and verification of pleading--Question of--Pleading in legal proceedings initiated by a juristic person are required by law to be signed by Chief Executive of such juristic person and his name and particulars must also be mentioned in title of such pleadings--Directions to amend the title of appeal provide the present address of the factory of the petitioners--Challenge to--Validity--Pleadings in legal proceedings initiated on behalf of juristic persons can be signed by any person, authorized to do so under association of the company or authorized by its board of directors through a resolution passed by a board or authorized to be so through a general power of attorney. [P. 167] A
Companies Ordinance, 1984--
----S. 48--Civil Procedure Code, (V of 1908)--O. XXIX, R. 1--Direction to provide the present address of the factory of the petitioner--Challenge to--Purpose of filing of the appeal, the address of the registered office of the company given in title of the appeal was ordinarily sufficient--Validity--If the address of the factory/works of the appellant was required, the same had been provided in paragraph of the appeal--Petition was accepted. [P. 168] B
Syed Ijaz Ali Sabzwari, Advocate for Petitioner.
Mr. Aamer Rehman, Deputy Attorney General for Respondent.
Date of hearing: 17.11.2009.
Order
The petitioner assails an order dated 26.10.2009, passed by the Environmental Tribunal Lahore (Impugned Order). Through the impugned order the petitioner was directed to amend the title of the appeal by inserting the words "through its Chief Executive (with full name)". The petitioner was also directed to provide the present address of the factory of the petitioner in the title of the appeal.
It appears that the order in question has been passed on the assumption that pleadings in legal proceedings initiated by a juristic person are required by law to be signed by the Chief Executive of such juristic person and his name and particulars must also be mentioned in the title of such pleadings.
The learned Tribunal appears to have overlooked the provisions of the Companies Ordinance, 1984 as well as those of and Order XXIX, Rule 1 read with Order III CPC, which provide for initiation of proceedings through authorized representatives. Order XXIX Rule 1 CPC provides as follows:--
Subscription and verification of pleading.--In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. [underlining is mine].
Order III, Rules 1, 2 and 3 of the Code of Civil Procedure, 1908 postulate as follows:--
Appearances, etc., may be in person, by recognized agency or by pleader.--Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf.
Recognized agents.--The recognized agents of parties by whom such appearances, applications and acts may be made or done are--
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; [underlining is mine]
(b) persons carrying on trade or business for and in names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.
(2) The provisions of the service of process on a party to a suit shall apply to the service of process on his recognized agent.
In the Companies Ordinance, 1984 the term "officer" of the company has been defined as follows:--
2 (24) "Officer" includes any director or chief executive, managing agent, secretary or other executive of the company ............... [underlining is mine]
Section 48 of the Companies Ordinance deals with service of documents on the company. It would be useful to reproduce the said section:
Section 48: Service of documents on Company. A document may be served on a company or an officer thereof by sending it to the Company or officer at the registered office of the Company by post under a certificate of posting or by registered post or by leaving it at the registered office of the Company, [underlining is mine].
The petitioner is admittedly a juristic person being a company limited by shares. It is registered as a company with the Securities and Exchange Commission of Pakistan under the provisions of the Companies Ordinance, 1984. It has its registered office at Avari Towers Fatima Jinnah Road, Karachi. The said address has been provided by the Company to the Securities and Exchange Commission of Pakistan for service of notices process etc. Any process served at the said office shall be deemed in law to be duly served, notwithstanding the fact where the company runs its business.
Pleadings in legal proceedings initiated on behalf of juristic persons can be signed by any person (i) authorized to do so under the Articles of Association of the Company or (ii) authorized by its board of directors through a resolution passed in a duly convened meeting of such board or (iii) authorized to do so through a general power of attorney issued under the authority of Board of Directors given in a duly convened meeting of the Board.
Perusal of the record indicates that a resolution of the Board of Directors of the petitioner company was passed on 24.07.2003. It was resolved that a general power of attorney be issued in favour of Mr. Amar Naseer, Company Secretary of the petitioner. Such power of attorney was subsequently issued and registered with the Registrar of Assurances at Karachi. Vide Items No. 13, 14,15 and 16, the Company Secretary of the petitioner was authorized to:--
To institute, commence, prosecute, enforce, defend, answer, compromise, or oppose all actions, suits, petitions, appeals, arbitration proceedings, and other legal proceedings, actions and demands touching any matter in which the Company is or may hereafter be party, interested or concerned; and also, if thought fit, to compromise, withdraw, settle, refer to arbitration, mediation or conciliation, submit to judgment or become non-suited in any such matters, and to file such appeals and applications for review, revision or otherwise as the Attorney shall think fit.
To accept service of any writ of summons notice or other legal process and to appear and represent the Company in any Court, tribunal authority commission or committee and before all magistrates, judicial, municipal revenue or other officers whatsoever as the Attorney may think fit.
To sign and verify all plaints, written statements, affidavits, applications, answers, submissions, petitions, claims, objections memoranda of appeal and petitions and applications of all kinds and to file or submit them in or before any Court, tribunal authority commission or committee or arbitrator. To give evidence before any Court, tribunal authority commission or committee or office or arbitrator.
To appoint any legal practitioner, solicitor, pleader, legal counsel or advocate to appear and act for the Company and to represent the Company in any matter, and to sign and deliver letters of authority and vakalatnamas in favour of such persons; and to revoke any such appointment at any time at his pleasure. To appear as Legal Counsel/Attorney before any Court for the Company or its affiliates and subsidiaries as and when required.
For the purpose of filing of the appeal, the address of the registered office of the company given in the title of the appeal is ordinarily sufficient. However, if the address of the factory/works of the appellant was required, the learned counsel has pointed out that the same had been provided in Paragraph No. 2 of the appeal.
In passing the impugned order dated 26.10.2009, the aforesaid documents and their contents appear to have escaped the notice of the learned Environmental Protection Tribunal.
In view of the above, this petition is accepted. The order dated 26.10.2009 passed by the Environmental Tribunal, Lahore in the appeal titled "Unilever Pakistan Foods Limited Vs. Environmental Protection Agency" is set aside. The learned Environmental Tribunal shall now proceed to decide the appeal on its merits.
(R.A.) Petition accepted.
PLJ 2010 Lahore 168
[Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
Mst. PERVEEN AKHTAR--Petitioner
versus
MUHAMMAD ADNAN and others--Respondents
W.P. No. 280 of 2009, decided on 28.10.2009.
Insurance Act, 1938--
----Ss. 38 & 39--Insurance policy is a more trustee of the amount-Bound to distribute among legal heirs--Nominee in an insurance policy is a mere trustee who is bound to distribute the insurance monies among the legal heirs. [P. 171] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Being the nominee in insurance policies--Question of distribution of insurance money--Entitle of the nominee to benevolent fund under Federal Employees Benevolent Fund and Group Insurance Act, 1964--Petitioners were legal heirs of the deceased while respondents were the children of the deceased out of his previous wife who had been divorced before his death--Suit for declaration against co-respondents who were responsible for issuance of the life insurance policies--Petitioner being a nominee in the insurance policies, had received from them the insurance amount--Challenged through writ petition that petitioner being nominee in the Insurance Policies, was the sole beneficiary and could keep the insurance monies to exclusion of other heirs--Question of--Question of entitlement of a nominee under group insurance was not addressed as it was not part of the subject matter of the appeal--Question of distribution of insurance money among the legal heirs which include not just the petitioner as a nominee--Held: Petitioner had no right to deny the other heirs from receiving their shares as per their entitlement--Plea of the petitioner that insurance money received had been utilized for re-payment of debts of the deceased due in respect of remaining installments for plot which he had purchased, does not appear to be supported by record--Further held: Ground of suit not being properly framed either the civil judge has inherent powers to take notice of subsequent events and do justice to save the parties from unnecessary litigation--No interference is called for by High Court in its revisional jurisdiction--Revision was dismissed. [P. 171] B & C
Raja Israr Ahmad Abbasi, Advocate for Petitioner.
Ch. Riaz Ahmad, Advocate for Respondents No. 1 and 2.
Mr. Maqsood Hassan, Advocate for Respondents No. 3 to 5.
Date of hearing: 28.10.2009.
Order
This Civil Revision filed by Mat. Parveen Akhtar, calls in question the Judgment and decree dated 19.5.2009 passed by the learned Addl: District Judge, Jhelum, whereby the appeal filed by Respondents No. 1 and 2 has been accepted and the judgment and decree dated 28.1.2008 passed by learned Civil Judge, Jhelum, has been set aside.
The brief facts forming the back-ground of this petition are that the petitioner alongwith her two minor sons namely, Aman and Faizan, as well as Respondents No. 1 and 2 are the legal heirs of late Khurshid Ahmad who died on 16.6.2001. Petitioner is the widow of late Khurshid Ahmad while Respondents No. 1 and 2 are the children of late Khurshid Ahmad out of his marriage with Mst. Shafqat Bibi who was divorced by Khurshid Ahmad before his death. During his life time, late Khurshid Ahmad insured his life through two Insurance policies one issued by Eastern Federal Life Insurance and the other by Postal Life Insurance. The said policies became payable on the death of late Khurshid Ahmad and a sum of Rs. 10,72,500/- became due on account of the said policies. On 27.7.2001, Respondents No. 1 and 2 through their mother filed a suit for declaration and permanent injunction against Respondents No. 3 to 5 who were responsible for the issuance of the aforesaid life Insurance Policies. The Respondents No. 3 to 5 filed their written statement on 28.1.2003 wherein it was stated that the petitioner, being a nominee in the said insurance policies, had received from them the insurance amount to the tune of Rs. 10,72,500/-. The learned trial Court vide its judgment and decree dated 28.1.2008 dismissed the suit of Respondents No. 1 and 2 whereupon an appeal was preferred which was allowed by the learned Addl: District Judge, Jhelum vide his judgment and decree dated 19.5.2009. In terms of the judgment and decree dated 19.5.2009, the suit was decreed in favour of Respondents No. 1 and 2 to the extent that the Respondents No. 1 and 2 were declared to be entitled to recover 3/8th share from the amounts of the insurance policies from the petitioner. Now through this writ petition the petitioners have assailed the judgment and decree dated 19.5.2009 by contending that Petitioner No. 1 being the nominee in the insurance policies, was the sole beneficiary and could keep the insurance monies to the exclusion of other heirs. Reliance has been placed on PLD 1991 S.C 731 wherein the Shariat Appellate Bench of the Hon'ble Supreme Court has held that amounts due on account of benevolent fund and group insurance are not part of the estate as these assets are not acquired by the deceased during his life-time. It is also contended that the impugned judgment and decree does not take into account the fact that some debts out of the insurance money were paid on behalf of the deceased on account of installments payable in respect of some plot in the name of the deceased. Thirdly, it has been contended that recovery of money against the petitioners could not have been ordered as the suit of Respondents No. 1 and 2, as framed, did not seek such relief.
After going through the record as well as the respective contentions of the learned counsel for the parties, it appears that the contention of the learned counsel for the petitioner is misconceived as the nominee under an insurance policy is a mere trustee of the amount received and cannot appropriate the same to his use or benefit but is bound to distribute the amount of insurance policy among the legal heirs as per their entitlement. There can be no debate on this point as the Hon'ble Supreme Court in Mst. Omat-ul-Habib etc. vs. Mst. Musarrat Parveen (PLD 1974 S.C 185) has laid down as under:--
"the 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. The nominees thus collect as a trustee for the benefit of all persons entitled to inherit from the deceased employee".
The ruling of the Hon'ble Supreme Court has been followed in M/s. Latif Ibrahim Jamal vs. Controller of Estate Duty (1989 P.T.D 1027) and Mrs. Shaista Younas Khan etc. vs. Mrs. Asia Khatoon etc. (1995 PLD 560) wherein while interpreting Sections 38 and 39 of the Insurance Act 1938, it was held that nominee in an insurance policy is a mere trustee who is bound to distribute the insurance monies among the legal heirs.
I also think PLD 1991 Supreme Court 731 is not applicable to the facts of the present case as the issue raised therein before the Shariat Appellate Bench of the Hon'ble Supreme Court related to the entitlement of the nominee to benevolent fund under the Federal Employees' Benevolent Fund and Group Insurance Act 1964. In this regard, I refer to the last para of the aforesaid judgment wherein it is made clear that the question of entitlement of a nominee under group insurance by reference to Shariat was not addressed as it was not part of the subject matter of the appeal.
The present case simply involves the question of distribution of insurance money among the legal heirs which include not just the petitioner as a nominee but others including Respondents No. 1 and 2. Keeping in view the foregoing discussion, I have no hesitation in saying that the petitioner had no right to deny the other heirs from receiving their shares as per their entitlement. The plea of the petitioner that the insurance money received has been utilized for re-payment of the debts of the deceased due in respect of remaining installments for plot which he had purchased, does not appear to be supported by record. As regards the ground of suit not being properly framed either the civil judge has inherent powers to take notice of subsequent events and do justice to save the parties from unnecessary litigation.
For the reasons discussed above, I see no infirmity, illegality or irregularity on the part of the Courts below who have exercised their jurisdiction lawfully. No interference is called for by this Court in its revisional jurisdiction, therefore, this civil revision is dismissed with no order as to costs.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 172
Present: Syed Mansoor Ali Shah, J.
Haji MAQSOOD AHMAD--Petitioner
versus
LESCO through its General Manager Lahore
and 3 others--Respondents
C.R. No. 1745 of 2009, decided on 22.10.2009.
Electricity Act, 1910 (IX of 1910)--
----S. 24(1)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Discontinuance of supply to consumer neglecting to pay charge--Electricity connection of the petitioner was disconnected--Notice for a detection bill was served--Challenge to--Determination--Whether Section 24(1) of Electricity Act, is applicable to the case of the petitioner--Question of--Where any consumer neglects to pay any charge for energy or any sum assessed against him by licensee in respect of supply of energy to his premises, the licensee can disconnect the supply of energy to the consumer--In the instant case the detection bill falls within the category of charge for energy assessed by licensee--Held: Licensee has a right to disconnect electricity if the consumer neglects to pay any charge for energy--Detection bill had been served on the petitioner which was charge of energy assessed by licensee--Impugned action/disconnection was fully covered u/Ss. 24(1), 26-A & 54-C of Electricity Act--Courts below had rightly applied the provisions of Electricity Act, and disallowed the interim relief to the petitioner--Petition was dismissed. [Pp. 175 & 176] A & C
Electricity Act, 1910 (IX of 1910)--
----Ss. 54(c) & 24(1)--Notice for detection bill was served--Challenge to--Bar of jurisdiction--If a notice is served on the consumer u/S. 24 (1) or if the supply of energy to the premises of the consumer is discontinued under the provisions Electricity Act, no Court shall restore supply of energy without the deposit of the assessed amount--Section 54-C, is trigged not only by notice u/S. 24(1) but also for any other reason under the Act, the supply of energy to the premises of the consumer are discontinued--Petition was dismissed. [P. 175] B
Mr. Khalid Nawaz Ghuman, Advocate for Petitioner.
Syed Ali Raza Rizvi, Advocate for Respondents.
Rabyar, SDO, LESCO, Bilal Colony Sub-Division.
Date of hearing: 22.10.2009.
Order
Brief facts of the case are that the petitioner is a consumer of electricity enjoying an industrial connection tariff B2 from Respondent No. 1. The said connection is for the steel manufacturing factory of the petitioner situated at Momenpura, Lahore. Respondents conducted a raid on the said factory on the basis of a report that the petitioner was stealing electricity. An F.I.R. was lodged on 12.06.2009 against the petitioner and others and the electricity connection of the petitioner was disconnected.
Thereafter on 14.07.2009 the petitioner was served with a notice under Section 24 of the Electricity Act, 1910 for a detection bill in the sum of Rs. 14592448/- for the period 01/08 to 05/09.
The petitioner challenged the said notice through a suit for declaration and permanent injunction. During the pendency of the suit the petitioner moved an application under Order XXXIX, Rule 1 & 2 CPC praying for ad-interim injunction i.e. restoration of electricity and restraining the recovery of the detection bill. The said application was dismissed on 22.07.2009. Appeal preferred against the said order by the petitioner was also dismissed by the learned Addl. District Judge, Lahore vide order dated 05.09.2009. The petitioner has impugned the orders of the subordinate Courts in the instant petition.
The main argument of the counsel for the petitioner is that his case falls under Section 26-A of the Electricity Act and not under Section 24 and, therefore, Section 54-C of the Electricity Act does not apply, which pertains to the Bar of Jurisdiction and provides that the entire amount assessed against the consumer shall be deposited as a pre-requisite for restoration of the electricity. The counsel further argued that the action of the respondents is unlawful and the detection bill is absolutely illegal.
Counsel for the respondents opposes the submissions of the petitioner and supports the orders of the subordinate Courts.
Arguments heard and record perused.
The only question that surfaces for determination by this Court is whether Section 24(1) of the Electricity Act, 1910 is applicable to the case of the petitioner. It is, therefore, important to reproduce the relevant sections required for the disposal of this petition.
"Section 24(1) Discontinuance of supply to consumer neglecting to pay charge.--(1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, (emphasis supplied) the licensee may after giving not less than seven clear days notice in writing to such consumer and without prejudice to his right recover such charge or other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, (emphasis supplied) through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but not longer.
(2) Where any difference or dispute as to any matter connected with any charge or other sum included in the bill of a licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by sub-section (1) until the Inspector has given his decision."
"Section 26-A Dishonest abstraction or consumption of energy.--Notwithstanding anything contained in Section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or used, for the period during which, the meter, maximum demand indicator or other measuring apparatus had, in the opinion of the licensee, remained disconnected, injured, altered or prevented from registering the amount of energy supplied for the electrical quantity contained in the supply:--
(a) consumer's connected load or maximum demand in kilowatt during any period;
(b) consumer's maximum consumption of energy in kilowatt hours during any period;
(c) consumer's load factor;
(d) the power factor of consumer's load;
(e) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer, and
(f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer."
"Section 54-C Bar of Jurisdiction.--(1) Where a licensee gives a notice referred to in sub-section (1) of Section 24 or discontinues supply of energy to a premises under the provisions of this Act, no Court shall make an order prohibiting the licensee form discontinuing supply of energy to the premises, or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect:
(2) Where an amount has been deposited under sub-section (1), the Court shall direct it to be deposited in a scheduled bank in the name of the licensee on an undertaking being furnished by the licensee to the effect that in case the suit or appeal is decided against him, he shall repay the said amount to the plaintiff or appellant, as the case may be, with such reasonable returns as the Court may determine."
Section 24(1) clearly states that where any consumer neglects to pay any charge for energy or any sum assessed against him by licensee in respect of supply of energy to his premises, the licensee may disconnect the supply of energy to the said consumer. In the present case the detection bill falls within the category of "charge for energy" assessed by the licensee.
The reference to Section 26-A by the counsel for the petitioner is misplaced. The said section deals with the computation of the detection bill and is not per-se a recovery provision. In fact Section 26-A provides the parameters to work out the charge of energy/detection bill in case the measuring apparatus in the opinion of the licensee remained disconnected. Once the charge of energy is calculated, Section 24(1) comes into play and so does Section 54-C of the Act.
The Section 54-C clearly states that if a notice is served on the consumer under Section 24(1) or if the supply of energy to the premises of the consumer is discontinued under the provisions of the Electricity Act, no Court shall restore supply of energy without the deposit of the assessed amount. Section 54-C, therefore, is trigged not only by notice under Section 24(1) but also for any other reason under the Act the supply of energy to the premises of the consumer are discontinued.
Reading of Sections 24(1), 26-A and 54-C of the Act show that the licensee has a right to disconnect electricity if the consumer neglects to pay any charge for energy. In the present case detection bill has been served on the petitioner which is charge of energy assessed by the licensee and, therefore, the impugned action/disconnection is fully covered under the said sections. Therefore, the subordinate Courts have rightly applied the provisions of the Electricity Act, 1910 and disallowed the interim relief to the petitioner. There is no illegality or material irregularity noticed in the impugned orders.
For the above reasons, this petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 176
Present: Syed Mansoor Ali Shah, J.
CH. GHULAM MUSTAFA--Petitioner
versus
Mst. RIZWANA SHAHEEN and 3 others--Respondents
C.R. No. 1180 of 2009, decided on 6.10.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Application for amendment--Suit for partition, declaration and permanent injunction--Sought partition inter-alia--Claimed entitlement to receive expenses on account of maintenance of the house and utility facilities, payment of property tax--Suit was dismissed--Whether in a suit for partition, the liabilities relating or attached to the property under partition can be partitioned amongst the legal heirs--Whether a defendant in a suit for partition can claim set off--Held: Trial had not correctly applied the law and, therefore, order suffers from an illegality--Impugned order was, therefore, set aside and amendments proposed by the petitioner were allowed under Order 6 Rule 17 of the CPC. [Pp. 178 & 182] A & G
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 18--Elasticity and feasibility to jurisprudentially advance--Suit for partition--Allows the Court to consider the rights of the parties interested in the property--Payment made by the petitioner were directly connected to property and creates the right of the petitioner in the property--Validity--Rights under Order 20 Rule 18, CPC need not be limited to rights in corpus of the property in a physical sense alone but can also include rights in the shape of claims or liabilities or payments made to upkeep the property or payments made to settle the debt of the predecessor-in-interest of the petitioner who already owned the property before it devolved on the children--All such payments constitute property and need to be apportioned at the time of partition--Held: Suit for partition includes all the liabilities/claims attached to the said property which will be apportioned and divided as an equitable set off in the suit for partition--Amendment proposed in the petition, do not change the nature of the suit and can be allowed. [Pp. 179 & 181] B & F
Partition Act, 1893 (IV of 1893)--
----S. 4--Payments constitute property and need to be apportioned at the time of partition--Where sale of the property can be made in case the property is not divisible--Validity--If at the time of sale the debts/claims attached to the property can be considered, why the principle cannot apply at the time of partition of the property--Claims cannot be limited to the third party only--One of the co-sharers can also have a claim on the property which is required to be settled or set off at the time of partition like any other claim. [P. 180] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 19(3)--Whether a defendant in a suit for partition can claim, set off--Requisite elasticity to extend equitable set off in new areas--Held: Equitable set off will be applied where it appears to the Court that it is equitable to allow set off. [P. 181] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VI, R. 17--Suit for partition--Application for amendments--If amount is ascertainment or uncertained--Payment made by the petitioner were ascertained--Suit for partition is limited to physical partition of the property without factoring in liabilities attached to the property--It can not be policy of law to encourage protracted litigation and subject the parties to another fresh round of litigation for recovering their claims relating to the property partitioned when all the claims arising from the property under partition can be dealt with in the suit for partition--Civil revision was allowed. [P. 181] E
Mr. Waqar A. Sheikh, Advocate for Petitioner.
Mr. Ijaz Ahmad Chadhar, Advocate for Respondents No. 1 to 3.
Mr. Imtiaz Ahmad Wahga, Advocate for Respondent No. 4.
Date of hearing: 6.10.2009.
Order
Brief facts of the case are that Respondent No. 1 filed a suit for partition, declaration and permanent injunction arraying the petitioner as one of the defendants. The respondents are the real sisters of the petitioner. Respondent No. 1 has sought partition, inter-alia, of House No. 969-B, Faisal Town, Lahore.
The petitioner filed his written statement on 7.7.2004, thereafter two applications for amendment were moved by Defendants No. 1 and 2 in the suit i.e. petitioner and Respondent No. 4 for amendment of their written statements under Order VI, Rule 17 CPC on 18.12.2008.
The amendment by the petitioner was sought on the ground that a suit for specific performance filed by one Muhammad Sohail Irshad against the predecessor-in-interest of the parties which was settled on 22.9.2007 by the petitioner and Respondent No. 4 by making the payment of Rs. 1 million to Muhammad Suhail Irshad. The suit was accordingly dismissed and possession of the house in question was delivered to the petitioner and Respondent No. 4.
The application for amendment proposes amendments to Para 3 of the written statement as well as addition of Para 3 A.
The amendment proposed in Para 3 relates to property tax payable on the house. The petitioner has claimed entitlement to receive expenses on account of maintenance of the house and utility facilities, payment of property tax and half of the amount i.e. Rs. 500,000/- paid by him to Muhammad Sohail Irshad for the settlement of the suit discussed above.
Counsel for the petitioner submitted that the proposed amendments do not change the nature of the suit and, therefore, should have been allowed under Order VI Rule 17 CPC. He further submitted that due to subsequent events i.e. the settlement of the suit for specific performance on 22.9.2007 the written statement filed on 7.7.2004 required amendment as it pertained to a fresh liability pertaining to the property, which was the subject matter of the suit for partition. He further argued that in a matter of partition both the assets and liabilities are partitioned, therefore, property tax and other liabilities have to be brought into the corpus of the property, which is to be partitioned.
Counsel for Respondent No. 4 while supporting the counsel for the petitioner submitted that it is a well-settled principle that the liabilities pertaining to the property should also be partitioned alongwith the asset.
Counsel for Respondents No. 2 and 3 submitted that he was not party to the settlement dated 22.9.2007 and, therefore, the liability of rupees one million cannot be considered to be a joint liability, therefore, the same cannot be subject matter of the suit for partition. He vehemently supported the impugned order and opposed the amendment of the written statement.
I have heard the learned counsel for the parties and have perused the record.
The question of law that emerges in this case is "whether in a suit for partition, the liabilities relating or attached to the property under partition can also be partitioned/apportioned amongst the legal heirs? And whether a defendant in a suit for partition can claim `Set off?".
Exploring Partition Act, 1893 and Order XX, Rules 18 and 19 of CPC furnish an answer to the above question. In the commentary to the Partition Act, 1893 cases in India have considered that assets and liabilities both have to be considered at the time of partition. Reference is made to Law relating to Partition by M.N. Das Sixth Edition, Eastern Law House. Under the Chapter on Joint Liabilities, the following has been mentioned:
"In deciding a case from Lahore in respect of certain debts left by the father of a Mitakshara joint family the Privy Council held antecedent debts of the father so far as they are not illegal or immoral are a liability of the joint estate. They do not merely give rise to a pious obligation on the sons not to object to alienation of the joint estate by the father for such debts. When, however, the family estate is divided it is necessary to take account of both the assets and the debts for which the undivided estate is liable. "
Partition Act, 1893 is silent about partition or apportioning of liabilities attached to the subject matter of partition.
Order XX, Rule 18 and Rule 19 provide the elasticity and feasibility to jurisprudentially advance further in answering the above question.
"18. Decree in suit for partition of property or separate possession of a share therein.--Where the Court passes a decree for the partition of property or for the separate possession of a share therein then,--
(1) ...................................
(2) if and insofar as such decree relates to any other immovable property or to movable property the Court may, if partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."
Reference to the underlined portion of the definition allows the Court to consider the rights of the parties interested in the property. The payments made by the petitioner are directly connected to the property and creates the right of the petitioner in the property. The rights under Order XX, Rule 18 CPC need not be limited to rights in the corpus of the property in a physical sense alone but can also include rights in the shape of claims or liabilities or payments made to upkeep the property or payments made to settle the debt of the predecessor-in-interest of the petitioner who already owned the property before it devolved on the children. All such payments constitute "property" and need to be apportioned at the time of partition. Another way of looking at the matter is provided in Section 4 of the Partition Act, 1893 where sale of the property can be made in case the property is not divisible. Surely at the time of such a sale all the debts attached to the property are to be settled first. So if at the time of sale the debts/claims attached to the property can be considered, why the same principle cannot apply at the time of partition of the property. Claims cannot be limited to the third party only. One of the co-sharers can also have a claim on the property which is required to be settled or set off at the time of partition like any other claim.
Order XX, Rule 19 CPC provides the facility of "equitable set off as opposed to "legal set off which is provided in Order VIII, Rule 6 CPC. Order XX, Rule 19 CPC provides :--
"19. Decree when set off is allowed.--(1) Where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.
(2) .....................................
(3) The provisions of this rule shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise."
"The doctrine of equitable set-off has also been applied in suits for specific performance of contract and suits for redemption. In the case of Brijnath Dass v. Juggernath Dass (1) the right to set-off the costs due to the plaintiff against the amount due by him was recognized in a redemption suit. It was held in that case that the plaintiff was entitled to redemption on paying the amount directed less the costs awarded to him. This principle was further applied by the Madras High Court in the case of Chinanammal v. Chidambara Khothanar (2). In that case, the trial Court passed the decree that on the plaintiff's depositing into Court a certain sum within a fixed time the defendant was to execute a deed of conveyance in his favour. It was further directed that the defendant was to pay the plaintiff a certain amount by way of costs. The plaintiff deposited a sum of money after deducing the amount of costs payable to him under the decree. On these facts it was held by the Madras High Court that the doctrine of equitable set-off was applicable and the plaintiff deposited the proper amount in Court.
In the light of the above discussion, I am of the view that the claims of the appellants in respect of the purchase-money and the respondents in respect of the costs are in the nature of cross demands arising out of the same transaction and the doctrine of equitable set-off as applied by the Allahabad High Court in suits of pre-emption is fully applicable to such cases. This view has been firmly established and I am not inclined to upset it after a lapse of about 80 years."
"Order XX, Rule 19 is a further statutory-recognition of the right of a defendant to plead an equitable set off and obtain relief thereon."
It is sub-rule (3) of Order XX, Rule 19 that provides the requisite elasticity to extend equitable set off in new areas. Equitable set off will be applied where it appears to the Court that it is equitable to allow set off.
Needless to say that it must pertain to the same transaction. It, however, does not matter if the amount is ascertained or unascertained. In this case, however, the payments made by the petitioner are ascertained. In the present case, it will be odd that a suit for partition is limited to the physical partition of the property without factoring in the liabilities attached to the said property. It cannot be the policy of law to encourage protracted litigation and subject the parties to another fresh round of litigation for recovering their claims relating to the property partitioned when all the claims arising from the property under partition can be dealt with in the suit for partition.
If similar claims can be dealt with in a suit for administration, I see no reason why claims/liabilities attached and fixed to the property in question cannot be apportioned between the parties in a suit for partition. I, therefore, hold that suit for partition includes all the liabilities/claims attached to the said property which will be apportioned and divided as an equitable set off in the suit for partition. In fact, the concept of preliminary inquiry under Order XX, Rule 18 CPC seems to be just the right construct for this purpose. The amendment proposed in the petition, therefore, do not change the nature of the suit and can, therefore, be allowed. Delay does not matter as argued by the counsel for the respondent as the aforementioned claims/liabilities have arisen during the pendency of the suit.
Learned trial Court has not correctly applied the law and, therefore, order dated 13.1.2009 suffers from an illegality. The said order is, therefore, set aside and the amendments proposed by the petitioner are allowed under Order VI, Rule 17 of the CPC.
(R.A.) Revision allowed.
PLJ 2010 Lahore 182
Present: Syed Hamid Ali Shah, J.
MUHAMMAD ASHRAF--Petitioner
versus
UNITED BANK LIMITED through President
and 3 others--Respondents
W.P. No. 11148 of 2003, decided on 6.3.2009.
Banking Companies Ordinance, 1962 (LVII of 1962)--
----S. 41--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Banker and customer--Withdrawal of rate of profit at agreed rate and unilateral reduction of return by Banks on "Profit Schemes"--Payment of profit at a fixed rate for a fixed period--Conditions contained in the certificates of schemes were concluded contract and the obligations of parties were to be performed according to these conditions--Depositors in the schemes, could invest without being an account-holder, which fact, by itself, signified that conditions contained in the "Account Opening Form" had no application to the investments under the scheme--Fixed deposit for a fixed period on fixed rate of profit on fixed mode of payment, could not be stretched to fall within the "Profit and Loss Sharing System" of the Banks.
[Pp. 185, 192, 193 & 194] A, B, C, D & E
Constitution of Pakistan, 1973--
----Arts. 199 & 18--Banking Companies Ordinance, 1962, S. 41--Constitutional petition-Theory of state action and `doctrine of public trust--Applicability--Scope--Banker and customer--Withdrawal of rate of profit at agreed rate and unilateral reduction of return by Bank on profit scheme--Grievance of the depositors was not only that Banking company had breached the terms of contract but the contract involved the public interest and bank and under the cover of act of omission on the part of State Bank of Pakistan, was running the banking business detrimental to the interest of public as well as the depositors--Whenever it was found that a banking company was conducting its affairs in a manner, detrimental to the interest of its depositors, the State Bank being regulatory body, was bound to issue directions in the public interests--Transaction of banking business, by a company licensed by State Bank to do so, was a "public purpose", and a Bank was performing this function--Delayed action or inaction on the part of State Bank in the affairs of such companies could be judicially reviewed in the exercise of powers conferred under Art. 199 of the Constitution. [Pp. 194, 195, 196 & 197] F, G, H, I & J
1998 CLC 1178; PLD 1994 SC 693; 1998 CLC 1890 and 2001
CLC 681 rel.
Banking Companies Ordinance, 1962 (LVII of 1962)--
----S. 41--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Maintainability--Bank under effective control of the State Bank so far its banking business is concerned, discharges public functions, receives and transacts in public money in trust for public interest--Such functions of the Bank in substance are instrumentalities and functions of the State/Federation and are thus, subject to judicial review of High Court in its constitutional jurisdiction. [P. 197] K
Constitution of Pakistan (1973)--
----Art. 199--Constitutional jurisdiction--Scope--Constitutional jurisdiction of High Court does not extend to enforcement of contractual obligation--Contractual obligation or redressal of breach thereof, can adequately be redressed through a regular suit--Principles--Instances where the High Courts and Supreme Court have passed appropriate directions on the subject in the interest of justice in given situations enumerated. [Pp. 198 & 199] L & M
Constitution of Pakistan (1973)--
----Art. 199--Constitutional petition--Maintainability--Breach of statutory duty and breach of trust--Writ of mandamus--Issuance--Banker and customer--Withdrawal of rate of profit at agreed rate and unilateral reduction of return by Bankers on profit schemes--In the instant case, determination of factual controversy was not involved and the only question raised by the depositors was legality or otherwise of the reduction of agreed profit--Such question being legal, had direct bearing on the investment of large number of depositors, therefore, its resolution through invoking constitutional jurisdiction of High Court, was proper and imperative-Present situation was not the breach of contract which was complained of, rather the issue involved was breach of statutory obligation and breach of public trust--Writ of mandamus would lie to compel the performance of public duty, no matter what was the source, it could be statute, contract or charter etc.--Construction of a written, contract involved the question of law, true construction of contract was to be decided by Courts and none else--Objection to maintainability of constitutional petition, in the instant case, was thus, overruled as constitutional jurisdiction of High Court was rightly invoked. [P. 199] N
Contract Act, 1872 (IX of 1872)--
----S. 23--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Banker and customer-Unilateral reduction in the agreed rate of profit in "Profit Schemes" floated by Banks, through investment certificates--Contention of the Banks was that reduction in the agreed rate of profit was resorted to in the terms of "Account Opening Form" which authorized the Banks to bring variation in the rate of profit and reduce the same according to changed circumstances--Such plea did not justify the action of the Bank--Bank had widely advertised through scheme payment (of profit at a stipulated rate--Certificates purchased by the depositors contained the condition of payment of profit at the said rate--Brochure, the public notices cited in print media and Certificates (MMC) nowhere provided for reduction of rate of agreed profit unilaterally--Condition, in Account Opening Form, in circumstances, had no precedence over the conditions incorporated in the certificate itself which uxis paramount document--Investors could purchase certificates, without being an account-holder, therefore, any condition mentioned in the form will not override the express stipulation in the Certificates--Term of unilateral reduction in the agreed rate of profit, mentioned in the "Account Opening Form" was unconscionable, discriminatory and against the public policy and was therefore, unenforceable under S.23, Contract Act, 1872--Impugned action of the Banks whereby the rate of return/profit on investment certificates had been reduced unilaterally was declared to be without lawful authority and of no legal effect--Banks were legally bound to pay the depositors the profits, on the agreed terms, as expressly incorporated in the Certificates--Depositors were entitled to profit at the agreed rate, till final payment in respect of their investments. [Pp. 199 & 200] O & P
Malik Saeed Hassan, Advocate for Petitioner.
Mr. Imran Aziz Khan, Advocate for Respondents.
Date of hearing: 6.3.2009.
Judgment
Respondent-Banks introduced various profit schemes on deposits from the customers. One amongst the schemes is "Uni-Sona Deposit Scheme", which was introduced by United Bank Limited and its peculiar feature was 26% profit per annum, through which the investment becomes double within a period of five years and it becomes triple within 7-1/2 years. Industrial Development Bank introduced a similar scheme called "Monthly Munafa Certificate" whereby profit rate offered to the investors was ranging from 11% to 14% per annum on the investments of 1 to 7 years. The profit was payable on the first of every calendar month. These schemes were widely publicized in print media and through pamphlets.
Respondent-Banks before the maturity of these Schemes, altered material condition, the rate of mark-up was reduced considerably which was accordingly, conveyed to the investors/customers, through letters. The rate of profit on Uni-Sona Scheme was reduced to 12.7% on the investment/deposit of five years and 13.1% on the investment for 7 1/2 years. The rate of profit on Monthly Munafa Scheme was reduced to 10% with effect from 1-4-2003. The petitioners are investors/customers of United Bank Limited and Industrial Development Bank of Pakistan under the above schemes and have assailed the unilateral reduction of profit in these petitions. Writ Petitions Nos. 15330 to 15334 of 2003, Writ Petitions Nos.3200 of 2003 and 17840 of 2004 involve common questions. This single judgment will dispose of the above petitions as these have identical facts and present common question of law for determination.
Malik Saeed Hassan, Senior Advocate representing the petitioners in Writ Petitions Nos. 1530 to 1532 of 2003, contended that respondent Banks reduced the rate of profit, relying upon the condition of contract that Bank can alter and vary the rate of profit. He-' added that there are no such condition in the contract and even if there is such condition it is such condition in unconscionable and discriminatory and thus not legally enforceable. Learned counsel supported this contention by referring to the cases of "S. Tufail Ahmad v. Water and Power Development Authority and another" 1976 SCMR 106. "The Chairman Electricity, WAPDA Lahore and 2 others v. Ch. Muhammad Shafi Advocate PLD 1976 SC 254 and Karachi Gas Co. Ltd. v. Dawood Cotton Mills Ltd. PLD 1975 SC 193. Learned counsel contended that a concluded contract between the parties can neither be rescinded nor altered unilaterally. The rescission is legally permissible when the contract so stipulates. The alteration is enforceable when the parties to agreement mutually decide so through a novated agreement, as per the provisions of Section 62 of the Contract Act, 1872. He referred to well-known maxim "Pacta Sanct Sarvanda" i.e. agreement must be honoured and referred to the cases of "Ittehad Co. v. The Commissioner, Faisalabad and 3 others" PLD 1994 Lah. 29, to support this-contention.
Learned counsel contended that petitioners do not seek enforcement of an obligation, under the contract but their grievance pertains to the breach of statutory obligations of the State. Petitioners assert their rights against the State. Learned counsel supported this contention by referring to the cases of Messrs Walk Orient Power and Light Limited Gulberg III, Lahore v. Government of Pakistan, Ministry of Water and Power through its Secretary Islamabad and 2 others 1998 CLC 1178, M.H. Abidi v. The State Life Insurance Corporation 1990 MLD 563 and India Thermal Power Ltd. v. State of M.P. and others AIR 2000 SC 1005. He went on to argue that public limited company which is not a statutory body or Government controlled body and performs its functions for benefits of its members, may not be regarded as 'Person' performing functions in connection with affairs of Federation and thus such company may not be amenable to writ jurisdiction, yet offices held by Directors and Chief Executive of the Company, must be regarded as public offices, which are of greatest interest to the public. Holder of such offices fall within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan. He in this regard, has referred to the dictum of law laid down by the Honourable Supreme Court of Pakistan in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244. Learned counsel referred to the cases of Messrs K.S. Sulemanji Esmailji and Sons v. Messrs M. Sulemanji arid Company Ltd. 1986 CLC 775, Societe Generale v. Registrar of Trade Marks 2002 CLD 37, Messrs Mehran Ghee Mills (Pvt.) Limited and others v. Messrs Chiltan Ghee Mill (Pvt.) Limited and others 2001 SCMR 967, Messrs Tri-Star Industries (Pvt.) Ltd. v. Messrs Trisa Bursten Tabrik A.G. and others 1999 YLR 638, Standard Finis Oil Company and others v. National Detergents Ltd. and 2 others 1984 CLC 781, Messrs Chas A. Mendoza v. Syed Tausif Ahmed Zaidi and 2 others PLD 1993 Karachi 790, Messrs Virendra Dresses, Delhi v. Messrs Varinder Garments, Delhi AIR 1982, Delhi 482, Insaf Soap Factory v. Lever Brothers Prot Sunlight Ltd. PLD 1959 (W.P.) Lahore 381 and J. N. Nichols (Vimto) PLC A. Company Incorporated in the United Kingdom v. Mehran Bottlers (Pvt.) Ltd. Karachi. PLD 2000 Kar. 192, wherein the Courts granted injunction on the principle that close resemblance of two trademarks will cause confusion and is likely to deceive unwary buyers. Learned counsel submitted that deception to public at large, whether under Trade Mark Act or any other special law like Banking laws has been addressed by the Courts to save public from being cheated. Learned counsel emphasized that any act of deception requires intervention of the Court and the Courts in such situations, are to safeguard the interest of public. While placing reliance on the cases of S.Tufail Ahmad v. Water and Power Development Authority and another 1976 SCMR 106 and The Chairman, Electricity WAPDA, Lahore and 2 others v. Ch. Muhammad Shafi, Advocate PLD 1976 SC 254, learned counsel contended that term in the contract, allowing only one party to increase rates unilaterally is unconscionable and discriminatory term and such term of contract, is not legally enforceable. While referring to the case of The Muree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279, it was contended that High Court can exercise its constitutional jurisdiction, when impugned action is attacked, on the ground that it was without authority, partial, unjust and mala fide. Rule that constitutional jurisdiction is not exercised when alternate remedy is available, is a rule by which High Court regulates its jurisdiction and not a rule of law. Learned counsel submitted with vehemence that though the enforcement of contractual obligation is not permissible in writ jurisdiction but the authorities when act unfairly, arbitrarily and discriminately, the High Court can interfere in its constitutional jurisdiction Moreso, when impugned action offends principles of Natural Justice. Learned counsel in support of his contention placed reliance on the cases of Messrs Huffaz Seamless Pipe Industries Limited v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890, Messrs Chaudhri Brothers v. Province of Punjab through Secretary/Chief Purchase Officer, Industries and Mineral Development Department Lahore and 2 others 1993 MLD 2437, Syed Caterers v. Government of Pakistan through Secretary Ministry of Railways, Government of Pakistan, Pakistan Secretariat, Islamabad and 5 others 2000 MLD 265, Messrs Namil and Company, Lahore through its Proprietor v. Government of Pakistan through Secretary Communication and Works Department Civil Secretariat, Lahore and 4 others 2003 CLC 1711, Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268, and Humayun Iftikhar Chishti v. Punjab Local Council Election Authority and others 1999 CLC 79.
Mr. Imran Raza Chadhar, Advocate, learned counsel for petitioners in Writ Petitions Nos. 11148 of 2003, 15330 to 15334 of 2003 contended that petitioners, in response of public advertisement published in National Press, opted for the Scheme of respondent Bank and invested in Uni-Sona Scheme. The investment, according to the advertisement and brochures, gets double in five years and triple in 7« years. Respondent Bank made unilateral reduction in profit and the petitioners served upon the respondent legal notice which remained un-replied. Learned counsel contended that respondent cannot deviate from clear stipulation and any unilateral change in the conditions of the contract is illegal. He went on to argue that respondents justified the impugned act (reduction on the plea that profit has been reduced on the basis of direction of State Bank of Pakistan. He added that State Bank of Pakistan vide Letter No. BPD(PV-35)/602/7512 of 2004 dated 14-6-2004, has informed that no instruction was issued to United Bank Limited to reduce the profit rate. Learned counsel then contended that Uni-Sona Scheme was introduced by the Bank, when it was not privatized and it was privatized with the condition that it will own all its existing liabilities and commitments. It was argued that the writ petition is competent against United Bank Limited. He further added that State Bank of Pakistan regulates and controls private Banks in Pakistan. The Banks which are under the control of State Bank of Pakistan, are thus amenable to the writ jurisdiction. It was submitted that the respondent-Bank had added "PLS" in the relevant condition subsequently while terms and conditions of the Scheme are governed according to advertisements and the brochures. Learned counsel submitted that reduction of profit was assailed before this Court in Writ Petition No. 14095 of 2003 titled "Parveen Akhtar v. Zonal Chief U.B.L. and Writ Petition No. 4095 of 2003 titled Muhammad Javed Anjum v. Industrial Development Bank of Pakistan. The writ petitions were allowed. The Intra-Court Appeal (I.C.A. No. 168 of 2004) against the decision in Writ Petition No. 4095 of 2003, has also met the fate of dismissal. Learned counsel in support of his contentions referred to the cases of Mahabir Auto Stores and others v. Indian Oil Corporation and others AIR 1990 SC 1031, Khumari Shrilekha Vidyarthi and others v. State of U.P. and others AIR 1991 SC 537, Joginder Singh v. The Financial Commissioner, Revenue and Secretary to Government of Punjab and others AIR 1995 Punjab and Harayana 138 and The D.F.O South Kheri & others v. Ram Sanehi Singh AIR 1973 SC 205 (from Indian jurisdiction). He also placed reliance on the cases of Wak Orient Power and Light Limited (supra), Ch. Muhammad Latif v. I.G. Sindh 1995 PLC (C.S) 1061, Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Karachi 283, The Majlis-e-Intizamia Masjid Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355 and Muhammad Ashraf Ali v. Muhammad Naseer and 2 others 1986 SCMR 1096, (from out own jurisdiction).
Mr. Jawaad Mahmood Pasha, Advocate, learned counsel for the petitioners (Writ Petition No. 3200 of 2004) contended that Mahana Munafa Certificate (MMC) has no relevance with profit and loss sharing. Both are distinct transactions. Former is the promise or an undertaking to pay fixed return or profit per annum, while the latter is a transaction where rate of return is calculated on the basis of accrued profit or loss. In the case of M.M.C., the rate or return is predetermined, while in the case of PLS account the rate of mark-up is not anticipated or agreed upon in advance. An account-holder can enter into Banker and customer relationship by opening Bank account, while the Scheme of M.M.C., is not restricted to an account holder only. Learned counsel on the question of competence of constitutional petition for enforcement of contractual obligations referred to the cases of Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116, Messrs Airport Support Services (supra), Bayindar Insaat v. Pakistan through Ministry of Communications and 3 others PLD 2001 Lah.426 and Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others 1998 CLC 1178. Learned counsel submitted that constitutional jurisdiction of this Court can competently be invoked against a banking company, in private sector, and referred to the case of Network Television Marketing Ltd. v. Government of Pakistan and another 2001 CLC 681 and unreported judgment in the case of Parveen Akhtar v. Zonal Chief U.B.L. (W.P. No. 14095 of 2003); in support of his contention. Learned counsel referred to the case of Javed Anjum v. Industrial Development Bank of Pakistan 2004 CLD 520, to contend that the letter (assailed in these petitions) whereby the profit rate was reduced, has already been set aside and the judgment was upheld in I.C.A. No. 68 of 2004. Learned counsel referred to Section 2(c) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and contended that a person, who has invested in Mahana Munafa Certificate, does not fall within the definition of customer. Where there exists no relationship of Banker and customer, the jurisdiction of Banking Court is ousted. The petitioners cannot institute suit in the Banking Court and the only adequate remedy which is available to the petitioners, is to invoke Extraordinary Constitutional jurisdiction of this Court.
Mr. Imran Aziz Khan learned counsel for the respondent, on the other hand has fully supported the impugned action. Learned counsel submitted that schemes like Unisona are introduced keeping in view the existing rates of mark-up and the guidelines of State Bank of Pakistan. Whenever the rates are altered, the changes are brought in the earlier schemes to bring uniformity in various banking facilities and accounts. A customer is informed at the time when he purchases certificates that the rate of profit is variable. He added that not only that an information is passed on to customer, when he opens accounts but it is also expressly mentioned in the account opening from that rate of profit is subject to change. The petitioner at the time of purchase of certificates knows this fact and is, therefore, estopped by his conduct to raise objection or contest the change in rates. He submitted that banking in today's world has become complex and change in rate of interest/profit, is common and universally acknowledged. The Banks in Pakistan, in order to keep compatibility and conformity with the banks abroad, have to make the policies which are adopted by the banks globally. Learned counsel placed on record, recent corporate record of the company, including Form XXIX to show that management of U.B.L, after it's privatization, is in the hands of private individuals. The management, control and funding is in the hands of private individuals, therefore, the actions of the Bank cannot be called in question, in writ jurisdiction. Learned counsel submitted that U.B.L is private commercial enterprise, the contract is between two individuals and it's terms cannot be enforced through constitutional jurisdiction of High Court. Learned counsel went on to argue that questions raised in these petitions, involve factual controversy, which cannot be determined in the constitutional jurisdiction. The relief claimed by the petitioners, rests on the resolution of controversy, which requires evidence to be recorded, for it's proof. The petitioners were aware of the condition of charge in the rate of profit they signed account opening form the conditions mentioned in the account opening form were brought to their notice when they purchased certificates, are questions of fact and without determination of these questions the petitioners cannot establish their claim. Learned counsel in support of his contentions has referred to the cases of Messrs Momina Motor Company v. The Regional Transport Authority, Dacca PLD 1962 SC 108; Ghulam Mohey-ud-Din v. Secretary Industries, Punjab 1996 CLC 2041; Riaz Ahmed Malik v. Mst. Ghazala Riaz Malik 1993 CLC 1834; Tanvir Iqbal Siddiqi v. The. Principal, Overseas Pakistan Foundation (OPF) Girls College, Islamabad 1994 SCMR 958; O.S. Mollasse Corporation v. Secretary Industries and Mineral Development Department, Government of Punjab PLD 1997 Lah. 546; Abid Hussain v. Board of Trustees Abandoned Properties 2000 CLC 1497; Maqsood Ahmed Toor v. Red of Pakistan 2000 SCMR 928; Barkat Hussain v. Sardar Misri Khan PLD 1992 SC (AJ&K) 45; Noor Jehan Shah v. Pakistan Defence Officers Housing Authority 1997 MLD 2261 Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621. Learned counsel contended that the Banking business in Pakistan, even in case of a Private Bank, is controlled by State Bank. The control by State Bank, does not render the functions of private Bank as functions performed in connection with the affairs of Federation. The constitutional jurisdiction can be invoked when functions of the person against whom the grievance is raised, performs functions in connection with the affairs of Federation, a Province or a Local authority. The respondent-Bank does not perform such functions. Learned counsel supported this contention by referring to the cases of Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 (273) and Sayeda Sayeeda Bano v. Province of East Pakistan PLD 1969 Dacca 352. Learned counsel contended that unilateral increase of rate of energy, was assailed on the ground that increase of rates is unconscionable and discriminatory. The plea was rejected by the Honourable Supreme Court in the case of Syed Tufail Ahmed Shah v. WAPDA 1976 SCMR 106. Learned counsel added that petitioners have raised same plea in these petitions. The issue has since been resolved in the case of Syed Tufail Ahmad Shah (Supra) and resolved issues, cannot be allowed to be agitated time and again. Learned counsel then submitted that various remedies were available to the petitioners e.g. civil suit, representation before State Bank and complaint before Banking Ombudsman. Petitioners approached this Court in its constitutional jurisdiction without availing the other efficacious, remedies. These petitions are thus incompetent and in support of his contention, placed reliance on the case of Muhammad Sharif v. The Settlement Commissioner (Lands) Lahore 1968 SCMR 1164. Learned counsel referred to the case of Chairman Electricity WAPDA, Lahore v. Ch. Muhammad Shafi, Advocate PLD 1976 SC 254 to contend that rate of profit can be reduced even without notice, when the original agreement does not contemplate any such notice. Learned counsel summed up his argument, with the contention that petitioners' case do not fall within the preview of Article 199 of the Constitution, merely on the ground that when the certificates (Unisona) were purchased, U.B.L. was a nationalized Bank. Learned counsel emphasized that status of a person that he was performing functions in connection with the affairs of Federation, can be determined from the date on which the writ is filed against such person. Learned counsel supported his contention by referring to the case of Sardar Zaheer Ahmed Khan, Advocate v. Mohtarma Benezir Bhutto 1994 MLD 397. The learned counsel for the other respondents adopted the arguments of the Imran Aziz Khan Advocate.
Heard learned counsel for the parties and record perused.
Identical issue of withdrawal of rate or profit at agreed rate and unilateral reduction of rate of return, was assailed in Writ Petition No. 14095 of 2003 titled Mst. Parveen Akhtar v. Zonal Manager U.B.L., which was disposed of with the direction to respondent-Bank to redress the grievance of the petitioner, on a fresh representation to be filed within one week of the order and granted one month's time to the Bank for the compliance of the order. Respondent-Bank assailed the order of learned Single Judge in chambers, before the Honourable Supreme Court of Pakistan in Civil Petitions No. 3216 of 2003. The Honourable apex Court, keeping in view pendency of various petitions on the similar issue and the fact that vital issue on the questions maintainability of writ petition, enforceability of contractual obligation in writ petition and nature of transaction, ought to have been considered but remained unattended, converted the petition into appeal. The appeal was accepted, vide judgment dated 8-1-2007 and following points were formulated by the apex Court for fresh decision after hearing the parties:--
(i) Whether the contractual obligations between the private parties could have been enforced by invoking the Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan?
(ii) Whether the writ could have been issued against United Bank Limited being a public limited company, which is not controlled by the Federal Government or Provincial Government and having nothing to do with the affairs of the Federation, a Province or Local Authority?
(iii) Whether the investment was made by the respondent on loss and profit share basis or otherwise?
The above formulated points, need closer examination for their determination. I will take up these points in the later part of this judgment one by one, although the above direction of the Honourable Apex Court, was in the matters, which are not before me.
I will first advert to the nature of transaction between the parties, as to whether it is on "Profit and loss share basis" or otherwise. Mahana Munafa Certificate (MMC) Scheme of Industrial Development Bank of Pakistan (IDBP) and Uni-Sona Scheme of United Bank Limited, were advertised widely through print media and also through brochures. The terms on which, the investment from depositors, was invited, was monthly payment of profit at a fixed rate for a fixed term. The features of the Investment Schemes are distinct from PLS System, which can be ascertained from the following comparison:--
S.No. MMC/Uni-Sona Profit Loss Sharing
Scheme System
Profit is calculated at the end of year and concept of predetermined rate of profit is alien to this system.
The profit or loss cannot be definitely anticipated or agreed upon in advance. The rate of profit is declared at the end of each closing, which is normally half yearly.
Sharing of loss in the event it is declared at the end of closing, is precondition.
The PLS accounts are operated, on the specified terms and conditions in the Account Opening Form.
The account-holder can frequently make deposits and withdrawals in the account and the profit is worked out on daily product basis.
To enter into relationship of customer in the profit and loss account, it is mandatory for the customer to be an account-holder.
Accounts are further distinguished as PLS (Saving), PLS (Term Deposit). In the case of former, profit is declared after six months, while in the latter case, the profit is declared at the expiry of term.
Partial withdrawals are permissible from the balance.
Deposit/Principal x Number of Days x Rate of Profit= Daily Product
365x100
The above formula does not apply to the investments, which are for fixed period. The profit on such scheme is payable at the agreed rate. The conditions contained in the "Form" are general, therefore, will not apply to schemes under reference. The conditions contained in these certificates are concluded contract and the obligations of the parties are to be performed according to these terms and conditions. The depositors in the schemes under reference can invest without being an account holder, which fact by itself signify that conditions contained in the "Account Opening Form" have no application to the investments under the Scheme.
Therefore, there can be no other view except that investment, in the schemes under reference, has ho relevance or nexus with Profit and Loss Sharing System.
Sec. 41. Power of the State Bank to give direction.--(1) Where the State Bank is satisfied that--
(a) in the public interest; or
(b) to prevent the affairs of any Banking Company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interests of the Banking Company; or
(c) to secure the proper management of any Banking Company generally;
It is necessary to issue directions to Banking Companies generally or to any Banking Company in particular, it may, from time to time, issue such directions as it deems fit, and the Banking Companies or the Banking Company, as the case may be, shall be bound to comply with such directions.
(2) The State Bank may, on representation made to it or on its own motion, modify or cancel any direction issued under sub-section (1), and in so modifying or cancelling any direction may impose such conditions as it thinks fit, subject to which the modification or cancellation shall have effect."
Whenever it is found that a Banking Company is conducting its affairs in a manner, detrimental to the interest of its depositors, the State Bank of Pakistan being regulatory body, is bound to issue directions in the public interest. The inaction, on the part of State Bank of Pakistan, at times, had caused immense loss to the public at large. There are various instances such as incorporation of Finance Companies during 1977-1978 Taj Company Scam, involvement of Cooperative Societies in the Banking Business and Scam of Forex Companies, the, actions were taken at the belated stage when the public had already suffered and the depositors had been fleeced and emptied by these companies. Transaction of Banking Business, by a company licensed by State Bank to do so, is a public purpose and respondent (United Bank Limited) is performing this function. Delayed action or inaction on the part of State Bank of Pakistan, in the affairs of such companies can be judicially reviewed, in the exercise of powers conferred under Article 199 of the Constitution of Islamic Republic of Pakistan. The petitioners have asserted the infringement of their rights due to act of omission on the part of the State Bank, which they term as unlawful. The breach on the part of state can be said to be breach of statutory duty/obligation. The reference in this regard can be made to the case of Walk Orient Power and Light Limited (Supra). The grievance of the petitioners is not only that public company (U.B.L.) has breached the terms of contract but the contract involves the public interest, and respondent-Bank under the cover of act of omission on the part of State Bank, is running the Banking Business detrimental to the interest of public as well as the depositors. The arbitrary and unfair exercise of power, is, therefore; open for judicial review. The auction of respondent-Bank is deemed as an action of the state when it is actively aided or facilitated by state or it is supported by the functionaries of the State.
The Courts in America, in order to thwart racial discrimination by private parties, after 14th Amendment in the Constitution, devised the "Theory of State Action". According to American doctrine of State Action, wherever the private activity is aided, facilitated or supported by the State significantly, such action or activity takes the colour of State action which becomes subject to constitutional limitations of Fourteenth Amendment. The provisions of American Constitution cannot always apply to our local conditions. But the doctrine, in view of fundamental rights of a citizen as guaranteed by our Constitution vide Article 18, can be applied to our local conditions. Any new or innovative expansion of human rights, which expands the reach and ambit of fundamental rights, need to be applied when such expansion is not in departure from the language of constitutional provisions. The Government and the State Bank have unusual degree of control over the management and policies of the Banking Companies in Pakistan. The power conferred upon the State Bank of Pakistan to control the Banking Companies, under the provisions of Ordinance, 1962, characterizes the operations of the Banks even in private sector, as State actions. The Banks are involved and engaged in the matters of high public interest, for the public money is entrusted to them which is a public function, closely related to the Government function. The control by the State Bank over management and policies, over the Banks in public and private sector, speaks volume about the fact that in reality the Government acts through the agency of corporation. The corporation may be a statutory corporation created by a statute or it may be Government Company or company incorporated under Companies Ordinance, 1984 or a registered society. The Government assistance, control over policies, functions carried by the Bank having nature of public functions and transaction of Banking Business under the license of the Federal Government are relevant to determine that the Banks in Pakistan, while doing their Banking Business, perform the functions as agency or instrumentality of the Federal Government are the public functions. State Bank of Pakistan controls the policies of the Banks, it can assume its control if it is found that the Banking Company is managing its affairs detrimental to public interest and the Banking Business is subject to registration and licencing. It is also amenable to various directions which the State Bank issues from time to time through circulars. Such functions of the Banking Company come within the ambit of State function, so as to be amenable to the discipline of Article 199 of the Constitution. The Courts should enlarge the scope and width of the fundamental rights by bringing within its ambit every authority whether it is Government itself or it is instrumentality or agency of the Government. Lending by the Banks and availing of deposits from the public by the Banks may be a private activity but when it aided, facilitated by the Government, it takes the shape of State action and is thus amenable to Constitutional jurisdiction. Our Courts have already adopted the "Doctrine of Public Trust" which is doctrine of public law under which the natural resources such as Air, Water, Forest, Lakes, Rivers and Wild Life are public properties, entrusted to the Government for their safe and proper use and protection. The doctrine enjoins upon the Government to protect the resources for the enjoyment of general public rather than to permit their use for private ownership or commercial purpose. The doctrine was adopted in "Shehla Zia and others v. WAPDA" PLD 1994 SC 693 and dictum of Shehla Zia's case was subsequently followed in order cases relating to environment protection. The Doctrine of State Action, can be applied, the way the doctrine of Public Trust, has been adopted by our Courts, to the private activity of the Company when, it aided, facilitated and supported by the state and public interest is involved in such activity.
A learned Division Bench of this Court in the case of Messrs Huffaz Seamless Pipe Industries Ltd. (Supra) observed that companies incorporated under the Ordinance, 1984, under the dominative control of the State which provides amenities of life of citizens in substance are instrumentalities/agencies of the State, the actions of such Institutions are administrative actions and are thus subject to judicial review of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan. Similarly in the case of Network Television Marketing Ltd. (Supra) it was found that maintenance and operation of television station was public purpose and company was performing that purpose. As such company would be performing functions in connection with affairs of Federation, within the meaning of Article 199 of the Constitution.
(sic). From the above, it clearly follows that United Bank Limited, after privatization is no more controlled by the Government so far as its management is concerned. The Bank, however, is under effective control of the State Bank of Pakistan, so far as its Banking Business is concerned. The respondent (United Bank Limited) as Banking Company discharges public functions, receives and transacts in public money, in trust for public interest. Such functions of United Bank Limited in substance are instrumentalities and functions of the State/Federation and are thus subject to judicial review of High Court in it's Constitutional Jurisdiction.
Now coming to third question which the Honourable apex Court has proposed, for decision that whether Constitutional Jurisdiction of High Court extends to enforcement of contractual obligation.
The High Court normally in the exercise of its Constitutional Jurisdiction does not entertain a petition to enforce a civil liability arising out of contract or breach thereof. The Court leaves adjudication of such issues to the Court of plenary jurisdiction, under the general law. The remedy through a civil suit is admirable as all the issues and controversies are resolved after proper appraisal and appreciation of evidence. It gives high quality justice as against the decisions rendered in summary proceedings. The litigation in regular suit is adequate and suitable as each claim and counter claim of contesting parties is ascertained according to its peculiar facts with due determination, although the process is lengthy and sometimes consumes years to attain finality. The litigant has to pay the price in the from of time, money and talent for high quality justice, the individual claims and inter-parties disputes require determination according to the discipline and before the Court or a forum which is established for resolution of such dispute. The system of the Courts can function properly only when matters are left to be decided in the Courts of plenary and general jurisdiction. Entertaining Constitutional petitions in the matters which can effectively be decided in accordance with law in the Court of general jurisdiction, would result into limiting the jurisdiction of the Courts of plenary jurisdiction. Liberal exercise of jurisdiction in constitutional petitions, will also portray that confidence in such Courts, is not reposed in imparting justice. Interference in the writ jurisdiction, regarding enforcement of contractual obligations, invariably and unhesitatingly, in every case where the Government or public functionary is involved, the result would be appalling, disquieting and disconcerting. Pendency of litigation in the High Courts is burgeoning day by day and the High Courts are already overburdened. Entertaining Constitutional Petitions in contractual obligation, will further add to the backlog. The Constitutional jurisdiction cannot be invoked merely on the plea that one of the contracting party is Government or public functionaries and the Government commands dominating position. Routine contractual disputes between the private parties and public functionaries are to be resolved through regular suits, instead of approaching High Court in its Constitutional Jurisdiction. The High Courts and the Honourable apex Court has consistently viewed that enforcement of contractual obligation or redressal of breach thereof, can adequately be redressed through a regular suit.
(i) Breaches of contract committed by persons performing functions in the affairs of Federal Government, Provincial Government or Local Authority, pertaining to a contract carrying element of public interest.
(ii) Controversies involving dereliction of obligations, flowing from Statutes, Rules or Instructions.
(iii) The complained act of public functionary is arbitrary, unfair, unreasonable, mala fide or offends the principles of Natural Justice.
(iv) Dispute is not confined to the terms and conditions of the contract but the breach is violative of law.
(v) Public interest is involved, large number of adjudication of claims at one forum irrespective of jurisdictional prescriptions, to avoid conflicting judgments.
(vi) When the matter do not entail, inquiry into or examination of minute or controversial questions of fact.
24(sic). In the instant controversy determination of factual controversy is not involved and the only question raised in these petitions is legality or otherwise of the reduction of agreed profit. The question being legal has direct bearing on the investment of large number of depositors, therefore, its resolution through invoking constitutional jurisdiction of this Court, is proper and imperative. It is not the breach of contract which is complained of. Rather the issue involved is breach of statutory obligation and breach of public trust. A mandamus writ lies to compel the performance of public duty, no matter what is the source. It can be statute, contract or charter etc. the construction of a written contract involves the questions of law. True construction of contract is to be decided by Courts and none else. The objection of maintainability of these petitions is thus overruled. Constitutional jurisdiction of this Court has rightly been invoked.
The above discussion brings me to the last contention of the petitioners that unilateral reduction in the agreed rate of profit is neither legal nor contractual. Mr. Imran Aziz, Advocate, learned counsel for the respondent Bank, defended the impugned action by resorting to the term in the "Account Opening Form" which authorizes the Bank to bring variation in the rate of profit and reduce the same according to changed circumstances. It is hard to fathom that such plea justifies the impugned action. The onerous or unusual term in the agreement will bind the other contracting party, when such party knows the existence of a particular condition. The party taking advantage of the onerous condition must fairly and reasonably bring to the notice of other's attention, such condition. Denning L.J. [J Spmling Ltd. v. Bradshow, (1956) 1 WLR 461)] said the unusual term in the printed form must be printed in red ink on the face of document to hold notice of such condition as sufficient. Respondent-Bank widely advertised through scheme payment of profit at a stipulated rate. The Certificates purchased by the petitioners contain the condition of payment of profit at the said rate. The brochure, the public notices cited in print media and Certificates (M.M.C.), nowhere provide for reduction of rate of agreed profit unilaterally. The condition in Account Opening Form has no precedence over the conditions incorporated in the Certificate itself, which is paramount document. An investor can purchase certificate, without being an account holder, therefore, any condition mentioned in the certificate will not override the express stipulation in the certificate. The term of unilateral reduction in the agreed rate of profit, mentioned in the Account Opening Form, is unconscionable, discriminatory and against the public policy is, therefore, unenforceable under Section 23 of the Contract Act.
For what has been held above, these petitions are accepted and impugned action of the respondents (U.B.L, and IDBP) whereby the rate of return/profit on Mahana Monafa Certificates and Uni-Sona Certificates, has been reduced unilaterally is declared to be without lawful authority and of no legal effect. Respondents are held legally bound to pay the depositors the profits, on the agreed terms, as expressly incorporated in the certificates. The petitioners are entitled to profit at the agreed rate, till final payment, in respect of their investments.
(R.A.) Petitions allowed.
PLJ 2010 Lahore 200 (DB)
Present: Syed Hamid Ali Shah & Ali Akbar Qureshi, JJ.
Malik TANVEER ALI and another--Appellants
versus
SARDAR ALI IMAM and 2 others--Respondents
RFA No. 361 of 1999, decided on 26.5.2009.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Suit for specific performance of contract--Trial Court dismissed the suit--Regular First Appeal--Validity--Time as essence of contract--Held: Time being the essence of the contract, can be determined on the basis of intention of the parties that contracting parties had no intention that agreement will be performed beyond the period, specified in the agreement the intention can be gathered by seeing the pith and substance of the agreement. [P. 208] A
Limitation Act, 1908 (IX of 1908)--
----Art. 113--Barred by limitation--Appellants have instituted instant suit, after a period of more than nine years, while Art. 113 of the Limitation Act, provides a period of three years for filing the suit for specific performance--Viewing the case of the appellants from any angle, the suit is barred by limitation and finding of trial Court on this issue is unexceptionable. [P. 211] B
Specific Relief Act, 1877 (I of 1877)
----Ss. 14, 15 & 16--Contract Act, 1872, S. 39--Partial specific performance can be ordered only when conditions as envisaged in Section 15 of Specific Relief Act, 1877 are strictly complied--Provisions of Section 39 of the Contract Act, 1872 provide that contract has to be performed as a whole--Sections 14 to 16 of Specific Relief Act, 1877 are exceptions to the general rule--Appellants failed to amend their plaint to bring their case within the purview of Section 15. [P. 211] C
Deposit of Sale--
----Saving certificates equal to amount of balance sale--Remedy of injunctive relief--Consideration into Court--Appellants were required to prove that they were willing and ready to make the payment of the balance sale consideration--Defect in the title of vendor may result into enlargement of the time for performance of the agreement--This, however, does not absolve the appellants of their primary responsibility to be ready and willing to perform their obligation under the contract--They were directed to deposit with the Court saving certificates equal to the amount of balance sale consideration--They failed to deposit remaining sale price to avail the remedy of injunctive relief. [P. 212] D & E
Specific Relief Act, 1877 (I of 1877)--
----S. 21(g)--Agreement contains a condition that in case of litigation or defective title, the period for completion of the contract will stand extended, till the time the title of respondents is clear--The performance of the agreement would thus extend to a longer period than three years--Section 21(g) of the Specific Relief Act provides that such contract cannot be specifically enforced--Suit on the basis of unenforceable agreement does not lie and the agreement to sell cannot be specifically performed--Appeal dismissed. [P. 213] F & G
1997 SCMR 855, rel.
Mr. Ahmad Waheed Khan, Advocate for Appellants.
Mr. Shahzad Shaukat, Advocate for Respondents.
Sh. Shahid Waheed, Advocate for Respondent No. 2.
Date of hearing: 17.4.2009.
Judgment
Syed Hamid Ali Shah, J.--Land measuring 850 kanals 5 marlas situated in village Misson tehsil Ferozwala district Sheikhupura was in the name of the respondents of whom Col. Ali Imam was owner of 433 kanals 12 marlas, Qaisar Imam was owner of land measuring 212 kanals 13 marlas and Farukh Imam was owner of land measuring 204 kanals only. They jointly sold the above land through an agreement to sell dated 19.1.1986 (Ex.P.1) to the appellants for the sale consideration of Rs. 34,87,281/-. The land was bifurcated into two parts for the purposes of price; Land measuring 86 kanal 5 marlas was agreed to be sold at the rate of Rs. 33000/- per acre and price of the remaining 21 acres was fixed at Rs. 32000/- per acre). An amount of Rs. 400,000/- was paid as earnest money, while balance sale consideration of Rs. 30,87,281/- was to be paid at the time of registration of sale-deed. The sale was to be completed and the sale-deed was to be registered on or before 18.10.1987. The time for completion of sale was extendable, in case of any legal hurdle or litigation, till the removable of hurdle or final outcome of litigation. It was also agreed and incorporated in the agreement to sell that failure of the second party to make payment of the balance sale consideration, will entail consequences of forfeiture of the earnest money and rescission of agreement to sell. The respondents/vendors rescinded the agreement through a public notice published in newspaper, "daily News" in its print dated 10.12.1993. The appellants on the other hand instituted suit for possession through specific performance on 15.7.1996. The respondents entered appearance, contested the suit and filed written statement. The respondents admitted the execution of the agreement to sell and payment of earnest money by the vendees. They, however, controverted other assertions of the plaint and raised various preliminary objections in the written statement. Learned trial Court, out of the divergent pleadings of the parties, framed eight issues. The appellants produced two witnesses namely Muhammad Jamil PW.1 and Malik Muhammad Ashraf PW.2 in affirmative evidence. The documentary evidence of the appellants comprised Ex.P.1 to Ex.P.4. The defendants/respondents brought to the witness box DW.1 Aurengzeb, DW.2 Chaudhry Farzand Ali and DW.3 Shahnawaz. Sardar Akhtar Imam, one among the defendants, entered the witness box as DW.4. The respondents produced Ex.D.1 to Ex.D.7 in the documentary evidence. Ahmad Waheed Khan, PW.3 and Muhammad Asif, PW.4 were the witnesses of the plaintiffs in evidence in rebuttal. Learned trial Court on conclusion of the trial, dismissed the suit of the appellants/plaintiffs vide judgment and decree dated 12.4.1999, hence this appeal.
Learned counsel for the appellants contended that the parties to the contract, expressly stipulated in the agreement to sell that suit property is free from encumbrance, mortgage, sale, Tamleeq, gift or will and is clear from any loan as well. The respondents admitted execution of agreement to sell and payment of Rs. 400,000/- as earnest money. The respondents unjustifiably rescinded and abrogated the agreement and got published a notice in the newspaper. Learned counsel added that when the order passed on the application for temporary injunction was assailed in FAO No. 306-1996, the Court directed the appellants to arrange payment of the balance sale consideration for payment to the respondents. The appellants brought the money in the form of pay orders and Defense Savings Certificates which fact is evident from order dated 6.2.1998, passed in the above appeal. Learned counsel vehemently contended that the time was not essence of the contract and the appellants remained ready and willing to perform their part of the contract throughout. Learned counsel submitted that it has been expressly incorporated in the agreement to sell that in case of any defect in the title or in case of litigation, the period for completion of the sale will stand extended. Learned counsel emphasized that this condition in the agreement by itself is sufficient to prove that time was not essence of the agreement and the agreement is still enforceable. Learned counsel supported this contention by referring to the cases of "Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square, Lahore Vs. Messrs Babar & company through Shakir Ali Khan and 2 others" (PLD 1999 Lahore 193), "Muhammad Nawaz Khan and another Vs. Mst. Farrah Naz" (PLD 1999 Lahore 238), "Mst. Batul and others Vs. Mst. Razia Fazal and others" (2005 SCMR 544) and "Muhammad Sharif Vs. Mst. Fajji alias Phaji Begum through Legal Heirs and another" (1998 SCMR 2485). Learned counsel submitted that out of 850 kanals & 5 marlas, land measuring 435 kanals was allegedly cancelled from the vendors name. Learned trial Court while relying on the provisions of 14, 15 & 16 of the Specific Relief Act, came to the conclusion that major portion of the agreement has become unenforceable. He contended that there is nothing on the record to prove that land measuring 435 kanals was cancelled from the title of the respondents. Learned counsel emphasized that litigation was initially with regard to a small portion of suit land i.e. 19 acres only. Provisions of Sections 14, 15 & 16 have no application to the case in hand. Learned counsel added that admission which is against the facts, is not binding and has to be ignored. Learned counsel supported his contention by referring to the case of "Barkhurdar Vs. Muhammad Razzaq" (PLD 1989 S.C. 749). Learned counsel submitted that the respondents had suppressed material facts at the time of the execution of the agreement. Learned counsel went through Paragraph No. 1 of the plaint and reply thereof from the written statement and contended that cause of the dispute was given by the appellants which was admitted by the defendants. While referring to Section 55 of the Transfer of the Property Act, learned counsel contended that it was primary responsibility of the seller to disclose to the buyers/appellants material defects in the property but they failed to perform their statutory duty. They also failed to produce for examination of buyers, relevant documents of title of the property. The omission on the part of the respondents to make proper disclosure is a fraudulent act on the part of the respondents. Declining specific performance of agreement to the appellants will amount to paying dividend to the respondents for their fraud. Learned counsel submitted further that the appellants remained throughout ready and willing to perform their part of the contract. Learned counsel while referring to the case of "Muhammad Akhtar and another Vs. Kohitex (Private) Limited" (PLJ 1998 Lahore 1082) contended that judgment without touching the points urged before it and without findings on all issues, is no judgment in the eye of law and such judgment is liable to be set aside. Learned counsel summed up his arguments with the contention that learned Court non-suited the plaintiffs/appellants by invoking the provisions of Section 15 of the Specific Relief Act. He added that relinquishment of the claim or any part of the suit property, could be made by a vendee at any time before the suit is finally decided by the Court of appeal. Learned counsel in this regard, placed reliance on the case of "Haji Abdur Rahman and three others Vs. Noor Ahmad and three others" (PLD 1974 Baghdadul Jadid 25). The respondents were not provided opportunity to relinquish part of the claim. The impugned judgment is liable to be set aside on this score alone. Learned counsel went on to argue that learned trial Court has misread the evidence on record and gave preference to the oral evidence over documentary evidence.
Mr. Muhammad Shahzad Shaukat, Advocate for the respondents contended that the appellants filed the suit with deficient Court fee. They were directed to make up the deficiency within 15 days vide order dated 15.7.1996. The respondents moved an application for enlargement of the time for payment of the Court fee. Learned trial Court framed an issue in this regard but the same remained undecided.' The suit was liable to be dismissed as deficiency of the Court fee was not made and supported this contention by referring the case of "Assistant Commissioner and Land Acquisition Collector, Badin Vs. Haji Abdul Shakoor and others" (1997 SCMR 919). Learned counsel while referring to order dated 20.1.1998 passed in FAO No. 305-1996 contended that the appellant failed to bring pay order, for the sum of Rs. 30,87,281/- as price of the suit land for handing over the same to the respondents in the Court on 6.2.1998, and as such the suit was liable to be dismissed. The petitioners/appellants failed to prove the payment of Rs. 30,87,281/- as the pay orders which the appellants produced were for Rs. 20,00000/- while the Court directed for the payment of total balance amount of consideration i.e. 30,87,281/- in the form of pay orders. Learned counsel submitted that the respondents showed their willingness to transfer the land measuring 415 kanals 19 marlas against the proportionate price of the available land but the appellants declined to accept the offer. Learned counsel in this regard referred to order dated 10.11.1998 passed in FAO No. 305-1996. Learned counsel submitted that the appellants cheated the Court and never produced pay orders for a sum of Rs. 30,87,281/-. They were supposed to hand over the said amount to the respondents. The attorney of the appellants/plaintiffs showed his inability, to give details of the Defense Savings Certificates or the pay orders. Learned counsel went on to argue that the appellants were not willing to perform their part of the contract. Learned counsel in this regard referred to the statements of DW. 1 and DW.2 who with due corroboration stated that the vendees had opted to rescind the contract as the appellants failed to perform then contractual obligation. The appellants had no capacity to make the payment of the balance consideration which fact can be ascertained from the fact that they had not paid the Court fee and sought adjournment in this regard. They were twice directed to pay the sale consideration, firstly to pay proportionate amount for the land left in the hands of vendors and secondly through pay orders balance sale consideration. Learned counsel submitted that the Court has rightly held that the contract on cancellation of the ownership of the respondents has become unenforceable. While referring to the case of "Khurshid Ali and others Vs. Abdur Rauf and others" (PLD 1990 Lahore 211), learned counsel contended that equitable remedy of Specific Performance of the contract is within the discretion of the Court and the Court can refuse to pass decree, where the plaintiff has altered the conditions of the agreement unilaterally. Learned counsel submitted further that the appellants in order to show their willingness and readiness to perform their part of the contract were under an obligation to produce in their evidence draft of sale-deed, stamp papers, payment of taxes and fees including the District Council Fee, but the appellants have not taken a single step in this regard, therefore, it is wrong to contend that the appellants were willing to perform their part of the contract. To support this contention, learned counsel placed reliance on the case of "Muhammad Idrees Jag Vs. Mst. Unezah Shahid and another" (2004 MLD 1033). Learned counsel further contended that after payment of the earnest money, no additional amount was received nor time was granted, which is sufficient to show that time has been considered by the parties to the contract as essence of the contract. Learned counsel supported this contention by placing reliance on the cases of "Fazal ur Rehman Vs. Ahmed Saeed Mughal and others" (2004 SCMR 436) and "Mst. Shaheen Kausar Vs. Shakeel Ahmed" (2005 YLR 1347).
Sh. Shahid Waheed, Advocate for Respondent No. 2 (Sardar Qaiser Imam) contended that both the parties were aware of the litigation pending in Hon'ble Supreme Court. No stay order from the Apex Court was in the field, therefore, sale agreement could have been registered within the stipulated period. He referred to cross-examination of PW.2 who in the course of cross-examination admitted that Respondent No. 1 told him that land measuring 18 to 20 acres out of his ownership is under litigation and the rest of the land is clear. He then referred to a clause in the Ex.P.1 which provides that in case any defect is found in the suit property, time shall be extended automatically and contended that the clause pertains to litigation or the defect in the ownership which was subsequent to the agreement. Learned counsel emphasized that this clause does not pertain to the events, prior to the agreement to sell. Learned counsel contended that legal notice dated 25.9.1995 (Ex.P.5) was issued after the lapse of 8 years. Learned counsel contended that agreement Ex.P.1 is not capable of performance by virtue of Section 21(g) of the Specific Relief Act, 1877 as the decision of the pending litigation extends to the performance of the agreement for a period longer than three years from its date. Learned counsel supported his contention by referring to the case of "Hameedullah and 9 others Vs. Headmistress, Government Girls School, Chokara, District Karak and 5 others" (1997 SCMR 855). Learned counsel submitted that a proposal is converted into binding contract when it is accepted by the promisee. The acceptance has to be unqualified and unconditional. The condition imposed by the parties regarding pendency of litigation makes the contract unenforceable. Learned counsel found support from the dictum laid down in the case of "M/s Shalsons Fisheries Ltd., Karachi Vs. M/s Lohmann & Co. and another" (PLD 1982 Karachi 76). Learned counsel further contended that suit of the plaintiffs for specific performance of the contract is governed under Article 113 of the Limitation Act. Three years period in the case in hand, starts from 18.10.1987 i.e. the date fixed for the purpose of completion of sale. The appellants have filed the suit beyond the period of limitation. Learned counsel contended that there was neither any hindrance nor any injunctive order of any Court was in the field. There was no impediment or legal hitch for the registration of the sale-deed. The appellants served notice upon the plaintiffs (Ex.P.5) when the period of performance of the contract has already lapsed. Learned counsel contended that legal notice was issued on the instructions of PW.2, who was not appointed attorney of the vendees at the relevant time. Legal notice has been issued without any authority. He referred to the statement of PW.4 who admitted that PW.2 was not attorney of the vendees during 1986, 87, 89 and 1991 till 1995. Learned counsel referred to the statement of PW.2 who stated that when he went to Colonel Sahib/Respondent No. 1 for getting his signatures on the challan form for the registration of the sale-deed, he (Respondent No. 1) informed him about litigation. Learned counsel then contended that if the appellants were willing to get the part of the land which was not under litigation transferred to their names. They could have institute the suit, within the period of limitation. Learned counsel submitted that PW.2 was aware of the litigation before Hon'ble Supreme Court as he himself stated that their land, which they purchased in the year, 1993 is adjacent to the suit land. The witness also stated that their land as well as the suit land was under litigation and the matter was pending in the Apex Court. The witness also stated that Colonel Sahib had not told them about litigation and they themselves applied in the year 1991 or 1992 for their impleadment as party in the said proceedings. Learned counsel submitted that refusal of the registration of the sale-deed was attributable to Respondent No. 1. Respondents No. 2 & 3 have not refuseable completion of the sale, therefore, the suit to the extent of Respondents No. 2 & 3 does not disclose a cause of action. Learned counsel referred to the oral evidence of PW.2, PW.3 & PW.4 and contended that the appellants have admitted that housing schemes at or around the area where the suit land is situated are in progress. The prices of the land in the area were enhanced when the motorway was constructed. The appellants after commencement of the project of motorway filed a suit which speaks of their mala fide. Learned counsel once again referred to the orders passed in FAO No. 305-96 to show that the appellants were not ready and willing to perform their part of contract. Learned counsel submitted that temporary injunction was granted to the appellants by learned trial Court vide order dated 4.12.1998 on the condition that the appellants will purchase Defense Saving Certificates equal to the balance sale consideration. The appellants never purchased Defence Saving Certificates. The appellants were not willing to perform their part of contract. Learned counsel referred to the statement of DW.4 who categorically stated that the respondents were ready to sell the property to the appellants and an open offer was made to them to purchase any part of the suit land against pay order but the amount was never paid.
Heard learned counsel for the parties and record perused.
The sale transaction subject-matter of the instant controversy is based on agreement to sell dated 19.1.1986 (Ex.P. 1). The parties to the contract do not dispute the execution of the agreement and the payment of Rs. 400,000/- as earnest money. They are at variance, on the following issues:--
(a) Whether or not the time was not of the essence of contract.
(b) Willingness and readiness of the vendees (appellants) for performance of the contract.
(c) Enlargement of time for performance of the contract, due to pendency of litigation, was permissible.
(d) Rescission of the contract, due to non-payment of sale consideration by the vendees, on or before 18.10.87.
(e) Enforceability or otherwise of the contract.
Issue No. 2 was on the question of limitation and by this issue, the defendants were required to prove that the appellants had not filed the suit within the period of limitation. The agreement to sell dated 18.10.1987 stipulates penalty of rescission of contract, for non-payment of the balance sale consideration within the stipulated period. The relevant clause of the agreement reads:--
Normally, when the agreement pertains to the sale of immovable property and a date is mentioned for payment and for completion of sale, it will not make time essence of the contract. Time being the essence of the contract, can be determined on the basis of intention of the parties that contracting parties had no intention that agreement will be performed beyond the period, specified in the agreement. The intention can be gathered by seeing the pith and substance of the agreement. The parties in the instant agreement have fixed the time and also agreed for penalty for not performing the contractual obligation within the stipulated period. The respondents rescinded the contract and published a public notice in the Newspaper when the appellants failed in paying the balance sale consideration within the agreed period. The appellants on the other hand have stated in their evidence that they approach the respondents before the target date for signature on challan form, for completion of the sale. The stance taken by each party regarding performance of the agreement, transpires that parties intended that time for performance mentioned in the agreement is of essence of the contract. Another clause in the agreement provides for extension of time, on which the appellants have heavily relied, it reads as follows:--
Both the sides have interpreted this clause in the agreement in its own way. The appellants claim the benefit of this clause and have taken the stance that the time for the performance has been enlarge, as litigation regarding suit land was pending in the Supreme Court. The respondents to the contrary claim that only that litigation or defect in the title of the respondents, will extend the period for the performance of the agreement, which is subsequent to the agreement, wherein the word " " has been specifically incorporated. The litigation before Hon'ble Supreme Court was pending much before the execution of agreement (Ex.P.1.) and the pendency of the litigation in Hon'ble Supreme Court was within the knowledge of the appellants.
The parties were under the impression, at the relevant time that dispute/litigation is with regard to 19/20 acres of land only. It is reflected from the statement of DW.4 that litigation started in the year 1964-65 before Settlement Commissioner and it remained pending in this Court from 1970 till 1976. The leave to appeal was granted to Jammu & Kashmir Refugees in the year, 1981 and the appeal was ultimately decided in the year 1991. The revenue record reflects that the respondents lost 435 kanals of land from their ownership and now 415 kanals of land is left in their hands.
The appellants being owner of adjoining land were aware of this litigation. They were party before the August Supreme Court in a connected matter. They deal in property, had purchased thousands of kanals of land in the same area and had also developed housing schemes there. It is beyond comprehension that they remained unaware of the litigation for such a long time. PW-2 in the course of his cross examination has stated:--
The situation which emerges from the above statement of PW-2 is that two legal, and contractual remedies were available to the appellants. Either to leave the part of contract which is capable of performance, claim compensation for that part and seek performance of the contract which is capable of performance, as envisaged in Section 14 of the Specific Relief Act. The other course available to the appellant was to get sale-deed registered as there was no injunctive order in the field and reserve the right to suit for damages for any part of land which the respondents were to loss in the litigation. The appellants instead of choosing any legal course awaited for considerable long time i.e. more than 9 years. By this time the prices in the vicinity were appreciated considerably, due to construction of Motorway. The respondents cannot claim enlargement of time for performance of the agreement for various reasons. Firstly, they were aware of the litigation at the time of sale. Secondly, no injunctive order was operative, therefore, the suit land was capable of transfer without any restraint. Thirdly, the parties understood, at the relevant time that dispute is with regard to 20 acres of land and major part of the land was free for transfer to the appellants.
The plaintiffs were bound to institute the suit regarding the land which was available for its transfer to the vendees. The time can only be enlarged with regard to that land which was suffering from defect of title and not the whole land. W.P. No. 143/R/1970 was dismissed on 15.05.1976, leave to appeal (C.P. No. 550/1996) was granted on 02.05.1981 and the appeal (C.A. No. 265/1981) was ultimate decided on 09.03.1991. The litigation came to end on 09.03.1991, although the review petition was dismissed on 23.05.1995. The appellants have not instituted this suit even within the period of three years from the date when the appeal (C.A No. 265/1981) was decided. The appellants have instituted instant suit, after a period of more than nine years, while Article 113 of the Limitation Act provides a period of three years for filing the suit for specific performance. Viewing the case of the appellants from any angle, the suit is barred by limitation and finding of learned trial Court on this issue is unexceptionable.
By Issue No. 1, the defendants were to prove that suit is legally untenable. The total land subject matter of sale was 850 kanals and 5 marlas. The parties were under the impression that only 19/20 acres of land was in dispute but subsequently it was revealed to the parties that 435 kanals out of 850 kanals of land, has been cancelled and the respondents are now left with only 415 kanals of land in their ownership. Land measuring 435 kanals is the considerable portion of the property which the respondents had lost in litigation. The agreement as a whole is not capable of performance. The plaintiffs/appellants in the existing circumstances can choose either to claim compensation or seek enforcement of that part of the agreement, which can be performed specifically. The second choice is available when the vendee institutes the suit against vendor and relinquishes the claims including further performance and compensation. The language employed in Section 15 of the Specific Relief Act, 1877 is clear and phrase used in the enactment is "but the Court may at the suit of other party---------". The suit of the appellants is not with regard to the part performance of the contract which is capable of performance. The plaintiffs have claimed possession of total 850 kanals of land, without relinquishing the claim of compensation and relinquishment of performance of the agreement with regard to land (435 kanals). Partial specific performance can be ordered only when conditions as envisaged in Section 15 (ibid) are strictly complied. The provisions of Section 39 of the Contract Act, 1872 provide that contract has to be performed as a whole. Sections 14 to 16 of Specific Relief Act, 1877 are exceptions to the general rule. The appellants failed to amend their plaint to bring their case within the purview of Section 15. They were provided opportunity of partial performance of the agreement, during the proceedings in FAO No. 305 of 1996 but they failed to apprise the Court of their willingness to pay the proportionate price of available land. The respondents made the offer, which was incorporated in order dated 10.11.1998 of this Court in the said proceedings. The appellants sought time to verify the title of the respondents regarding available land but the offer could not be materialized.
The agreement as arrived at between the parties cannot be enforced in its entirety, while partial performance is not legally tenable within the contemplation of Section 17 of the Specific Relief Act, 1877. Learned Court has dealt legally with the proposition, under the provisions of Sections 14 to 16 of the Specific Relief Act, 1877. Learned trial Court after appraising evidence of the parties thoroughly found that conduct of the appellants qua performance of their contractual obligation was not fair and rightly concluded that the plaintiffs/appellants are not entitled to discretionary relief. The finding of the Court does not suffer from any legal infirmity and is affirmed and upheld.
Issue No. 7, was regarding the readiness and willingness of the plaintiffs/appellants to perform their contractual obligation i.e. payment of the balance sale price. By this issue, the appellants were required to prove that they were willing and ready to make the payment of the balance sale consideration since 18.10.1987. The defect in the title of vendor may result into enlargement of the time for performance of the agreement. This, however, does not absolve the appellants of their primary responsibility to be ready and willing to perform their obligation under the contract. PW.2 has stated in the witness box that when he went to Respondent No. 1 to get his signatures on challan form, he was told that 18/20 acres of the land under sale is in litigation. There is nothing on the record to show that the appellants have paid taxes, fees and other dues for the transfer of land. They have not even prepared the draft of sale agreement and placed the same on the record. Their capacity to pay can be ascertained from the fact that despite various opportunities they could not pay the Court fee and sought extension in time. The injunctive relief was granted to them conditionally. They were directed to deposit with the Court saving certificates equal to the amount of balance sale consideration. They failed to deposit remaining sale price to avail the remedy of injunctive relief.
The litigation took another turn, when order dated 20.1.1998, was passed, whereby the appellants were directed to bring pay order in the sum of Rs. 30,87,281/- as price of the suit land and hand over the same to the respondents. The suit on payment of the amount was to stand decreed. The appellants were entitled to decree, without going into the trial of suit, on payment of Rs. 30,87,281/-. Order dated 6.2.1998, transpires that the appellants informed the Court that they had brought the amount in the Court but instead of paying the same and earning a decree in their favour, they circumvented process and sought time to ensure that title of entire property has passed on to the respondents in view of the decision of Hon'ble Supreme Court in pending litigation. The willingness of the appellants to perform their part of contract could have been established if the appellants had made compliance of order dated 20.1.1998. PW.4 produced certificate of Prudential Commercial Bank dated 16.3.1999, in the trial Court. The certificate is for the sum of Rs. 20,00,000/- in the form of two pay orders. It is evident from this certificate that the appellants arranged the payment of Rs. 20,00,000/- through pay orders and not Rs. 30,87,281/-. PW.4 deposed in the learned trial Court that Rs. 20,00,000/- was in the form of pay order, while Rs. 10,87,281/- were in the shape of Defense Saving Certificate. The appellants were directed to bring pay orders in the sum of Rs. 30,87,281/-. The failure of the appellants to bring pay orders in the sum of Rs. 30,87,281/-, proves that the appellants were not ready to pay the sale consideration. The Defense Saving Certificate for the balance amount was also not produced in the Court to show that appellants arrange total amount of the balance consideration for its onward payment to the respondents. These facts prove that the respondents were not ready and willing for the performance of their part of the contract. The finding of the learned trial Court on Issue No. 6 is devoid of any legal infirmity. The issue was rightly decided in favour of the respondents and against the appellants.
We will now advert to the question of legality and enforceability of the agreement to sell. If it is found that the agreement is unenforceable, it will disentitle the appellants to decree, even if the other issues are decided in their favour. The agreement contains a condition that in case of litigation or defective title, the period for completion of the contract will stand extended, till the time the title of the respondents is clear. If the above condition is applied to the litigation which was pending in Hon'ble Supreme Court, it will extend the performance of agreement from the date of execution of agreement till decision of the Apex Court. The performance of the agreement would thus extend to a longer period than three years. Clause (g) of Section 21 of the Specific Relief Act provides that such contract cannot be specifically enforced. The suit on the basis of unenforceable agreement does not lie and the agreement to sell (Ex.P. 1) cannot be specifically performed. While holding so, we are fortified by the dictum laid down in the case of "Hameedullah and others Vs. Headmistress Government Girls School Chokara and 5 others" (1997 SCMR 855). The finding of the learned trial Court on the other issues does not call for interference in this appeal.
Viewing the case from any angle, we are of the firm view that the impugned judgment of learned trial Court covers every aspect of the controversy. The evidence has been properly appraised and the law has been applied correctly. The judgment neither suffers from the defect of misreading or non-reading of evidence, nor from the wrong assumption of law.
For the foregoing, this appeal has no merit and is accordingly dismissed with no orders as to the costs.
(M.S.A.) Appeal dismissed.
PLJ 2010 Lahore 214 (DB)
Present: Mian Saqib Nisar & Hafiz Tariq Nasim, JJ.
Dr. ZIA-UR-RAHMAN KHAN and another--Appellants
versus
Dr. ATIQ-UR-RAHMAN--Respondent
R.F.A. No. 469 of 2006, decided on 22.6.2009.
Pleadings--
----Scope--Plea was not raised in plaint--The rule that no one can substantiate and prove a case beyond the scope of his pleadings and even if any evidence has been brought on the record outside the purview thereof, it shall be ignored and overlooked by the Court.
[P. 222] A
Partition--
----Relief of partition--In a partition lis if an issue is joined by the defendant about the joint ownership of the suit properties, it shall be for the Court to resolve that, if the suit properties are common thus partitionable or otherwise. [P. 223] B
Benami--
----Benami, a term which loosely and ordinarily is used for a such transaction in which that the property does not belong to the one in whose name it ostensibly stands but to another who is the true and the actual owner thereof. [P. 223] C
Gift--
----Rule of Mushaa--Effect of--There is no proof either documentary or oral on the record as to where, when and in whose presence and how the declaration of the gift was made by the father, which was allegedly accepted by the respondent and the possession of the property was delivered to the respondent on the basis of that gift--Three conditions under the Muhammadan Law are sine qua non for the validity of the gift, which remains unsubstantiated by the respondent on the record; besides, there is a serious question mark, if a gift of an undivided property could be made and what is the effect of the rule of Mushaa. [P. 225] D
Family Settlement--
----Non registration of gift--Effect--Family settlement can always be arrived at orally, which can be subsequently acknowledged and translated through a written instrument and this is exactly what has happened in instant case, in such a situation, it needed no compulsory registration--Through family settlement, no right or interest in any property is being created or transferred rather it is only an acknowledgement and admission of the fact that the properties mentioned therein are the estate of the deceased father of the parties. [P. 227] E & F
Mr. Muhammad Rashid Ahmad, Advocate for Appellants.
Ch. Inayat Ullah, Advocate for Respondent.
Date of hearing: 8.5.2009.
Judgment
Mian Saqib Nisar, J.--The suit captioned as for the administration instituted by the appellants against the respondent has been partly dismissed to the extent of the three properties i.e Plot No. 28-G, Commercial in Lahore Cantt., Cooperative Society (DHA), Lahore, House No. 49, School Road, Shalimar 7, Islamabad and Aitchison College, whereas for the remaining six properties, a preliminary decree dated 26.7.2006 has been passed by the learned trial Court in favour of the appellants and against the respondent. Hence this appeal.
(a) House No. 33-B, Zahoor Elahi Road Gulberg-II, Lahore, measuring 2 Kanals.
(b) Plot No. 36-C-I Harikey Road (Ghazi Road) Colony Lahore Cantt.
(c) Plot No. 82-N measuring 2 Kanals situated at Lahore Cantt. Co-operative Housing Society, Lahore.
(d) Plot No. 28-G Commercial in Lahore Cantt. Co-operative Housing Society, Lahore.
(e) Plot No. H/3/80 Wapda Colony Lahore measuring 2 Kanals.
(f) House No. 49-School Road, 2 Kanal at Shalimar-7 Islamabad.
(g) Plot in Government Co-operative Housing Society Lahore measuring 2 Kanals.
(h) 2 Plots 1 Kanal each in Aitchison College Society Lahore.
(i) Two square of agricultural land in village Balian, District Narowal.
MOVABLE ASSETS
PLS AC No. 2679 NBP Main Market Gulberg Branch, Lahore-amount is not known;
PLS AC No. 7108 NBP Main Market Gulberg Branch, Lahore-amount is not known.
PLS A/C No. 7109 NBP Main Market Gulberg Branch, Lahore-amount is not known.
PLS AC No. 13933-5 in HBL Main Market Gulberg Branch, Lahore-amount is not known.
SS 983 Post Office Account Ghalib Market, P.O, Lahore in the name of Defendant No. 2 in 1992 amount was deposited by the deceased father in the name of Defendant No. 2.
In Paragraph No. 2, it is averred that "the Defendant No. 1 is simply an ostensible co-owner of House No. 49-School Road Shalimar-7 alongwith his father Major (Retd) Aziz-ur-Rehman. Similarly another Commercial plot in Lahore Cantt. Co-operative Housing Society, Lahore also belongs to the deceased father, but the name of Atiq-ur-Rehman was written as "Benamidar" only. In fact, both these properties belong to the father of the plaintiffs." In Paragraph No. 4 of the plaint, it is specifically mentioned that "Defendant No. 1 knows fully that he had not paid or spent even a single penny for the transfer of the plots, mentioned above i.e in Islamabad and other commercial plot in L.C.C.H.S (now DHA), Lahore, has recently started claiming ownership of the commercial plot in Lahore and half portion in the plot situated in Islamabad, inspite of the fact that in a family settlement which was arrived at in the presence of all the elders of the family, he has admitted these properties to be actually belonging to the father, has no cause of re-agitate his claim over the said property once again, because he is estopped by his own conduct in writing.". In the same paragraph, it is stated that "a schedule of the property aforementioned is the estate left by the deceased father Major (Retd) Aziz-ur-Rehman Khan and has to be administered according to the share prescribed by Sunni Law of Inheritance according to Islamic law of Inheritance, then they shall be bound by the family settlement and the shares given therein which are more or less based on Islamic law governing inheritance amongst the shares will prevail." The plaint goes on to aver that "the defendants were asked to abide by their commitment made by them, duly signed and attested by the respectables of the family as marginal witnesses, hence get the entries incorporated in the various Government records, but they have refused to do so". The relief part of the plaint is also of some significance and is reproduced as below:--
"Under the circumstances, it is most respectfully prayed that the property/assets may kindly be administered according to law and after ascertaining share of each party the same may be given to them by partitioning it by metes and bounds besides giving each party share in the movable assets i.e the amount lying the various banks.
Any other relief, which this Hon'ble Court deems fit may also be awarded to the plaintiffs besides separating the shares with costs."
On account of pleadings of the parties, the followings issues were framed:--
Whether the predecessor-in-interest of the parties namely Major (Retired) Aziz-ur-Rehman Khan was absolute owner of properties described in the plaint at the time of his death and the house and properties stated in the pliant in the names of Defendants No. 1 and 3 were a Benami transaction, actually, the above said deceased was owner of the said properties? OPP
Whether the family settlement has been effected between the parties and the defendants were bound to abide by the commitments made by them? OPP
Whether two squares of land in village Balian District Narowal and House No. 33-B Zahoor Ilahi Road, Gulberg-II belongs to the Defendant No. 3.? OPD.
Whether the Commercial Plot No. 28-G, situated in Cantt. Co-operative Society and half portion of House No. 49 School Road Shalimar Islamabad were gifted to Defendant No. 1, by his deceased father and they cannot be called benami transaction? OPD
Whether the plaintiff is entitled to the decree as prayed for? OPP
5-a. Whether the plaintiff's suit is not maintainable in its present form? OPD
5-b. Whether the plaintiff's suit is barred by law? OPD
5-c. Whether the plaintiff's suit is liable to be dismissed for mis-joinder and non-joinder of necessary parties? OPD
5-d. Whether the plaintiff's suit is time barred.
5-e. Whether the plaintiff's suit has not been properly valued for the purpose of Court fee, if so what is correct value? OPD
5-f. Whether the plaintiff has not come to this Court with clean hands and no cause of action against the defendant? OPD
5-g. Whether this Court has no jurisdiction to try this matter? OPD
Relief.
The plaintiff Dr. Zia-ur-Rehman, appeared as PW-1 and produced the documentary evidence i.e Ex.P-1 to P-11. Ehsan Ullah Khan (PW-2) and Brig. Najeeb Ullah Khan-PW-2 (erroneously again referred as PW-2) are the real maternal uncles of the parties and claims to be the marginal witnesses of the settlement Ex. P.9 (this document in original has been prepared in duplicate and in the cross-examination of PW-2 (Brig. Najeeb Ullah), has also been produced by the respondent as Ex.D-1). As against the above, the respondent examined Zafar Ullah Khan UDC Estate Management-1 CDA, Islamabad as DW-1, who has brought the record of House No. 49, School Road Sector F-7/1 Islamabad and has produced copy of the order dated 4.7.1983 as Ex.D-1 (this document has been erroneously given the same exhibited number as that of the family settlement) showing the transfer of the plot jointly in the name of the father and the respondent. Ghani Muhammad DW-2 Clerk, DHA, Lahore has produced the record of the property bearing Plot No. 28 Block-G 7 Marla Commercial Area and the copy of the transfer order dated 13.5.1985 Ex.D-2, in the name of the respondent. Muhammad Afzal DW-3, Accounts Incharge, Aitchhison Housing Society Aitchison College Lahore, has brought the record of the property bearing No. 13/22 Block Q, Aitchison College, Staff Co-operative Society Ltd. Lahore; this plot is stated to have been gifted to the respondent on 15.3.1988; he has produced the copy of the registered sale-deed Ex.D-3. Dr.Atiqur Rehman, the respondent/defendant himself appeared as DW-4.
Learned Civil Judge, seized of the matter, gave his finding on Issue No. 1 that properties Bearing No. 28-G Commercial Area Lahore Cantt., half share of the House No. 49 School Road Shalimar-7 Islamabad and plot in Aitchison Co-operative Housing Society, Lahore, (which were not proved to be Benami transactions), whereas the other were owned by the father. On Issue No. 4, it has been held that the plaintiffs have not challenged the transactions in favour of the respondent in the present suit and that the dispute about the title cannot be decided in the suit for administration. And thus as mentioned earlier partly dismissed the suit, whereas for the remaining a preliminary decree has been passed. It may be pertinent to mention here that the decree for the accounts and movable assets has been refused for the lack of proof.
However, none of the witnesses of the plaintiffs have been crossed or suggested regarding the alleged coercion about the execution of the document, rather contrarily, when the respondent appeared in the witness-box he took up an altogether different stance and deposed:--
Anyhow on the first two pages of the Family Settlement, the respondent has admitted that all the properties, which are the subject matter of the suit, belongs to the father and it is settled law that a fact admitted needs no proof; It is also argued that the statement of PW-1 on the material and foundational facts of the case, that the properties mentioned in the plaint belonged and were owned by Major (Retd) Aziz-ur-Rehman Khan and that those were in Benami in the name of the respondent as also Mst. Amt-ul-Aziz, has not been subjected to cross-examination, thus the legal consequences that a fact deposed in the examination-in-chief, if not subjected to cross-examination, shall be deemed to have been admitted, shall follow. He further submits that despite having acknowledged in the admittedly executed document by the respondent i.e Ex. P-9, the family settlement that the property mentioned in the plaint belonged to the father, yet with dishonesty of purpose, the defence was set out about the gift of the properties, which the respondent even otherwise, has failed to prove. It is stated that under Section 123 of the Transfer of the Property Act, 1882, a valid gift of immovable property could only be effected through a registered instrument, signed by the donor and attested by at least two witnesses, but this lacks in the present matter. Moreover, the vice of registration as required under Section 17 of the Registration Act 1908, shall entail the effect of non-registration as envisaged by Section 49 thereof.
Conversely, learned counsel for the respondent has relied upon the judgments reported as Asghar Ali Vs. Mrs. Zohrabi and another (2000 MLD 122) Syed Mehdi Hussain Shah. Vs. Mst. Shadood Bibi and others (PLD 1962 SC 291), Ch. Muhammad Zarif. Vs. Sh. Abdul Haq Sethi (PLD 1956 (W.P) Lahore 1060), Mahbub Alam. Vs. Razia Bezum and others (PLD 1949 Lahore 263), Mt. Muhamamd Zamni and another. Vs. Fazal-ul-Rahman and another (AIR 1943 Lahore 241), Muhammad Sajjad Hussain Vs. Muhammad Anwar Hussain (1991 SCMR 703), Binyameen and 3 others Vs. Chaudhry Hakim and another (1996 SCMR 336) and Basit Sibtain through Legal Heirs Vs. Muhammad Sharif through Legal Heirs (2004 SCMR 578), to argue that in the administration suit, the validity of the alienation made by a deceased, cannot be determined; the plaintiff in the circumstances, should have brought a separate suit for the declaration challenging the said transaction; that the property Bearing No. 33-Zahoor Elahi Road, Gulberg-II, Lahore, was owned by the widow of Major (Retd) Aziz-ur-Rehman Khan, which she acquired through a registered sale-deed dated 24.12.1957 and in this behalf, a specific plea has been taken in the written statement that she had her own independent source of income. As regards the half portion of the property bearing House No. 49 School Road, Islamabad and 7 Marla Commercial plot Bearing No. 28-G, Lahore Cantt. Co-operative Housing Society, Lahore, are concerned, those were gifted to the respondent by the father and under the Muhammedan Law, the oral gift is permissible. It is further argued that the execution of Family Settlement Ex.P-9, has been procured from the respondent under the coercion, etc. without enabling him to understand the contents of the document; besides Ex.P-9 is infact a partition-deed and being on unstamped paper, it was/is inadmissible in evidence and due to lack of registration, it does not create or purport to create any right or interest in the suit properties. It is also argued that the execution of the document (Ex.P-9) by the respondent does not mean the acceptance or the admission about the contents thereof. Ehsan Ullah Khan (PW-2) and Brig. Najeebullah Khan (PW-2), in their testimonies have never stated that the execution of the Ex.P-9 by the parties thereto was made in their presence, rather they only deposed that such document when presented to them was signed.
We have heard the learned counsel for the parties and find that the property Bearing No. 33-Zahoor Elahi Road, Gulberg-II Lahore, irrespective of being owned by the father or the mother, on the demise of the mother, now is a jointly owned property of the parties, in which they have equal shares. We are not impressed by the argument of the learned counsel for the appellants that out of such property half of it was gifted by the mother in favour of Appellant No. 1 and in this behalf reference having been made to gift-deed Ex.P-10 is being discarded because this plea has not been raised in the plaint; thus the rule that no one can substantiate and prove a case beyond the scope of his pleadings and even if any evidence has been brought on the record outside the purview thereof, it shall be ignored and overlooked by the Court is squarely applicable to the case. Besides this plea runs contrary to the case of the appellants as set out in the plaint, where a specific stance has been taken that all the suit properties were owned by the father and formed part of his estate.
Considering the case regarding the other properties qua which decree has been declined to the appellants, the first in line is Bungalow No. 49-School Road, Islamabad; the land underneath was admittedly acquired by Major (Retd) Aziz-ur-Rehman Khan from the CDA in the year 1966 and the house was also built thereupon by him; at that time, the respondent was only a minor. But subsequently, on account of some letter, which he addressed to the CDA, half portion of the property was put in the name of the respondent alongwith him. This letter has not been produced on the record by the respondent from which it could be established and ascertained that any gift was made in his favour, but the letter of the CDA dated 4.7.1983, has been tendered in evidence as Ex.D-1 (as mentioned earlier two documents have been erroneously given the same Exhibit number) and it is only on the basis that the respondent claims that half part of the property was gifted to him.
As far as the property Bearing No. 28-G, Commercial area Lahore Cantt. is concerned, it at the very inception was purchased in the year 1983 by Major (Retd) Aziz-ur-Rehman Khan, but in the name of the respondent. Third is the Plot Bearing No. 13/22 Block-Q situated in Aitchison College Co-operative Society, Lahore, this too is in the name of the respondent since 1988. It may be pertinent to mention that at the time of acquiring these two properties, the respondent was either a minor or admittedly had no source of income; it is also not his case, that he had purchased the properties with his own resource, rather avows that these were gifted to him by his father since the time of purchase.
The key questions thus requiring determination in the matter are; as to who is/was the owner of these three properties; whether these are Benami transactions; whether any valid gift has been made by the father in favour of the respondent regarding these properties; whether the nature of such transactions can be validly adjudged and determined in the present proceedings.
Extensive portions of the pleadings of the parties have been purposely reproduced above and the object behind it is to highlight as to what is the real purport of the suit, because for the purpose of ascertaining its true nature, it is not the title or the caption thereto, which must be restrictively seen, rather the whole of the plaint must be looked into and the substance, than the form should be examined.
Examining the plaint on the above touchstone, it is very much clear that the appellants are not challenging any alienation made by Major (Retd) Aziz-ur-Rehman Khan in favour of the respondent. What they are simply asserting in the plaint is, that all the properties mentioned therein belonged to the deceased, but some (those in dispute) were put Benami in the respondent's name. The plaint when considered as a whole from its letter and spirit makes the case of composite civil nature, in which the rights of the parties regarding the inheritance to the suit properties is required to be adjudicated i.e the suit for ascertaining the estate of the deceased father, administering such estate under the decree of the Court and also for partitioning it according to the shares of the parties. It may be pertinent to mention that the relief of partition is specifically asked for in the prayer clause of the suit and in a partition lis if an issue is joined by the defendant about the joint ownership of the suit properties, it shall be for the Court to resolve that, if the suit properties are common thus partition-able or otherwise; for this purpose obviously the nature of the transaction involved as in the case in hand can be looked into by the Court. As mentioned above, the plaintiffs/appellants in the suit have not challenged any transaction in favour of the respondent/defendant but asserted it to be a Benami, a term which loosely and ordinarily is used for a such transaction in which that the property does not belong to the one in whose name it ostensibly stands but to another who is the true and the actual owner thereof. It is the respondent, who has pleaded in the defence that the properties have been gifted to him by the father, either at the very inception of the acquisition, as in the case of Commercial Plot at DHA and one Kanal plot in Aitchison, and the gift of the half bungalow in Islamabad, after having become the owner of the property, therefore in the circumstances, it is not a case, in which the appellants have thrown any challenge to the validity of the alienations, which may be impermissible in an administrative suit as per the law laid down in AIR 1943 Lahore 241 (Mt. Muhammad Zamani Begum and another vs. Fazal-ur-Rahaman and another), rather the respondent has made an abortive attempt to assert gifts in his favour, which as shall be explained in the judgment, he has failed to prove. And contrarily admitted those to be owned by his father, in this behalf reference shall be made to the family settlement Ex.P-9/Ex.D-1. In our view the judgment of the Division Bench reported as Mahbub Alam. Vs. Razia Begum and others (PLD 1949 Lahore 263) is attracted to the case, in which it has been held:--
"Order XX, Rule 13 empowers the Court when passing a preliminary decree, to order such accounts and "inquiries to be taken and made and to give such other directions as it thinks fit." The Court would be at liberty to pass a decree in accordance with the circumstances of each case.
It seems to me, if I may say so with great respect, that it would be incorrect to rely too much on O. XX, Rule 13, or the forms of plaints and decrees prescribed in the First Schedule of the Code of Civil Procedure for ascertaining the objects of an administration suit."
Moreover, it was held
"The theory that the property of a deceased Muslim vests in his heirs immediately after the death is considerably tampered by the injunction that the heir is entitled only to the residue after the payment of a legacy or debt and since the payment of debts and legacies necessarily involve the administration of the estate, such administration is implied in the very words of the Holy Quran and of authentic texts like the Sirajiyyah.
Apart from the plaintiff's right to seek his remedy in any form permitted by law, if the choice is between a partition suit and an administration suit, the latter should be preferred."
In the case reported as Syed Mehdi Hussain Shah vs. Mst. Shadoo Bibi and others (PLD 1962 SC 291) it has been held as under:--
"While an administrative suit is not a remedy for getting possession from those who claim the property in their possession in their own right, and adversely to the deceased, there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit.
The object of an administration suit is the distribution of assets between more than one person and if the defendants to a suit be only trespassers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendants.
In the light of above, we intend to examine the defence of the respondent about the gifts; regarding the half portion of the Islamabad house, as mentioned earlier, he has not produced any registered instrument or even any memorandum or acknowledgment of oral gift; the letter through which Major (Retd) Aziz-ur-Rehman Khan asked the CDA to include the name of the respondent as a co-owner of the property (half portion) has not been adduced in evidence, from which he could establish, if such request qualified the test of the gift; the letter of the CDA (Ex.D-1) does not purport or in any manner proves that the inclusion of the respondent's name was on the basis of any gift qua the said portion; there is no proof either documentary or oral on the record as to where, when and in whose presence and how the declaration of the gift was made by the father, which was allegedly accepted by the respondent and the possession of the property was delivered to the respondent on the basis of this gift; obviously, the above three conditions under the Mahommedan Law are sine qua non for the validity of the gift, which remains unsubstantiated by the respondent on the record; besides, there is a serious question mark, if a gift of an undivided property could be made and what is the effect of the rule of Mushaa.
As regards the Plot No. 28-G Commercial in Lahore and Plot No. 13/22 Block Q, Aitchison College Co-operative Society, Lahore are concerned, again there is no proof of any gift ever having been made by the father in favour of the respondent; the essential of the gift, which have been mentioned above, are conspicuously missing in these transactions as well; only for the reason that bald claim of the gift has been made by the respondent in defence without proving or substantiating the transactions to be of that nature, shall not take the case out of the scope and realm of the administrative suit or from the suit for partition, which as has been earlier held, can be said to be a suit of composite nature, therefore, in the circumstances, it was not necessary for the appellants to have first asked for the relief of declaration to challenge the ostensible ownership of the respondent qua these three properties. Rather it is pertinent and significant to state that the appellants have brought on record Ex.P-9, a family settlement envisaging in unequivocally and unambiguous terms the acknowledgment by the parties as to what were the properties, which formed part of the estate left by the deceased father; the respondent himself has brought on record same document in original as Ex.D.1 (double exhibited), the plea that it was got executed from the respondent on account of any coercion is absolutely not spelt out from any independent evidence produced by him, rather there is a vital and visible contradiction and shifting of the stance set out in the written statement and his deposition as reproduced above. On the one hand, he mentioned in the written statement that "Four days after the demise and burial of late Major (Retd) Aziz-ur-Rehman, the elders of the family got a paper signed under coercion which they called as family settlement" whereas in his statement no assertion was made but in his statement he said:--
This is complete departure from the pleadings of the respondent. It may also be mentioned here that the respondent is a medical doctor and a highly educated (foreign) person, thus when he has admitted the execution of the Ex.P-9/Ex.D-1, he cannot take up the plea that he was not aware of the contents thereof; besides the story propounded in the statement that the document was got signed the next month after the burial of the father before boarding the plane is beyond the scope and contrary to his pleadings, thus has to be ignored. In our view, the execution is admitted by an adequately educated person but he wants to avoid the effects of the contents of the document on any ground such as the lack of free consent etc. heavy burden lies on his shoulder to prove his version, thus burden has not been discharged by the respondent, rather from his contradictory stance and also for the reason that he himself has brought on the record the said document (Ex.D-1), thus he shall be bound by the acknowledgment and the admission about the estate of his father given therein; the learned Civil Judge has glaringly over looked this important piece of evidence and has disallowed the suit only for the reasons that the properties mentioned above are ostensibly in the name of the respondent and therefore, decree for administration cannot be passed; this approach is absolutely against the law because the production of the Ex.D-1, the family settlement infact has knocked the bottom out of the respondent's case about the alleged gift as he has claimed.
In the light of above, by setting aside the judgment and decree of the learned trial Court through which the relief regarding certain properties/assets was refused to the appellants and upholding it to the extent the relief was allowed to them, the preliminary decree for administration and partition vis-a-vis the immovable properties mentioned at Serial No. (d) (f) and (h) of the plaint as also for the Accounts mentioned at Serial No. 1 to 4 under the head movable asserts, if the accounts were in the name of the father, as it has not been denied in the written statement is also passed in favour of the appellants and against the respondent. This appeal is accordingly allowed.
(M.S.A.) Appeal allowed.
PLJ 2010 Lahore 227 (DB)
Present: Fazal-e-Miran Chauhan & Parvaiz Ali Chawla, JJ.
MUHAMMAD NAWAZ CHEEMA etc.--Petitioners
versus
PRINCIPAL SECRETARY TO CHIEF MINISTER PUNJAB
LAHORE etc.--Respondents
I.C.A. No. 302 of 2009 in W.P. No. 5500 of 2009, decided on 29.6.2009.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Intra Court Appeal against the order of a single bench whereby the appointment of the appellant was cancelled as declaring the same to be illegal, tainted with mala fide and political motivated--Contentions--Held: Chief executive of the province is fully competent to appoint any body on the contract basis till the arrival of the new incumbent has no force as in instant case a direction was given by High Court to appoint chief inspector boiler in accordance with rules--Cancellation of interview by the commission was without assigning any reason--No notice for termination as required under the law was served upon the appellant has no force--Appellant at the most can claim one month salary in lieu of the notice--Appointment of the appellant was illegal and without lawful authority--Appeal dismissed.
[Pp. 230 & 231] A & B
Mr. Khalid Pervaiz Warraich, Advocate for Appellant.
Mr. Ghulam Haider, Respondent No. 4 in person.
Date of hearing: 29.6.2009.
Order
This ICA is directed against the order dated 27.5.2009 passed by the Hon'ble Chief Justice of this Court accepting Writ Petition No. 5500 of 2009 and the appointment of the appellant was cancelled as declaring the same to be illegal, tainted with mala fide and political motivated.
Brief facts of the case are that the appellant was appointed as Assistant Engineer Mechanical BS-17 on Regular Basis in Sheikh Zayed Hospital, Lahore in September 2005. He remained in service of the said Hospital till March 2007. The appellant also possessed requisite qualification required for the post of Chief Inspector Boiler BS-18 in the Directorate of Industries Punjab Lahore vide order dated 3.11.2007 issued by Secretary Industries, Government of the Punjab and before joining the service he resigned from the service in Sheikh Saiyed Hospital, Lahore. The appointment was challenged in Writ Petition No. 3455 of 2007 filed by Respondent No. 4. The appellant also filed Writ Petition No. 4225 of 2007. Both the writ petitions were consolidated and disposed of with the direction to Respondent No. 2 to decide the matter in accordance with rules and regulations of the department. The departmental promotion committee's meeting was held on 20.10.2007 but nobody from the entire department was found eligible for promotion to the post of Chief Inspector Boilers and decided to forward a requisition to Punjab Public Service Commission to fill the post of Chief Inspector Boiler, resultantly advertisement was made in Daily Jang on 4.11.2007. The appellant and other candidates applied for the said post and the Commission issued call letters for interview for 24.3.2008 but later on the commission cancelled the interview on 19.3.2008. Subsequently the appellant was appointed vide directive dated 2.11.2007 which remains intact.
It is argued that the impugned order passed by the learned Single Judge in chambers is absolutely against the facts and law. The appellant was appointed on contract basis and there was a condition in the appointment order that before joining the said post the appellant should resign from his previous service which he did. Again it was mentioned in the letter that the appellant is appointed on contract basis against the vacant post till arrival of the regular incumbent.
It is argued that nobody has been appointed or selected for the post by the Commission and by virtue of the judgment of the learned single Judge, the said post became vacant which cannot be kept vacant for unnecessarily long period. Further submits that S&GAD asked the Industries Department Govt of the Punjab regarding the status of contractual appointments and their substitution. The Industries Department informed that the appellant is carrying out essential service and his suitable replacement is not available in the Directorate, therefore, this Directorate has no objection to his continuation in the post in Industries department till the appointment of Chief Inspector of Boilers filled in the regular manner as prescribed in rules. This aspect has not been considered by the learned Single Judge. Further submits that the appellant cannot be deprived of the benefit once it has been granted to him, though in violation of the rules. Finally argued that the appellant shall not be removed from his present post till the arrival of incumbent as it is mentioned in the appointment letter and the learned single Judge passed the order in violation of the rules framed vide which employees on contract basis are regulated and no notice for termination of service in lieu of one month salary had been issued.
Conversely, Respondent No. 4 argues that the basic appointment of the appellant was in violation of the rules for appointment for the post of grade 16 and above. The said post as per the rule is to be advertised, then on receiving the applications of the incumbents they will be interviewed by the Public Service Commission and thereafter the one candidate is to be appointed in place of the appellant. Since no exercise for the selection of Chief Inspector Boiler has been taken up by the Public Service Commission. Further submits that the appellant 's basic appointment was challenged in Writ Petition No. 3455 of 2007 and writ petition was disposed of with the direction to respondent department to fill the post in accordance with the Rules and Department Policy. It was also directed that the post may be advertised and the Public Service Commission shall select one suitable candidate for the said, post to be appointed on the regular basis. Further argued that in compliance of the order passed in the writ petition since nobody amongst those already working in the respondent department possessed requisite qualification and was not selected. The said post was advertised in the Daily Jhang for interview but later on Commission suddenly cancelled the interview of those applicants who were called for interview and they had to go back without appearing. The appellant was appointed as Chief Inspector Boiler on 2.11.2007 in clear violation of the rules. Further argues that the appellant was appointed on contract basis and his service can be terminated on one month notice by the respondents. He has no light to claim that he cannot be removed and retains the post in violation of law and rules. The direction issued by the Chief Minister was in violation of rules. Since the basic appointment was in violation of the rules and is illegal, thus appellant cannot claim that he should have been served with notice or he should not be removed till the arrival of new incumbent.
We have heard the learned counsel for the appellant and Respondent No. 4.
The learned counsel for the appellant has failed to point out any illegality or irregularity in the impugned order. He has also failed to show us that the appointment of the appellant was made in accordance with the rules and the direction issued by this Court in W.P. No. 3455 of 2007. The main stress of the learned counsel for the appellant was that in this case the method adopted/created by the Full Bench in the case of Prosecutors shall be followed and that the Public Service Commission after advertising the post shall select the incumbent and on the arrival of new incumbent the already appointed appellant shall go. We do not agree with the arguments of the learned counsel. The order passed in that writ petition was an interim arrangement to be followed during the pendency of the writ petition, as the case is still pending before the Full Bench. The appointment of the prosecutor was not illegal or against the rules nor the same has been declared so by the Full Bench. Here in this case the appointment of the appellant was in violation of the rules. It appears that the date fixed for the interview by the Commission was cancelled without assigning any reason and as a result of that the appointment of the appellant remains intact. His service for two years as Chief Inspector Boiler on the basis of letter-dated 2.11.2007 does not give legitimacy to his appointment. The arguments that the Chief Executive of the Province is fully competent to appoint any body on the contract basis till the arrival of the new incumbent has no force as in this case a direction was given by this Court to appoint Chief Inspector Boiler in accordance with rules. The cancellation of interview by the commission was without assigning any reason.
The next argument that no notice for termination as required under the law was served upon the appellant has no force. The appellant at the most can claim one-month salary in lieu of the notice. As observed earlier the very appointment of the appellant was illegal and without lawful authority. The learned counsel could not satisfy us on this question whether the order passed by the learned Single Judge suffers from any illegality or irregularity.
For what has been discussed above, this appeal having no merit is dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2010 Lahore 231
Present: Mian Saqib Nisar, J.
IMTIAZ RASHEED QURESHI--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Power Islamabad and 4 others--Respondents
W.P. No. 7471 of 2009, decided on 15.7.2009.
Standard Time (Interpretation of References) Ordinance, 1943--
----S. 2--Day-light saving time--Question, whether the Federal Government had the authority to issue the impugned notification for advancing the PST by one hour--Interpretation of Pakistan Standard Time shall be fixed by the Federal Government and if it is not so, in that eventuality five and one-half hours added to Greenwich Mean time shall be considered to be PST--In the instant case, on account of the Schedule 2 Item No. 14 of the Federal Government Rules of Business, fixation of time is the subject of the interior division--On account of the summary prepared by the Pepco routed through the ministry of water and power, the Interior Division with the consultation of the whole cabinet has advanced time, therefore, the question of illegality and/or invalidity in that behalf has no substance and, therefore, is repelled. [P. 235] A
Constitution of Pakistan, 1973--
----Arts. 25 & 199--Standard Time (Interpretation of References) Ordinance, (VI of 1943), S. 2--Daylight saving time--Advancement of time by an hour in Pakistan--Impugned decision is the policy matter of the Government and when no vice of the nature indicated is established by the petitioner on the record, High Court while exercising constitutional jurisdiction is not supposed to sit as an appellate forum over the administrative decision--Both the decisions including the day-light saving and the load management are not arbitrary or whimsical in any manner, rather those have been done under the compelling circumstances of acute energy shortage.
[P. 236] B & C
Judicial Review of Administrative Actions--
----High Court was not inclined to constitute any commission for the purpose of ascertaining, whether the load management is being conducted in fair and reasonable manner, because in view of the Court, it shall be unnecessary interference in the affairs of the Government, which should be avoided, unless it is absolutely imperative and that too on the touchstone of the settled principles of judicial review of administrative actions, which Prima facie have not been established by the petitioner on the record--Petition dismissed.
[P. 237] D
Mr. S.M. Zaman, Advocate for Petitioner.
Ch. Aamar Rehman, Deputy Attorney General.
Ch. Abdul Sattar, Advocate for Respondent No. 2.
Rana Asadullah Khan, Advocate for Respondent No. 4.
Date of hearing: 15.7.2009.
Order
The petitioner is a citizen of Pakistan and is aggrieved, of the advancement of the time by one hour in the Pakistan standard time (PST) made by the Federal Government vide notification dated 14.4.2009, and also with respect to the load shedding in force in the country.
In the petition, the concept, the purpose, the considerations, reasons and the standards of the Daylight Saving Time (DST) in-vogue in other countries of the world, called summer and winter time has been explained; and it is argued by the learned counsel that such reasons are neither available for the instant decision nor have been adhered to in the matter; further reference has been made to Section 2 of the Standard Time (Interpretation of References) Ordinance, 1943 (Ordinance No. VI of 1943) and it is argued that by virtue thereof the standard time of the country has been itself fixed by the statute i.e five and one-half hours plus the Greenwich Mean time. It is thus stated that this change of time brought about through the impugned notification by an executive order, is violative of the said law, as the Government has no authority to amend it, which is the domain of the legislature.
As regards the load shedding, the learned counsel though concedes that the country is facing serious energy crises, but his grievance is that the load shedding/management is being done in grave discriminatory manner, as according to the data provided by the respondents alongwith their comments, it established that some privileged, persons/institutions such as the Presidency, Prime Minister House/Secretariat Governor House, Chief Minister House and Secretariat have been exempted for no rational behind it, whereas the entire nation is facing the misery of the load shedding, which is disproportionate, unscheduled and unannounced, thus the poor people of the country are being put to suffer on account of the load shedding in the simmering heat; he has also made reference to the devastating effect being caused to the industrial and agricultural sector of the country on the above account, especially in terms of financial loss, unemployment, and price hike of the essential commodities of life; he has suggested that the Court should constitute a commission to look into all these aspects and for proposing the load shedding/management, which should be regulated under the orders of the Court.
Conversely, learned Deputy Attorney General has explained the concept of Greenwich Mean time; he has pointed out that in the year 1884 International Meridian Conference was held in United State in which 25 countries of the world including the United Kingdom and France participated; a resolution was adopted therein as per which the imaginary line from North to South pool passing through the main observatory at Greenwich, a small town of U.K, was conceived to be a zero meridian; this criteria was held to be the reference for the fixation of standard time for various countries all over the world. It is stated that in the sub-continent at the time when the Ordinance 1943 was enforced (sub-continent was of a Colony of Britain), five and one-half hours plus the Greenwich Mean Time was considered to be the standard time; however, after emergence of Pakistan, it was reduced by the Government to plus 5 hours. Anyhow, now the Federal Government as per Section 2 of the Ordinance IV of 1943 has advanced the time by one hour; for the empowerment of the Govt. in this behalf, he has referred to Section 2 of the Ordinance ibid; Federal Government Rules of Business read with Schedule 2, Item No. 14 whereby, the Interior Division has the authority to fix the PST. Besides, it is submitted that the fixation/advancement of time is the policy decision of the Government, which is based upon rational i.e to save the day light, so as to meet the energy challenges and such policy decision cannot/should not be interfered in the constitutional jurisdiction of this Court. Reference in this behalf has been placed upon the cases reported as The State. Vs. Zia-ur-Rahman and others (PLD 1973 SC 49), Mian Muhammad Nawaz Sharif. Vs. President of Pakistan and others (PLD 1993 SC 473), Fida Hussain. Vs. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701), Government of Pakistan through Secretary, Ministry of Commerce and another. Vs. Zamir Ahmad Khan (PLD 1975 SC 667), Zamir Ahmad Khan vs. Government of Pakistan and another (1978 SCMR 327), Col. A. S. Sangwan vs. Union of India and others (AIR 1981 SC 1545) and Syed Muhammad Arif and others. Vs. University of Balochistan and others (PLD 2006 SC 564).
As regards the other limb of the case, about the load shedding, learned DAG has stated that it is a misnomer that on account of the load shedding, the energy is being saved, rather it is being conserved, which means the careful use of the resource through the process of load management, taking into account peak hours of demands which are being clipped and for the purpose of meeting such demand, the load is shifted to the hours when it is more required. In this regard, he has mentioned Graphs placed at pages 42 to 46 with the comments of PEPCO, which reflects that the demand and generation prior to invocation of DST and thereafter. In the graphs at page 42, the peak period, according to the learned DAG is in between 20 and 21 hours and it is submitted that by load management, this peak period is stretc.hed, so that the electricity is provided to all the concerned/necessary consumers. The other graph placed on the record according to the learned DAG shows that by clipping the peak period, the object of load management has been successfully achieved. On account of the graph at page 46, which is a comparative table, he has pointed out that during the period i.e 31st May 2008 to 3 June 2008, at 21 hours, the demand was 16,589 MW, which on account of the load management and the day light increase was decreased to 15,606; on 2nd June, 2008 it was 14,164; however, on 3rd of June, 2008 it increased to 16,283 but that was due to the high temperature etc. and if the DST was not in force, the demand for the 3rd June would have been much higher; he has stated that the demand and supply fluctuates on daily basis and is dependent on large number of factors. Thus on the basis of this data and experience of the past years, the PEPCO is stated to have forwarded the summary to the Ministry of Interior, through the Ministry of Water and Power for the advancement of the time for maximum utilization of the day light for the year 2009 as well.
As far as the point of discrimination is concerned, it is argued by learned DAG, that no exemption has been granted to any individual person or the private sector, rather it is either the hospitals, the schools or the institutions of immense national importance, which are exempted, the chart in this behalf has been placed on the record. Learned DAG also pointed out that according to the summary showing power position dated 23.3.2009, in the month of March, there is shortfall during the peak hours of-964 to -1908 and from 51 to -319 for April and -1428 for May and for June-1596 to 2652 MW per day. And this was subject to certain conditions, such as full fuel supply to thermal plants, etc.; besides the breakdowns such as that recently 10 units of Mangla Power Stations collapsed on account of a technical fault and only two out of these have so far been restored and brought on line on 10th of this month.
Heard. Without going into the question of locus standi of the petitioner; the petitioner while challenging the advancement of time has primarily rested his case by quoting examples from other parts of the world, and urged that such reasons and standards have not been followed in the instant case. I am afraid that such illustration, reasons and considerations are not apt to the present situation faced by our country, which is passing through quite a abnormal, difficult and extraordinary phase, the shortage of energy is quite acute and it is a publicly known fact that the demand and supply/availability are incompatible and there is a vast gap in relation thereto. Anyhow, the real question involved in the matter is, if the Federal Government has the authority to issue the impugned notification for advancing the time by one hour; in the petition, the petitioner infact has set out a plea that there is no legislation on the subject and through an executive action the Federal Government is not empowered to take the impugned decision/action; it seems that the petitioner was unaware of Ordinance VI of 1943 when the petition was filed, however, on its indication by the respondent's side, it has been now argued that the time can only be fixed by amending the said law. I am afraid, that this contention has no force, the interpretation of the law, which has been placed by the learned counsel for the petitioner, is absolutely unfounded, rather from the language of the section, which is reproduced below:
"While an order of the Federal Government is in force fixing Standard Time by reference to Greenwich Mean Time as being in advance of Greenwich Mean Time by an interval other than five and one-half hours, any reference in any enactment in force in [Pakistan] to Standard Time shall, notwithstanding that such reference may define Standard Time as being five and one-half hours in advance of Greenwich Mean Time, be interpreted as a reference to Standard Time as fixed for the time being by the order of the Federal Government."
It is clear that PST shall be fixed by the Federal Government and if it is not so, in that eventuality five and one-half hours added to Greenwich Mean time shall be considered to be PST. In the instant case, on account of the Schedule 2 Item No. 14 of the Federal Government Rules of Business, fixation of time is the subject of the Interior Division and as has been explained above, on account of the summary prepared by the PEPCO routed through the Ministry of Water and Power, the Interior Division with the consultation of the whole Cabinet has advanced the time, therefore, the question of illegality and/or invalidity in this behalf as raised by the learned counsel for the petitioner has no substance and therefore, is repelled.
With regard the plea of rationality is concerned, suffice it to say that I am not convinced, if in the peculiar circumstances of the country, the impugned action can be termed as irrational, arbitrary, capricious or unfair, besides, the impugned decision is the policy matter of the Government and when no vice of the nature indicated above is established by the petitioner on the record, this Court while exercising its constitutional jurisdiction is not supposed to sit as a Appellate forum over the administrative decision.
As regard the plea of load shedding is concerned, suffice it to say that when questioned, learned counsel for the petitioner has admitted that the country is facing with acute energy crises. This is also a publicly known fact. It is also generally known to the whole nation that no new power generation has been established in the country for the last many years and particularly, during the previous regime; the present Government has acquired the legacy of this calamity and seemingly has been endevouring to coup with the crises by co-ordinating the supply and demand through the process of load management, awaiting the installation of new generation projects, and till then obviously if the demand is high and the supply inadequate, that has to be done by bridging up the gap and load sharing. To plan and regulate the load management, which is dependent on so many factors and is a constantly fluctuating phenomena as mentioned, that the job can be accomplished only by the relevant authorities; it is to be decided by such authorities, as to which sector, organization, institution, establishment, area (geographical or industrial, agricultural or otherwise), should be subjected to what quantum of and the schedule of load shedding. And when the above process is not shown to be irrational, unreasonable or tainted with dishonesty of purpose, such action cannot be questioned on the touchstone of Article 25 of the Constitution of Islamic Republic of Pakistan. I have examined the chart/graphs, which have been placed on the record and find that both the decisions including the day light saving and the load management are not arbitrary or whimsical in any manner, rather those have been done under the compelling circumstances of acute energy shortage.
Besides, the issue of load shedding has a political fallout and repercussions; the present is a political Government and if the load shedding is being conducted for an extraneous, irrational of arbitrary reasons or a bad policy, it shall vex the public-at-large and no political Government can afford to face the anger of the public now or when it goes for the next election.
As regards the question of discrimination, from the data provided by the respondents' side on the record, I am convinced of the plea raised, rather it is only the essential institutions, organizations and the offices, to which the electricity is being continuously supplied and this cannot be termed discriminatory.
I am not inclined to constitute any Commission for the purpose of ascertaining, whether the load management is being conducted in fair and reasonable manner, because in my view, it shall be an unnecessary interference in the affairs of the Government, which should be avoided, unless it is absolutely imperative and that too on the touchstone of the settled principles of judicial review of Administrative actions, which prima facie have not been established by the petitioner on the record.
However, before parting, it may be observed that the basic object of the increase in the day time is to curtail the consumption of energy of the electricity in the evening/night, the peak period and to conserve it for other days or the sectors, but it is discouraging and a dismal to note that the Restaurants, Shopping Mall, big plazas, markets, wedding Halls, etc., etc., remain open till late night hours and no check or embargo has been placed upon them either by the Federal Government or the Provincial Government, of which this is the subject, despite the law being there, to compel the implementation of fixing the hours for the opening and closure of these establishments. If the law is duly enforced as presently it is, and/of the respondents alongwith the documents attached therewith, particularly the graphs and the summary, which contemplates that Pakistan is facing acute energy crises and in order to manage the distribution of the electricity to various sectors, the load shedding/management is being made. I am not convinced that such load shedding/management is based upon any unfair and discriminatory rule. From the list provided to the Court, it is not established that the petitioner or any other citizen is being discriminated, because the feeders, which have been exempted, either are schools, hospitals, or various Govt. institutions, which needs the energy for the dignity of office and nature of the work.
(M.S.A.)
PLJ 2010 Lahore 237 (DB)
Present: Hasnat Ahmad Khan & Zubda-tul-Hussain, JJ.
MAJID RASHID--Petitioner
versus
STATE and 4 others--Respondents
W.P. No. 8796 of 2007, decided on 10.7.2009.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 16--Expeditious trial--Section 16 of the National Accountability Ordinance, 1999 has prescribed a period of 30 days for holding the trial on day to day basis and concluding the same within 30 days of the submission of challan is by itself sufficient to show that the intent and object of the Ordinance was to ensure the expeditious trial and its conclusion within the shortest possible time--Limitation of thirty days has hardly even been observed for the disposal of a reference under the National Accountability Ordinance, yet it cannot be denied that the emphasis of the Ordinance for quick disposal of the cases is neither lost nor can it be ignored. [P. 242] A
Bail--
----Delay in trial--Law as emphatically available in the criminal jurisprudence and repeatedly ordained by the superior Courts of Pakistan--Accused are made to be available for trial but it has never been nor it can ever be the intention of law to punish the accused for the offence the trial whereof is still pending against him--Concept of punishment is essentially relatable to the conclusion of trial and the punishment can only be imposed after the end of trial--Nobody can be incarcerated during the trial merely as a matter of punishment--Challan has been submitted and the trial is pending would not constitute a bar for the grant of bail to the accused--Element of delay alone in instant case would be sufficient and the sole ground for concession of bail--Bail allowed. [Pp. 242 & 243] B, C & D
Mian Abdul Qadoos, Advocate for Petitioner.
Mr. Sikandar Zulqarnain, Advocate for Petitioner (in W.P. 2678 of 2008).
Mr. M.A. Malik, Advocate for Petitioner (in W.P. 2799 of 2008).
Ch. Abdul Hafeez, Senior Special Prosecutor for NAB.
Date of hearing: 10.7.2009.
Order
The instant bail petitions are directly relatable to the Forex scam leading to a number of References by the National Accountability Bureau, Reference No. 35/2005 being one with enormous volume of the financial involvement. This reference was initially instituted against four accused namely, Shahid Hassan Awan, Zubair Ali Khan, Majid Rashid and Ulfat Salim. Subsequently, one Zakaullah Khan Sherwani was also added as an accused.
Although in the Reference allegations against each of the accused have been separately incorporated and bail petitions have also been filed separately on behalf of Zubair Ali Khan, Majid to Rashid and Ulfat Salim but the primary nature of their involvement and most of the grounds for seeking the bail being common this single order shall dispose of three Writ Petitions No. 2799/08, 8796/07 and 2678/08 respectively filed by the petitioners, Zubair Ali Khan, Majid Rashid and Ulfat Salim.
The allegations in the Reference are that a private limited company named Bulls & Bears (Pvt.) Ltd. was incorporated under the Companies Ordinance, in October, 2001 and the petitioners along with Shahid Hassan Awan (co-accused of the petitioners) were its Directors. It was stated in the reference that the Forex scam was unearthened in the year 2003. The modus operandi of M/s. Bulls & Bears (Pvt.) Ltd. Was that by means of market agents and attractive brochures etc. deposits of money were illegally solicited from the public at large without having any lawful authority for the same. It was further mentioned that on receipt of complaints show cause notices were issued to the company by the Securities & Exchange Commission of Pakistan (S.E.C.P.) for carrying out illegal Forex business and winding up petition was filed in the Lahore High Court, Lahore. After authorization of the investigation by its Chairman, the NAB investigated the matter. Allegedly millions of rupees were misappropriated and the accused petitioners along with the co-accused were found guilty of the offence of cheating as defined under Section 415 of the P.P.C. as well as the offence of corruption and corrupt practices as defined in Clauses (iii), (iv), (ix) and (x) of Section 9(a) punishable under Section 10(a) of the National Accountability Ordinance, 1999.
The role ascribed to the petitioners individually in the reference was as under:
Zubair Ali Khan:
(i) Accused in connivance with Accused No. 1 and some others founded a private limited company named Bulls & Bears Ryones (Pvt.) Ltd. Ostensibly for import/export of textile accessories and opened A/c No. 1131637 Bank Alfalah LDA Plaza with paid up capital Rs. 1 million and embezzled all the funds.
(ii) Accused in connivance with Accused No. 1 and some others established B&B Paint Factory Bund Road Lahore on 11.9.2002 and opened bank account with MCB Gulshan-e-Ravi Lahore. The bank account analysis is in process, which shall be included in the final reference.
(iii) There was so called agreement dated 1.8.2003 between accused and Shahid Hassan Awan accused regarding the investment and the profits sharing amounting to Rs. 13.4 million (approximately) which the accused Zubair Ali Khan collected from general public.
Ulfat Saleem;
(i) On 3.1.2003 accused joined as Director (Finance) B&B Company, replacing Hassan Akhtar Awan. He involved himself in the settlement of various financial transactions and also opened/operated number of bank accounts.
(ii) Accused was benamidar of Accused No. 1 regarding Plot No. 298 (K) in W Block DHA Lahore. He further purchased 10 marla plot REG.No. T-3765, Ferozepur Road Lahore, and also 10 marla Plot No. T-27/2 (Khasra No. 797) Khuda Bukhsh Housing Society Lahore from the public money.
Majid Rasheed:
He was marketing Officer and later on became Director (Admn) in which capacity out of the public money, he purchased Savings Certificates worth Rs. 28 lacs, FEBC's valued Rs. 11 million from UBL/MCB Neela Gumbad Lahore and DSC's worth Rs. 5.6 million from Emirates Bank International. He embezzled the said funds.
The common ground for seeking the bail raised by the learned counsel for all the three petitioners is that the petitioners were arrested on 8.8.2005 and reference was instituted on 5.8.2005; they remained under detention without any progress in the trial so much so that the charge was also framed after about twenty (20) months of the filing of the interim reference; not only that but even after the framing of the charge no substantial progress has taken place in the trial of the case and during all this period of incarceration of the petitioners the statements of nineteen (19) prosecution witnesses have been recorded out of the lengthy list of 910 cited P.Ws. The learned counsel, therefore, maintained that there was no likelihood of the conclusion of the trial in the near future and the petitioners have been rotten in the jail aimlessly for the last about four years.
Relying upon a number of judgments of the superior Courts the dictum laid down in the case of Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 S.C. 645) was specifically pressed into service to argue that the inordinate delay in the conclusion of the trial when not attributable to the accused, was a valid ground necessitating the concession of bail. It was also pointed out that in the case of Zubair Ali Khan a direction was also issued on 18.9.2007 for concluding the trial proceedings within six months which direction having not been carried out the learned trial Court has shown its inability to liquidate the proceedings in the near future keeping in view the volume of the evidence relied upon by the NAB and likely to be produced by it against the petitioners.
It was also jointly argued that there was no justification to keep them behind the bars even after the lapse of four years, especially when the maximum punishment provided under the law for the alleged offences is imprisonment for 14 years which is generally imposed for a period ranging from 4 to 6/7 years. According to the learned counsel, it is very rare and whenever it has been done it is because of the seriousness of the role of the accused that the punishment exceeding seven years is given to the accused for the offences under the NAO 1999. The learned counsel then dilated upon individual liability of each of the petitioner and pointed out that the same was either not leviable under the law or it was for much less quantum of financial implication as compared to the volume of the amount under the Reference. It was also vehemently contended that the petitioners never had any intention to defraud the people or to embezzle the amount but it was only because of the panic and circumstances created by the complainant that the genuine business of the Bulls & Bears was jammed and the depositors could not be compensated.
Ch. Abdul Hafeez, Sr. Special Prosecutor for NAB maintained that the prosecution alone was not responsible for the delay in the conclusion of the trial and it was on numerous dates of hearing that the hearing was adjourned either on the request of the accused or for the circumstances which could be attributed to them alone. The learned prosecutor added that the number of witnesses is no doubt large but the size of the financial scam in which the petitioners are involved is quite enormous and as such the time has been consumed for inevitable reasons, though the prosecution is trying its best to abridge it and as the petitioners themselves were responsible for a large number of adjournments they could not be released on bail on this score.
The learned Senior Prosecutor referred to the case of Faisal Hussain Butt v. The State and another (2009 SCMR 133) and maintained that the question of bail had to be decided not for the delay alone because the petitioners had themselves been contributory to it and even otherwise the volume of the financial implications and the number of the victims of the scam disentitled the petitioners from equitable or discretionary relief. The learned Prosecutor has emphatically and repeatedly impressed that the Bulls & Bears was one of the companies under action for the largest quantity of the liability running into billions and in that perspective the petitioners were not entitled to the concession of bail.
Unfortunate and tragic has it always been that successively and in short intervals the people of this country are confronted with one or the other big financial scam but invariably the authorities step in only when the leeches have fully sucked the blood of the people. The grabbers openly solicit money from the public by offering lucrative promises for profits/returns at unimaginable and inflated rates which a person of ordinary financial prudence knows, is impossible to achieve. This vicious and multi dimensional play continues and is also introduced, advertised and promoted through widespread means of print and electronic media but the authorities responsible for guarding against such malicious activities, for reasons, keep themselves indolent, remain indifferent or under sound slumber and the moneys from the public are grabbed right under their nose by persons and companies involved in the so called business activity. Never at the right time they come forward, never they act or nib the evil before it is out of the bud. With a wishful thought (be it not a reverie) one may hope that the Forex scam be the last of the series.
Be that as it may, it cannot be denied and is out rightly evident from the preamble of the National Accountability Ordinance, 1999 that it was promulgated with a view to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power of authority, misappropriation of property, taking kick backs, commission and for matters connected and ancillary and incidental thereto. The preamble read with the provisions that follow in the Ordinance unambiguously indicates that the object of this special legislation was to provide expeditious trial for Scheduled offences. The mere fact that Section 16 of the National Accountability Ordinance, 1999 has prescribed a period of 30 days for holding the trial on day to day basis and concluding the same within 30 days of the submission of the challan is by itself sufficient to show that the intent and object of the Ordinance was to ensure the expeditious trial and its conclusion within the shortest possible time. It is of course true that the limitation of thirty days has hardly ever been observed for the disposal of a reference under the National Accountability Ordinance, yet it cannot be denied that the emphasis of the Ordinance for quick disposal of the cases is neither lost nor can it be ignored.
For the purpose of bail, therefore, we shall also see and examine the reasons for the delay in the conclusion of the trial and in the case of the petitioners it will be all the more significant because a period of long four years has elapsed since their arrest in a case where the maximum punishment provided by the Statute is fourteen (14) years imprisonment. It is further note worthy that till now the progress of the trial is almost insignificant and the circumstances in which the trial is proceeding clearly indicate that if the trial continues with the same pace it would be needing a many fourteen years to conclude.
The law as emphatically available in the ' criminal jurisprudence and repeatedly ordained by the superior Courts of this country aims at ensuring that the accused are made to be available for trial but it has never been nor it can ever be the intention of law to punish the accused for the offence the trial whereof is still pending against him. The concept of punishment is essentially relatable to the conclusion of the trial and the punishment can only be imposed after the end of the trial. The fact that unless otherwise specifically prohibited under the law, the benefit of Section 382-B Cr.P.C. is generally available to a convict also indicates that nobody can be incarcerated during the trial merely as a matter of punishment.
In the case of Muhammad Nadeem Anwar and another (supra) it was reiterated that the concession of bail cannot be withheld as punishment on accusation of a non-bailable offence. It was also observed that the accused was entitled to the expeditious and inexpensive access to justice which included right to fair and speedy trial in transparent manner without any unreasonable delay, which intention has been re-assured in Section 16 of the NAO, 1999 by making the provision for day to day trial and its conclusion within 30 days. We have observed that the delay in the case of the petitioners is much more than the one involved in the case cited above.
It cannot be ignored that in the bail application of one of the petitioners a direction was earlier issued for final decision of the case within six months. The report submitted by the learned trial Court virtually indicates that it may not be possible in the circumstances of the case to conclude the trial in the near future. Thus, the object of the NAO as discussed above for early liquidation of the trial does not appear likely to be achieved anywhere in the near future. Hence, the mere fact that the challan has been submitted and the trial is pending would not constitute a bar for the grant of bail to the accused petitioners.
As mentioned above there are 910 cited P.Ws. out of which the statements of only 19 witnesses have since been recorded in a period of about twenty (20) months. Even if the NAB chooses to produce a much lesser number of witnesses than the one given in the calendar of witnesses the period of trial may extend at least to a couple of years, but this too would depend on the condition that all concerned are scrupulously cooperative for the progress of the trial.
All said and done, by the above observations it may not be construed that the element of delay alone in this case could be sufficient and the sole ground for concession of bail. The reliance by the learned Prosecutor on the case of Faisal Hussain Butt (supra) too is not totally out of context because inspite of delay in conclusion of trial bail was refused in that case because of other cognate factors. We are, therefore, taking the delay into consideration conjunctively with the other merits especially the individual liability of each accused petitioner as emanating from the record and the break up of the liabilities carried out by audit and analysis of the accounts. The perusal of the order-sheet of the learned trial Court produced by the learned Sr. Special Prosecutor, NAB shows that the whole delay could not be attributed solely to the prosecution. Pretty enough adjournments were certainly caused for one or the other reason on the part of the accused petitioners.
Even on merits we find that despite the enormous volume of the financial implications the role ascribed to the petitioners and the liability alleged against them is proportionately much less than the overall liabilities of the Bulls & Bears (Pvt.) Ltd. For example, the petitioner Ulfat Salim has been mentioned by the P.W. 14 as Manager Marketing and not as a Director. He was also not pioneer Director of the company and had joined only on 3.1.2003 in place of father of Shahid Hassan Awan. We have also observed, and this observation shall of course be without prejudice to the evidence to be adduced in the trial and the determination of the merits of the case, that the name of Ulfat Salim was not given as Director in the winding up petition filed against the company. These circumstances clearly make out a case of further enquiry against Ulfat Salim, petitioner.
Similarly the liability of Majid Rashid is subject to determination by further enquiry at the time of trial especially for the reason that the limit and extent of his powers/authority as Director is also in question.
The learned counsel for Zubair Ali Khan has specifically referred to the verification of the claims conducted in the case of M/s. Bulls & Bears Financial Data Services (Pvt.) Ltd. by Hassan Naeem & Company, Chartered Accountants at the instance of the NAB and pointed out that the break up of the liabilities given in the report shows that the major part of the liability was not on the shoulders of the company i.e. M/s. Bulls & Bears or the petitioners as its alleged Directors. According to the learned counsel the liability of the petitioners even as Directors was thus almost for only 1/13th and l/8th respectively in Pak rupees and US$ as compared to the other/remaining liability calculated by the said Chartered Accountants.
The size of the financial scam which in this case is involved is of course enormous-enormous enough to have had a wide spread impact and panic among the large number of petty investors who having been tempted by verdant promises of exorbitant returns had put their total assets in a pocket which forever was going to be beyond their reach. The poor fellows could not realize that they were placing themselves at the mercy of those who were to be the riches at their altar. It is here that the cases of the petitioners can be deciphered on individual liability or the ratio of their obligation against the overall volume of the case or inter se the Directors etc. As already observed despite huge collective liability the proportion of the liability of the petitioners has been worked out (tentatively) by the NAB within the 1/13 the and l/8th share mentioned in the preceding paragraph.
Consequently, we allow all the three subject petitions and admit the petitioners to bail provided they furnish bail bonds in the sum of Rs. 20 million each with one surety each in the like amount to the satisfaction of the learned trial Court. The petitioners shall keep on appearing before the learned trial Court on each and every date of hearing till the final decision of the case.
If not already surrendered by the petitioners or recovered during investigation, the passports, if any, of the petitioners shall be surrendered by them to the learned trial Court before their release which in turn shall be handed over to NAB authorities against proper acknowledgement. Similarly the names of the petitioners shall also be placed on the Exit Control List, if not already included in it.
(M.S.A.) Petitions allowed.
PLJ 2010 Lahore 245
Present: Syed Asghar Haider, J.
ABDUL SATTAR and another--Appellants
versus
MUHAMMAD IQBAL--Respondent
RSA No. 4 of 2008, decided on 30.1.2009.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 100 & 107--Punjab Pre-emption Act, 1991, S. 13--Pleading contiguity common source of irrigation, passage and co-sharers--Regular Second Appeal--Effect of production of witnesses and documentary evidence--Numerical strength of witnesses--Parameters for determining the propositions are foreclosed within the rights granted u/S. 100, CPC and are, therefore, required to be examined--Section 107, CPC bestows upon High Court same powers as are conferred upon the Court of original jurisdiction--Appellate Court also has discretion to substitute findings of a lower Court if it has exercised them capriciously and against legal principles.
[P. 249] A & C
Evidence in Civil Cases--
----It is always the quality of evidence, which decides the fate of the dispute, the numerical strength of witnesses or documents if they are doubtful and open to dispute does not help the cause--No cross-examining a witness, in civil proceedings, means that the statement to that extent stands admitted. [P. 249] A & B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 79 & 95--Principle of "Lex Situs" the requirements as enunciated in Pakistan, under the power of Attorney Act, 1882 and Arts. 79 and 95 of Qanun-e-Shahadat Order, 1984, have to be examined--These requirements incidentally are not violative of English Jurisprudence or law but, infact, are in harmony with them--If a document is required to be attested by law, it shall not be used as evidence until two attesting witnesses, at least have been called for the purpose of proving its execution--There is nothing on record to prove the due execution of power of attorney in England as required and stated--This condition is further qualified by Art. 95 of Qanun-e-Shahadat Order, 1984, it states that every power of attorney executed should be certified and authenticated by a notary public or any Court, Judge, Magistrate, counsel or vice counsel or representative of the Federal Government. [P. 251] D
1984 PSC 939 & PLD 1984 SC (AJK) 157, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 3--Cross objection--Legal question--Interfere and reverse the findings--Maintainability of suit--If cross objections are not filed such matters cannot be touched, however, the rule in this context is not absolute but is subject to interference, if the appellate Court perceives, that ultimate relief prayed for, emerges from incidental and collateral issues not under challenge, on which the findings are illegal, but have not been assailed by the other party, however, they effect the maintainability of the suit--It than has manifest powers to set right any illegality committed in law by the Courts below while deciding a specific issue in his context by exercising corrective powers as contained in Order XLI Rule 33, CPC for doing complete justice--Appeal dismissed. [P. 252] E
Mian Israr-ul-Haq, Advocate for Appellants.
Mr. S.M. Masud, Advocate for Respondent.
Date of hearing: 4.12.2008.
Judgment
This single judgment shall decide RSAs No. 4, 5 and 6 of 2008, inter se the same parties, more or less upon the same cause of action.
Facts necessary for adjudication of the present dispute are that the respondent/defendant Muhammad Iqbal purchased the disputed land from Amjad Ali, Kalsoom Akhtar, Saddaf, Sehar Ali, Kiran Ali and Samar Ali, for a consideration of Rs. 4,39,50,000/-, vide registered Sale-Deed No. 12488, dated 1.8.2005. The appellants/plaintiffs filed a suit on 15.10.2005, for possession of the disputed land as contemplated by Sec. 13 of the Punjab Pre-emption Act, 1991, pleading contiguity, common source of irrigation, passage and co-sharers, it also was averred, that the price of the suit land is inflated and fictitiously mentioned as Rs. 75 Lac. per acre, instead of Rs. 25 Lac, as actually paid. The respondent/defendant contested the suit. Of the divergent pleadings of the parties seven issues were framed. The parties were put to trial and thereafter the suit was dismissed on 14.10.2006, on Issues No. 1 and 5. However, affirmative findings were returned on Issues No. 2 and 3 in favour of the appellants/plaintiffs. Issues No. 4 and 6 were also decided against the respondent/ defendant. The respondent did not file appeal or cross objections qua Issues No. 2, 3, 4 and 6 decided against him. The appellants/ plaintiffs filed an appeal against adverse decision upon Issues No. 1 and 5, but it was dismissed by the lower appellate Court on 20.10.2007. Hence this second appeal.
The learned counsel for the appellants/ plaintiffs contended that the appellants produced six witnesses, including the Post-man and Post-master. The respondent only produced Muhammad Riaz, D.W.1 and no independent witness, yet the trial Court dismissed the suit on basis of Issues No. 1 and 5 regarding Talb-i-Muwathibat and Talb-i-Ishhad, it thereby committed an illegality, as positive findings qua Issues No. 4 and 6, in favour of the appellants/ plaintiffs holding that power of attorney as valid and non-filing of appeal or cross objections, these issues attained finality, and now, therefore, cannot be permitted to be argued or challenged, therefore, the dispute be limited to Issues No. 1 and 5 only. There is a little difference between RSA No. 4 of 2008 and the other two appeals, as superior right of pre-emption of the plaintiffs also has not been accepted therein. Thereafter the learned counsel for the appellants stated that P.Ws. 2, 3, 4 and 6 affirm the stance of the plaintiffs/appellants, as the receipt of the post office is on record as Exh. P-1, notice of Talb-i-Ishhad as Exh. P-2, copy of registered envelope as Exh P-3/1, copy of acknowledgement due as Exh. P-3/2, thus the plaintiffs/appellants adequately discharged onus. But it concurrently was ignored by the Courts below. The counsel thereafter stated that the testimony and evidence of P.W.2 to 4 clearly reflects upon Talb-i-Muwathibat and its due performance, there is nothing on record to show that these witnesses were cross-examined on this point, thus, under the law of civil proceedings, anything which is not cross-examined is deemed to have been accepted correct, therefore, their testimony is above board. But this principle also was ignored. The solitary witness of the defendant did not specifically advert to this issue clearly, in these circumstances both the Courts fell in error and committed misreading and non-reading of evidence. The parameters of Talb-i-Muwathibat and Talb-i-Ishhad were duly proved in accordance with law. The defendant did not appear in person, but was represented by an attorney, his absence should have been adversely construed, but it was ignored. The documentary evidence on record was not appraised properly, disparaging and uncalled for, remarks were passed by the lower appellate Court against P.W.1 without examining the impact and import of Exh. P-2, which proved his presence in Pakistan, therefore, a legal illegality also was committed.
The learned counsel for the respondent stated that the case as put up by the plaintiffs/appellant was that they were informed through Muhammad Ali in United Kingdom that the disputed land had been sold, thereafter a notice was sent as required by law to the respondent on 14.9.2005 and a suit was instituted. Both the Courts below held that Talb-i-Muwathibat was not proved, as the requirements of Sec. 13 were not fulfilled, as commanded by law, there are concurrent judgments of two Courts below on Issues No. 1 and 5, qua the right of pre-emption, therefore, the same cannot now be permitted to be raised in second appeal, which has a limited scope, Exh. P-9 and Exh. P-10 clearly indicate that the property is located in municipal limits and, therefore, its status stands changed, so no right of pre-emption exists, therefore, the suit was not maintainable. (Reference Abdul Aziz Versus Sheikh Fateh Muhammad 2007 S.C.M.R. 336). It also was emphatically pleaded by the learned counsel that power of attorney was not executed in accordance with legal dictates and requirements of law, the date of knowledge of sale of disputed land, as mentioned in plaint is 14.9.2005, around 7 P.M. U.K. time. The power of attorney was executed in the name of Rehmat Ali on the same day, it is impossible to prepare a power of attorney in so short a time frame, further it was endorsed by an unauthorized person of the Pakistan Embassy, therefore, the document itself has no legal sanctity, thus, the suit filed on basis of this document was not maintainable and all consequential proceedings are ultra vires of law.
Heard.
The admitted facts culminating in the filing of the present suit are :--
Amjad Ali, Kalsoom Akhtar, Saddaf, Sehar Ali, Kiran Ali and Samar Ali were owners of the disputed land. They sold the same to the respondent, Muhammad Iqbal, through a registered Sale-Deed No. 12488, dated 1.8.2005. The appellants, who are residents of United Kingdom, were informed of this sale by Muhammad Ali and his wife Mehmooda Begum at their residence, 122 Terry, Glasgow, England. They immediately reacted and raised demand of pre-emption, claimed superior right in presence of two truthful witnesses. Rehmat Ali was appointed later as their attorney, who performed Talb-i-Ishhad and (Talb-i-Khusumat) by filing the suit on 15.10.2005.
P-1 to Exh. P-15 by the plaintiffs in affirmative, in comparison to a solitary witness of respondent/defendant Muhammad Riaz as D.W.1. This is a second appeal, the parameters for determining the propositions are foreclosed within the rights granted under Section 100 C.P.C. and are, therefore, required to be examined in this context. It always is the quality of evidence, which decides the fate of the dispute, the numerical strength of witnesses or documents if they are doubtful and open to dispute does not help the cause. In the present matter the witnesses produced by the plaintiffs/petitioners are of a poor quality, there are serious lapses in their testimony tendered, it is correct that not cross-examining a witness, in civil proceedings, means that the statement to that extent stands admitted. But in the present matter as stated earlier, a part of testimony, not cross-examined cannot be read in isolation, upon appraisal of entire evidence, the view point of the Courts below is correct and thus unexceptionable. Likewise the pivotal document Exh. P-1 is manifestly doubtful, qua not only the manner and mode in which it was executed but also serious legal omissions in due execution rock the very foundation of this document, therefore, the numerical strength of the petitioners' witnesses or documents is of no use.
The trial Court and the lower appellate Court concurrently dismissed the suit of the appellants/plaintiffs on Issues No. 1 and 5 regarding Talb-i-Muwathibat and Talb-i-Ishhad. Issue No. 4 was decided against the defendant/respondent holding that the power of attorney granted to Rehmat Ali, P.W.1, was valid, but no cross objections were filed against this finding, although prima facie there is a conflicting decision on Issues No. 1 and 4, it therefore, is necessary to re-determine, these issues. The legal proposition which emerges thus is that can this Court interfere on Issue No. 4 or not, if, the decision is contrary to law and against record. Before venturing further, Section 107 C.P.C. bestows upon this Court same powers as are conferred upon the Court of original jurisdiction. Thus it has uninhibited powers to examine record and pass any order which the trial Court could have (Reference North West Frontier Province Government, Peshawar through Collector, Abbottabad and another Versus Abdul Ghafoor Khan through legal heirs and 2 others (P.L.D. 1993 S.C. 418), Further the appellate Court also has discretion to substitute findings of a lower Court if it has exercised them capriciously and against legal principles. The foremost question for determination by this Court, therefore, is whether the power of attorney Exh. P/1, is valid document or not, and are the findings of the trial Court and the lower appellate Court correct and in accordance with parameters governing Section 13 of the Act. The important facts in this context are that plaintiffs gained knowledge of the instant transaction from Muhammad Ali and his wife, who were in England on 14.9.2005, at 7 p.m., local time. Talb-i-Muwathibat was made in their presence (Muhammad Ali and Mehmooda Begum), they appeared as P.Ws.2 and 3, respectively. The cause of the plaintiffs/appellants was pursued by P.W.1, Rehmat Ali, as attorney. The power of attorney referred to is available on record as Exh. P-1. The opening paragraph of the power of attorney reflects complete details of the disputed property, qua which, authority was delegated to Rehmat Ali. He appeared as PW. 1 and stated in his cross-examination, that he does not remember the Khewat or Khatooni numbers of the disputed land, likewise, Muhammad Ali, P.W.2, also stated that he does not remember the Khewat number of the disputed land as enunciated in the power of attorney. Therefore, it is clear that plaintiffs/appellants had knowledge of the sale of the disputed property earlier and through other sources, because neither P.W.1 and P.W.2 could divulge details of property mentioned in the power of attorney, this casts a grave doubt on their credibility, as well the document Exh.P/1. Muhammad Ali, the informant, could not divulge, correct details of Sand as incorporated in Exh. P-1, therefore, he also does, not qualify the test of a truthful witness within the ambit of Pre-Emption Act. Thus his evidence has no sanctity or force. The matter which needs paramount consideration is the validity of power of attorney, Exh. P-1 or otherwise, as the fate of filing of suit and all subsequent proceedings hinges upon it. Because if it was executed in consonance with legal requirements, the filing of suit and all consequential proceedings are legal, otherwise (Exh.P-1) is legally ineffective and thus would result in dismissal of the suit.
The perusal of Exh. P-1 (power of attorney) reflects that it was executed on 14th September, 2005, it is admitted on record that the appellants gained knowledge of the transaction in dispute also on 14.9.2005, at 7 p.m. through Muhammad Ali and his wife Mehmooda Begum, who came to a dine with them. It also is clear from record that the appellants and Rehmat Ali were both resident in England (United Kingdom) where power of attorney was executed. The question now arises is whether this power of attorney would be governed by the laws of United Kingdom or Pakistan. The law of power of attorney in the United Kingdom clearly ordains that an attorney can use, power of attorney (which is known there as lasting power of attorney) after it has been executed by the principal, affirmed by a Solicitor and registered with Office of Public Guardian, earlier, thereto any transaction, upon its strength and basis is void. (The procedure ordained in this context lays guide lines for execution of a power of attorney which are incorporated in the Mental Capacity Act, 2005 (Code of Practice). As stated earlier a power of attorney is required to be drawn by a Solicitor, who certifies the same, in presence of two witnesses. If examined from this angle, it is clear that the power of attorney, Exh.P-1, does not fulfill any of these conditions. As it has not been drawn by an attorney/Solicitor, it also has not been registered, or notarized as required, therefore, under the law of England (United Kingdom) it is not a validly executed document. Even for the sake of argument if it is assumed that as the disputed property is located in Pakistan, therefore, the transaction in question would be governed by the laws of Pakistan, in accordance with the principle of "Lex Situs" the requirements as enunciated in Pakistan, under the Power of Attorney Act, 1882 and Articles 79 and 95 of the Qanun-e-Shahadat Order, 1984, have to be examined. These requirements incidentally are not violative of English jurisprudence or law but, in fact, are in harmony with them. Article 79 clearly spells that if a document is required to be attested by law, it shall not be used as evidence until two attesting witnesses, at least have been called for the purpose of proving its execution. There is nothing on record to prove the due execution of power of attorney in England as required and stated. This condition is further qualified by Article 95 of the Qanun-e-Shahadat Order, 1984, it states that every power of attorney executed should be certified and authenticated by a Notary Public or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul or representative of the Federal Government. The perusal of power of attorney on these premises shows that it has not been endorsed or issued by any of the said authorities. There is no seal of any Notary Public, nor certification or endorsement, qua the fact that power of attorney was signed by the executant in presence of authorized official, therefore, it has no legal validity under Article 95. Reference: Qurban Hussain etc. Vs. Hukam Dad (1984 PSC 939--P.L.D. 1984 S.C. (AJK) 157). Though a seal of Pakistan Embassy is affixed upon the same but it again is highly improbable that Exh. P/1 could be got executed after 7 p.m., when the Embassy stood closed. A further doubt upon its authenticity is cast, as it has been attested by Abdul Ghaffar, Accountant. Law does not bestow this authority upon an Accountant, it only bestows this power upon Pakistan Consul or Vice-Consul. Even if any such power was bestowed upon the Accountant of Pakistan Embassy in Glasgow, he was bound to divulge the details and record them upon the document, but this also is missing, therefore, it is clear that power of attorney was not executed in accordance with the procedure ordained by law, but was executed in violation of the same, therefore, it has no legal sanctity and validity, mere registration of power of attorney in Pakistan is a rebutable presumption and cannot give credence to a transaction, which is legally void. There is sufficient material on record to over ride this presumption. This dimension was noted by the trial Court as it adverted to the same while deciding Issue No. 1 in the following manner:-
"... It is next to impossible that after 7.00 p.m. plaintiffs drafted the power of attorney with every minute detail (especially with regard to detail of khasra No. and detail of address of the vendee defendant) and on the same day it was presented in the Embassy of Pakistan and immediately it was attested by the Consulate especially when the working hours are already over".
But strangely it decided Issue No. 4 in affirmative accepting its validity, completely misconstruing Article 95 of the Qanun-e-Shahadat Order, 1984. Therefore, as stated earlier there is conflict in the judgment of the trial Court qua findings on Issues No. 1 and 4. The reasoning of the trial Court on Issue No. 1 and the discussion made above, clearly reflects that the suit was incompetently filed as the power of attorney, executed by the principals has no legal validity, consequently the suit also was filed incompetently.
In view of what has been discussed above, these appeals have no merits and are, therefore, dismissed leaving the parties to bear their own costs.
(M.S.A.) Appeals dismissed.
PLJ 2010 Lahore 253
Present: Umar Ata Bandial, J.
Mrs. SHEHNAZ BASHIR--Petitioner
versus
CHIEF SECRETARY GOVERNMENT OF PUNJAB
and others--Respondents
W.P. No. 14991 of 2008, decided on 5.12.2008.
Constitution of Pakistan, 1973--
----Art. 212--Punjab Service Tribunal Act, 1974, S. 3(3)--Posting and transfer--Maintainability of writ petition--Alterante remedy--Bar of Art.212 of the Constitution--Chairman P.S.T. retired and fresh appointment awaited--Held: Punjab Service Tribunal Act, 1974 does not contemplate the appointment of an Acting Chairman--Moreover, the term of office of the erstwhile chairman has expired--Therefore, the vacancy in his office cannot be considered to be temporary--According, the PST is indeed under a disability until the appointment of its new chairman--Forum of redress for the petitioner is presently not duly constituted in accordance with law, therefore, in order to meet the ends of justice instant case deserves to be heard on merits--Prima facie, the petitioner's recourse against a transfer order should be confined to departmental redress--However, matter has without final settlement gone to Punjab Service Tribunal for the third time has invited the Courts attention to ponder if such situation is caused by neglect or access in the exercise of jurisdiction by Chief Secretary executive authroity--The matter of posting and transfer remains a subject that is governed by executive considerations and policy which are discretionary in nature--As such it is not appropriate for a Court to interfere with such appointments--However, executive discretion is always structured and cannot be capricious--Therefore, a Court can perceive when extraneous purposes, criteria and considerations drive executive orders in such matters--Decisive action is required to conclude the controversy between the contending officers in a manner that reflects fairness and promotes the institutional values that are enshrined in the law, namely integrity, efficiency and discipline in the members of a service--Chief Secretary is directed to pass a fresh order in the matter within 30 days from the date of communication of said order--Order accordingly.
[Pp. 255, 257, 258 & 259] A, B, C, D & E
Sh. Shahid Waheed, Advocate for Petitioner.
Syed Nayyar Abbas Rizvi, AAG for Respondents.
Mr. Mehmood Ahmad Qazi, Advocate for Respondent No. 3.
Date of hearing: 5.12.2008.
Order
The petitioner is a grade 19 officer who has been transferred from the post of Principal Government College for Women, Karkhana Bazar, Faisalabad ("GCW-KB") by order dated 26.8.2008 passed by the Respondent No. 2 in compliance with the decision of the Chief Secretary, Respondent No. 1 dated 24.08.2008. The decision of the Respondent No. 1 replaces the petitioner with Respondent No. 3, another grade 19 officer, whilst deciding the latter's representation under direction for its disposal by the learned Punjab Service Tribunal ("PST").
Presently the two orders dated 24.8.2008 and 26.8.2008 impugned in this petition are also challenged by the petitioner both before Respondent No. 1 and the learned PST. In answer to the objection to the maintainability of this petition on the ground of alternate remedy, it is explained by learned counsel for the petitioner that the first remedy availed is inadequate and the second one is un-available to the petitioner. It is pointed out that the petitioner has filed a mere representation and not a departmental appeal before Respondent No. 1, because no remedy is provided by the law in transfer matters. The petitioner's representation has not been heard so far nor is likely to be heard without a direction, it is therefore, termed to be inadequate.
With respect to the more significant objection under Article 212 of the Constitution, it is explained that the learned PST is currently without a Chairman as the erstwhile incumbent has retired and fresh appointment is awaited. Therefore in terms of Section 3(3) of the Punjab Service Tribunal Act 1974, the Tribunal which should comprise a Chairman and two members is not properly constituted. The vacancy in the office of Chairman makes the constitution and continuity of the learned PST to be invalid. As a result, the remedy assured under Article 212 of the Constitution is not available and therefore no bar to maintainability of the instant petition is attracted.
3-A. A similar objection with regard to the constitution of the Lahore High Court under Article 192 of the Constitution was considered in Mr. Zulfiqar Ali Bhutto vs. State (PLD 1978 SC 40). A vacancy was alleged to have been created in the office of the Hon'ble Chief Justice of the High Court when he assumed the office of Acting Governor. Under Article 192 of the Constitution such a vacancy was argued to denude the High Court of lawful constitution. The Hon'ble Supreme Court held that Article 196 of the Constitution providing for the appointment of an Acting Chief Justice expressly contemplates the existence of a temporary vacancy in the office of a Chief Justice of a High Court. An Hon'ble Chief Justice cannot be deemed to have ceased to hold his office by the occurrence of a temporary vacancy in his office when he assumed the charge of Acting Governor. In contrast the Hon'ble Supreme Court approved the reasoning that retirement of an incumbent from office does constitute cessation in office.
In the present case, the Punjab Service Tribunal Act, 1974 does not contemplate the appointment of an Acting Chairman. Moreover, the term of office of the erstwhile Chairman has expired. Therefore, the vacancy in his office cannot be considered to be temporary. Accordingly, the learned PST is indeed under a disability until the appointment of its new Chairman. Consequently, the objection of the learned Assistant Advocate General and the learned counsel for Respondent No. 3 to the maintainability of the instant petition under Article 212 of the Constitution duly reinforced by judgments in Asadullah Rashid vs Haji Muhammad Muneer and others (1998 SCMR 2129) and Peer Muhammad vs. Government of Balochistan through Chief Secretary and others (2007 SCMR 54) is of no avail. The aforesaid rulings of the Honourable Supreme Court cater for a situation where the forum of redress of a civil servant, namely, a learned Service Tribunal duly constituted in accordance with law is available for adjudicating relief. As the said forum of redress for the petitioner is presently not duly constituted in accordance with law, therefore, in order to meet the ends of justice this case deserves to be heard on merits.
On 25.11.2005 the petitioner was promoted to BS 19 and posted as a Principal, GCW-KB against an existing vacancy. Upon coming to know of the said order, on 29.11.2005 the petitioner applied for cancellation of her posting order and instead sought the up-gradation of the post of Assistant Professor at which she working in GCW, Madina Town, Faisalabad. This request was turned down by the competent authority and accordingly the petitioner took charge as Principal of GCW-KB on 21.12.2005. During the four months prior to the petitioner's appointment as Principal GCW-KB, the Vice-Principal of the College, Respondent No. 3, had been officiating as its Principal. As acting principal Respondent No. 3 began to nurture the expectation that she would be appointed Principal GCW-KB on regular basis. Her expectation is said to be based on her experience as Vice-Principal of the College for 14 years and for being senior in service to the petitioner by 5 years.
In the months that followed the petitioner's appointment, Respondent No. 3 developed hostile relations with the petitioner. Complaints were made by them against each other to departmental superiors. However, the weight of opinion expressed by departmental authorities including, a report by the D.P.I. Colleges dated 5.4.2007 and a summary for the Chief Minister prepared on the subject of the said complaints by the Education Department, unreservedly favoured the petitioner. Nevertheless, vide directive dated 25.09.2007 the Chief Minister ordered the Respondent No. 3 to be appointed Principal in place of the petitioner.
Learned counsel for the petitioner claims that the said transfer order was procured through political pressure because it went against departmental opinion on record. The petitioner deeply resented her removal by such means. Accordingly, she filed an appeal before the learned PST which directed Respondent No. 1 by order dated 03-10-2007 to dispose of the petitioner's appeal pending before him. However, before Respondent No. 1 gave his finding, the petitioner succeeded in obtaining for herself a directive from the Chief Minister on 12.11.2007 posting her as Principal GCW-KB.
The Respondent No. 3 was greatly injured by her sudden removal under another directive. She filed a representation before Respondent No. 1 challenging her posting order dated 13.11.2007. At the personal hearing given by the Respondent No. 1 to the contending officers, the Education department again reported in favour of the petitioner who was therefore retained in the post. However, no order was passed by the Respondent No. 1. According to the impugned order dated 24.08.2008 the Respondent No. 3 went in appeal before the learned Punjab Service Tribunal to assail the departmental persistence to retain the petitioner.
A learned Member of the PST on 20.06.2008 directed the Respondent No. 1 to dispose of the representation filed before him by Respondent No. 3. As a result the Respondent No. 1 has passed the impugned order dated 24.8.2008 installing the Respondent No. 3 to the office of Principal GCW-KB in the place of petitioner. As already mentioned, the petitioner has simultaneously invoked the dual remedies as her contender did, but to aggravate the contest, this time the petitioner has also filed the present petition for relief.
Prima facie, the petitioner's recourse against a transfer order should be confined to departmental redress. However, the fact that the same matter has without final settlement gone to the learned Punjab Service Tribunal for the third time has invited the Court's attention to ponder if this situation is caused by neglect or excess in the exercise of jurisdiction by the Respondent No. 1 executive authority.
The learned counsel for the petitioner urges that the case for her appointment to the post of Principal has been considered and supported repeatedly by the Education Department on merits. Except the grievance expressed by Respondent No. 3 there is no complaint against the petitioner. The Respondent No. 3 employed unfair means to dislodge the petitioner from her post under the directive dated 25.09.2007. Seniority in service of the Respondent No. 3 over the petitioner is relevant viz a viz eligibility for appointment to a post but that cannot exclude the criteria of suitability and fitness of a candidate in the selection of a principal of a degree college. On the other hand, the learned counsel for the Respondent No. 3 has alleged that petitioner brought tension in the college atmosphere and also employed political clout to obtain a directive dated 12.11.2007 for her own re-appointment as Principal. The Respondent No. 3 claims the said post on the strength of her administrative experience as Vice-Principal and seniority over the petitioner in BS 19.
The impugned order by the Respondent No. 1 records seniority of the Respondent No. 3 as the sole reason for re-appointing her as Principal GCW-KB. The final and relevant paragraph of the impugned order is reproduced below:
"In view of the above, I, [...........], Chief Secretary Punjab, do hereby set aside the impugned order dated 13.11.2007 and direct that being senior, Mrs. Tahira Anwar may be posted as Principal, Government College for Women, Karkhana Bazar, Faisalabad. Mrs. Shahnaz Bashir may continue to serve in the said college as an Associate Professor if she wishes to do so. However, if she does not consider it appropriate to remain at the same college, she may be transferred to any other college in Faisalabad as Principal. If the post of Associate Professor of Sociology (BS-19) is not available in any female college at Faisalabad, the A.D may move a case to the Finance Department for up-gradation of a post of Assistant Professor to Associate Professor by accordingly downgrading another post of Associate Professor to Assistant Professor to maintain the equilibrium in the 4-tier structure. The appeal of Mrs. Tahira Anwar is disposed off accordingly. The Honourable Court may also be informed."
12-A. The case has a few distinct features. As noted above, an ordinary transfer matter has invited judicial intervention by the learned PST for the third time to achieve settlement. This may indicate the misplaced self esteem of the contesting officers or a sense of injustice experienced by either of them in dispensation of departmental remedies. The first inference is evidenced by the inclination of the contending officers to claim the post of Principal GCW-KB as a private preserve. This is against the law and service discipline. The second inference may arise because the rules of transparency and good governance elevate expectations of objectivity in executive decision making. It is apparent that the impugned order disregards departmental record to find seniority alone as the sole ground to appoint the Respondent No. 3. Seniority is a trite criterion that holds good for routine appointments to cadre posts. In a contested matter about selection for special posts in a cadre, the executive decision must contain a level of objective grounding that ends a controversy. This would require due regard to the suitability of a candidate to hold a post for which the record needs to be consulted and considered.
By installing Respondent No. 3 the impugned order wrongly concedes to a civil servant the right to claim and occupy a particular post. This diminishes the purpose of posting and transfer to meeting rewards or retribution and fuels the battle of prestige among zealous officers. Such developments affect good governance and damage service discipline and service morale. At the level of principles, the impugned order is, therefore, simplistic; its terms are defensive showing hesitation, if not doubt. This has aggravated the conflict between affected officers in a matter on which ordinarily they should have no say.
No Government servant has the right to choose the office of his or her appointment. For this rule to be obeyed every Government servant must be treated fairly which in turn would engender high morale and discipline in a service or cadre. A transfer order must neither wreak humiliation that cannot be justified nor satisfy personal scores among service peers to reveal abdication. Having said that, the matter of posting and transfer remains a subject that is governed by executive considerations and policy which are discretionary in nature. As such it is not appropriate for a Court to interfere with such appointments. However, executive discretion is always structured and cannot be capricious. Therefore, a Court can perceive when extraneous purposes, criteria and considerations drive executive orders in such matters.
In the present case, for the reasons given above the impugned order contains elements of retribution and reward that go against the record. Decisive action is required to conclude the controversy between the contending officers in a manner that reflects fairness and promotes the institutional values that are enshrined in the law, namely integrity, efficiency and discipline in the members of a service. Respondent No. 1 is accordingly directed to review the object as well as consequence of the claims laid by the petitioner and Respondent No. 3 to the office of the Principal Government College for Women Karkhana Bazar Faisalabad, keeping the object of law and public interest uppermost in his mind. He shall pass a fresh order in the matter within 30 days from the date of communication of this order.
Disposed of in aforesaid terms.
(M.S.A.) Petition disposed of.
PLJ 2010 Lahore 259
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
Mst. BHAG BHARI and 6 others--Petitioners
versus
MUHAMMAD KHAN and 5 others--Respondents
C.R. No. 156-D of 2002, heard on 16.7.2009.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 126--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Where a person is in possession the burden to prove that he is not owner upon person who is seeking possession--Rule of in-peridelicto--Specific issue regarding ownership was framed--No evidence of title--Decree for possession could not have been passed--Held: Where a person is in possession the burden to prove that he is not owner is upon person who is seeking possession--Rule emanating from statutory provision was that a person in possession can be dispossessed only by a person having a title superior to person who is in possession--No proof of any such superior title vesting in the plaintiffs--In such eventuality rule of in-peridelicto would also become effective and the case will have to be decided in favour of person who in possession--Revision was allowed. [Pp. 261 & 262] A
PLD 1982 SC 465, rel.
Agha Muhammad Ali Khan, Advocate for Petitioner No. 2.
Mr. Faisal Khawaja, Advocate for Respondents.
Date of hearing: 16.7.2009.
Judgment
On 27.2.2002 the Respondents No. 1 to 9 filed a suit against the petitioners and Respondents No. 10 and 11. A pedigree table was drawn in Para 1 of the plaint. It was stated that the suit house was owned by Noor Zaman who died 20 years ago and the house devolved upon the parties. Mst. Bhag Bhari Petitioner No. 1 only has 1/11 share in the house. The plaintiffs have 29/66 while the defendants have 31/66. However, Bhag Bhari proceeded to exchange the house with Ghulam Ali, Petitioner No. 2 and delivered the possession to him vide registered exchange deed dated 14.2.95. A declaration and decree for separate possession of 29/66 partition was accordingly prayed for. The plea taken by the petitioner was that the house was not owned by Noor Zaman. It was owned by one Mst. Begum who sold it to Bhag Bhari vide registered sale-deed dated 19.5.75 and delivered the possession and thereafter Bhag Bhari gave the house to Ghulam Ali Petitioner No. 2 vide exchange deed dated 14.2.95. Following issues were framed from time to time by the learned trial Court and parties went on trial:--
1-A. Whether transaction dated 19.5.1975 in favour of defendant is against law and facts and without jurisdiction and is null and void on the rights of plaintiffs? OPP.
2-A. Whether suit is barred by time? OPD.
2-B. Whether suit is incorrectly valued for the purpose of Court fee and jurisdiction? OPD.
Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 14.9.96. First appeal was allowed by a learned Additional District Judge, Attock, on 16.3.98, who directed the trial Court to frame a specific issue regarding ownership of Noor Zaman. After remand following issues were framed:--
1-B. Whether Noor Zaman predecessor in interest of the plaintiffs and Defendant No. 1, 3 to 8 was the last owner of the property it dispute and after his death the property devolved on his lawful heirs? OPP
2-C. Whether Ghulam Ali Defendant No. 2 is bonafide transferree of the land with consideration without notice? OPD
Some evidence was recorded. The learned trial Court passed a preliminary decree on 15.12.2000. First appeal filed by the petitioners has been dismissed by a learned Additional District Judge, Attock, on 24.1.2002.
Before I proceed further I may note here that this civil revision was filed by seven persons mentioned in the memo of parties. Vide order dated 29.10.2008, the civil revision stands dismissed as withdrawn to the extent of Petitioners No. 1 and 4 to 7 while to the extent of Petitioner No. 3 it was dismissed for non-prosecution. This hearing is being conducted inter se Petitioner No. 2 and the respondents.
Learned counsel for the Petitioner No. 2 contends that it is finding recorded by both the Courts that there is no evidence of title either of Begum Jan, Bhag Bhari or Noor Zaman. The precise contention in the said state of evidence is that a decree for possession could not have been passed. Relies on the case of Allah Din v. Habib (PLD 1982 S.C 465). Further contends that this was a case of oath against oath and the plaintiffs were bound to fail. Learned counsel for the respondents, on other hand, contends that this is civil litigation and has been decided on preponderance of the evidence.
I have gone through the copies of the record, with assistance of the learned counsel for the parties. It will be noted that the plaintiffs/respondents had sought possession of the property to the extent of their alleged share on the ground that Noor Zaman was the last male owner of the suit property. This was burden of Issue No. 1-B. It is true that the defendants were also burdened to prove ownership of Mst. Begum. However, they were already in possession and had not come to the Court for any relief.
Learned Courts below after holding that claim of Begum Jan that house was transferred to her by husband has not been proved proceeded to hold that Noor Zaman was owner of the property when admittedly there was not an iota of evidence on record in support of issue-1-B regarding ownership of Noor Zaman.
Under Article 126 of Qanun-e-Shahadat Order 1984 where a person is in possession the burden to prove that he is not owner is upon person who is seeking possession. The rule emanating from the said statutory provision is that a person in possession can be dispossessed only by a person having a title superior to person who is in possession. There is no proof of any such superior title vesting in the plaintiffs/respondents. Findings recorded by the learned Courts below are that there is no evidence of ownership of Begum Jan, Bhag Bhari and Noor Zaman. In such eventuality rule of in-peridelicto would also become effective and the case will have to be decided in favour of person who in possession. Thus from whatever angle seen impugned judgments and decrees clearly attract mischief of Section 115 CPC and cannot be sustained. Civil revision is accordingly allowed. Both the impugned judgments and decrees are set aside and suit of the plaintiffs/ respondents dismissed as against Petitioner No. 2 but without any order as to costs.
(R.A.) Revision allowed.
PLJ 2010 Lahore 262
Present: Abdul Sattar Goraya, J.
BASHIR AHMAD and 21 others--Petitioners
versus
SHAH MUHAMMAD and another--Respondents
C.R. No. 1804 of 2004, heard on 30.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Necessary ingredients of contract were not mentioned in plaint--Suit for specific performance of an agreement--Suit was dismissed and appeal was accepted--Challenge to--Agreement of sale was entered between the parties 20/22 years ago--Not a case of documentary evidence and the case of respondents hinges on oral evidence--Validity--In plaint the date of agreement and remaining necessary ingredients had not been disclosed and matter had been confined only to extent into agreement of sale--Held: If ingredients necessary to be mentioned in the plaint were not mentioned, no evidence can be led on this point--Revision was accepted. [P. 265] B
1996 SCMR 336, ref.
Oral Agreement--
----Conditions of valid agreement, which ought to have been pleaded in plaint to enforce the desired contract, Held: If an oral agreement, the terms and conditions are not satisfied it cannot be considered to be valid in law. [P. 264] A
2007 CLC 1372, fol.
Agreement--
----Mere agreement of sale does not confer any ownership right.
[P. 265] C
Limitation Act, 1908 (IX of 1908)--
----S. 113--Barred by time--Issue of sale was postponed for considerable period of 16 years--No part of the amount was left to be paid--Suitor never made him available to file suit--First Appellate Court in impugned judgment and decree framed summary of facts and by picking a portion of the evidence of witness box based his decision to benefit of the suitor and in fact new case had been built up to advantage of respondent which otherwise was not spelt out from record--Appellate Court committed serious illegalities and irregularities ad-infinitum in reaching at impugned conclusion--Revision was accepted. [P. 265] D
Shehzada Muhammad Zeshan Mirza, Advocate for Petitioners.
Mian Mumtaz Hussain, Advocate for Respondents.
Date of hearing: 30.6.2009.
Judgment
This petition under Section 115, CPC calls in question the judgment and decree dated 3.06.2004 passed by the Learned Additional District Judge, Ferozewala District Sheikhupura.
Facts in brief are that the petitioner filed a suit for Specific Performance of an agreement. It is stated in the plaint that the plaintiff entered into agreement of sale with the petitioners-defendants 16 years ago in respect of land, the details whereof has been given in Para 1 of the plaint for a consideration of Rs. 20,000/- and all the money was paid to the defendants and possession was delivered to the suitor and since then he was cultivating the suit land. It was averred that the suitor-respondent has always been willing and ready to perform a part of contract but the respondent refused. In the written statement filed by the petitioner, the petitioner took a specific stance that the suitor was tenant at will and execution of an agreement was denied. Certain preliminary objections were also taken. Divergent pleadings of the parties gave rise as many as four issues including one of relief.
Issues No. 1 and 2, in fact, are the core issues which were decided together by the learned trial Judge and those were answered against the respondent-plaintiff. On Issue No. 3 the onus of which was proposed upon the defendant, it was decided against the plaintiff. In nutshell vide judgment and decree dated 14.10.2003 the suit was dismissed and appeal was taken against the said judgment and decree passed by the learned trial Judge and the same was accepted vide judgment and decree dated 3.06.2004 of the Learned Additional District Judge, Ferozewala.
Learned counsel for the petitioners state that this was an oral agreement of sale, in respect whereof a suit was instituted but in the plaint the time was not mentioned as to when an oral agreement of sale was entered between the parties. It is further argued the learned Addl: District Judge misread and misinterpreted the evidence brought on the record and based his decision on the basis of an oral evidence to the advantage of the respondent-suitor, which was totally misread and the decree resulted in grave miscarriage of justice.
Conversely, the learned counsel for the respondent-plaintiff supported the impugned judgment and decree dated 3.06.2004 passed by the learned District Judge almost for the same reasons, which weighed with the learned appellate Court in passing the impugned judgment and decree.
1 have given conscious thought to the arguments addressed by both the learned counsel for the parties. Available record perused, Barkat Ali PW-1 entered in the witness box and he stated that the agreement of sale was entered between the parties 20/22 years ago and since then the land in his possession. He stated that the said agreement was entered for an amount of Rs. 20,000/- in his presence. Bashir Ahmad PW-2 when entered in the witness box he stated that an amount of Rs. 20,000/- was paid to the petitioners in his presence PW-3 also deposed in the same terms. In the evidence Jamabandi pertaining to the year 1980-81 was tendered as Ex. P1 and for the year 1992-93 and khasra girdawari was tendered as Ex.P3. This is not a case of documentary evidence and the case of the respondent hinges on oral evidence. Perusal of the plaint would discernibly show that the agreement was entered for an amount of Rs. 20,000/-, but when it was entered, the date has not been shown. In Para 3 of the plaint it has been stated that at the time, 16 years ago, the parties entered into an agreement. The land was in barren condition and he improved the status of the same by putting hard labour and expenses. In Para 5 it was stated that the cause of action occurred, 16 years ago and it continued and lastly when there was a final refusal, suit has been instituted. It is nowhere stated that when there was a final refusal, the suitor confined his plea in saying that 10 days ago, there was a refusal it remained continued. The exact date of agreement has not been specified. The plea of the suitor on its face value apparently is couched in vague generalization. In the revenue record, (Ex.PB), the respondent has been shown to be tenant at will. There are certain conditions of valid agreement, which ought to have been pleaded in the plaint to enforce the desired contact. If in the oral agreement, the terms and conditions are not satisfied it cannot be considered to be valid in law. I am fortified in my view by Mst. Rashida Abdul Rehman V. Zahoor Hussain and 5 others (2007 CLC 1372). The relevant portion contained in Para 13 of the judgment reads as follows:
"In a suit for specific performance the plaintiff has to assert that a contract exists between him and the defendant. The plaintiff has to plead the facts regarding the contract which he desires to be specifically performed where pre-requisite of a contract are missing the plaintiff is not entitled for decree of specific performance. Reliance in this context can be placed to the case of Miss Gul-e-Rana V. Muhammad Mansoor Khan and 4 others (2000 CLC 1673) in the case of Abdul Aziz and another V. Abdul Rehman and others (1994 SCMR 111) it has been observed that grant of specific performance of an agreement being discretionary relief, can be refused even if execution of agreement was proved."
"It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."
Mere agreement of sale does not confer any ownership right. It has been specifically mentioned that 16 years earlier the amount of Rs. 20,000/- was paid and no part of the amount was left to be paid to the petitioner. It is not understandable that the issue of sale was postponed for considerable period of 16 years but the suitor never made him available to file suit. It appears that he has been enjoying profound slumber and the suit became barred by time under Section 113 of the Limitation Act. The Learned Additional District Judge in the impugned judgment and decree framed summary of facts and by picking a portion of the evidence of the witness-box based his decision to the benefit of the suitor and in fact new case has been built up to the advantage of the respondent which otherwise is not spelt out from the record. The learned lower appellate Court committed serious illegalities and irregularities ad-infinitum in reaching at the impugned conclusion.
For whatever it has been stated above, the revision petition is accepted and the impugned judgment and decree dated 3.06.2004 of the learned lower appellate Court is set-aside. The suit brought by the respondent stands dismissed. Parties however left to bear their own costs.
(R.A.) Revision accepted.
PLJ 2010 Lahore 266
Present: Iqbal Hameed-ur-Rehman, J.
ALLAH DITTA--Petitioner
versus
MUHAMMAD UMAR etc.--Respondents
W.P. No. 9885 of 2009, decided on 22.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Representative of a party--Ejectment petition--After dismissal of writ petition respondent approached Supreme Court but ejectment order of Rent Controller was passed in appeal and in writ petition were upheld by Supreme Court--Execution petition was filed--Petitioners filed the objection petition--Question which relates to execution, discharge and satisfaction of decree between the parties or their representatives can be taken up by executing Court and the person who is neither a party nor a representative of a party cannot file any objection. [P. 267] A
Ejectment Petition--
----Constitutional jurisdiction--Determination the controversy keeping the factual aspect as well as legal aspect--Execution petition is being sought on the basis of ejectment petition cannot be interfered into by High Court in its Constitutional jurisdiction. [P. 268] B
Malik Amjad Pervaiz, Advocate for Petitioner.
Date of hearing: 22.5.2009.
Order
Through this writ petition, the petitioner seeks setting aside of the impugned orders/judgments dated 4.5.2009 and 15.5.2009 passed by Respondents No. 8 & 9 respectively dismissing the objection petition of the petitioners.
Brief facts succinctly required for the determination of this writ petition are that Respondents No. 1 to 6 filed the ejectment petition against Respondent No. 7, real brother of the petitioner, with regard to Shop No. 627, Block No. 1, Rail Bazar, Jhang Sadar on the ground of default and the same was accepted by the learned Rent Controller, Jhang, vide judgment dated 25.9.2008. Respondent No. 7 preferred an appeal against the same which was dismissed vide order dated 15.1.2009. Later on, the same was challenged before this Court in W.P. No. 2771/09 but the same was not accepted. After the dismissal of the writ petition, Respondent No. 7 approached the Honourable Supreme Court but the ejectment order of the learned Rent Controller and the subsequent orders passed in appeal and in writ petition were upheld by the August Supreme Court of Pakistan. Therefore, Respondents No. 1 to 6 filed execution petition. In the meanwhile, the petitioners filed objection petition, alleging therein that Respondents No. 1 to 6 are owners of land measuring one marla which was purchased by their predecessor-in-interest namely Muhammad Jamal Nasir and others, as is evident from the copy of the PT1, whereas the petitioners and their said brother are owners of property measuring 45 square yard (more than half marla) which is situate adjacent to the shop in question, as such the disputed shop consists of half marla of the property owned by Respondents No. 1 to 6, whereas on other property, they have another shop which has rented out to one Muhammad Zahid. With a view to expand the business as the said shop could not fulfil the requirement of the said tenant, he had expanded the said shop over the land purchased by the petitioners to the extent of more than half marla, whereas in the adjoining, there is a shop of the petitioners.
In view of the above, the petitioners had filed the objection petition, which is stated to have not been dealt with in accordance with law by the learned Rent and the same was dismissed vide order dated 4.5.2009 mainly on the ground that the application has been filed under Section 47 of CPC but Section 47 CPC is of no help to the petitioners/objectors for the reason that only question which relates to the execution, discharge and satisfaction of decree between the parties or their representatives can be taken up by executing Court and the person who is neither a party nor a representative of a party cannot file any objection.
It is contended that the view taken by the learned Executing Court is contrary to law, in which it has been held in sub-section (3) to Section 47 CPC that "where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court." In the instant case, the same has not been dealt with, as such, the order dated 4.5.2009 cannot sustain and in this respect, reliance is placed upon Municipal Committee, Kasur through Tehsil Nazim Vs. Additional District Judge, Kasur and 3 others (PLD 2008 Lahore 230). It is further stated that along with the objection petition, the petitioners bona fidely also made an application for the appointment of local commission so as to ascertain the factual position of the site. The learned trial Court also dismissed the same vide order dated 4.5.2009. Against the said order, the petitioners preferred an appeal before the learned District Judge, Jhang, and the same has also been dismissed, as such, both the Courts below have traveled on the assumption that the petitioners are assailing the ejectment order upheld upto the level of the August Supreme Court of Pakistan and under the garb of this objection petition, they want to frustrate the ejectment order. Further contended that the application for the appointment of local commission was very genuinely and bona fidely filed to determine the real controversy regarding the factual position at the site and disallowing the same resulted into a grave injustice to the petitioners, which will result in an irreparable loss to the petitioners, as such both the impugned orders be set aside by accepting this petition and a direction be passed to the learned trial Court to conduct proper inquiry into the objection petition of the petitioners and appoint the local commission and decide the same.
I have heard learned counsel for the petitioners and have also perused the impugned orders as well as other material made available on the record.
The learned appellate Court have given due consideration to the contentions raised by the petitioners and in an elaborate manner determined the controversy keeping the factual aspect as well as legal aspect in light.
It appears that the petitioners are admittedly real brother of Muhammad Ishaque Respondent No. 7, against whom the ejectment order dated 25.9.2008 had been passed, which had attained finality from the judgment of the August Supreme Court of Pakistan. Therefore, the site-plan Ex.A2 stood fully proved and upheld upto the level of the August Supreme Court of Pakistan, with regard to which the instant execution petition is being proceeded against. In view of the same, Ex.A2 site-plan upheld by the August Supreme Court, which has attained finality and for which the possession in execution petition is being sought on the basis of ejectment petition, cannot be interfered into by this Court in its constitutional jurisdiction. Therefore, the impugned judgment dated 15.5.2009 has been passed considering the same. Since the site-plan Ex.A2 had attained finality from the August Supreme Court of Pakistan, the learned Courts below have rightly rejected the objection petition and thereafter the appeal of the petitioners. I see no merits in this petition and the same is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 269
Present: Hafiz Tariq Nasim, J.
RASHID MASIH etc.--Petitioners
versus
PROVINCE OF PUNJAB through Deputy Commissioner Collector, Sialkot etc.--Respondents
C.R. No. 470 of 2000, heard on 3.7.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Judicial order--Issue-wise findings--Issues were framed by trial Court--Appellate Court while deciding the appeal did not give issue-wise findings, which was a sufficient ground to hold that appellate judgment cannot be termed a judicial order--When the petitioners were insisting that they are possession of the suit land for decades, their possession was confirmed in revenue record--Revenue record was not requisitioned by trial Court, their adverse possession was established, almost eight issues were framed but appellate judge did not give findings issue-wise--Revision was allowed.
[Pp. 270 & 271] A & B
PLD 1970 SC 158 & PLD 1970 SC 173, ref.
Mr. Muhammad Akbar Cheema, Advocate for Petitioners.
Nemo for Respondents.
Date of hearing: 3.7.2009.
Judgment
Facts leading to this civil revision are that the petitioners-Rashid Masih etc. filed a suit for declaration with permanent injunction contending that they are owners in possession of the suit property, which falls in their ownership and possession through a private partition, they have constructed a community center and six shops thereon and were receiving benefits from the same, whereas the respondents were bent upon to construct a Sewing School on the suit land, which was illegal and against the interest of the petitioners. The suit was contested by the respondents on the grounds that the suit property was jointly owned and possessed by Christian Community and the petitioners Rashid Masih etc. have no concern with the same. Out of pleadings of the parties certain issues were framed, both the parties produced evidence in support of their respective claims and finally the learned Civil Judge dismissed the suit vide judgment and decree dated 15.04.1996, which was assailed in appeal before the learned Additional District Judge, Sialkot, who vide judgment and decree dated 25.09.1999 dismissed the same and both the judgments and decrees are impugned in the present civil revision.
The main thrust of the learned counsel for the petitioners is that both the learned Courts below did not apply their independent judicial mind while dismissing the petitioners' suit and misread the evidence on record. Further submits that the concurrent findings are not sacrosanct and can be interfered with in civil revision. Adds that the petitioners are in possession of the suit land for the last one century whereas the revenue record was not examined by both the Courts below, resulting into serious miscarriage of justice.
No one has appeared on behalf of the respondents despite publication of notice in the newspaper, hence they are proceeded against ex parte.
Arguments heard. Available record perused.
Without going into details, suffice it to say that the learned trial Court framed as many as eight issues, which are as under:--
Whether the plaintiffs have got no locus standi and cause of action to bring this suit? OPD.
Whether the suit is bad for mis-joinder of parties? OPD.
Whether the plaintiffs have not come to the Court with clean hands? OPD.
Whether the plaintiffs are estopped by their word and conduct to bring this suit? OPD.
Whether the defendants are entitled to special costs U/S 35-A of CPC? OPD.
Whether the suit is bad for non-joinder of necessary parties? OPD.
Whether the plaintiffs are owner in possession of suit property, if so whether they are entitled to declaration as prayed for? OPP.
Relief.
The learned Additional District Judge while deciding the appeal did not give issue-wise findings, which is a sufficient ground to hold that the appellate judgment cannot be termed a judicial order, as per law laid down by the Hon'ble Supreme Court of Pakistan reported as Gouranga Mohan Sikdar vs. The Controller of Import and Export and 2 others (PLD 1970 SC 158) and Mollah Ejahar Ali vs. Government of East Pakistan and others (PLD 1970 SC 173), wherein it is held,--
"This Court was at pains to point out that 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 because litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and judicious treatment of their cases and their determination by proper orders."
Civil revision is allowed in the above terms.
(R.A.) Revision allowed.
PLJ 2010 Lahore 271
Present: Zubda-tul-Hussain, J.
SHAFQAT ALI--Petitioner
versus
Mst. RIFFAT NAZIR and others--Respondents
W.P. No. 6777 of 2006, heard on 2.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Maintenance--Suit for maintenance decreed in favour of wife for the period from the institution of the suit till the expiry of period of `Iddat' after the divorce pronounced by the petitioner--Challenged through writ petition--Question of maintainability--Held: Only dispute she had with the petitioner was for a separate and independent residence thereafter she stated that she was not prepared to put up with the petitioner even if he gave her reasonable maintenance--It was an admitted fact that the petitioner was the only son of his parents who were dependent upon him--In these circumstances the demand of the respondent asking the petitioner to give up his residence from the house of his parents was not reasonable--The parents of the petitioner also have a right of their living with their son and to have maintenance from him--Throwing away the old parents in solitude and in economic or social helplessness is not justifiable by any standards of morality, social ethics and even the law--The demand of the respondent was, therefore, had disentitled her from receiving maintenance allowance from him--Writ petition allowed. [P. 273] A
Mr. Javed Bashir, Advocate for Petitioner.
Ch. Akram Khan, Advocate for Respondents.
Date of hearing: 2.7.2009.
Judgment
Mst. Riffat Nazir, Respondent No. 1 was married to the petitioner, Shafqat Ali, but the spouses failed to maintain cordiality and Respondent No. 1 along with the minor children Sehar Shehzadi and Irfa Ali started living separately from the petitioner. Then she filed a suit for maintenance allowance for herself as well as for the minor children. The suit was decreed for maintenance allowance in favour of respondents at the rate of Rs. 1000/- per month each. However, to the extent of Respondent No. 1 the decree was only for the period from the institution of the suit till the expiry of period of `iddat' after the divorce pronounced by the petitioner to Respondent No. 1. The order of the learned Judge Family Court was not appealable yet the appeal having been filed was dismissed on merits by the learned Additional District Judge, Pattoki, District Kasur on 25.5.2006.
The order dated 26.6.2006 of this Court shows that the learned counsel for the petitioner did not press the writ petition to the extent of the two minor daughters. Thus, presently only the maintenance allowance in favour of Respondent No. 1 is in dispute.
The learned counsel for the petitioner has contended that the findings of the learned trial Court are the result of misreading and non-reading of the evidence and as such are not sustainable in the eyes of law. The learned counsel for the respondents has argued that as the appeal was not maintainable against the order of the learned Judge Family Court, this writ petition is also not tenable. This objection has no force for the reason that in case the appeal was not maintainable, the petitioner had no other remedy to question the judgment of the learned trial Court except through the instant writ petition. Hence, the maintainability of the writ petition cannot be disputed.
The available record indicates that Respondent No. 1 in her statement before the learned trial Court deposed in very clear terms that the petitioner was living with his parents and in spite of her demand for a separate residence, he did not sever his residence from his parents. She then added that the only dispute she had with the petitioner was for a separate and independent residence. Then she stated that the petitioner was not paying any maintenance to her but thereafter stated that she was not prepared to put up with the petitioner even if he gave her reasonable maintenance. The above mentioned statement of the respondent leads to the conclusion that she is not prepared to live with the petitioner and is thus living away from him without any reasonable excuse. There is no doubt that she had linked up her demand for separate living with the residence of her husband from his parents but it is admitted fact that the petitioner is the only son of his parents who are dependent upon him. In these circumstances the demand of the respondent asking the petitioner to give up his residence from the house of his parents was not reasonable.
The parents of the petitioner also have a right of their living with their son and to have maintenance from him. Throwing away the old parents in solitude and in economicaor social helplessness is not justifiable by any standards of morality, social ethics and even the law. The demand of the respondent was, therefore, unjustified. Her refusal to put up with the petitioner, therefore, had disentitled her from receiving maintenance allowance from him. The learned lower Courts were, therefore, not justified in law or on facts to pass a decree for maintenance allowance in favour of Respondent No. 1. The impugned judgments are, therefore, declared to be unlawful to the extent of granting maintenance allowance to Respondent No. 1. The same are accordingly set-aside and the suit of the respondents to the extent of maintenance allowance to her stands dismissed. There shall be no order as to the costs.
(M.S.A.) Petition allowed.
PLJ 2010 Lahore 273
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD MANSHA--Petitioner
versus
ASGHAR ALI--Respondent
C.R. No. 2071 of 2007, heard on 6.7.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for possession through pre-emption--Defendant/ respondent in his written statement insisted that he had acquired the land by exchange--Suit was dismissed by trial Court--First appeal was also dismissed by ADJ--Revision petition--Held: To prove distinction between device and disguise evidence led by the parties including circumstantial has to be looked into--Impugned judgments were completely silent vis-a-vis the significant aspect of the matter, which remained totally un-explained by the respondent--The transaction is of a sale and in the absence of any evidence to the contrary sale price is one mentioned in the plaint as also in the evidence--Case remanded to first appellate Court for deciding the issue afresh in accordance with law--Order accordingly. [P. 276] A
Rana Abdul Majid Khan, Advocate for Petitioner.
Malik Noor Muhammad Awan, Advocate for Respondent.
Date of hearing: 6.7.2009.
Judgment
This judgment shall decide C.R. No. 2071-07 and C.R. No. 2072-07, as common questions are involved.
(i) In the matter of C.R. No. 2071 the respondent vide mutation of Exchange No. 1120 acquired land measuring 33 kanals 8 marlas. The case of the petitioner was that he had in fact purchased the land for Rs. 2,50,000/-.
(ii) In the matter of C.R.No. 2072/07 vide exchange Mutation No. 1123 attested on 223.03 the respondent acquired land measuring 8 kanals 11 marlas. The case of the petitioner was that he purchased the land for Rs. 80,000/-.
Both the suits were filed on 21.7.03. The petitioner claimed to be a Shafi-e-Shareek. Khalit and Jar. The performance of talbs was pleaded in both the cases. The respondent filed written statements insisting that he has acquired the land by exchange and denied the other allegations. Following issues were framed in the said cases:--
Whether the plaintiff made valid talabs as required by law? OPP
Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP
Whether transaction was sale against consideration of Rs. 2,50,000 (Rs. 80.000/- in the other case) and that it was shaped as exchange just to avoid pre-emption right of plaintiff? OPP
Whether the plaintiff has got no cause of action? OPD
Whether the suit is under valued for purpose of Court fees? OPD
Whether the defendant is entitled to special costs? OPD
Relief.
Evidence of the parties was recorded. Under Issue No. 2 the learned trial Court found that the petitioner has a superior right of pre-emption being co-sharer. Under Issue No. 3 the transaction was found to be an exchange while under Issue No. 1 it was found that the petitioner had failed to prove Talb-e-Muwathibat. Issues No. 4 and 6 were answered against the respondent. The petitioner filed first appeal. A learned Additional District Judge. Hafizabad, did not address himself to the question of Talb-e-Muwathibat at all. The matter of Talb-e-Ishhad was also discussed a bit but not concluded. However, findings in the matter of nature of transaction were affirmed. The appeals were dismissed on 20.7.07.
Learned counsel for the petitioner contends that both the learned Courts below have misread rather failed to read evidence on record while dealing with the nature of the transaction. It is apparent on the face of record that exchange was a disguise. According to him the land allegedly given in exchange ultimately came to the wife of the respondent. He also questions the findings of the learned Courts below in the matter of talbs. Learned counsel for the respondent, on the other hand, contends that in the absence of any evidence that consideration was paid other circumstances would be of no avail in the matter of determining the nature of transaction. He, however, agrees that the matter of talb has not been duly adjudicated upon by the learned Additional District Judge.
I have gone through the copies of the records appended with these civil revisions, with the assistance of the learned counsel for the parties. In both the plaints it was categorically stated that it was sale for a consideration and exchange is fictitious. The possession never changed hands. The respondent, on the other hand, asserted that it was a bona fide exchange. Evidence was led by the petitioner. Muhammad Mansha, petitioner appeared as PW-3 in both the cases and slated that the possession of the land allegedly given in exchange remained with respondent and he got it transferred back in the name of Sana Ullah the husband of his sister. Rana Shahbaz Khan, PW-4 made a similar statement and stated that the land was first got transferred in favour of Sana Ullah and now is in the name of wife of the respondent. To the similar effect is statement of Muhammad Afzal, PW-5. Although in cross-examination it was suggested to these witnesses and they have admitted that no consideration changed hands in their presence. However, the remaining averments were not questioned at all. In rebuttal the respondent appeared as DW-1. He admitted that Sana Ullah is the son of maternal uncle as also the husband of his sister. When confronted he stated that who does not know that the land was transferred back first to Sana Ullah and then to his wife. The transfer in favour of Sana Ullah is evidenced by registered sale-deed Ex.P9 in both the cases while in favour of Mst. Hameedan Begum wife of the respondent by means of mutation Ex.P 10 in both the cases.
Learned counsel for the respondent contends that a large area was transferred back after considerable period of time and as such the same would not derogate from the factum of exchange. It is true that mutations of exchange were attested on 22.3.03 while the land was transferred in favour of Sana Ullah vide Ex.P9 dated 28.4.04 and then in the name of wife of the respondent vide mutation Ex.P10 attested on 7.2.06. However, as noted by me there are some specific pleadings and then evidence was led and the respondent appeared in the witness-box after the said evidence had been recorded. He did not offer any explanation as to how the land ultimately came back to his wife. On the other hand, he simply expressed ignorance which is not sufficient rebuttal of the said oral as well as documentary evidence. Similarly in the matter of possession neither the PWs were cross-examined nor any rebuttal was led. In the case of Mst. Miraj Bibi v. Mst. Azim Khatoon and others (1997 SCMR 1892) it was held by the Hon'ble Supreme Court that to prove passing of consideration in cash in the case of sale disguised as exchange is not absolute rule and it was further held that to prove distinction between device and disguise evidence led by the parties including circumstantial has to be looked into.
The impugned judgments are completely silent vis-a-vis the said significant aspect of the matter, which remained totally un-explained by the respondent. I, therefore, do hold that the transaction is of a sale and in the absence any evidence to the contrary sale price is one mentioned in the plaint as also in the evidence. The findings of the learned lower Courts on Issue No. 3 in both the cases are accordingly reversed and issue is answered in the affirmative.
Finding regarding superior right of pre-emption was not challenged in the course of hearing of first appeals neither in these civil revisions, the same is accordingly affirmed. This leaves Issue No. 1 pertaining to talbs, both the learned counsel are agreed that the learned appellate Court did not properly adjudicate upon the said aspect of the matter. Both the civil revisions are accordingly allowed. The result would be that the first appeals filed by the petitioner shall be deemed to be pending. The parties shall appear before the learned District Judge, Hafizabad, who will requisition the record and proceed further himself or entrust the cases to a learned Additional District Judge, who shall hear the parties, examine evidence on record and decide Issue No. 1 pertaining to talbs a fresh in accordance with law. In case Issue No. 1 is found in favour of the petitioner the decree shall be passed in both the cases with requisite direction and in case it is answered against the petitioner the suits shall be dismissed. No order as to costs.
A copy of this judgment be immediately remitted to the learned District Judge. Hafizabad.
(M.S.A.) Revision dismissed.
PLJ 2010 Lahore 277
Present: Ijaz Ahmad Chaudhry, J.
Dr. SAUD-UL-HASSAN KHAN, ADVOCATE
and another--Petitioners
versus
PROVINCE OF THE PUNJAB through Secretary Higher Education, Lahore and 3 others--Respondents
W.P. No. 9229 of 2009, decided on 26.6.2009.
Constitution of Pakistan, 1973--
----Art. 199(b)(ii)--Societies Registration Act, 1860, S. 16-A--Writ of quo warranto--Calling in question under what authority respondents have taken over the charge of Punjab Public Library--Question whether under Section 16-A of the Societies Registration Act, 1860 any action could be taken by the Government or not--Held: Government has powered to initiate, inquire and after holding of such inquiry the provincial Government, is of the opinion that the Governing Body of the Society is unable to discharge its duties and also is unable to reform its financial obligations and is acting in the manner contrary to the public interest or to the interest of the members of the society, the Governing Body can be superceded for a period not exceeding one year--Action under Section 16-A of the Society Registration Act, 1860 has been taken after holding inquiry and after forming an opinion by the Government of Punjab that the affairs of the library are not in accordance with law and financial irregularities were also detected by the inquiry officer--Court cannot enter into the controversy about the truthfulness of the allegations, but the Government has taken the action under Section 16-A of the Act, 1860 certain allegations have also been leveled against the managing committee that it is not working under Constitution and counsel for the petitioner has failed to show that there was any scope of interference under writ jurisdiction of High Court about the action taken under Section 16-A of the Act by the Government--Petition dismissed. [Pp. 285 & 286] A & B
Mr. Khalid Habib, Advocate for Petitioner.
Mr. Waqas Qadeer Dar, Assist. Advocate General for Respondents.
Miss Shama Zia, Deputy Secretary Education Deptt.
Date of hearing: 26.6.2009.
Order
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners seek issuance of a writ of quo warranto against Respondents No. 1 to 4 by calling upon them and to explain that under what law and authority the respondents have taken over the charge of Punjab Public Library and Respondent No. 4 is occupying the office of Chief Librarian.
3 & 4. Learned counsel for the petitioner contends that false allegations have been levelled for taking over the control of PPL, Lahore, whereas the Government has no concern with the same, who wrongly acted and its action should be declared illegal and unlawful and may be set aside while issuing writ of quo warranto against Respondents No. 1 to 4; that the Societies Registration Act, 1860 does not empower the respondents to take such illegal action and petitioner has a right to be treated in accordance with law as the petitioner is a Life Member of the Punjab Public Library, Lahore and, that the writ petition may be accepted.
Conversely the Assistant Advocate General has submitted the report and Parawise comments on behalf of the respondents and contended that the affairs of the Punjab Public Library were not being run under the Constitution of Punjab Public Library and huge amount had been embezzled; that under Section 16-A of the Societies Registration Act, 1860 the Government of the Punjab has rightly taken over its charge, in order to save the Punjab Public Library from the clutches of miscreants; that Zaheer Ahmed Meer does not qualify to act as Chief Librarian for the reason that he does not possess the required qualification for the post of Chief Librarian, which is Ph.D in Librarian Science with five years experience whereas said Zaheer Ahmed Meer is an advocate and has no such like degree; that in the Ahatta/area of Library a Beauty Care shop for women has been opened which is against the aims of the Library; that the Managing Committee was not constituted in accordance with by laws and there was no option with Government of Punjab except to take the action under Section 16-A of the above said act; that the Society was unable to discharge its duties and the Government of Punjab which is providing 1« millions rupees for its welfare had been left with no option except to take over Punjab Public Library as many complaints have been received to the Government of the Punjab in this regard, and that huge amount has been embezzled and Chief Minister of Punjab has approved the summary sent by the concerned department and no illegality has been committed and writ petition may be dismissed.
I have heard the arguments of learned counsel for the parties and have perused the documents attached with the writ petition.
There is no denial that Punjab Public Library, Lahore had been established in the year 1884 and its Constitution also shows that the said Library was established at the desire and with the assistance of the Government of the Punjab in order to provide a Public Library and Reading Room for the use of peoples in the Province. The Constitution of the Punjab Public Library (1989) as amended from time to time and finally in the 49th meeting of the Managing Committee held on 30.06.3009 is reproduced here as under:
"Preamble: The Punjab Library, Lahore was established 1884 at the desire, and with the assistant of the Government of the Punjab, in order to provide a Public Library and Reading Room for the use of people in the Province.
Aims & Objects.
(a) to provide a Public Library for all the people which will contain official, scientific, technical and other general publications, manuscripts and non-book material.
(b) to provide a Reading Room which shall be open to the Public free of charge.
(a) by rendering accessible at one place valuable information that may be required for research or for any other enquiry that depends upon records rather that upon experience.
(b) by providing on an adequate scale, for the public, means for general reading in various fields of literature, science and technology."
The 3rd and 4th Para of this Constitution which are regarding the Managing Committee are also reproduced as under:
"3. The life Members shall elect six members as their representatives on the Managing Committee.
The powers and functions of Managing Committee has been mentioned in Para No. 9 of Annexure-D of this petition, which is reproduced here as under:--
"(i) The Managing Committee shall be the executive body of the Library and shall, subject to the Societies Registration Act, 1860 manage the affairs of the Library and exercise all powers in this regard.
(ii) Without prejudice to the generality of the foregoing, the Managing Committee shall have the powers:--
(a) to make Rules including Service Rules, Service Structure, Efficiency and Discipline Rules, Leave Rules, Rules for the Library Staff/Employees;
(b) to make all appointments of the Library Staff/Employees;
(c) to make Rules and Regulations for maintaining discipline and law & order in the Library;
(d) to make Rules and Regulations for the Reading Room for lending out books;
(e) to constitute and appoint various subcommittees as may be required;
(f) to determine the powers, functions and duties of various Sub-Committees;
(g) to make Rules to regulate the functioning of the Standing and other Sub-Committees;
(h) to supervise the working of the Library in general;
(i) to amend the Constitution as and when required only subject to the provisions of the Societies Registration Act, 1860.
The duties and powers of the office bearers has been mentioned in Para No. 14 of the same documents which is reproduced as under:
"14. Duties and Powers of the Office Bearers:
(i) President:
He shall preside over the meetings of the Managing Committee and shall supervise the business of the Library and the Managing Committee.
(ii) Vice-President:
(a) He shall preside over the meetings of the Managing Committee in the absence of the President
(b) He shall act as President when the President is out of station or is otherwise unable to act
(c) Cheques for amounts exceeding Rs. 10,000/- shall be signed by the Vice-President and the Secretary.
(iii) Secretary:
(a) He shall convene meeting of the Managing Committee under the direction of the President as required by the Constitution and as requisitioned under Sub-Clause 12 above. It shall his duty to incorporate in the agenda all such items as are required to be included by any member of the Managing Committee; provided that such requirement is given in before the dispatch of agenda. The agenda shall be circulated at least 10 days before the meeting.
(b) He shall keep the records of the proceedings of the Managing Committee and others Sub-Committees.
(c) He shall be responsible for the implementation of the decisions of the Managing Committee.
(d) He shall place the proceedings of the previous meetings of the Managing Committee before them for confirmation.
(e) He shall place the proposals/recommendations of the various Committees for consideration before the Managing Committee.
(f) He shall prepare the annual report of the Library and shall place it before the Managing Committee each year in the month of December.
(g) He shall be Incharge of the office of the Managing Committee.
(h) He shall be a Secretary of every Committee.
The Managing Committee of the Library is to be consisted of not less than sixteen members, including the President and Vice-President, which shows that three Secretaries i.e. Education, Finance and Information are members of the Managing Committee besides the District Nazim City Government, Lahore, The Vice-Chancellor of University of the Punjab, The President of Lahore Chamber of Commerce and Industry, The Chief Administrator Auqaf and the Chairman Punjab Text Book Board, Lahore. The Government of the Punjab is also empowered to nominate more members of the Managing Committee from amongst the scholars for two years. The Managing Committee also consists of six members. Election was to be conducted by the election Committee, which consists on Director General Public Libraries Punjab as Chairman, Addl. Education Secretary (A) or in his absence Deputy Secretary (A) Education Department and President Life Members Association as members.
However the trouble started when the Managing Committee was reconstituted on 8.04.2003, which was not properly handling the Management of the Library and it was suspended under Section 16(a) of The Societies Registration Act, 1860 and on 14.09.2004 an Adhoc committee for running the affairs of the Library was constituted with the approval of the then Chief Minister and the said committee could work for maximum period of one year. Governing Body was superceded with immediate effect for a period of six months. Adhoc Governing Body/Managing Committee was appointed from amongest the members of the Society under sub-section (2) of Section 16-A of the Act ibid: Mr. Justice (Retired) Sajjad Ahmad Sipra as Convener and notification was issued regarding reconstitution of present Managing Committee of Punjab Public Library on 4.06.2008 for a period of two years and following persons were nominated as members:--
Syed Asad Ali Shah, Federal Secretary (r).
Dr. Muhammad Ramzan Chief Librarian LUMS.
Mr. Shahzad Ahmed, Renowned poet and scholar.
Mr. Salman Rashid, Renowned Anthropologist.
Justice (Retd) Mian Allah Nawaz.
Mr. Ahmad Raza (Rtd) PCS officer.
It is also not denied that 51st Meeting of the Managing Committee, Punjab Public Library Lahore was held on 23.06.2008 under the Chairpersonship of Miss Arifa Saboohi the then Secretary Higher Education. Among other items, it was decided that Mr. Zill-e-Hasnain Deputy Chief Librarian, will act as Chief Librarian/Secretary and following members were nominated by the Managing Committee to form the Executive Committee and elect its own Chairman:
Justice Retd. Mian Allah Nawaz.
Ch. Aftab Ahmed Virk.
Mr. Zaheer Ahmad Meer.
Dr. Muhammad Ramzan.
However Justice (Rtd) Mian Allah Nawaz a Scholar Member, submitted his resignation for personal reasons in July 2008 and one seat of Scholar became vacant and in the meeting of Executive Committee held on 5.07.2008 in place of Justice (Rtd) Mia Allah Nawaz, all the life members except Ch. Aftab Ahmad Virk, appointed Khawaja Falah-ud-Din Naik as Member, Managing and Executive Committee in place of Justice (Rtd) Allah Nawaz. It was reported by the Deputy Chief Librarian/Acting Chief Librarian that among the members nominated by Managing Committee for the Executive Committee, only Zaheer Ahmad Meer was present in the meeting. In the said meeting Khawaja Falah-ud-Din Naik nominated Mr. Zaheer Ahmad Meer as Chairman of the Executive Committee of the Library since then Mr. Meer is posing himself as Chairman of the Executive Committee of Punjab Public Library, Lahore, which is according to the respondents illegal and unlawful and in violation of Para IV(2) (xi) of the Constitution of Punjab Public Library, Lahore, 1989 in which nominations to the seats of the Scholars are made by the Government of the Punjab and the Managing Committee has no power to nominate Khawaja Falah-ud-Din as its Member, who on the basis of which nominated Mr. Zaheer Ahmed Meer as Chairman and he started working as Chairman of Executive Committee and as Chief Librarian and the seat was filled due to resignation of Mr. Justice (Rtd) Mian Allah Nawaz by the Managing Committee. It is the case of the respondents that 52nd Meeting/Special Meeting of the Managing Committee was held on 28.07.2008 under the Chairperson of the then Secretary Higher Education wherein these illegal activities of Mr. Zaheer Ahmad Meer, Member Managing Committee and Executive Committee of the Library were discussed and Mr. Muhammad Taj Senior Librarian Quaid-e-Azam Library was given the additional charge of the post of Chief Librarian/Secretary PPL till appointment of Chief Librarian reliving Mr. Zill-e-Husnain of the Acting Charge of the said post and department issued Letter No. PS-SHE/111-2008 dated 4.08.2008. It is stand of the Government Respondent No. 1 that numerous complaints were coming in of high handedness and victimization of the officials working in the Library. On this issue an inquiry was conducted by Mr. Tariq Latif Deputy Secretary, who submitted that Mr. Zaheer Ahmad Meer is misusing the Library's funds and his behavior towards the employees is very rude and as the present Governing Body of the Punjab Public Library is not properly handling the affairs of the Library, the Secretary Industries, Commerce & Investment Department, Government of the Punjab has been requested that the present Governing Body of the Library may be dissolved under Section 16-A of the Societies Registration Act, 1860 in the interest of general public and an Adhoc Governing Body/Managing Committee may be constituted under sub-section (2) of the Section 16-A of the above said act for the smooth functioning of the Library vide letter which Annexure-K of this petition. Serious allegations were leveled against Zaheer Ahmed Meer for misusing the financial powers, establishing a beauty saloon in the Library, irregularly hiring and firing the regular staff of the Library and concealing the record of the Library from the higher authorities. Due to these reasons, a proposal was made which has been approved by the Chief Minister and the claim of the Government is that Government is providing Rs. 15,924 million for salaries and contingent expenses to the library. Now the only question is whether under Section 16-A of the Societies Registration Act, 1860 any action could be taken by the Government or not. Section 16-A of the Societies Registration Act, 1860 is reproduced for ready reference as under:
"16-A. Notwithstanding anything contained in the memorandum of association, rules or regulations of a society registered under this Act, Government of the Province of registration may dissolve the Governing Body of such society and reconstitute or reorganize the Governing Body and entrust thereto the management of the affairs of the society subject to such conditions as it may deem fit to impost"
From the perusal of the same it is found that Government has, powers to initiate, inquire and after holding of such inquiry the Provincial Government, is of the opinion that the Governing Body of the Society is unable to discharge its duties and also is unable to reform its Financial Obligations and is acting in the manner contrary to the public interest or to the interest of the members of the Society, the Governing Body can be superceded for a period not exceeding one year. Action under Section 16-A of the Society Registration Act, 1860 has been taken after holding inquiry and after forming an opinion by the Government of Punjab that the affairs of the Library are not in accordance with law and financial irregularities were also detected by the Inquiry Officer. The petitioner has failed to show that PPL is a NGO governed by Societies Registration Act, 1860. No document of registration since 1884. Hence, the respondent have admitted that it is a registered, but for all intents and purpose it is function loosely as a quosi autonomous body only after 1989 when its Constitution was framed. No identification is there for its functioning as an autonomous body. Rules of Business 1974 do not confirm it. This Court cannot enter into the controversy about the truthfulness of the allegations, but the Government has taken the action under Section 16-A of the Act ibid, certain allegations have also been leveled against the Managing Committee that it is not working to under constitution and learned counsel for the petitioner has failed to show that there was any scope of interference under writ jurisdiction of this Court about the action taken under Section 16-A of the Act by the Govt. Hence, this writ petition being devoid of any merits is dismissed.
(M.S.A.) Petition dismissed.
PLJ 2010 Lahore 286
Present: Maulvi Anwar-ul-Haq, J.
MANZOOR HUSSAIN--Petitioner
versus
CHIEF SETTLEMENT COMMISSIONER BOARD OF REVENUE PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 7108 of 2009, heard on 9.7.2009.
Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958)--
----S. 13--Evacuee property--PTD was issued in favour of petitioner--Wanted to implement said transfer in revenue record--Failed--Long standing litigation--Notification of Chief Settlement Commissioner dated 16.5.1973--All available evacuee urban land including the one not yet confirmed to any person against units or evacuee land which may become available in future in all the revenue estates falling within urban limits throughout the province of punjab were declared as building sites to be disposed of under Section 13 of the Displaced Persons (Land Settlement) Act, 1958--Provision lays down that in future land declared to be a building site by the chief settlement commission was to be disposed of in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958--No agricultural urban land existed which could be adjusted against unsatisfied verified claims of produce index units and as such the unsatisfied claimants were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land--Parties were bound to implement the same--Petition disposed of. [P. 290] A & B
1997 SCMR 1635 & 1993 SCMR 732, rel.
Kh. Aamir Farooq, Advocate for Petitioner.
Mr. Faisal Zaman Khan, Addl. A.G.
Mr. Mehmood A. Sheikh, Advocate for Respondents.
Hafiz Muhammad Yousaf, Advocate for Intervener.
Date of hearing: 9.7.2009.
Judgment
To begin with Qudrat Ullah, the later grand-father of the petitioner filed W.P.No. 17511/96 in this Court stating that he is occupying evacuee property comprising Kila No. 2 of Square No. 34 in Chak No. 122/JB, Tehsil and District Faisalabad and has raised permanent structures thereon. He initiated proceedings for its transfer in his favour. The spot was inspected and vide order dated 30.10.1967 Deputy Settlement Commissioner passed an order for transfer whereupon a PTO was issued on 3.2.1968. The transfer price and fees were paid and a PTD was issued on 16.4.1974. The grievance made was that he had been repeatedly approaching the local revenue officers to implement the said transfer in the revenue records but the needful is not being done. Comments were filed by an ADC(G)/DSC, Faisalabad, on 14.10.1996. It was admitted that as per Settlement Record, the said petitioner is in possession of the plot and raised structure thereon but it was stated that the revenue record does not contain any such entry. It was further explained that the land stands exchanged under orders of Central Government dated 3.1.1958. Reference was made to a judgment dated 21.7.1990 of a Division bench of this Court in W.P. No. 5494/87 whereby PTDs or TOs issued up-to 12.6.1988 were to be scrutinized and if found genuine proprietary rights were to be allowed. This writ petition was disposed of on 15.10.1996 with a direction to the petitioner to appear before the said officer or Collector, Faisalabad, who will examine the matter.
Vide order dated 27.11.1997 the ADC(G)/DSC, Faisalabad, rejected the application holding the documents to be forged and fabricated.
Against the said order dated 27.11.1997 the petitioner filed W.P. No. 29288/97. The matter was heard on 27.11.1998 and 30.11.1998 by this Court. Contentions of both the parties were noted and the writ petition was allowed and the said order was declared to be without lawful authority. The matter was directed to be decided afresh.
This time the matter came up before a D.O.(R)/Notified Officer, Sheikhupura, which was transferred to the said officer by the Senior Member, Board of Revenue, Punjab, vide order dated 7.10.2002 from the D.O.(R), Faisalabad. The said officer noted the points to be determined in the light of notification dated 12.6.1988 and decided the same and ultimately found the transfer order in favour of the petitioner to be legal and valid and directed the Circle Revenue Officer to attest a mutation in accordance with law. Pursuant to this order, Mutations No. 32173 and 32178 transferring the land from Provincial Government to Central Government and to the LRs of the said Qudrat Ullah (who had since died) were attested on 30.9.2003.
Against the order dated 22.5.2003 of the DO(R)/Notified Officer, the respondents filed W.P. No. 8560/04 in this Court. This writ petition was heard on 18.9.2007 and vide judgment dated 18.9.2007 the said order was upheld with the finding that the LRs of Qudrat Ullah are transferees through a valid transfer order and are in possession of the property and that the direction for incorporation of their names in the revenue record is in accordance with the proven facts and dictates of law. Admittedly, this judgment was not challenged by any one, in any manner, prescribed by law.
According to the petitioner, the Tehsildar City, Faisalabad, after sanctioning the said mutations himself filed an appeal before DDO(R). Without any notice to the LRs of Qudrat Ullah, the appeal was allowed on the very next day and resultantly the mutations were cancelled. Realizing the illegality of the said act, it was decided to file the said writ petition, which was decided by this Court on 18.9.2007.
The respondents remained adamant and did not undo the wrong done by them by restoring the earlier mutations or attesting fresh mutations in accordance with the order of the DO(R)/Notified Officer as affirmed by this Court. The petitioner then filed W.P. No. 2993/09 in this Court, which was disposed of on 17.2.2009 with a direction to the Tehsildar City, Faisalabad, to pass appropriate orders on the application filed by the petitioner in accordance with the judgment of this Court.
Present writ petition has been filed with the grievance that instead of complying with the said judgments, the Respondent No. 3 filed an appeal before Respondent No. 2 against the order dated 22.5.2003 of the DO(R)/Notified Officer and simultaneously the Respondent No. 1 has commenced proceedings upon a reference by Respondent No. 3. The writ petition came up on 17.4.2009 when all the said facts were noted and the Tehsildar was directed to attest the mutation in accordance with the order of the Notified Officer as affirmed by this Court vide judgment dated 18.9.2007 in W.P. No. 8560/04. The case then came up on 13.5.2009 when Respondents No. 1, 3 and 4 filed replies. Respondent No. 3 stated that she had not filed any appeal while the learned counsel for the other respondents sought time to sort out the matter so that the orders of the Court are duly implemented. The direction was repeated on 1.6.2009. On 5.6.2009 Hafiz Muhammad Yousaf, Advocate, filed C.M. No. 2413/09 praying that the Member (Colonies), Board of Revenue, Punjab, be impleaded. The application was allowed in terms that the learned counsel was permitted to address the Court at the time of hearing. On the same date, it was reported that the mutations have been attested in accordance with the orders of the Court. The writ petition was accordingly fixed for hearing.
Learned counsel for the petitioner contends that, in view of the said factual history of the case, the earlier orders have been rightly got implemented by this Court. Mr. Mehmood A. Sheikh, Advocate with reference to judgment dated 14.4.2009 of the Hon'ble Supreme Court of Pakistan in Civil Appeals No. 625/03 and Civil Appeals No. 627/03 as also judgment in the case of Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1997 SCMR 1635) vehemently urges that the earlier order of the DO(R) as well as the judgment of this Court dismissing the writ petition filed by the respondents are per incuriam and this Court cannot be called upon to implement the same. According to him, the land having been exchanged with the State land, there was no question of its being dealt with by the Authorities under the Evacuee Property and Displaced Persons laws and as such the transfer order in favour of Qudrat Ullah is void ab initio. Hafiz Muhammad Yousaf, Advocate, also with reference to a judgment dated 21.4.2009 of the Hon'ble Supreme Court in C.P. No. 557-L/04 reiterates the said arguments of Mr. Mehmood A. Sheikh, Advocate. Both the learned counsel also refer to another judgment dated 10.7.2001 in Civil Appeals No. 2233 and 2234 of 1998.
I deem it appropriate, in the first instance, to deal with the arguments based on the said case of Muhammad Ramzan and others (1997 SCMR 1635). By way of the said judgment, several appeals arising out of a common judgment dated 16.1.1994 passed by this Court in several writ petitions, were decided. The leading opinion was expressed by Hon'ble Munawar Ahmad Mirza J. The facts of the cases were narrated. The history of the Evacuee Property and Displaced Persons Laws as also the intent thereof was explained. Thereafter reference was made to a notification issued on 16.5.1973 by the Chief Settlement Commissioner whereby all available evacuee urban land including the one not yet confirmed to any person against units or evacuee land which may become available in future in all the revenue estates falling within urban limits throughout the Province of Punjab were declared as building sites to be disposed of under Section 13 of the Displaced Persons (Land Settlement) Act, 1958. I may note here that this provision lays down that in future land declared to be a building site by the Chief Settlement Commissioner was to be disposed of in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Reference was then made to the judgment in the case of Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others (1993 SCMR 732) to observe that it stands specifically elucidated that neither nature of land could be converted nor proceedings treated as pending even under directions of Superior Courts if the same tends to contravene existing law. Then several cases were examined accordingly to derive that when claims were not satisfied or direction issued by Superior Courts regarding subject matter which inherently suffered from want of jurisdiction, were not complied on concession for allotting alternate urban land to claimants against unsatisfied Produce Index Units even if any concession was made by the Department, otherwise having no authority specially after repealing Act, could not be legitimately sustained. It was accordingly held that by virtue of the said notifications dated 16.5.1973 no agricultural urban land existed which could be adjusted against unsatisfied verified claims of Produce Index Units and as such the unsatisfied claimants were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land. Consequently the judgments of this Court mostly based on concession by the Law Officers appearing for the Settlement Department directing allotment of alternate land were held to be per incuriam and not binding.
In view of the factual history explained above, the said judgment would not be applicable to the facts of the present case, which, in fact, was initiated and dealt with under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and it was not a case of satisfaction of any Produce Index Units or land claims.
So far as the said unreported judgments relied upon by the learned counsel for the respondents are concerned, in the matter of said Civil Appeals No. 625 and 627 of 2003, the case of the appellants before their lordships was based on temporary allotment under the Rehabilitation Scheme which was not confirmed. In the matter of C.P. No. 557-L of 2004 the plot was sold in auction on 24.8.1968 but it was not confirmed and the Settlement Department refused to issue a PTD and, thus, a suit was field in which ultimately the said C.P. arose. I may note here that in these two cases, the effect of notification issued by the Provincial Government on 12.6.1988 was not considered. However, in the matter of Civil Appeals No. 2233 and 2234 of 1998, the matter of Civil Appeals No. 2233 and 2234 of 1998, the matter was considered with reference to the said notification and one of the appeals was allowed with directions for transfer of alternate land.
Reverting back to the present case, none of the judgments were passed on any concession. In the first instance, W.P. No. 29288/97 was duly contested by the respondents but was allowed and the matter was remanded back to the Notified Officer who then passed the said order dated 22.5.2003. W.P. No. 8560/04 was filed against the said order by the respondents and not by the petitioner, which, of course, was contested and was dismissed with observation as noted above and this judgment was not questioned any further. The findings of facts were recorded by the DO(R)/Notified Officer, which were confirmed by this Court and Qudrat Ullah was found to be lawful transferee.
Needless to state that the case of the petitioner was scrutinized by the DO(R)/Notified Officer in strict accordance with the terms of the notification dated 12.6.1988 as interpreted by this Court and then by the Hon'ble Supreme Court of Pakistan, inter alia, in the said Civil Appeals No. 2233 and 2234 of 1998. I, this Court dismissing the writ petition of the respondents was not per incuriam and was binding upon both the parties and they were bound to implement the same in letter and spirit. The writ petition is accordingly disposed of in the said terms.
No orders as to costs.
(M.S.A.) Petition disposed of.
PLJ 2010 Lahore 291 (DB)
Present: Mian Saqib Nisar & Ali Akbar Qureshi, JJ.
ASIF ALI and 6 others--Appellants
versus
SAEED MUHAMMAD--Respondent
R.F.A. No. 531 of 2006, heard on 22.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 1 & 2--Negotiable Instrument Act, 1881, S. 118--Suit for recovery under Order XXXVII, C.P.C. on the basis of cheque--Decreed by trial Court--Regular First Appeal--Negotiable instrument--Proof of--Section 118 of the Negotiable instrument Act, 1881, does not envisage a conclusive presumption about the drawing, consideration of the negotiable instrument, rather without any fear of contradiction, it can be held to be rebutable in nature and this is so clear and obvious from the expression used in the section i.e. "until the contrary is proved"--The expression "until the contrary is proved" is couched in the negative and the proof of a "negative fact" has its own limitations and bounds and the law in this behalf does not recognize and require that a litigant should imperatively give the positive evidence of a "negative fact", this is inconceivable under the law of the proof of a fact--However, the Rules 1 & 2 are subject to certain exceptions--It shall be permissible in law to prove to the contrary" by means of cross-examination upon the witnesses of the plaintiff, that the instrument was not drawn and the consideration never passed--Held: Fact deposed in the examination-in-chief if not cross-examined, shall be deemed to have been admitted--Signatures on the cheque have not been asked for the opinion of expert by the plaintiff, the bank officer is unable to state, if these signatures are genuine or otherwise, the exact dates are not specifically mentioned in the plaint or even so specified in the statement of prosecution witness--There is no explanation about this very conspicuous omission, such quality of evidence on the record in our candid view has excluded the case from the realm of transaction as has been contemplated by the provisions of Section 118 of the Negotiable instruments Act, 1881--Decision of the matter must be exclusively founded on the presumption of the section cannot be accepted--Appeal allowed. [Pp. 296, 297 & 298] A, B, C, D & E
Ch. Ali Muhammad, Advocate for Appellants.
Kh. Saeed-uz-Zafar, Advocate for Respondent.
Date of hearing: 22.6.2009.
Judgment
Mian Saqib Nasir, J.--The suit for the recovery filed by the respondent under the provisions of Order 37 CPC against the appellants, on the basis of a cheque, after grant of leave to them and holding the trial, has been decreed by the learned Addl. District Judge/Trial Court, vide judgment and decree dated 29.06.2006. Hence this appeal.
That on 18.3.2004, the respondent brought a suit for the recovery of an amount of Rs. 30,00,000/- against the appellants, claiming that Shaukat Ali, their predecessor-in-interest, was his real nephew (brother's son), who intended to establish Mubarak Floor Mills for which, he needed money and thus requested the plaintiff/respondent for a loan of Rs. 30,00,000/- (no date of the grant of loan or the timeframe when the Mill was being established has been given in the plaint). It is, however, mentioned in Paragraph No. 5 of the plaint that when the Mill started functioning (again no date or period mentioned), the respondent demanded the return of the loan amount, but Shaukat Ali was reluctant; on repeated requests/demands, Shaukat Ali gave the respondent/ plaintiff a cheque Bearing No. 10477533 dated 20.3.2001, amounting to Rs. 30,00,000/- from his Account No. 1502-21 maintained in Muslim Commercial Bank Dajkot Road Branch, Faisalabad, the cheque when presented, was dishonoured by the bank on 21.3.2001, therefore, the respondent through respectables kept on demanding the money from Shaukat Ali, who in the meanwhile fell ill and expressed his inability in this behalf; during this period, Mubarak Floor Mills also closed down and Shaukat Ali ultimately died on 30.3.2003; the suit as mentioned above, was brought on 18.3.2004 almost a year after the death of Shaukat Ali and about two days before the expiry of the limitation (as per the date mentioned on the cheque). The appellants contested the matter and denied that Shaukat Ali had taken any loan from the respondent/plaintiff; they asserted that the cheque does not bear the deceased's signature and it was never issued. In Paragraph No. 5 of the written statement, it is however, mentioned that the plaintiff has received back the amount of Rs. 21,5000/-, which he invested in Mubarak Floor Mills from Shaukat Ali. On account of the pleadings of the parties, the following issues were framed :--
Whether the plaintiff has got no cause of action against the defendants? OPD
Whether the plaintiff has concealed any facts? OPD
Whether the defendants are entitled to recover special costs from the plaintiff? OPD
Whether the plaintiff is entitled to the decree of Rs. 30,00,000/- under order 37 CPC as prayed for? OPP
Relief.
The respondent/plaintiff in order to prove his case on Issue No. 4 examined four witnesses. PW-1 Muhammad Aslam Rana, Officer Grade-II, Muslim Commercial Bank Dajkot Road, Faisalabad brought the record of the Account pertaining to the cheque in question and stated that the Account was in the name of Mubarak Floor Mills, whose proprietor was Shaukat Ali; he produced the cheque Ex.P-1, dishonoured slip Ex.P-2 and Ex.P-2/1, leasing agreement Ex.P-3, specimen signature of Shaukat Ali Ex.P-4, Account opening form in the name of proprietor Shaukat Ali Ex.P-5; certified copy of the Token No. 18 dated 21.1.2001 Ex.P-6, its attested copy Ex. P-6/1, balance sheet of the account Ex.P-7, letter dated 10.6.2005 about his appearance as a witness and the permission from the concerned bank Manager Ex.P-8. In the cross-examination, he stated that he has not undertaken any course of handwriting examination, therefore, he cannot say if the signature upon the cheque belongs to Shaukat Ali or not. PW-2 is the plaintiff/respondent himself who has deposed in lines with the case set out in the plaint. However, an important part of his examination-in-chief needs to be incorporated as under:--
It is further deposed that we (Panchayat) had gone to Shaukat Ali even thereafter and demanded money, but he ultimately died on 30.3.2003 without returning it. In the cross-examination, he has admitted to be income tax assessee, but stated that he has no knowledge, if the amount of Rs. 30,00,000/- as the loan to Shaukat was mentioned in the income tax return for the relevant year; he does not recall as to when Mubarak Floor Mills started functioning, but then said it to be the year 1997-98; he stated that on 21.3.2001 he went to Shaukat Ali alongwith Riaz Ahmed and Basharat; Riaz Ahmed is his first cousin whereas Basharat is his son. Riaz Ahmed has appeared as PW-3; he has stated that while Mubarak Floor Mills was under construction, Shaukat Ali needed some money and an amount of Rs. 30,00,000/- as loan by the respondent was given to him in his presence; when the Mill was established, the respondent asked him (Shaukat Ali) for the return of money, but it was not repaid and therefore, the cheque in question was issued. In the cross-examination, he has admitted that certain writings on the cheque are in different inks; he further stated that Rs. 20,00,000/- was paid on 04.04.1999 while Rs. 10,00,000/- on 25.04.1999. PW-4 Basharat Saeed is the son of the respondent and has deposed pursuant to the case of the respondent.
Against the above, the appellants have produced three witnesses. DW-1 is Muhammad Saleem, who has stated that Shaukat Ali had never borrowed any money from the respondent, rather they had joint business. DW-2 Muhammad Amin, has also testified that no amount was taken by Shaukat Ali from the respondent as a loan; DW-3 is Muhammad Asif, son of Shaukat Ali and has stated in lines with the defence. The learned trial Court, as mentioned earlier, has decreed the suit.
Learned counsel for the appellants has argued that there is no independent evidence on the record that the respondent has given the suit amount as a loan to Shaukat Ali; the respondent has not been able to substantiate his financial position and capacity to pay such a huge amount as the loan; the cheque has not been signed by Shaukat Ali; the amount in words and figures as also the date, on the cheque Ex.P-1 is not in the writing of Shaukat Ali and inks of the signature and the pens are also different; contrary to the case of the respondent (plaintiff) set out in the plaint and also his own statement; PW-2 has deposed that the loan amount was paid in two tranches and has also given specific dates i.e. 04.04.1999 and 25.04.1999; in the cross-examination of the plaintiff, he stated that the Mill started functioning in 1997-98 and the amount was paid for its establishment, but from the statement of PW-2 it is belied, [because the time, when calculated from the dates of the two tranches as deposed by PW-2, the Mill would have been closed as it could not be run for more than six months after its establishment, therefore, the entire story that the amount was paid for the purpose mentioned in the plaint stands knocked out]; in the plaint, it is categorically stated that the respondent had approached Shaukat Ali alongwith respectables for the return of the suit amount, but no independent person has been examined in this behalf; Basharat, who allegedly went to Shaukat for the return of the amount, is real son of the respondent while Riaz Ahmed PW-3 is his first cousin; the suit had not been filed in the lifetime of Shaukat Ali, rather after his death and that too only two days before the expiry of the period of limitation. From all the above, it is argued that the respondent has failed to prove his case resultantly, the judgment and decree of the Court below cannot sustain and the suit is liable to be dismissed.
When confronted with the presumption of Section 118 of the Negotiable Instruments Act, 1881, it is submitted that when the plaintiff has failed to prove his source and capacity to advance the loan and also does not sue the alleged borrower in his lifetime, the said presumption stands rebutted. In this behalf, reliance has been placed on the judgments reported as Salar Abdur Rauf. Vs. Mst. Barkat Bibi (1973 SCMR 332), Mahmood Hassan Ashraf. Vs. Shakil Ahmad (1973 SCMR 595), and Sundarammal. V. Subramanya Chettiar and others (AIR 1916 Madras 278). The learned counsel for the respondent has laid down the mainstay on his case on the presumption of Section 118 of the Act ibid and has relied upon the judgments reported as 2008 CLD 51 (Syed Aijaz Hussain. Vs. Syed Abdul Azeem), 2008 PLD 429 (Shell Pakistan Ltd. Vs. Aero Asia International (Pvt) Ltd. through Chief Executive and another), 2007 MLD 1619 (Ali Muhammad Shah. Vs. Ijaz Hussain Shah 2007 CLD 1605 (Muhammad Aziz-ur-Rehman. Vs. Liaquat Ali), 2007 SCMR 1820) Muhammad Aziz-ur-Rehman vs Liaquat Ali), 2007 CLD 267 (Muhammad Ashraf. Vs. Akhlaq Sheeda), 2006 CLD 1011 (Muhammad Arshad and another vs. Citibank N.A. Al-Falah Building, Lahore), 2006 CLD 737 (Muhammad Akhtar. Vs. Zahar Khan), 2006 CLD 107, (Sheikh Muhammad Javed Anwar vs. Muhammad Ashraf) 2006 YLR 2107 (Muhammad Hussain vs. Muhammad Nawaz), 2005 YLR 3321 (Syed Kausar Abbas Shah. Vs. Sardar Khan), 2005 CLD 588 (Sheikh Muhammad Ayub Vs. Muhammad Yousaf), 2004 MLD 951 (Muhammad Akbar. Vs. Sheikh Abdul Shakoor) 2004 CLC 219, (Jam Hameed Shahid. Vs. Liaqat Ali) 1999 MLD 3214 (Messrs Karachi Bonded Stores Limited. Vs. Trustees of the Port of Karachi, etc.), 1991 CLC 1897 (Best Foods (Private) Limited. Vs. Tabani Corporation), 1986 MLD 2298 (Syed Haider Aabdi. Vs. Syed Javed Aabi) PLD 1963 SC 163 (Fine Textile Mills Ltd. Karachi, vs. Haji Umar), 2008 CLD 996 (Shell Pakistan Ltd. through Attorney. Vs. Aero Asia International (Pvt) Ltd, through Chief Executive), CLD 2007 SC 1842 (Muhammad Aziz-ur-Rehman. Vs. Liaquat Ali), CLD 2005 Peshawar 1840 (Adil Jamshed. Vs. Muhammad Ubaidullah), YLR 2005 LAHORE 3021 (Naseer Ahmad. Vs. Mehr Akhtar Abbas), YLR 2005 Peshawar 3226 (Hamid Shehzad Managing Director vs. Muhammad Sohail Saeed), CLD 2005 LAHORE 982 (Malik Muhammad Amin. Vs. Zahid Mehmood), CLD 2004 Lahore 535 (M/s. Mach Knitters (Pvt) Ltd. vs. Allied Bank of Pakistan Ltd), 2004 CLC 384 (Irfan Fazal vs Zahid Iqbal) 2004 CLD 1577 (Muhammad Aimal Khan. Vs. United Bank Ltd), 2003 CLD 272 (Kausar Saeed vs. Syed Wajahat Hussain), 2002 CLD 107 (EFU General Insurance Ltd. Vs. Messrs Security & Management Service (Pvt) Ltd), 2001 CLC 653 (Asif Nadeem. Vs. Bexshim Corporation). 2000 CLC 1967 (S.K. Abdul Aziz, Vs. Mahmood-ul-Hassan). 1996 CLC 741 (Khalid Mukhtar. Vs. Sadiqa Tasneem) 1993 MLD 1144 (Khalil-ur-Rehman. Vs. Muhammad Shafi), 1992 MLD 1007 (State Associates. Vs. Farben Industrial Development S.PA), PLD 1986 Balochistan 232 (Sughiran Begum. Vs. Qadir Bakhsh), 1985 MLD 181 (Industrial Mining Enterprises Karachi. Vs. Industrial Mineral Corporation Ltd), and 1973 SCMR 100 (Karim vs. Zikar Abdullah). However, when specifically questioned, it is admitted by the respondent's counsel that the matter of presumption shall be determined by the Court on the preponderance of the complete evidence on the record.
Heard. Section 118 of the Negotiable Instrument Act, 1881, does not envisage a conclusive presumption about the drawing, consideration etc. of the negotiable instrument, rather without any fear of contradiction, it can be held to be rebutable in nature and this is so clear and obvious from the expression used in the Section i.e "until the contrary is proved". The question, which shall thus arises for the consideration is that where a claim is propounded on the basis of a negotiable instrument, is it necessary and imperative in all such cases that the defendant should prove in the negative, that he has not drawn the instrument and that it is without consideration or it is for the plaintiff to discharge the initial burden of proving his case in this regard, especially when the plaintiff has undertaken to prove that the negotiable instrument (cheque) has been duly executed for the consideration by Shaukat Ali; not only that Issue No. 4 has been framed in this case, which has placed the onus in this behalf upon the respondent/plaintiff, rather he himself led evidence to prove the payment of the money through two witnesses PW-2 and PW-3, his own statement and the statement of PW-4, Bank Manager, therefore, as per the judgment reported as Salar Abdur Rauf vs. Mst. Barkat Bibi (1973 SCMR 332), the respondent/plaintiff is precluded in law to urge in this case that it was for the respondent to prove to the contrary.
Without prejudice to the above, it may further be added that the expression "until the contrary is proved" is couched in the negative and the proof of a "negative fact" has its own limitations and bounds and the law in this behalf does not recognize and require that a litigant should imperatively give the positive evidence of a "negative fact"; this is inconceivable under the law of the proof of a fact. However, the above rule is subject to certain exceptions, where for example that the defendant through positive evidence shall be able to substantiate that on a given date he was not at the place where the execution of the instrument is alleged or the plaintiff has no capacity or the mean to grant the loan, or he or his relative met with some accident or were seriously ill, hospitalized or operated upon which would preclude the execution of the instrument; these shall constitute an apt illustration of the proof "to the contrary" and may be held to be one category of the cases falling within the purview of Section 118; however, the second category, which is perceived by the said section is when after the conclusion of the trial, on the basis of the complete evidence on the record from which ever side it is adduced, that the Court shall be required to determine if the execution and consideration, etc. is proved to be contrary or otherwise. It may be relevant to mention that of course, it shall be permissible in law to prove "to the contrary" by means of cross-examination upon the witnesses of the plaintiff, that the instrument was not drawn and the consideration never passed. In our view, the present case falls in the second category and thus, it is on the basis of the total evidence on the record by applying the rule of preponderance (of the evidence) and the possibility that this lis should be decided.
In this behalf, the relevant features of the case and the important aspects of evidence should be highlighted; the suit has not been filed within the life time of Shaukat Ali; explanation given in the plaint and in the evidence about his promises to re-pay the amount and that on account of his illness he expressed his inability, has not been established through independent evidence; no written agreement has been produced on the record or even alleged to have been executed between the parties and despite close relationship as argued by the respondent, we find that it is quite improbable that such a substantial amount shall be given by the plaintiff only on the basis of mutual trust; no date, month and even the year of the granting of loan has been given in the plaint; however, it is vaguely mentioned that it was during the time when the Mill was being in the process of creation; the plaintiff (PW.2) in his cross-examination has stated that the Mill started functioning in 1997-98; while PW-3 has stated that the money was paid through two tranches i.e 4.4.1999 and 25.4.1999, which means that it is after the establishment of the Mill; this has serious reflection upon the motive and the very purpose of the alleged loan. Considering these two statements alongwith the statement of DW-3, who in the examination-in-chief stated that Mubarik Floor Mill was purchased in the year 1998-99, its building was then erected, it is after installing machinery, the Mill functioned but closed down about 7/8 months thereafter because of the losses. This part of the statement has not been subjected to the cross-examination by the plaintiff, and it is settled law that a fact deposed in the examination-in-chief if not cross-examined, shall be deemed to have been admitted; the above aspect of the evidence has belied the execution and the consideration of the cheque; besides, the capacity of the plaintiff to pay the amount was under challenge but he has not able to establish that in the year 1997-98, he had such a substantial amount to pay to Shaukat Ali as loan; he though admitted to be the income tax assessee but expressed lack of knowledge if the amount was declared in his return; not only in the plaint but also in his own statement while appearing as PW-2 he has mentioned that the respectables (Punchaiat) had gone to Shaukat Ali for the return of the money on two occasions, but no independent person in this behalf has been examined; his son, cousin and brother-in-law (PW-3) have no relations with Shaukat Ali and they cannot be considered to be those respectables, who in the ordinary parlance can be said to constitute Punchaiat; the cheque has not been filled up by Shaukat Ali; name of Saeed Muhammad, the amount in words and figures as also the date are not stated to be in his hand writing; who has filled up it, is not proved on the record; the signatures of Shaukat Ali on the cheque have not been asked for the opinion of expert by the plaintiff; the bank officer is unable to state, if these signatures belongs to Shaukat Ali or otherwise; the exact dates, which have been given by PW-3 i.e 20,000,00/- was paid on 4.4.1999 and Rs. 10,000,00/- on 25.4.1999, are not specifically mentioned in the plaint or even so specified in the statement of PW-1; there is no explanation about this very conspicuous omission; this quality of evidence on the record in our candid view has excluded the case from the realm of the transaction as has been contemplated by the provisions of Section 118 of the Negotiable Instruments Act 1881; the case of the respondent that the decision of the matter must be exclusively founded on the presumption of the section cannot be accepted and all the judgments cited in this behalf are distinguishable on their own facts. We find that in the circumstances of the case, the presumption stands repelled and the plaintiff has failed to prove his case; therefore, this appeal is allowed, the judgment and decree of the learned trial Court is set aside with the result that the suit stands dismissed.
(R.A.) Appeal allowed.
PLJ 2010 Lahore 299
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
KAUSAR BIBI--Petitioner
versus
ALLAH DITTA CHAUDHRY--Respondents
C.R. No. 228 of 2008, heard on 03.06.2009
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Suit for declaration--Interim injunction--Grant of--Application was allowed--Assailed--Operation of injunctive order was suspended--Petitioner owns a land in vicinity and has also a residence--Passage in dispute was being used prior to purchase of land by petitioner as thoroughfare--For purposes of deciding application for grant of temporary injunction, Courts have only to see as to whether prima facie arguable case exists in favour of applicant or not--That balance of convenience/inconvenience lies in whose favour and that which of parties is to suffer irreparable loss in case temporary injunction is not allowed--Petitioner has made out a prima facie case and balance of convenience/inconvenience also lies in her favour--It is plaintiff/petitioner who has to suffer irreparable loss if interim injunction is not granted--Impugned order passed by Additional District Judge is set aside--Petition allowed.
[P. 301] B, C, D, & E
Interim Order--
----Constitutional jurisdiction of High Court--Order which is primarily of interim nature cannot be assailed though a constitutional petition--Submission of--There are no hard and fast rules--In ordinary/normal course of things, interim orders are not amenable to constitutional jurisdiction, however, High Court in appropriate/exceptional cases, can interfere to set things right, where interference is deemed necessary to restrain injustice being done to a party. [P. 301] A
Syed Muhammad Hussain Shah Qadri, Advocate for Petitioner
Mr. Muhammad Ameer Bhatti, Advocate and Mr. Zafar Ullah Khan Khakwani, AAG for Respondents.
Date of hearing: 3.6.2009
Judgment
Briefly stated facts as those emerge out of this petition are that petitioner/plaintiff filed a suit for declaration before the Civil Court, Multan to the effect that the petitioners/plaintiff were entitled to use of passage measuring 20 feet from Iqbal Mahay Paki to the residence of the petitioner. Along with which an application under Order 39 Rules 1 & 2 CPC for the grant of temporary injunction was also filed.
It is inter alia contended that initially learned Civil Judge allowed interim injunction on 05.06.2007 where against an appeal was filed by Respondents No. 2 to 5 which was allowed, wherein, while issuing notices the learned Additional District Judge suspended the operation of the injunctive order passed by learned Civil Judge vide the impugned order dated 10.06.2008 which is being assailed before this Court. That all the three ingredients for the grant of temporary injunction are available to the petitioner and inspite of the fact that he had a good prima facie arguable case, balance of convenience also lies with him and it is the petitioner/plaintiff who has to suffer irreparable loss in case the interim relief is not allowed and that the learned Additional District Judge had no lawful justification to interfere, in the circumstances of the case, in the order dated 05.06.2007 passed by learned Civil Judge, thus prays that this revision petition may be allowed and the order impugned herein passed by learned Additional District Judge dated 10.06.2008 may be set aside.
Conversely, learned counsel for the respondents vehemently opposes this petition and prays that since the constitution petition has been filed against an interim order, therefore, the same is not maintainable.
Arguments heard. Record perused.
The main thrust of arguments of Mr. Muhammad Ameer Bhatti, learned counsel for the respondents is that order, which is primarily of interim nature cannot be assailed through a constitution petition. I do not find myself in agreement with this submission, as to my mind, there are no hard and fast rules. It is true that in ordinary/normal course of things, interim orders are not amenable to constitutional jurisdiction, however, this Court in appropriate/ exceptional cases, can interfere to set the things right, where the interference is deemed necessary to restrain injustice being done to a party. Admittedly the petitioner owns a land in the vicinity and has also a residence. Likewise there is no denying to the fact that the passage in dispute was being used, prior to the purchase of the land in question by the petitioner, as thoroughfare. The essential ingredients for the grant of temporary injection, to my mind are also available in the case. It may be observed that for the purposes of deciding application for the grant of temporary injunction, the Courts have only to see as to whether prima facie arguable case exists in favour of the applicant or not and that the balance of convenience/inconvenience lies in whose favour and that which of the parties is to suffer irreparable loss in case the temporary injunction is not allowed. In the case in hand, I am of the considered view that the petitioner has made out a prima facie case and the balance of convenience/inconvenience also lies in her favour and it is the petitioner/plaintiff who has to suffer irreparable loss if the interim injunction is not granted.
There is no denying to the fact that the petitioner's suit is pending and if the passage in dispute is allowed to be blocked by the respondents, in that eventuality, the petitioner/ plaintiff shall be left with no access either to her residence, or to the agricultural land owned and possessed by her. In these circumstances, I am inclined to allow this petition, impugned order passed by learned Additional District Judge is set aside.
The parties are directed to maintain status quo. The learned trial Court however is expected to expedite decision of the suit pending him so that the same is concluded within a period of four months.
With these observations, this petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2010 Lahore 301
[Rawalpindi Bench Rawalpindi]
Present: Fazal-e-Miran Chauhan, J.
SHAH HALI etc.--Petitioners
versus
MEMBER (J) BOR, PUNJAB, RAWALPINDI
and 5 others--Respondents
W.P. No. 1465 of 2008, decided on 5.11.2008.
Constitution of Pakistan, 1973--
----Art. 199--Recovery of share of Hissa Batai)--Revenue authority for recovery of their share--Suit for recover of share of produce (Hissa batai) and also for ejectment of tenants decreed by Assistant Collector--The matter went up to member (Judicial), Board of Revenue who confirming the finding of relationship of land lord and tenant and default committed by respondents proceeded to accept the revision petition of respondents, simply on the ground that they promised to pay the share of produce in future and will also cultivate the land--Constitutional petition--Held: When it is established on the record that, if a tenant failed to offer or pay the rent or default in the same rendered himself to be ejected--Objection regarding non maintainability of one suit for recovery of arears and for ejectment at the same time has no force. [P. 305] A
1984 PSC 397 & PLJ 1992 Rev 69, ref.
Administration of Justice--
----If order passed by subordinate Courts are against law or facts, the same cannot sustain even with the consent of the parties, no order against law can be passed--If judgment of the appellate Court was not violative of the principle of administration of justice or arbitrary or fanciful, the same should be preferred--Writ petition allowed.
[P. 305] B & C
Mr. Muhammad Siddique Awan, Advocate for Petitioners.
Syed Husnain Ibrahim Kazmi, Assistant Advocate-General, for Respondents No. 1 to 4.
Chaudhary Hafeez Ullah Yaqoob, Advocate for Respondents No. 5 and 6.
Date of hearing: 5.11.2008.
Order
By filing the instant writ petition, the petitioners have challenged the impugned order dated 14.07.2008, passed by the learned Member (Judicial), Board of Revenue, Punjab at Rawalpindi.
Briefly, the facts of the case are that, on 29.07.2000, the petitioners filed a suit/application for ejectment of Respondents No. 5 and 6 before the Tehsildar/Assistant Collector 1st Class, Fateh Jang on the grounds that, Respondents No. 5 and 6/tenant had not paid share of produce (Hissa Batai). They are not cultivating the land and are using the same for the grazing of their cattle and are damaging the value of the land; further that, the land is required for their personal use. The learned Assistant Collector, after framing issues and recording evidence of the parties, proceeded to decree the suit vide order dated 28.12.2001, in favour of the petitioners and against Respondents No. 5 and 6. Being aggrieved of that, Respondents No. 5 and 6 filed an appeal before the Deputy District Officer (Revenue), Fateh Jang, who vide his order dated 23.10.2003, accepted the appeal and without assigning any reason, proceeded to set-aside the order of the Assistant Collector 1st Class, Fateh Jang. The petitioners filed appeal against Respondents No. 5 and 6 before the Executive District Officer (Revenue), Attock, who vide his order dated 13.06.2007 accepted the appeal and set aside the order dated 23.10.2003, passed by the Deputy District Officer (Revenue) and upheld the order dated 28.12.2001, passed by the Assistant Collector/Tehsildar, Fateh Jang by holding that, relationship of landlord and tenant is established on the record. It is also established that, there is decree of share of produce (Hissa Batai) against Respondents No. 5 and 6; they are the defaulters, thus are, liable to be ejected. The matter went up before the Member (Judicial), Board of Revenue and the learned Member (Judicial), Board of Revenue confirming the finding of relationship of landlord and tenant and default committed by Respondents No. 5 and 6, proceeded to accepted the revision petition of Respondents No. 5 and 6 simply on the ground that, Respondents No. 5 and 6 promised to pay the share of produce in future and will also cultivate the land, hence, this writ petition.
It is argued by the learned counsel for the petitioners that, the impugned order dated 14.07.2008, passed by the learned Member (Judicial), Board of Revenue, suffers from patent illegality and irregularity, which is not based on law, facts and the evidence on the record. The order passed on the undertaking to disadvantage the petitioners without soliciting the consent was not sustainable in law. He has referred to Lucas alias Luci, etc. Vs. S.M. Nasim, Member (Revenue), Board of Revenue Punjab, Lahore and another [1984 PSC 379] and Akbar vs. Faizullah Khan etc. [PLJ 1992 Revenue 71]. Further argued that, two remedies i.e one suit for recovery of Hissa Batai and ejectment on the ground of default are maintainable and was rightly decreed by the Assistant Collector/Tehsildar. Argued that, the documents (Exs, P, 1, P.2 and P. 3) clearly showed the past conduct of Respondents No. 5 and 6 Every time, petitioners had to approach the revenue authorities for the recovery of their share of produce. It is settled law that, law makes no distinction between default and wilful default. Failure on the part of tenant to pay rent/arrears of rent at proper time rendered him liable to eviction. Respondents No. 5 and 6 are chronic/habitual defaulters as observed the learned Member (Judicial), Board of Revenue, thus, were not entitled to any concession, as held in Samar Khan, etc. Vs. Safdar, etc. [NLR 1989 Revenue 66] and Niaz Ahmed etc. vs. Allah Diwaya etc. NLR 1982 Revenue 202]. Further contends that, where finding is not supported by evidence on the record, the same can be disturbed in writ petition. Reference is made to The Commissioner and another vs. Mian Sher Muhammad [1972 SCMR 395], Habib Khan vs. Additional Settlement Commissioner, Multan and others [1980 SCMR 84] and Irshad Ahmad Vs. The Settlement Authority, Punjab [1981 SCMR 758].
On the other hand, learned counsel for the respondents opposed this writ petition by arguing that, the respondents are not defaulters and they had been paying share of produce (Hissa Batai) in time. The land is under cultivation and is not used for any other purpose. The order of ejectment passed by the Assistant Collector/ Tehsildar upheld by the Executive District Officer (Revenue) is against evidence on record. Respondents No. 5 and 6 are defaulters and cannot be ejected. Reference is made to Ali Muhammad and others vs. Deputy Commissioner/District Collector, Vehari and others [1988 CLC 1981 Lahore], Nusrat vs. Assistant Commissioner, Vehari and others [1986 CLC 2347 Lahore] and Hashim Ali and others vs. Mst. Bhirawan and others [2002 YLR 1700 Lahore].
The learned Assistant Advocate-General on behalf of Respondents No. 1 to 4 argued that, if judgment of the trial Court and that of the appellate Court were at variance; the judgment of the appellate Court was not violative of the principle of administration of Justice or arbitrary or fanciful would ordinary be preferred. Reliance is made to Kaniz Bibi vs. Muhammad Ashraf and another [2008 YLR 159 Lahore] and Enayat Sons (Pvt.) Ltd. vs Government of Pakistan through Secretary, Finance and others [2007 SCMR 969].
I have heard learned counsel for the parties, as well as, learned Assistant Advocate-General and perused the orders, passed by the Assistant Collector/Tehsildar, Deputy District Officer (Revenue), Executive District Officer (Revenue) and the Member (Judicial), Board of Revenue. The Assistant Collector/Tehsildar, after framing necessary issues and recording evidence of the parties and receiving the documentary evidence, proceeded to decide the issues against Respondents No. 5 and 6. He had rightly concluded that, as per documents (Exs.P.1 to P.5), the conduct of Respondents No. 5 and 6 was evident and every time, the petitioners had approached to the revenue authorities for the recovery of their share of produce (Hissa Batai) in accordance with law, thus, they rendered themselves to be chronic defaulters as held by the learned Member (Judicial), Board of Revenue; except the order of Deputy District Officer (Revenue), the findings of the Assistant Collector/Tehsildar, Fateh Jang was upheld by the Executive District Officer (Revenue), as well as, by the Member (Judicial) Board of Revenue. There is no denial of relationship of landlord and tenant between the parties. Though a stance was taken in the written-statement that, no default was committed and Respondents No. 5 and 6, as they had been paying share of produce (Hissa Batai) regularly to the petitioners and so was recorded in the revenue record, was belied from Exh.P.1 to Exh. P.3, the previous decrees, passed in favour of the petitioners for the recovery of Hissa Batai. Of course, after passing the decree, Hissa Batai was paid and it was so recorded in the relevant record. Respondents No. 5 and 6 again defaulted in payment of Hissa Batai and present ejectment suit was filed.
There is no evidence on the record to show that, Respondents No. 5 and 6 offered or paid Hissa Batai for the said period to the petitioners. This fact was not contradicted as held by the Executive District Officer (Revenue) or the Member (Judicial), Board of Revenue nor by the Deputy District Officer (Revenue); when it is established on the record that, if a tenant failed to offer or pay the rent or default in the same rendered himself to be ejected. The other objection raised was that, the petitioners filed one suit for recovery of arrears and for ejectment at the same time, hence, maintainable, which has no force. As it has been held in Lucas alias Luci etc. vs. S.M. Nasi, Member (Revenue) Board of Revenue Punjab, Lahore and another 1984 PSC 379] supra:
"if a landlord did not opt to seek remedy of recovery of rent by way of filing suit regarding ejectment of tenant on the ground of default or non-payment of rent; the remedy of suit would not be barred under the law. It is settled law that suit can be filed with joint prayer".
Similarly, it was decided in Sarwar Khan vs. Muhammad Basharat (PLJ 1992 Revenue 69) that, issues for the recovery of rent and arrears can be consolidated and decided by the revenue authority in one suit.
Learned counsel for Respondents No. 5 and 6 has failed to controvert the contentions raised by learned counsel for the petitioners. The law cited by the learned counsel for Respondents No. 5 and 6 is not applicable to the facts and circumstances of the present case. Impugned order passed by the Member (Judicial), Board of Revenue does not appear to be a judicial order. The member (Judicial), Board of Revenue should have maintained order. This offer/promise to pay the rent in future was never put to the petitioners to seek their consent in that regard. The petitioners never consented to the order passed by the Member (Judicial), Board of Revenue. It is settled law that, if order passed by the subordinate Courts are against law or facts, the same cannot be set-aside, even with the consent of the parties, no order against law can be passed. In the present case, the petitioners never consented to the offer or consent given by Respondents No. 5 and 6, thus impugned order passed by the Member (Judicial), Board of Revenue suffers from material illegality.
There is no cavil to the proposition of law raised by the learned Assistant Advocate-General that, if judgment of the appellate Court was not violative of the principle of administration of justice or arbitrary or fanciful, the same should be preferred, where, as in this case, impugned order passed by the Member (Judicial), Board of Revenue is not a judicial order, but, appears to be an order passed in a fanciful manner setting aside the well-worded judicial order, passed by the Assistant Collector/Tehsildar, Fateh Jang upheld by the Executive District Officer (Revenue), Attock.
In this view of the matter, this writ petition is allowed; the impugned order dated 14.07.2008, passed by the Member (Judicial), Board of Revenue is set-aside and the order dated 28.12.2001, passed by the Assistant Collector/Tehsildar, Fateh Jang is upheld, leaving the parties to bear their own costs.
(R.A.) Petition allowed.
PLJ 2010 Lahore 306
[Multan Bench Multan]
Present: Nazeer Ahmad Ghazi, J.
GUL ZAMIN KHAN and another--Petitioners
versus
JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, MIAN CHANNU DISTT. KHANEWAL and 2 others--Respondents
W.P. No. 6509-B of 2008, decided on 21.5.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Power of police to add any section--Registration of second FIR--Case was pending adjudication before the Court and if the complainant produces evidence and makes statement, even trial Court is competent to frame/amend the charge at any time and look into the contentions of the statement of the petitioner--Order passed by Justice of Peace is declared to be illegal and unlawful--Petition was allowed. [P. 307] A
Rana Asif Saeed, Advocate for Petitioner with in Person.
Mr. Javaid Ahmed Khan, Advocate for Respondent No. 3.
Mr. Zulfiqar Ali Sindhu, Addl. P.G. for Respondents.
Date of hearing: 21.5.2009.
Order
The learned counsel for the petitioner submits that Respondent No. 3 has already lodged an FIR No. 91-07 dated 23.3.2007 under Sections 365/420/468/471 P.P.C. registered at P.S. City Mian Channu District Khanewal in which the allegation of abducation of Arslan Ali son of Respondent No. 3 has been levelled and without considering the pendency of the earlier FIR, the Justice of Peach passed the impugned order dated 6.11.2008. Further submits that the police is bent upon to register the case and that the impugned order is illegal and unlawful.
The learned counsel for Respondent No. 3 has very fairly stated that if the complainant would make a statement before the trial Court, the trial Court can amend the charge keeping in view the statements of the witnesses and other documentary evidence and there is no need for registration of second FIR.
Admittedly, earlier FIR No. 91-07 dated 23.3.2007 under Sections 365/420/468/471 P.P.C. was registered at P.S. City Mian Channu District Khanewal and now the petitioner is alleging that the abductee has been bumped of. If it is so, the Police has got every power to add any Section. Even otherwise, the trial of the said case is pending adjudication before the Court and if the complainant produces evidence and makes statement, even the trial Court is competent to frame/amend the charge at any time and look into the contents of the statement of the petitioner, therefore, the impugned order dated 6.11.2007 passed by learned Justice of Peace is declared to be illegal and unlawful.
In this view of the matter, this petition is allowed. The order passed by the Justice of Peace dated 6.11.2008 is set aside.
(R.A.) Petition allowed.
PLJ 2010 Lahore 307
[Multan Bench Multan]
Present: Raja Muhammad Shafqat Khan Abbasi, J.
MUHAMMAD SAEED--Petitioner
versus
DISTRICT JUDGE, VEHARI & 2 others--Respondents
W.P. No. 3308 of 2008, heard on 25.6.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Value of dowry articles was reduced--Suit for recovery of dowry articles valuing Rs. 2,48,000/- was decreed--Appeal was partly allowed--Female in her statement deposed that dowry article valuing Rs. 2,50,000/- had been given to her at time of her marriage, where her father while appearing stated that value of dowry articles was about Rs. 1,14,000/--Held: In view the financial status of the parents of plaintiff, she was entitled to get dowry articles of valuing Rs. 1,00,000/- however rest of her claim was declined--First Appellate Court after reappraising the evidence available on the record proceeded to partly allow the appeal of the petitioner and reduced the amount of dowry articles to Rs. 75,000/- from Rs. 1,00,000/- No illegality or infirmity or misreading of evidence had been pointed out for petitioner calling for interference by High Court--Petition was dismissed. [P. 309] A & B
Rana A.D. Kamran, Advocate for Petitioner.
Rana Asif Saeed, Advocate for Respondent Nos. 2 & 3.
Date of hearing: 25.6.2009.
Judgment
The petitioner, namely, Muhammad Saeed son of Ch. Muhammad Sarwar, by filing this constitutional petition has assailed the judgments and decrees dated 18.3.2008 and 17.5.2008 passed by the learned Judge Family Court, Vehari and the learned Additional District Judge, Vehari, respectively and sought setting aside thereof being illegal, void, ab-initio and without lawful authority.
"For what has been discussed above, the suit of the plaintiff for dowry articles is decreed to the extent of Rs. 1,00,000/- as its alternative price and to the rest of the claim, the suit is dismissed. Decree accordingly."
Being aggrieved of the said judgment and decree, the petitioner/ defendant preferred an appeal, which was partly allowed by the learned Additional District Judge, Vehari vide judgment and decree dated 17.5.2008, whereby value of dowry articles was reduced to Rs. 75,000/-. Hence, the instant petition.
I have heard the learned counsel for the parties at length and have also gone through the record available on the file as well as the impugned judgments and decrees passed by the Courts below.
It has been observed that in order to prove their respective stances, the respondent/plaintiff herself appeared as P.W.1 and got examined her father Mushtaq as P.W.2 and produced in evidence list of dowry articles, whereas the petitioner/defendant in rebuttal appeared himself as D.W.1 and got examined his father Muhammad Sarwar as D.W.2. The respondent/plaintiff in her statement appearing as P.W.1 deposed that dowry articles valuing Rs.2.50,000/- had been given to her at the time of her marriage, whereas her father while appearing as P.W.2 stated that the value of the dowry articles was about
Rs. 1,14,000/-. In rebuttal, the petitioner/defendant and his father while appearing as D.Ws. 1 and 2 admitted that certain articles but denied the giving of gold ornaments, T.V., Fridge, and Washing Machine. The learned trial Judge after evaluating the evidence led by the parties came to the conclusion that keeping in view the financial status of the parents of the respondent/plaintiff, she was entitled to get dowry articles of valuing Rs. 1,00,000/-, however, rest of her claim was declined. The learned Additional District Judge after repraising the evidence available on the record proceeded to partly allow the appeal of the petitioner and reduced the amount of dowry articles to Rs. 75,000/- from Rs.1,00,000/-.
The contentions of the learned counsel for the petitioner that the learned Courts below have misread the evidence available on record and the impugned judgments are liable to set aside as having been passed in a hasty manner, do not carry any weight inasmuch as the conclusions arrived at by the learned Appellate Court are based on sound reasons. No illegality or infirmity or misreading of evidence has been pointed out by the learned counsel for the petitioner calling for interference by this Court in the impugned judgments and decrees.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 309
[Multan Bench Multan]
Present: Parvaiz Ali Chawla, J.
MUHAMMAD SADIQUE KAMAL--Petitioner
versus
JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, KHANEWAL and 6 others--Respondents
W.P. No. 3695 of 2009, decided on 14.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898) Ss. 22-A & 22-B--Constitutional petition--Registration of criminal case--Ex-officio Justice of Peace was required to confine to contents of the petition--Question of--Whether a cognizable offence is made out or not--Determination--SHO without registration of the case entered into investigation into the matter which is unwarranted by law and is in clear violation of esteemed citiation--Held: If he finds that a cognizable offence has been committed he can register a case u/S. 154, Cr.P.C. and proceed strictly in accordance with law--Petition was accepted. [P. 311] A & B
PLD 2007 SC 539, rel.
Rana Asif Saeed, Advocate for Petitioner.
Date of hearing: 14.7.2009.
Order
Notice of Respondent No. 2 has not been received back.
Through this writ petition the petitioner has challenged the order dated 4.05.2009 passed by a learned Addl. Sessions Judge, Khanewal/Ex-officio Justice of the Peace and has prayed for setting aside of the same, with the further prayer to direct Respondent No. 2 to register a criminal case.
As per contents of the writ petition duly supported by an affidavit, the petitioner moved an application to the SHO, P.S. Kacha Khu, District Khanewal for registration of the case but the SHO did not register the same and thereafter the petitioner approached the learned Addl. Sessions Judge/Ex-officio Justice of the Peace, Khanewal Respondent No. 1, under Sections 22-A, 22-B, Cr.P.C. and vide order dated 4.05.2009 the learned Ex-officio Justice of the Peace dismissed the petition filed by the petitioner with the observation that, "In view of report of SHO, the disputed Khal passed from the lands owned by the respondents. SHO also reported that the petitioner did not produce his witnesses in support of his allegations. Report of Naib Tehsildar Khanewal is also attached with the file which reveals that the disputed Khal is situated in Khasra No. 21/25 which is owned by Muhammad Ramzan etc, respondents.
In view of the report of Naib Tehsildar Khanewal and also that of SHO, P.S. Kacha Khu, no further action is required in this petition. The same is hereby dismissed."
I have heard the learned counsel for the petitioner and have perused the record.
A perusal of the order of the learned Additional Sessions Judge/Ex-officio Justice of the Peace reveals that while passing the impugned order he has not acted in accordance with law as it appears that he entered into an inquiry before passing the impugned order. In view of the dictum laid down in the esteemed citation, Muhammad Bashir versus Station House Officer Okara Cantt and others, (PLD 2007 S.C. 539), the learned Ex-officio Justice of the Peace was required to confine himself to the contents of the petition filed before him by the petitioner to find out as to whether a cognizable offence is made out or not. SHO, Police Station Kacha Khu has reported that the petitioner failed to produce before him the witnesses in support of his allegation. It thus implies that the SHO without registration of the case entered into investigation/inquiry into the matter which is unwarranted by law and is in clear violation of the esteemed citation mentioned supra. In the circumstances, the impugned order of the learned Ex-officio Justice of the peace dated 4.5.2009 is set aside and Respondent No. 2 is directed to record the statement of the petitioner and if he finds that a cognizable offence has been committed he may register a case under Section 154 Cr.P.C. and proceed strictly in accordance with law. The petitioner is directed to approach the SHO, Police Station Kacha Khu for recording his statement. The instant order may also be conveyed to Respondent No. 1 through the learned Assistant Advocate-General. Respondent No. 2 shall send a report to Lahore High Court, Multan Bench, Multan through its Deputy Registrar (Judl.) qua the action taken in this matter.
Petition is accepted.
(R.A.) Petition accepted.
PLJ 2010 Lahore 311
Present: Ijaz Ahmed Chaudhry, J.
MIRZA QAYYUM BAIG and another--Petitioners
versus
DILSHAD AHMED KHAN, SENIOR INTELLEGENCE OFFICER, DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION, F.B.R., LAHORE and 3 others--Respondents
W.P. No. 17108 of 2009, decided on 24.2.2010.
Customs Act, 1969 (IV of 1989)--
----Ss. 157, 168(i) & 223--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Quashing of FIR--Registration of subsequent FIR was not only, unlawful but the same has been registered in violation of Board's decision conveyed and in disregard of the provisions of S. 223 of Customs Act--FIR was registered against officials of Customs, who had allegedly facilitated in clearance of goods on lowest duty--After having been arrested he has been sent to judicial lock up on completion of investigation and nothing is to be recovered from his possession as from the bare perusal of both FIRs--Consignment was not passed out but remained available in customs area--Held: Allegations leveled in FIR against the officials of customs department cannot be declared false in a slipshod manner--Factual controversies are involved which cannot be resolved in writ jurisdiction as recording of evidence is not permissible and High Court cannot assume the role of investigating officer--Petition was dismissed. [P. 315] A
Mr. Muhammad Akram Nizami, Advocate for Petitioner.
Mr. Khawar Ikram, Advocate for Respondent Nos. 1 and 2.
Date of hearing: 24.2.2010.
Order
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner seeks quashment of FIR No. 10 registered on 07.09.2009 at Police Station I & P Branch, Directorate General Customs Intelligence, Federal Board of Revenue, Lahore.
Brief facts narrated in the instant petition are that FIR No. 41 has been registered on 07.09.2009 on the complaint of Iftikhar Ali Shah, Inspector Customs Gate (PIA) Shed Air Freight Unit, Lahore with the allegation that secret information was received from the Deputy Collector Customs and Freight Unit Lahore that M/s. Baig Enterprises, House No. 7-D Shiraz Villas Phase No. II, Cavalry Ground, Lahore had imported some consignment from Dubai; they concealed the contents of all the imported articles and gave a false declaration to get cleared the said consignment in an illegal manner. After receipt of information, the Deputy Collector Customs passed an order for non-clearing of the said consignment. At 10:30 a.m. Then an employee of M/s. A A Agency (Pvt) Ltd. produced the imported consignment for clearance along with declaration No. LAFU-HC-11788 dated 05.09.2009, which was found to be false and the articles lying in the said consignment were not found mentioned in the consignment whereupon the clearance of the said custom consignment was stopped. The material was inspected by Farhat Javed and Munir Niazi, Inspectors under the supervision of the complainant. The details of the articles found to be recovered were mentioned therein and total price of the imported goods was Rs.1,76,66,080/-. The material was taken into possession under Section 157-168 (i) Customs Act 1969 and it was also declared that the custom duty is payable to the amount of Rs.21,40,949/-. The petitioner joined the investigation and afterwards it revealed that regarding the same consignment another FIR No. 10 dated 7.9.2009 was got registered by Respondent No. 1 alleging that the officials of the Customs Department were also involved in the said concealment of the goods of the consignment which is liable to be quashed as under the law one cannot be waxed twice for the same occurrence.
On the other hand today CM No. 929 of 2010 has been filed on behalf of Respondent No. 2 with the prayer that FIR No. 41 of 2009 got lodged by MCC may be quashed as the matter being disputed one was referred to the FBR, Islamabad by the Directorate, Intelligence & Investigation-FBR, Lahore as well as by the MCC, Lahore and the Board being the authority under Sections 195 and 223 of the Customs Act, 1969 resolved the matter considering the facts and circumstances of the cases and decided that FIR No. 41 dated 7.9.2009 lodged by MCC, Lahore may be withdrawn.
Report and parawise comments have also been filed on behalf of Respondent No. 3 to the effect that on the same day i.e. 7.9.2009, after interception of the impugned goods by the staff of Respondent No. 3, Respondent No. 1 along with other staff of Respondent No. 2 also came to Allama Iqbal International Airport, Lahore. Since offence had already been detected and cognizance had already been taken by re-examination of the impugned goods by the staff of Respondent No. 3, therefore, Respondent No. 1 got registered FIR No. 10 dated 7.9.2009 with I&P Branch of the office of Respondent No. 2 for the same cause. The said FIR was registered without conducting examination of the impugned goods and even without effecting seizure of the same as required u/S. 168 of the Customs Act, 1969. It was on 16.9.2009 i.e. after 9 days of the registration of FIR No. 10/2009, the staff of Respondent No. 2 moved an application before the Court of Special Judge (Customs, Taxation and Anti Smuggling), Lahore and sought permission to examine the impugned goods and to make inventory of the same. The above request of staff of Respondent No. 2, itself, proved that FIR No. 10/2009 was registered by them without conducting examination of the impugned goods and without seizure of the same as required under Section 168 of the Customs Act, 1969. The above position reveals mala fide of Respondent No. 1 in registration of subsequent FIR No. 10 dated 7.9.2009. Moreover, the FBR had already decided the matter regarding jurisdiction of the staff of Directorate General of Intelligence and Investigation-FBR and the staff of Model Customs Collectorates regarding offences committed in respect of the goods lying at Customs Stations notified in terms of Section 9 of the Customs Act, 1969. In a similar situation, which took place at Multan, the FBR, vide Letter C.No. 1 (20) AS&C/2009 dated 15.4.2009 had ordered as under:
"I am directed to refer to Directorate of Intelligence & Investigation-FBR, Islamabad's Letter C.No. 9(42)DGCI/Cus/ 09/1850 dated 9th April, 2009 and MCC Multan's Letter C.No. FIR/01/2009/I&P/905 dated 10.4.2009 on the subject cited above and to say that the matter has been examined and Board is pleased to order that FIR lodged by DG(I&I)'s office as the former have primary jurisdiction over the port and powers are vested in the appropriate officers of Customs Collectorate under the relevant provisions of law. Necessary measures may be taken to implement the orders of the Board."
and according to Section 223 of the Customs Act, 1969, which reads as under:
"223 Officers of Customs to follow Board's orders, etc. All officers of customs and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board:
Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officer of customs in the exercise of their quasi judicial functions."
The above legal position makes it clear that registration of subsequent FIR No. 10/2009 dated 7.9.2009 by Respondent No. 1, is not only, unlawful but the same has been registered in violation of Board's decision/instruction conveyed vide Letter C.No. 1(20)AS&C/2009 dated 15.4.2009 and in disregard of the provisions of Section 223 of the Customs Act, 1969.
Rs. 1,76,66,080/- while FIR No. 10/2009 was subsequently got registered showing time of incident at 11:45 a.m., which was got registered at 8:00 p.m. in which the property was valuing Rs.40 lac. Further contends that the Directorate of Intelligence could only take the cognizance and get registered the case if the articles were cleared by the Customs Department, but the latter had already taken the legal action and the goods were still lying in the Customs Collectorate area and Intelligence Officer could not investigate the case, therefore, the second FIR should be quashed.
Learned counsel for Customs Intelligence has opposed this petition on the ground that FIR No. 10/2009 may not be quashed as in connivance with the Customs Officers clearance of the goods was made subject to payment of Rs.4,115/- as the custom duty and Customs Officers were also in league with the accused, who got registered FIR No. 41 to save their skin and to give benefit to the petitioners, who had cleared the goods by imposing only an amount of Rs.4,115/- as custom duty while the article which were in the said consignment and the duty was payable to the tune of more than Rs.48,00,000/-; that the registration of second FIR is a correct, which may not be quashed and at the most proceedings in case FIR No. 41/2009 may be stopped.
I have heard the learned counsel for the parties and perused the FIR.
After hearing the learned counsel for the parties and perusal of the documents attached with the writ petition along with parawise comments filed by the respondents, it is straight away noticed that if fact impugned FIR No. 10/2009 has been registered against the officials of the Customs, who had allegedly facilitated in the clearance of the goods on the lowest duty and practically the petitioner has no concern with the said FIR, who has already been booked in case FIR No. 41 of 2009 for evading the customs duty, wherein after having been arrested he has been sent to the judicial lock up on completion of the investigation and nothing is to be recovered from his possession as from the bare perusal of both the FIRs and it is an admitted position that the consignment was not passed out, but the same remained available in the Customs Area. The allegations levelled in the FIR against the officials of Customs Department cannot be declared false in a slipshod manner. The factual controversies are involved, which cannot be resolved in writ jurisdiction as recording of evidence is not permissible and this Court cannot assume the role of the Investigating Officer as has been laid down in Brigd. Imtiaz Ahmad's case (1994 SCMR 2142). For the time being no good ground is made out for quashing of FIR No. 10 of 2009 and this writ petition having no merit is dismissed. It is up to the learned trial Court to decide that out of the two FIRs, which has to be proceeded against and the Courts are not bound by the opinion of the police. This also disposes of CM. No. 929 of 2010.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 316
Present: Hafiz Tariq Nasim, J.
ANJUM PERVAIZ and 2 others--Petitioners
versus
GENERAL MANAGER (OPERATIONS), PAKISTAN RAILWAYS, RAILWAYS HEADQUARTER, LAHORE and 4 others--Respondents
W.P. No. 5291 of 2009, heard on 17.4.2009.
Writ of quo-warranto--
----Scope of--Notification of appointment--Transfer cannot be challenged in writ of quo-warranto--Validity--Writ of quo-warranto can be filed by any citizen of Pakistan and it is held that in case of issuance of writ of quo-warranto the High Court has the ample power to go into the vires notification/appointment of someone. [P. 320] A
Railway Act, 1980--
----S. 4--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment of a non-engineer as Inspector of railways--Notification of appointment of inspector of Railways through the mode of transfer--Notification was issued with approval of the competent authority--Challenge the order with prayer that ministry of Railway be directed to fill the post of Federal Government Inspector of Railways afresh by way of appointing a legally qualified and suitable officer from amongst Civil Engineering Department--Validity--How a non-engineer can hold the post of an engineer when there is consistent practice of appointing inspector of Railway from amongs civil engineers--Practice of railways department--Mode of appointment--Federal Government has since a long time been appointing only civil engineers to inspector of railways but suddenly departed of their own practice by appointing a non-engineer, which is arbitrary, capricious and incomprehensible in view of their own practice which not only defeats the legitimate expectations of civil engineer who were expecting to be appointed to the post of inspector Railways due to their specialization but also offends the principles and rule of consistency--Held: Not only a Court should be in its decisions but an authority especially a Government authority should also be consistent in its practice, procedure and decisions where it has been since a long period of time, as a sudden departure from its own practice creates serious doubt on transparency and fairness of its decision--Appointment of a non-engineer to the post of Inspector of Railway through impugned order as illegal in view of departure from a well settled since long practice--Petition was allowed.
[Pp. 323, 324 & 326] B, F, J & H
Unavailability of Statute--
----Practices and customs have been regarded as a strong and reliable source of law in prehistoric time when statutory law was unavailable and even today are regarded as an essential source of law where statutes are even not expressed on a particular proposition or where there is total unavailability of statute. [P. 323] C
International Law--
----Relite on customs and practices--Customs and practices--International Law till today is heavily relite on customs and practices which have developed through a long terms and usage and where express statutory provisions are not available--Validity--Where customs and practices are being used as a source of law in Pakistan--Held: Field of trade, international trade, customs and tax laws and even Islamic law can be cited where customs and practices are still used as source of law. [Pp. 323 & 324] D, E & F
Legitimate Expectants--
----Any derogation from established practices is often made with ridicule by the Courts and it is often ensured that practices have been settled since a long time should be adhered to by the authorities in order to ensure consistent and ensure that no rights are infringed of legitimate expectants who relied on consistency of following such practices as are developed through usage over a period of time.
[P. 324] G
Railway Act, 1980--
----S. 4--Appointment of Civil Engineer--Nature of post--If right person for a right job is not appointed--Validity--Nature of the post of inspector of railway is also one that necessarily entails appointment of a civil engineer in view of nature of duties and responsibilities attached to the post and therefore departing from the said practice would also do injustice with the post and would also be disadvantageous to the department if the right person for right job is not appointed--Section 4 of Railways Act, even through does not expressly bar appointment of a non-engineer yet it is incomprehensible as to why only civil engineers have been appointed to the post of inspector of Railways since a long time and why such practice is departed from suddenly. [P. 326] I
Mr. Mahmood Ahmad Qazi, Advocate for Petitioners.
Mr. Umar Sharif, Advocate for Respondent Nos. 1, 2 and 4.
Mr. Tahir Latif Sheikh, Advocate for Respondent No. 3.
Raja Abdul Razzaque, Deputy Attorney General for Respondent No. 5.
Date of hearing: 17.4.2009.
Judgment
Through this writ petition validity of the order dated 04.02.2009 is challenged with the prayer that Respondent No. 3 be asked as to under what authority of law he is holding the post of Federal Government Inspector of Railways, Railways Headquarter, Lahore and Respondents No. 2 be directed to fill the post of Federal Government Inspector of Railways afresh by way of appointing a legally qualified and suitable officer from amongst Civil Engineering Department in the public interest, as per previous rules and consistent practice.
(i) The order dated 04.02.2009 is passed by the incompetent authority and on this short ground the same is liable to be set aside.
(ii) The impugned order is violative of Rule 15(a) read with Schedule V(a) Serial No. 23 of the Rules of Business Government of Pakistan.
(iii) The post of Federal Government Inspector of Railways has always been filled from amongst civil engineers because the post involves the engineering work which is reflected from Annex.A/2 and pages 23, 24 and 28 of the writ petition and record reveals that the said post of Federal Government Inspector of Railways is always held by the civil engineers since ages, whereas in the impugned matter this consistent practice was violated.
In support of his contentions, learned counsel has relied on Muhammad Afzal and another vs. Government of Balochistan through Secretary, Services and General Administration Department, Quetta and 4 others (1995 PLC (CS) 567) and Cap. (R) Muhammad Nasim Hijazi vs. Province of Punjab (2000 SCMR 1720).
(i) The present writ is hit by Article 212 of the Constitution of Pakistan as this Court lacks jurisdiction.
(ii) The petitioners are not aggrieved persons, so this writ petition is liable to be dismissed on this ground only.
(iii) According to Section 4 of the Railways Act 1890 any person amongst General Managers of Pakistan Railways can be appointed as Federal Government Inspector of Railways, so while appointing Respondent No. 3 no illegality was committed because the said respondent fulfills the requirement of Section 4 of the Railways Act.
(iv) So far the appointment of Respondent No. 3 is concerned, it was with the blessing of the Prime Minister, however, the appointment order was issued by the Chairman, Pakistan Railways within his competence, so the point of in-competency to issue notification dated 04.02.2009 is neither here nor there.
(v) The impugned notification dated 04.02.2009 cannot be termed as an appointment because Respondent No. 3 is not appointed as Federal Government Inspector of Railways, rather he is transferred and posted as such, so the writ of quo-warranto cannot be issued.
The learned Deputy Attorney General who represents Respondent No. 5 was directed to have instructions from the Establishment Division to confirm whether notification dated 04.02.2009 was issued with the approval of the Prime Minister or not?
Today, the learned Deputy Attorney General appeared in the Court and candidly submits that according to his instructions notification dated 04.02.2009 was issued by the Chairman, Pakistan Railways himself and it was not even in the knowledge of the Prime Minister what to talk of the Prime Minister's blessing/approval.
Learned counsel for Respondent No. 3 submits that Respondent No. 3 being a Grade-21 officer was rightly posted as Federal Government Inspector of Railways as per provisions of Section 4 of the Pakistan Railways Act, so his posting/transfer cannot be challenged through the instant writ petition and the same being a misconceived one be dismissed with special costs.
Arguments heard. Record perused.
First of all, I have to advert to the point of jurisdiction, which is repeatedly argued by the learned counsel for Respondents No. 1, 2 and 4.
This question was dealt with on different occasions by different Courts like the cases of Muhammad Afzal and another vs. Government of Balochistan through Secretary, Services and General Administration Department, Quetta and 4 others (1995 PLC (CS) 567), wherein it is held,--
"The person who had information of illegal appointment would have no other remedy except filing constitutional petition in the nature of quo-warranto under Article 199 of the Constitution and the relief as prayed for could not be refused on the ground of bar of jurisdiction under Article 212 of the Constitution."
"Any person can move the High Court to challenge the unauthorized occupation of a public office. On any such application the Court is not only to see that the incumbent is holding the office under the order of a competent authority but it is to go beyond and see as to whether he is legally qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provisions for appointment."
In the light of specific provisions of Article 199 of the Constitution of Pakistan as well as law laid down supra, it is held that the writ of quo-warranto can be filed by any citizen of Pakistan and it is also held that in case of issuance of writ of quo-warranto the High Court has the ample power to go into the vires of the notification/appointment of someone.
So far the objection of the learned counsel for Respondents Nos. 1, 2 and 4 that notification dated 04.02.2009 is not the notification of appointment, rather it is a notification of transfer/posting and it cannot be challenged in writ of quo-warranto is concerned, suffice it to say that there are three modes of appointment i.e.
(i) initial/direct, (ii) through promotion, (iii) through transfer.
Admittedly, the notification dated 04.02.2009 clearly reveals that Respondent No. 3 is appointed as Federal Government Inspector of Railways through the mode of transfer, so the contentions of the learned counsel for Respondents No. 1, 2 and 4 having no justifiable reasons/no substance are repelled.
So far Section 4 of the Railways Act is concerned, it shall be useful to reproduce the same, as under:--
"4.(1) The Federal Government may appoint one or more suitable persons not below the rank of the General Manager of Railway Administration, to be the Inspectors of Railways.
(2) The duties of an Inspector of Railways shall be--
(a) to inspect railways with a view to determine whether they are fit to be opened for the public carriage of passengers, and to report thereon to the [Federal Government] as required by this Act;
(b) to make such periodical or other inspections of any railway or of any rolling-stock used thereon as the [Federal Government] may direct;
(c) to make inquiry under this Act into the cause of any accident on a railway;
(d) to perform such other duties as are imposed on him by this Act, or any other enactment for the time being in force relating to railways."
Requirement of Section 4 revolves around two points and those are:--
(i) Whether the appointment order was passed by the competent authority or not?
(ii) Whether the post of Federal Government Inspector of Railways involves the duties of engineer or of general nature?
So far the first point is concerned, it is candidly submitted by the learned Deputy Attorney General that he has confirmed from the concerned quarters that notification dated 04.02.2009 was issued without approval of the competent authority i.e. the Prime Minister, meaning thereby that the impugned order was passed by the incompetent Authority, as in the present case the appointment of Grade 21 officer is involved, so according to Rules of Business, Government of Pakistan, the competent authority is the Prime Minister and not anyone else.
When in-competency of the issuing authority of order dated 04.02.2009 is established from the office record, then it shall not be difficult to arrive at the conclusion that impugned notification being issued by an incompetent authority/without having lawful powers is to be set aside without going into the other details and in this respect I can safely rely on a number of judgments passed by the Hon'ble Supreme Court, however, for the present controversy I shall confine to refer the cases of Nasir Saeed vs. WAPDA through its Chairman and another (PLD 1987 SC 421) and House Building Finance Corporation through Managing Director, Karachi and another vs. Inayatullah Shaikh (1999 SCMR 311).
In case of Nasir Saeed vs. WAPDA through its Chairman and another (PLD 1987 SC 421), the officer namely Nasir Saeed was retired from service by the order of Chairman WAPDA and the point raised before the Hon'ble Supreme Court was that the competent authority was the WAPDA Authority and not the Chairman only, so far the Authority is concerned, it comprises of Chairman as well as three Members and in that case the matter was finalized by the Chairman solely. After hearing the parties, the Hon'ble Supreme Court held--
"As the order of retirement was passed in the case of the appellant, not by the Authority but by the Appointing Officer, it suffers from a legal jurisdictional taint. The appeal is, therefore, allowed with costs and the order impugned is declared to be without lawful authority and of no legal effect."
"12. Referring to the last submission of the learned counsel for the appellants that the termination order though signed by the General Manager, was passed by the Managing Director, it may be observed that the High Court has concluded as under:--
"No doubt the Managing Director has been delegated full powers in respect of appointments, promotions, and awarding of punishment including termination/dismissal of all officers except officers in management cadre, but the Managing Director cannot further delegate such powers to the General Manager. The impugned order, dated 20.9.1993 has been passed by General Manager of Respondent No. 1 Corporation. There is no indication in the said order if it was factually passed by the Managing Director, with the General Manager only communicating the same to the petitioner. Vain attempt by learned counsel for the respondent to persuade us to believe so, is fruitless. In this way the impugned order is ultra vires of the powers of the General Manager, as it could be passed only by the Respondent No. 1 Corporation, as per Regulation No. 11 read with Regulation No. 26 (as amended) or at the most by delegates of the Corporation."
Before us also the appellant failed to produce any order of the Managing Director whereby the services of the respondent were ordered to be terminated. The learned counsel for the appellants has solely relied upon para 6 of the comments wherein it was asserted that the order was passed by the Managing Director. However, factually no such order has been produced before us in spite of the above finding of the High Court. The respondent had also been taken in service after the judgment of the High Court in 1994 and some other employees have also been reinducted into service on the basis of the above judgment of the High Court. We are, therefore, not inclined to interfere with the judgment under appeal on the above ground found favour with the High Court.
The appeal is dismissed with no order as to costs."
Thus following the law supra, the impugned order dated 04.02.2009 is declared without lawful authority and is set aside.
In the present case there is another important aspect of the fact which cannot be ignored lightly and that is that according to requirements, the post of Federal Government Inspector of Railways involves the duties of civil engineering nature, whereas Respondent No. 3 is an alien to civil engineer duties being an officer of Traffic Railways.
The record reveals that till the appointment of Respondent No. 3 in the entire history of Railways, this post was held by a civil engineer and this very position is not disputed by the departmental representative or by the learned counsel for Respondents No. 1, 2 and 4. When this undisputed fact is visible from the record, this Court cannot overlook the important aspect that how a non-engineer can hold the post of an engineer particularly when there is a consistent practice of appointing the Federal Government Inspector of Railways from amongst civil engineers.
It is important to note that practices and customs have been regarded as a strong and reliable source of law in prehistoric time when statutory law was unavailable and even today are regarded as an essential source of law where statutes are even not expressed on a particular proposition or where there is total unavailability of statute.
International Law till today is heavily relite on customs and practices which have developed through a long terms and usage and where express statutory provisions are not available. Practices and customs give a fair understanding as to how a particular proposition is to be dealt with keeping in view the long term consistency of following a particular course in a particular set of circumstances which is acceptable and has been accepted as a whole by the society or the concerned quarters which are governed by such customs or practice. To give a few examples where customs and practices are being used as a source of law in Pakistan, the field of trade, international trade, custom and tax laws and even Islamic law can be cited where customs and practices are still used as a source of law. Any derogation from the established practices is often made with ridicule by the Courts and it is often ensured that the practices have been settled since a long time should be adhered to by the authorities in order to ensure consistent and ensure that no rights are infringed of legitimate expectants who relied on the consistency of following such practices as are developed through usage over a period of time.
In the case reported as Nazir Ahmad vs. Pakistan and 11 others (PLD 1970 SC 453), the Hon'ble Supreme Court of Pakistan held,--
"Course followed consistently by them for long period of time--Deviation or departure from construction not permissible.--Where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department."
"Departmental practice--Interpretation that had been consistently followed by department and which had become a long standing practice, had almost acquired force of law--Such practice, could not be lightly departed from--Where departmental practice had followed a particular course in implementation of some rule, whether right or wrong, it would be extremely unfair to make a departure from it after a lapse of many years and thereby disturb rights that have been settled by a long and consistent course of practice."
"The term "law" also includes any custom or usage having the force of law or any law relating to banking or insurance practice and procedure. The Legislature consciously included within the definition of term "law" for the purposes of Chapter 3-A of the Constitution of Pakistan "any custom or usage having the force of law". The term "law" as used in Article 4 of the Constitution has also been used in Article 8 of the Constitution, in contradistinction with any "custom or usage having the force of law" and must, therefore, be given the same limited connotation in Article 4 as well.
Article 203-B(c), Constitution of Pakistan, 1973 provides an inclusive definition of law. On the force of that definition itself any usage having the force of law shall qualify as law. Such a usage may relate to the nation or group as a whole or may relate to practice and procedure of the Court. The former has been included in the definition of law but the latter has been expressly excluded by providing that law includes any custom or usage having the force of law but does not include "any law relating to the procedure of any Court or tribunal". Law here does not mean only the enacted law but includes usage having the force of law. Such usage or law may relate to procedure of Court or to matters not expressly excluded from the jurisdiction of the Court."
"Constant practice is not to be changed in an arbitrary manner-Interpretation that had been constantly acted upon by the Customs Authorities that acquired the force of law as a departmental practice was not to be changed in an arbitrary manner, as it would be extremely unfair to make a departure from the same after a lapse of many years and thereby disturbing the rights that had been acquired and settled by a long and consistent course of practice."
Coming back to the proposition had not the appointment of Respondent No. 3 in derogation to the established practice of the Railways Department/Federal Government is in my mind an arbitrary departure from the existing and well established mode of appointment of the Federal Government Inspector of Railways. The Federal Government has since a long time been appointing only civil engineers to the post of Federal Government Inspector of Railways (as admitted in so many words by the Pakistan Railways in their comments and during the arguments by their representative) and they have now suddenly departed of their own practice by appointing a non-engineer, which is arbitrary, capricious and incomprehensible in view of their own practice which not only defeats the legitimate expectations of the Civil Engineers who were expecting to be appointed to the said post due to their specialization but also offends the principles and rule of consistency. Not only a Court should be in its decisions but an authority especially a Governmental authority should also be consistent in its practice, procedure and decisions where it has been since a long period of time, as a sudden departure from its own practice creates serious doubt on the transparency and fairness of its decisions.
The nature of the post of Inspector of Railways is also one that necessarily entails appointment of a civil engineer in view of the nature of duties and responsibilities attached to the post and therefore departing from the said practice would also do injustice with the post and would also be disadvantageous to the department if the right person for a right job is not appointed. Section 4 of the Railways Act even though does not expressly bar the appointment of a non-engineer yet it is incomprehensible as to why only civil engineers have been appointed to the said post since a long time and why such a practice is departed from suddenly. Had there been departure from said practice on a regular basis then it would be the discretion of the authority to appoint any person, however, practice and procedure for a long time is established by the Government itself by appointing no other person other than a civil engineer to the said post especially in view of its nature.
For the reasons mentioned above, I hold the appointment of a non-engineer to the post of Federal Government Inspector of Railways through the impugned order as illegal in view of a departure from a well settled since long practice.
In arriving this conclusion I can safely rely on another judgment of the Hon'ble Supreme Court reported as Pakistan Tobacco Board and another vs. Tahir Raza and others (2007 SCMR 97). Resultantly, the writ petition is allowed and Respondent No. 5 is directed to treat the post of Federal Government Inspector of Railways as vacant and make arrangement for filling of the same from amongst the Civil Engineers within a period of one month from today, and that too with the approval of competent authority i.e. the Prime Minister.
(R.A.) Petition allowed.
PLJ 2010 Lahore 327
Present: Maulvi Anwarul Haq, J.
QUTAB-UD-DIN--Petitioner
versus
Mst. ZUBAIDA KHATOON and others--Respondents
Civil Revision No. 542 of 2000, heard on 11.6.2009.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Constitution of Pakistan, 1973, Art. 203-D(2)--Decision of Federal Shariat Court--Succession--Provision of law to be repugnant to injunction of Islam has to specify a date on which the judgment is take effect--Appeal against the judgment of Federal Shariat Court was pending before Shariat Appellate Bench of Supreme Court--Preliminary decree be declared to be void--Plaintiffs were not legal heirs--Validity--Children of the pre-deceased son were entitled to receive the share of their father in the estate of deceased--Held: Under Art. 203-D (2) of the Constitution, Federal Shariat Court while declaring any provision of law to be repugnant to injunctions of Islam has to specify a date on which the judgment is to take effect--Such a date specified by Federal Shariat Court in the judgment--Preliminary decree was passed by trial Court on 14.4.1996 and affirmed by Supreme Court 7.11.1994--Held: Decision of FSC shall not be deemed to take effect wherein an appeal has been preferred to Supreme Court before the decision of the appeal--Revision was dismissed. [Pp. 328 & 329] A, B & C
Sh. Naveed Shehryar, Advocate for Petitioner.
Mr. Anwar Akhtar, Advocate for Respondents.
Date of hearing: 11.6.2009.
Judgment
For purposes of this judgment, reference to the pleaded facts in detail would not be necessary. Suffice it to say that Respondents No. 1 to 5 (hereinafter to be referred to as the plaintiffs) filed a suit against the petitioner and the other respondents. According to the plaint, the last male owner of suit land was Zain-ul-Abidin and the plaintiffs are the widow and children of his son Nasir-ud-Din who pre-deceased his father on 27.8.1965 whereas Zain-ul-Abidin died on 28.1.1972. They accordingly claimed the share of the said son of Zain-ul-Abidin in his estate. Only the petitioner contested the suit. The plea was that the plaintiffs are not the legal heirs of Zain-ul-Abidin. Issues were framed. Evidence of the parties was recorded. The plaintiffs were found entitled to 7/52 share in the said house. A preliminary decree was accordingly passed on 14.4.1990. An appeal filed by the petitioner was dismissed by a learned ADJ, Lahore, as barred by time on 1.9.1990. C.R. No. 827/91 was dismissed by this Court on 7.11.1994, thereafter the proceedings were conducted and ultimately the property was sold. On receipt of sale proceeds the shares of the parties in the amount to be disbursed to them were worked out on 23.1.1999. A formal final decree was drawn up on 9.3.1999. Against this final decree the petitioner again filed an appeal. In the course of this appeal, an argument was raised that in view of the judgment of the Federal Shariat Court declaring Section 4 of the Muslim Family Laws Ordinance, 1961 to be repugnant to the Injunctions of Islam and as such the very preliminary decree be declared to be void. The argument was repelled by a learned ADJ, Lahore, dismissing the appeal on 11.3.2000.
Learned counsel for the petitioner has tried to argue with reference to the said judgment of the Federal Shariat Court in the case of Allah Rakha v. Federation of Pakistan and others (PLD 2000 FSC 1) that the preliminary decree being based on a claim which is repugnant to the Injunctions of Islam, the entire proceedings are without jurisdiction. Learned counsel for the plaintiffs-respondents supports the impugned judgment of the learned ADJ.
I have gone through the records. There was no denial that the plaintiffs are the widow and children of Nasir-ud-Din who had pre-deceased his father Zain-ul-Abidin. The succession opened on 28.1.1972 on the death of Zain-ul-Abidin and in terms of Section 4 of the Muslim Family Laws Ordinance 1961, the children of the said pre-deceased son were entitled to receive the share of their father in the estate of Zain-ul-Abidin per stripes.
The preliminary decree as also the final decree is quite in order except that 7/52 share of Nasir-ud-Din in the estate of Zain-ul-Abidin will devolve only on his children and not the widow in terms of Section 4 of the said Ordinance.
Coming to the said contention of the learned counsel, it is admitted at all hands that an appeal against the said judgment of the FSC is pending before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan. Under Article 203-D(2) of the Constitution, the Federal Shariat Court while declaring any provision of law to be repugnant to the Injunctions of Islam has to specify a date on which the judgment is to take effect. Such a date specified by the Federal Shariat Court in the said judgment is 31.3.2000. In the present case, the preliminary decree was passed by the trial Court on 14.4.1990 and finally affirmed by this Court 7.11.1994. The final decree was also passed before the said date. Apart from this under Proviso to the said Article 203-D(2) the decision of the Federal Shariat Court shall not be deemed to take effect wherein an appeal has been preferred to the Supreme Court before the decision of the said appeal.
The civil revision is accordingly dismissed but without any orders as to costs.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 329
[Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
RAZA ALI--Petitioner
versus
PROVINCE OF PUNJAB etc.--Respondents
C.R. No. 868-D of 1996, decided on 14.12.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Registration of sale-deed--Proceedings for review of the mutation--Mutation was cancelled--Vires of mutation was challenged--After failing before revenue Courts the petitioners filed a civil suit before Civil Court--Facts needs be placed in chronological order of two round of litigation--First round of litigation between the parties before revenue hierarchy and second round of litigation before the Civil Court--Validity--First round of litigation started when mutation was attested and sanctioned as a review of mutation while the second round of litigation started when the petitioner filed a civil suit--Held: In the first round of litigation, on revenue side to Board of Revenue--There are concurrent findings of facts of revenue Courts against the petitioner--In the second round of litigation in the Civil Court there are again concurrent findings of facts and law--Both the Courts below have concurred the facts and not accept the prayer of the petitioner--Further held: Petitioner has also failed to prove any illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the Court or any jurisdictional defect in the judgments and decrees nor there is any illegality or material irregularity pointed out to have been committed by trial Court or lower Appellate Court--Revision was dismissed.
[Pp. 336 & 338] A, B & C
Mian Muhammad Jamal, Advocate for Petitioner.
Rao Ubaid Ali Khan, Advocate for Respondents No. 3-A to 3-G.
Mr. Aurangzeb Khan, A.A.G. for Respondents.
Date of hearing: 29.9.2009.
Order
Petitioners Raza Ali etc. through this revision petition under Section 115 CPC seek setting aside the judgment and decree of the learned trial Court dated 03.06.1992 and the judgment and decree of the learned lower appellate Court dated 11.06.1996.
Brief facts of the case are that Ilam-ud-Din, predecessor-in-interest of Defendants/Respondents No. 2-A and 2-B sold his property to Muhammad Ali Shah, predecessor of plaintiffs/petitioners through sale-deed registered on 9.05.1963. The sale-deed was duly incorporated in revenue record vide Mutation No. 4 sanctioned on 03.02.1964. But later on, above said Ilam-ud-Din/vendor initiated proceedings for review of the above said Mutation No. 4 dated 03.02.1964, which was consequently reviewed through Mutation No. 602 dated 23.08.1980, according to which, Mutation No. 4 dated 03.02.1964 was cancelled and the land reverted to Ilam-ud-Din vendor. Muhammad Ali Shah predecessor-in-interest of petitioners challenged the vires of Mutation No. 602 dated 23.08.1980 in Revenue Court but he remained unsuccessful. After getting review of Mutation No. 4 dated 03.02.1964, Ilam-ud-Din sold a portion of land measuring 6-Kanals 16-Marlas to Shah Muhammad, predecessor-in-interest of Respondents No. 3-A to 3-G.
Ilam-ud-Din first of all filed an application before the Tehsildar to review Mutation No. 4 dated 03.02.1964 sanctioned on 03.02.1964 in favour of predecessor of present petitioner, which was accepted and reviewed through Mutation No. 602 dated 23.08.1980. Predecessors of the present petitioners filed appeal against the order dated 23.8.1980 passed by AC-I, Shujabad whereby he sanctioned Mutation No. 602 of village Merali Wahin in favour of respondent regarding Khasra Nos. 66/10; 81/14/1,15/1 measuring 16-Kanals 4-Marlas. Assistant Commissioner/Collector, Shujabad dismissed the appeal of present petitioner filed against sanction of Mutation No. 602 dated 23.08.1980. The order dated 13.04.1981 passed by Assistant Collector, Shujabad was assailed in revision by the present petitioner and the learned Additional Commissioner, Multan vide order dated 30.10.1985 dismissed the revision petition. Then, the present petitioners filed ROR No. 5386 assailing order dated 30.10.1985 passed by Additional Commissioner, Multan, learned Member Board of Revenue vide order dated 22.01.1987 dismissed the revision petition ROR No. 5386 filed by the present petitioners.
After failing before the revenue Courts the present petitioners on 29.02.1988 filed a civil suit before the Senior Civil Judge, Multan, which was dismissed, vide judgment and decree dated 03.06.1992. The judgment and decree passed by the learned Civil Judge, Multan was assailed and on 13.07.1992 appeal was filed before the District Judge, who vide order dated 11.6.1996 dismissed the same, hence, this revision petition filed on 30.07.1996 in which first order was passed by this Court on 01.08.1996 in C.R. No. 868-D-96 which is as under:--
"It is contended by the learned counsel for the petitioner that the vendor is not allowed to challenge the sale on the ground that the sale is void because it is hit by the provisions of M.L.R 64 or M.L.R. 115. Reliance in this regard is placed on Noor Samad vs. Muhammad Aslam and 16 others (1986 MLD 431) and Ghulam Muhammad alias Ghulamoon vs. Maula Dad and 6 others (1980 SCMR 314). Further reliance is placed on A.R. Khan vs. P.N. Boga through legal heir (PLD 1987 S.C. 107) to contend that a party cannot allowed both to approbate and reprobate.
C.M.NO. 1/96
The respondents are restrained from alienating or changing the nature of the suit land in the meanwhile subject to notice.
It is a short matter, therefore, the office is directed to list the main petition for final hearing immediately after summer vacations before any available bench."
The plaintiffs/petitioners alongwith their mother Mst. Hafeez Begum (since deceased) being his successors filed a suit for declaration and for possession claiming to be the owners of the land through Mutation No. 4 dated 03.02.1964 and they also challenged the vires of orders passed in revenue forum. Defendants, Ilam-ud-Din and Shah Muhammad predecessor-in-interest of respondents, submitted written statement on 14.06.1988. Learned trial Court vide order dated 20.06.1988 framed as many as nine issued including that of relief:--
Whether the impugned order passed by Collector dated 13.4.1981, order of Additional Commissioner dated 30.10.1985 and order of Member Board of Revenue dated 22.1.1987 are illegal, void, without lawful authority against facts, as such, inoperative on the rights of plaintiffs?
Whether the suit is not maintainable in its present forum?
Whether the suit has been deliberately wrongly valued for the purposes of Court fee?
Whether the plaintiffs are estopped to file present suit?
Whether the suit is time barred?
Whether the description of said property is incorrect?
Whether the suit is bad for min-joinder of necessary parties?
Whether the defendants are entitled for special costs under Section 35-A CPC?
Relief
One of the plaintiffs, Imtiaz Ali appeared as PW-1 and the plaintiff produced a copy of sale-deed Ex.P. 1. copy of Mutation Ex.P.2, copy of order of Collector Ex.P.3, copy of order of Addl. Commissioner Ex. P.4, copy of Khasra Girdawari Ex.P.5, copy of Jamabandi Ex.P.6 and copy of the order of Member Board of Revenue Ex.P.7. Ilam Din appeared as DW-1, Muhammad Zaman as DW-2.
The petitioners challenged the vires of judgment and decree of learned trial Court in appeal before the learned District Judge, Multan on 13.07.1992. The appeal was ultimately dismissed by learned Addl. District Judge, Shujabad vide judgment and decreed dated 11.06.1996.
Learned counsel for the petitioner submits that impugned judgments and decrees of both the Courts below are against law and facts, against the record, fanciful, arbitrary, result of mis-reading and non-reading of evidence, and are based on misconception of law on the subject, hence, untenable in the eye of law; that the suit land was purchased by Muhammad Ali Shah, predecessor-in-interest of plaintiffs/petitioners through registered sale-deed after payment of valuable consideration. The vendor, Ilam-ud-Din appeared before the Registrar and made statement acknowledging the sale and receipt of consideration, on the basis of said registered sale-deed, Mutation No. 4 dated 03.02.1964 was sanctioned in accordance with law, after completion of sale and transfer of possession, the vendor, Ilam-ud-Din had no right to initiate the proceeding for review of Mutation No. 4 dated 03.02.1964; that Ilam-ud-Din, vendor, if was aggrieved by the sale-deed registered in favour of Muhammad Ali Shah, predecessor-in-interest of petitioners, he himself should have challenged the same in the suit before the competent Court, asserting that fraud had been committed with him, but no such proceedings were initiated by him in any competent forum; that construction was not raised on the suit land due to initiation of litigation on behalf of Ilam-ud-Din. Moverover, Mutation No. 4 dated 03.02.1964 could not be cancelled due to violation of MLR 115 as the said provisions has since been declared repugnant to Injunctions of Islam by the Federal Shariat Court; that mutation, which was sanctioned by the Revenue Authorities, could not be set aside in the same forum. Only the Land Reform Authorities, at the most, could set aside the same if the same was found to be in violation of MLR 115; that if the sale-deed was based on fraud, then Ilam-ud-Din was at liberty to lodge a criminal case against Muhammad Ali Shah, predecessor-in-interest of petitioners but no such proceedings were initiated, which shows that this plea of Ilam-ud-Din was afterthought concocted and based on mala fide and ulterior motive in order to get back the land under the influence of greed; that the execution of sale-deed is admitted by Ilam-ud-Din vendor, when he appeared in the witness box. So, he was estopped by his conduct to get the mutation reviewed; that findings on Issues No. 1 and 2 given by the learned trial Court are incorrect, against law, facts and evidence on record, based on hypothesis and extraneous consideration, whimsical, result of failure of applying judicial mind, hence, are not maintainable and liable to be reversed; that the learned lower appellate Court while passing the impugned judgment did not apply its own independent judicial mind and failed to peruse the record in its true perspective and failed to appreciate the law on the subject, both the Courts below have delivered judgments in slipshod manner; that judgments and decrees of both the Courts below are result of mis-reading and non-reading of evidence on record, non-application of judicial mind, mis-appreciation of law on the subject, both the Courts below have, thus, acted illegally and with material irregularity in the exercise of their jurisdiction while passing the impugned judgments whereby grave miscarriage of justice has taken place.
Learned counsel for respondents submits that mutation regarding property in dispute was attested in favour of father of petitioners of civil revision petition which was duly challenged by way of filing appeal before the Collector, Shujabad on the ground of fraud misrepresentation lack of jurisdiction by the father of the Respondent No. 1-A & 1-B in which he took plea that the wife of Respondent No. 1 of the deceased was got abducted by the father of the revision petitioner and for her return father of the petitioner got some thumb impression on blank paper, which later on transpired that he got the mutation attested in collusion with revenue staff, in fact father of the respondent never sold or exchanged his property to the father of the petitioners, in fact the impugned mutation is a result of fraud misrepresentation was liable to be cancelled, which was assailed in appeal and the said appeal was accepted by the Collector, Shujabad; that father of the petitioner agitated the matter before Additional Commissioner, Revenue, which was dismissed by the same Court. After this father of the petitioner filed a revision petition before the Member Board of Revenue, which also met the same fate; that the present petitioners being a, legal heirs of Muhammad Ali Shah filed a civil suit in the Court of Senior Civil Judge, Multan against the father of present respondent and against Province of the Punjab in which they prayed for declaration of ownership of disputed land on the basis of mutation in favour of father of plaintiffs/petitioners on behalf of the father of present respondents, who challenged the orders of the Revenue Courts with regard to impugned mutation. The suit was dismissed on 03.06.1992, the present petitioner filed an appeal in the Court of District Judge, Multan on 13.07.1992, which was also dismissed by the learned Additional District Judge on 11.06.1996. Present revision petition has been filed in this Court against judgment and decrees of two Courts below; petitioners plea in revision petition is that vendor cannot challenge a mutation on basis of MLR No. 64/115, the reply is that father of the respondents throughout agitated this matter in Revenue Courts and Civil Courts never admitted himself a vendor rather he challenged the alleged sale on plea of fraud misrepresentation lack of jurisdiction being hit by MLR No. 64/115; that petitioner assertion is that all the concern MLR has been declared against the injunction of Islam, in reply it, is humbly submitted that the said declaration has not retrospective effect rather a date has been fixed for its effect; that order under revision is a outcome of concurrent finding and no material irregularity has been committed by both the Courts below and all the judgments/orders are not outcome come of misreading and nonreading of evidence; that revenue Courts are competent to cancel the mutation sanctioned in violation of law, father of the present respondents choosed the proper forum for the cancellation of mutation and it was not incumbent upon him to file the civil suit regarding the controversy father of the respondent put all his pleas before the revenue Courts, hence, he was barred under Section 195, Cr.P.C. to initiate criminal proceedings against the father of the petitioners; that it is not mandatory for learned appellate Court to give finding on each and every issue in all cases in accordance with Order XX, CPC; that the revision petition is based on baseless ground and liable to be dismissed, and same be dismissed with costs throughout.
Arguments heard. Record perused.
This case has a chequered history. The facts needs be placed in chronological order of this case of two round of litigation. First round of litigation between the parties before the revenue hierarchy and second round of litigation before the Civil Court.
First round of litigation started when Mutation No. 602 dated 23.8.1980 was attested and sanctioned as a consequence of review of earlier Mutation No. 4 dated 03.02.1964 sanctioned on 03.02.1964. After subsequent Mutation No. 602 dated 23.08.1980 land in dispute was reverted to Ilam Din/vendor. First of all Muhammad Ali Shah, predecessor-in-interest of the present petitioners/appellants challenged the vires of Mutation No. 602 and filed an appeal before the District Commissioner, Shujabad, passed by ACE whereby he sanctioned Mutation No. 602 Muhammad Ali Shah predecessor of the present petitioner assailed Mutation No. 602 dated 23.8.1998 to village Merale Wali in favour of Ilam Din son of Raheem Bukhsh and dismissed the appeal of Muhammad Ali Shah, predecessor-in-interest of the present petitioner on 13.4.1981 and decision of the Tehsildar is upheld. Muhammad Ali Shah filed Revision Petition No. 444-R-81 before Additional Commissioner, Multan against order dated 13.4.1981. Muhammad Ali Shah assailed order passed on his appeal by Assistant Commissioner/Collector, Shujabad before Rao Shamsher Khan, Additional Commissioner, Multan, who vide order dated 30.10.1985 dismissed the same. Last para of the order dated 30.10.1985 of Additional Commissioner (Consolidation), Multan Division, Multan is as under:
"Muhammad Ali Shah etc. purchased 8 Kanals of land for residential purpose from Ilam Din through registered deed and Mutation No. 4 was attested on 24.8.1963. Later on, the present petitioners exchanged the purchased residential site with an agricultural land. The disputed land was purchased for residential purpose on 24.8.1963 and since then the petitioner have not constructed any house on the disputed land but the same has been cultivated by them. The land was purchased for residential purpose then there was no need to exchange the residential site with the agricultural land. This shows that the petitioners in fact, had purchased land for agricultural purpose to owners in the village. The land was purchased in 1963, there was no justification for not constructing the houses on the purchased residential purpose and not utilized for the same purpose, after lapse of 22 years. It clearly show that the land was purchased is in contravention of MLR 64/116."
This matter went to the Board of Revenue upto that time Muhammad Ali Shah had died. The ROR No. 540-1986 was filed by the predecessor of Muhammad Ali Shah assailing order dated 30.10.1985 passed by Additional Commissioner, Multan by which order Additional Commissioner, Multan has upheld the order passed by Assistant Commissioner/Collector, Shujabad dated 13.04.1981. Member Board of Revenue dismissed ROR vide order dated 22.01.1987 filed by successors/legal heirs of Muhammad Ali Shah.
"It is contended by the learned counsel for the petitioner that the vendor is not allowed to challenge the sale on the ground that the sale is void because it is hit by the provisions of MLR 64 or MLR 115. Reliance in this regard is placed on Noor Samad vs. Muhammad Aslam and 16 others (1986 MLD 431) and Ghulam Muhammad alias Ghulamoon vs. Maula Dad and 6 others (1980 SCMR 314). Further reliance is placed on A.R. Khan vs. P.N. Boga through legal heirs (PLD 1987 S.C. 107) to contend that a party cannot be allowed both to approbate and reprobate."
"I have heard the learned counsel for the parties and perused the impugned orders. The AC-II while reviewing the order on Mutation No. 4 dated 3.2.1964 heard both the parties. This mutation was sanctioned for sank purposes and it is an establish facts that the petitioners have been in possession of the land in dispute from 1963 onwards but no residence has been constructed over land in dispute till today and the land is being used for cultivation purposes. The obvious conclusion is that the land was purchased for agricultural purpose. Therefore, the transaction is violative of MLR 64/115. No irregularity has been established to interfere with the concurrent findings of the lower Courts."
In the second round of litigation in the Civil Court there are again concurrent findings of facts and of law. Petitioners were non-suited by the Civil Judge, Multan. Their appeal was dismissed. Both the Courts below have concurred the facts and did not accept the prayer of the present petitioner:
"The contention of learned counsel for the appellants is devoid of force because no doubt according to judgment passed by Federal Shariat reported in PLD 1989 Federal Shariat Court page 80, Martial Law Regulation was declared repugnant to injunction of Islam but Hon'ble Federal Shariat Court desired that President of Pakistan should take steps to get it amended before 1.1.1990, in the light of discussion in the judgment, failing which the said Para No. 24 shall cease to have effect. It means that this judgment will take effect from the 1st January 1990. The impugned orders were passed by Collector on 13.4.1981, by Addl. Commissioner on 30.10.1985 and by Member Board of Revenue on 22.1.1987 i.e. before the judgment of Hon'ble Federal Shariat Court. In view of these circumstances, there is no illegality or misreading of evidence in the impugned judgment. No exception can be taken to it."
Cases cited by the petitioner do not in any manner advance or support the contentions of the petitioner. In case reported as Manzoor Ahmad vs. S. Taslim Hussain and others (1980 SCMR 314) in this case, the question of sale prior to obtaining proprietary rights of Government land was in issue. Applicability of Section 19 of the Colonization of Government Lands (Punjab) Act, V of 1912 is discussed. In case report as A.R. Khan versus P.N. Boga through Legal Heir (PLD 1987 Supreme Court 107) ratio settled with regard to allotment under settlement laws, in which a compromise was effected between the parties, after some period one of the parties retracted, what was its effect, further question of licensee and licensor is discussed. In case reported as Noor Samad versus Muhammad Aslam and 16 others (1986 MLD 431) first father sold the land in favour of his son who subsequently further sold the same property. Father filed a suit challenging the same. In that situation this Court held he who seeks equity must do equity. Father was not entitled to challenge the sale in favour of respondents in the instant case in whose favour, there are concurrent findings of the learned revenue Courts as well as Civil Courts, who took the stance that mutation was entered fraudulently and in the beginning he assailed the Mutation No. 4 dated 3.2.1964 before Revenue Authority, who was competent to review said mutations. Concurrent findings with regard to facts of the case and law are not challengeable in revisional jurisdiction. Learned Member Board of Revenue in his judgment dated 22.1.1987 held as under:
"I have heard the learned counsel for the parties and perused the impugned orders. The AC-II while reviewing the orders on Mutation No. 565 dated 29.3.1963 heard both the parties. This mutation was sanctioned for sakni purposes and it is an established fact that the petitioners have been in possession of the land in dispute from 1963 onwards but no residence has been constructed over the land in dispute till today and the land is being used for cultivation purposes. The obvious conclusion is that the land was purchased for agricultural purpose. Therefore, the transaction is violation of MLR 64/115. No irregularity has been established to interfere with the concurrent findings of the lower Courts. The revision is accordingly rejected."
The same findings of facts are upheld by the civil Courts as well as by the lower appellate Courts.
The cases cited by the learned counsel for the petitioner do not advance the case of the present petitioners. The concurrent findings of both the Courts below are based on best appraisal of evidence which are not arbitrary, fanciful, are based on cogent reasons. Learned counsel for the petitioner could not point out any non-reading or misreading of evidence in the impugned judgments. Learned counsel for the petitioner has also failed to prove any illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the Court or any jurisdictional defect in the said judgments and decrees nor there is any illegality or material irregularity pointed out to have been committed by the learned trial Court or Lower Appellate Court. I would not like to interfere in the judgments of the Courts below.
In the light of the above discussion, this civil revision is dismissed with no order as to cost.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 338
[Rawalpindi Bench Rawalpindi]
Present: Jamila Jahanoor Aslam, J.
MUHAMMAD TAHIR SHERAZI--Petitioner
versus
A.D.J. RAWALPINDI etc.--Respondents
W.P. Nos. 1811 of 2008 & 476 of 2009, heard on 13.07.2009
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Suit for dissolution of marriage, recovery of dowry articles and maintenance against petitioner--Suit was decreed to extent of dissolution of marriage u/S. 10(4) of Family Courts Act, 1964, prior to framing of issues on other two matters--Appeals were filed by both the parties--Appeal of lady was partly accepted and findings of trial Court had been reversed to extent of recovery of dowry articles which had been dismissed--Quantum of maintenance granted to lady for iddat period as well as for minor had not been modified and appeal of present petitioner was dismissed in toto--Challenge to--Dowry articles were brought after the parties returned from abroad were she proceeded with her husband--Receipts for purchase of dowry articles presented her are of the dates prior to the marriage--Her evidence has too many loopholes in it to make her version credible--Family Court has overlooked very cogent points and passed the judgment without proper reading of the evidence--Held: Observations of Courts below qua quantum of maintenance are agreeable, however order to extent of maintenance allowance for minor is modified and enhancement @ 10% per annum is made--Except for modification is maintenance allowance awarded to minor, both petitioner are without merits--Petition dismissed.
[P. 340] A, B, & C
Ms. Amber Pervez, Advocate for Petitioner.
Sheikh Muhammad Ilyas, Advocate for Respondents.
Date of hearing 13.7.2009.
Judgment
This order shall dispose off Writ Petitions No. 1811 of 2008 and No. 476 of 2009 as the controversy is between the same parties and similar questions law and facts are involved.
Background of the matter is that the Petitioner Mst. Shehnaz Bano in Writ Petition No. 476 of 2009 had filed a suit for dissolution of marriage, recovery of dowry articles and maintenance, which was contested by the present petitioner and was decreed to the extent of dissolution of marriage vide order dated 04.01.2008 under Section 10(4) of the Family Courts Act 1964, prior to framing of issues on the other two matters. The suit for recovery of maintenance and dowry articles was decreed vide judgment/decree dated 31.07.2008 and feeling aggrieved of the same both the parties preferred appeals. The appeal of Mst. Shehnaz Bano was partly accepted vide judgment/decree dated 16.10.2008 whereby the learned Additional District Judge Rawalpindi had reversed the findings of the learned trial Court to the extent of recovery of dowry articles which had been dismissed. However, the quantum of maintenance granted for Iddat period as well as for minor had not been modified and the appeal of present petitioner, Muhammad Tahir Sherizi was dismissed in toto. Being aggrieved of the judgment/decree of the learned A.D.J. Rawalpindi dated 16.10.2008, both the parties have invoked the Constitutional jurisdiction of this Court and impugned the said order. The main contention of the lady Mst. Shehnaz Bano is that Muhammad Tahir Sherazi has not appeared in person in the matter before trial Court. This is refuted by bare perusal of the order sheet dated 04.01.2008 wherein it is categorically mentioned that the defendant is present in person. She also claims her stance such qua dowry articles has not been refuted by the present petitioner and has prayed for setting aside of the judgment/decree dated 16.10.2008 and for restoration of judgment/decree dated 31.07.2008.
On the other hand petitioner in Writ Petition No. 1811 of 2008 has agitated the quantum of maintenance granted to the lady and minor.
After hearing the submission of the Counsel for the parties and thorough reading of the record, I am inclined to agree with the observations of learned A.D.J. Rawalpindi. It is obvious from the record that the lady was not given any dowry article as per her own admission. She claimed that the dowry articles were bought after the parties returned from abroad where she proceeded with her husband. The receipts for purchase of dowry articles presented by her are of the dates prior to the marriage. Her evidence has too many loopholes in it to make her version credible. However, Family Court has overlooked very cogent points and passed the judgment/decree dated 31.07.2008 without proper reading of the evidence. As far as the contention of present petitioner, qua the quantum of maintenance is concerned, I find the same totally without merit. In view of the fact, that he is working in Dubai and is fairly well-off, I am inclined to agree that the observations of the Courts below qua the quantum of maintenance, however I would like to modify the order to the extent of maintenance allowance for the minor and make it with an enhancement @ 10% per annum. In these days of double digit inflation, lower Courts must keep enhancement in mind while passing judgments/decrees on the quantum of maintenance allowance. As the children grow so, do their needs. Keeping enhancement in the maintenance in mind while passing judgments/ decrees, it would cut down on further litigation between the parties. The idea is to make lives of the people easier whereby they don't have to keep returning to the Courts to file new/fresh suits/applications for enhancement.
In sequel of the above discussion, except for the modification to the extent of enhancement @ 10% per annum in the maintenance allowance awarded to the minor, both the petitions are without merits, thus I dismiss the writ petitions.
(Sh.A.S.) Petition dismissed.
PLJ 2010 Lahore 340
[Bahawalpur Bench Bahawalpur]
Present: Abdul Shakoor Paracha, J.
KARIM BAKHSH--Petitioner
versus
MUHAMMAD YUSUF and others--Respondents
Civil Revision No. 245-D of 1993, heard on 19.5.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 120--No title document available in favour of plaintiff-respondent--When right to sue accrued--Question of--Limitation period for filing the suit for declaration of ownership would be governed by Art. 120 of Limitation Act, 1908 providing 6 years from the date when right to sue accrued. [P. 343] A
2003 CLC 1521 & 1998 CLC 2006, rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O.XXXIX, Rr. 2 & 3--Limitation Act, (IX of 1908), Ss. 6 & 8--Limitation--Civil revision--Name of minor was not entered in the mutation--Suit for declaration--Entries in revenue record to that extent are liable to be corrected--Suit for permanent injunction which was dismissed as withdrawn after report of the local commission--Suit was resisted by defendant as being time-barred and non-maintainable--At the time of purchase of land his age was 9/10 years--Effect of Ss. 6 & 8 of Limitation Act, would be to enable a person, like the plaintiff, who has been allegedly deprived from his ownership in the land during his majority, to file a suit within six years of his attaining majority or within the usual period of time ordinarily allowable to a major which ever is longer--Held: No limitation runs regarding the assertion of title of the property which belongs to the minor during the continuance of the majority--Suit was barred by time. [P. 344] B
Mutation--
----Payment of the price--Plaintiff was minor at the time of attestation of mutation--Defendant purchased the suit property from his own pocket and paid the amount--Discharge the onus of proving the fact--At the time of attestation of mutation, plaintiff was minor and the father had already expired--Question of determination--Plaintiff failed to discharge the onus of proving the fact that he had paid the price to extent of half share with petitioner and therefore, is owner to extent of « share in the suit property. [P. 345] C
Tenant--
----Possession was as a tenant--Validity--It is established principle of law that once a tenant is always a tenant. [P. 346] D
Suit for Declaration--
----Possession of the land as tenant on the basis of khasra girdawari--Maintainability of suit--Defendant had filed a suit in 1985, he cannot be declared entitled for the land and the decree for declaration would have not been granted without challenging the mutation in the Court--Trial Court illegality recorded the finding that the suit was maintainable in the present form--Suit of the plaintiff was neither maintainable nor was within time and, therefore, the plaintiff was not entitled for decree--Revision was allowed. [P. 346] E
Mr. Tariq Mehmood Khan, Advocate for Petitioner.
Mr. Bilal Ahmed Qazi, Advocate for Respondents.
Date of hearing: 19.5.2009.
Judgment
Karim Bakhsh son of Ahmad Bakhsh through this Civil Revision Petition under Section 115, CPC, impugns the judgment and decree dated 03.03.1993, passed by the Additional District Judge, Bahawalpur, dismissing the appeal of the petitioner filed against the judgment and decree dated 29.9.1990 decreeing the suit filed by Ashiq Muhammad, predecessor-in-interest of respondents.
Ashiq Muhammad son of Muhammad Bakhsh filed a suit for declaration against his step-brother Karim Bakhsh (petitioner herein) to the extent that he (plaintiff) is owner in possession of 33 kanals 9 marlas which is one half (1/2) of the one third (1/3) of Khewet No. 39/310 Khatooni Nos. 153 to 160 measuring 200 kanals 16 marlas as per jamabandi for the year 1981-82 situated in Chak No. 31/BC, Tehsil and District Bahawalpur and the entries in the Revenue Record to that extent are liable to be corrected. Permanent injunction was also sought to the effect that the defendant be restrained to interfere in the suit land owned and possessed by the plaintiff; the plaintiff averred in the plaint that defendant is his step-brother. The land measuring 66 kanals 18 marlas was purchased by them from one Muhammad Khan son of Shah Muhammad caste Joya vide Mutation No. 10 dated 24.6.1943. As the plaintiff was minor, his name was not entered in the mutation. Anyhow, the parties are in possession of their respective shares since then and getting the produce of the land. Specific Khasra Numbers have been mentioned in the plaint. Barren land was also developed by the plaintiff. Afterwards defendant (petitioner) filed a suit for permanent injunction against the present plaintiff which was dismissed as withdrawn after report of the local commission. The suit was resisted by the defendant as being time-barred and non-maintainable in its present form. On facts, defendant also controverted the plaintiff. He admitted the report of the local commission of the previous suit and asserted that the plaintiff had forcibly got the possession.
The learned trial Court framed necessary issues. The parties led their evidence. In documentary evidence, plaintiff produced Khasra Girdawari Exh.P.1, copy of Mutation No. 10 Exh.P.2 and copy of report of the Commission Exh.P.3. The petitioner-defendant produced Khadim Hussain as DW-1 and he himself appeared as DW-2. The trial Court proceeded to decree the suit vide judgment dated 29.9.1990 by recording the finding on Issues Nos. 2 and 3 in favour of the plaintiff and against the petitioner-defendant. The Court observed that the suit was within time and the plaintiff was entitled for the decree prayed for. The appeal of the petitioner filed against the said judgment and decree was dismissed on 03.03.1993 by the learned Additional District Judge, hence this revision petition.
The learned counsel for the petitioner contends that the land measuring about 200 kanals 16 marlas was owned by Muhammad Khan son of Shah Muhammad, which was transferred in favour of Karim Bakhsh, Zulfiqar and Abdul Aziz in equal shares. Thus Karim Bakhsh petitioner-defendant became owner of 66 kanals 18 marlas of land through Mutation No. 10 attested on 24.6.1943. There was no title document in favour of the plaintiff Ashiq Muhammad. However, on the basis of his possession as tenant he filed the suit for declaration on 29.7.1985 contending that at the time of attestation of the said Mutation No. 10 dated 24.6.1943 Exh.P.2 he was minor of the age about 8/9 years and paid the half of the amount of sale price to Muhammad Khan son of Shah Muhammad and he is in possession of the land since then, but his name could not be entered the mutation, and he sought declaration for correction of the revenue record. Further contends that the suit filed by the respondent was not maintainable as Mutation No. 10 Exh.P.2 was not questioned in the suit; that the suit was badly time barred and judgments and decrees of both the Courts below were result of misreading and non-reading of evidence on the point.
On the other hand, the learned counsel for the respondents contended that the suit of the respondent-plaintiff was within time; that respondent paid the half of the sale price to the vendor; his name being minor was omitted to be mentioned in the Mutation Exh. P.2 attested on 24.6.1943; that the suit for declaration has rightly been decreed and the appeal also has rightly been dismissed and that the concurrent findings on the basis of evidence recorded by the two Courts of competent jurisdiction on the basis of evidence cannot be interfered with by this Court in revisional jurisdiction under Section 115 CPC.
I have heard the arguments of the learned counsel for the parties and perused the record. Admittedly there is no title document available in favour of the plaintiff-respondent. The land measuring 200 kanals 16 marlas was owned by Shah Muhammad, the same was transferred in favour of Karim Bakhsh, Zulfiqar and Abdul Aziz. The limitation period for filing the suit for declaration of ownership would be governed by Article 120 of Limitation Act, 1908 providing 6 years from the date when right to sue accused. Reliance is placed on the cases reported as Mrs. Shamim Akhtar and others vs. Mrs Sultana Mazhar Baqai and 5 others (2003 CLC 1521) and Zardad Khan vs. Mst. Safia Begum (1998 CLC 2006). The learned Additional District Judge has held that, ".... title of the respondent-plaintiff was threatened when the suit for permanent injunction was filed by the petitioner in the year 1985 which was dismissed as withdrawn on 14.7.1985.....this was the point from where limitation started to run." To my mind the above finding of the appellate Courts is not sustainable because in the plaint filed by the plaintiff-respondent he stated that he was minor on 24.6.1943 at the time of attestation of the mutation. In Para-7 of the plaint, the respondent-plaintiff had stated that:
In the plaint he did not say that cause of action accrued to him in 1985 when the suit was filed by the defendant against him. Now, the plaintiff appeared as PW-6 in the Court and stated:
According to the plaintiff, his title/ownership was denied by the defendant from the very beginning of attestation of mutation. He further stated in the Court that at the time of purchase of land his age was 9/10 years, meaning thereby that Ashiq Muhammad attained majority under the law i.e 21 years of age, in 1951-52. The combined effect of Sections 6 and 8 of the Limitation Act (IX of 1908) would be to enable a person, like the plaintiff, who has been allegedly deprived from his ownership in the land during his minority, to file a suit within six years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer. It cannot be said as a general proposition that no limitation runs regarding the assertion of title of the property which belongs to the minor during the continuance of the minority. In the case in hand, it is clear that the Mutation No. 10 Exh.P.2 was attested on 24.6.1943. The plaintiff was required by law to have instituted the suit for declaration within six years of attaining majority till 1957-58 and the suit having been instituted on 11.5.1986 was barred by time. In the case of Nannekhan vs. Ganpati and others (AIR 1954 HYD 45) it was held that, "Section 6 of the Limitation Act relates to the period of limitation for filing suits with respect to persons suffering under a legal disability. It lays down that where a person entitled to institute a suit is a minor at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after disability has ceased as would otherwise have been allowed from the time prescribed therefor. It has to be borne in mind that the provisions of this section are governed and controlled by section 8 of the Limitation Act, which lays down that nothing in Section 6 shall be deemed to extend for more than 3 years from the cessation of the disability the period within which any suit must be instituted." In the case reported as Siraj Din and others vs. Mst. Khurshid Begum and others (2007 SCMR 1992), while interpreting the provisions of Sections 6, 7 and 8 along with Article 113 of the Limitation Act (IX of 1908) relied on the case of Moolchand vs. Muhammad Yousaf (PLD 1994 SC 462), wherein it had been held that, "we are inclined to from view that combined effect of Sections 6 and 8 to enable a person who has been dispossessed during his minority to file a suit within three years of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer. If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years". The honorable Supreme Court in the said referred case of Siraj Din ruled that, "Where limitation had started running against minor and remainder of limitation was less than three years, then suit could be filed within three years without any further extension of time". Therefore findings of both the Courts below on the issue of limitation are reversed as the suit filed by Ashiq Muhammad was barred by limitation.
About payment of the price, the plaintiff in the plaint stated that both the brothers/parties paid the price of the land in equal share. This fact has been denied by the defendant-petitioner. It was asserted that the defendant purchased the suit property from his own pocket and paid the amount. At the time of attestation of mutation the plaintiff was minor and their father had already expired. Zulfiqar, PW.2 and Muhammad Qasim, PW-3 in the witness-box admitted that the amount was paid by the defendant from his own pocket and the plaintiff at the time of attestation of the mutation was minor. Ellahi Bakhsh PW-4 stated that he was not associated at the time of attestation of mutation. He also stated that he was 6/7 years old at the time of mutation. In this view of the matter. I am constrained to hold that the plaintiff failed to discharge the onus of proving the fact that he had paid the price to the extent of half share with the petitioner-defendant and therefore is owner to the extent of 1/2 share in the suit property.
Zulfiqar PW-2 is star witness of the case. The land was also purchased by him to the extent of 1/3rd share through the impugned mutation. He stated that the land through impugned mutation was purchased in the name of three persons i.e he himself, Abdul Aziz and Karim Bakhsh. According to him, the plaintiff-respondent was minor at the time of mutation and his share in the land was 1/6. He stated that he had given half of his land to his brother; Abdul Aziz also had given 1/2 share of land to his brother and accordingly the suit land was given in possession of respondent-plaintiff who is in continuous possession of the same. Asghar Ali, Circle Patwari appeared as PW-1 and tendered Khasra Girdawari since 1954 and confirmed the possession of the plaintiff. Now possession of the plaintiff is as a tenant but the respondent-plaintiff cannot take hot and cold in the same breath. It is established principle of law that once a tenant is always a tenant. Now there is no documentary evidence on the record that PW-2 Zulfiqar Ahmad and Abdul Aziz have given 1/2 share of their land to their brother and some sale-deed or mutation has been sanctioned to this effect.
Simply because the respondent-plaintiff was in possession of the land as tenant since 1954, on the basis of Khasra Girdawari and he had filed a suit in 1985, he cannot be declared entitled for the land and the decree for declaration would have not been granted without challenging the mutation Exh.P-2, attested on 24.6.1943, in the Court. In this view of the matter, the finding on Issue No. 2 was result of misreading and non-reading of the documents and law. The trial Court, illegally recorded the finding on Issue No. 1 also by holding that the suit was maintainable in the present form. Therefore, I hold that the suit of the plaintiff was neither maintainable nor was within time and, therefore, the plaintiff was not entitled for decree as prayed for.
For the reasons discussed above, the Courts below have not only acted with illegality in exercise of their jurisdiction, but also misread the evidence in this case. Therefore, the revision petition is allowed and by setting aside the impugned judgment and decree the suit of the plaintiff-respondent is dismissed. Parties are, however, left to bear their own costs.
(R.A.) Petition allowed.
PLJ 2010 Lahore 346 (DB)
[Bahawalpur Bench Bahawalpur]
Present: Abdul Shakoor Paracha & Abdul Sattar Goraya, JJ.
Mst. ZAINAB (deceased) through L.Rs.--Petitioners
versus
Mst. KUNDAN KHATOON and 5 others--Respondents
Civil Revision No. 993-D of 1994/BWP, heard on 8.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Mutation of inheritance was sanctioned to exclusion of the petitioner--Petitioner being daughter of deceased was entitled to her sharai share but collusively and keeping every thing in dark, mutation of inheritance was sanctioned--Custom of pagwanda--Mutation was got sanctioned quite secretly--Validity--Custom varies from town to town, mohallah to mohallah and street to street but in the instant case, no evidence had been brought on record to establish that the custom of pagwand was existing in the vicinity, where the suit land was situated--Bald assertion in the written statement or the oral evidence, cannot be accepted on the face of document and entries embodied which shows in clear terms that there was no custom existing in the locality. [P. 352] A
Limitation Act, 1908 (IX of 1908)--
----Arts. 120 & 141--Question of limitation--Mutation of inheritance was sanctioned to exclusion of the petitioner--Entitlement of sharia share--Suit for declaration could be filed within period of six years under Art. 141 of Limitation Act--Limitation is 12 years after the initial disposal of the property--Held: Petitioner was admittedly a co-owner of the property--Petitiner is real daughter of the deceased, had been recorded by the Courts below in clear and unambiguous term--When such fact has been established that petitioner is a daughter of the deceased whose succession devolved his son to the exclusion of petitioner daughter, the question of limitation does not arise.
[P. 352] B
Mutation of Inheritance--
----Mutation in itself is not a document of title--Not create any title or ownership--Not necessary for the suitor to seek annulment of the mutation--Petitioner is co-owner in the suit property--Question of limitation--Mutation in itself is not document of title and the entries embodied in the mutation in favour of the person, in whose favour, it has been sanctioned--Burden would shift upon a person who claims that it was a valid transaction entered through the mutation of inheritance--Held: Limitation would not run against her. [P. 353] C
Fraud--
----Transaction was kept concealed--Fraud and collusion--Mutation was the result of fraud and collusion and the whole transaction was kept concealed--Held: Fraud vitiates the most solemn transaction and the superstructure raised upon it shall automatically fall on the ground.
[P. 353] D
PLD 1958 SC 104 & PLD 1975 SC 331, see.
Constituted Attorney--
----Matter of inheritance--No limitation--Petitioner was a pardah nashin lady and simple villager inasmuch as she filed a suit through her son in his capacity as a constituted attorney. [P. 354] F
PLJ 2007 SC 797, ref.
Limitation--
----Suit was withdrawn with permission to file afresh, the limitation would start from the previous proceedings. [P. 354] G
1992 MLD 856 & AIR 1958 Patna 217, rel.
Infringement of Right--
----Cause of action will commence from the date of inheritance--In the case of a pardah nashin lady, stand on different pedestal and would make a departure from the ordinary pedestal and would make a departure from the ordinary law or rule laid down in other case of ordinary nature. [P. 354] H
Succession--
----It is well settled by now that the moment someone dies and owns landed property, the succession of his property automatically opens and the property gets mutated immediately and vests in the heirs and the vesting was not dependant upon any intervention of any act on the part of revenue authority or any other agency. [P. 353] E
PLJ 2007 SC 634, rel.
Limitation--
----Law of limitation is bad law and cannot be appreciated like in the instant case [P. 354] I
Interpretation of Beneficial--
----Beneficial interpretation should be adopted--Victim of the maltreatment and an act of excess on the part of her brother, who got the whole land mutated in his own name for worldly temptations while keeping the pardah nashin lady in dark. [P. 354] J
PLD 1990 SC 1, ref.
Documentary Evidence--
----Mutation of inheritance was sanctioned, to the exclusive of the petitioner--Entitlement to her sharai share--On overall assessment, claim of the petitioner is correct and she is justified in demanding her share from the suit property left by her deceased father--Impugned mutation is a classic example of fraud the transaction on its face value being void from its inception has the vitiative affect. [P. 354] K
Land Revenue Act, 1967 (XVII of 1967)--
----S. 42(7)--Fresh mutation be sanctioned--Illegalities and irregularities in non-suiting on hyper technical reason of limitation--Question of--Courts below committed illegalities and irregularities in non-suiting the petitioner on the hyper technical reason of limitation which in the present state of circumstances and the narration of facts, could not have been attracted in the instant case--Held: No limitation would run against void transaction--Fresh mutation shall be sanctioned u/S. 42(7) of Land Revenue Act, in favour of the petitioner in accordance with her sharai share--Petition was accepted. [P. 355] L
Ch. Muhammad Shafi Meo, Advocate for Petitioners.
Sardar Muhammad Hussain Khan, Advocate for Respondents.
Date of hearing: 8.4.2009.
Judgment
Abdul Sattar Goraya, J.--By means of this revision application, Judgment & decree dated 27.09.1994 passed by the learned Additional District Judge, Liaqatpur and that of dated 19.01.1994 of the Jearned trial Judge had been brought under challenge.
Muhammad Ramzan
Mst. Zainab Allah Wasaya
(Daughter) (son)
It has been asserted in the plaint that the petitioner-plaintiff being daughter of Muhammad Ramzan deceased was entitled to her Sharai share but collusively and keeping everything in dark, mutation of inheritance was sanctioned in favour of Allah Wasaya who gifted the suit land through Mutation No. 1329 dated 09.08.1991 to his sons, who in the plaint were arrayed as Defendants No. 2 to 4. It was averred that Muhammad Ramzan deceased, father of the petitioner, was belonging to Sunni sect and the inheritance ought to have been sanctioned in accordance with Sharia and that the petitioner was entitled to 1/3 share out of the suit land but Allah Wasaya by practicing fraud and adopting clever devices got the land transferred in his own name only. It was stated in the plaint that she was a pardah nashin lady but in order to cover-up the fraud, after making family partition, handed over the possession to the petitioner to the extent of her share. In the end, she claimed a decree of declaration-cum-permanent injunction in her favour.
In the written statement, averments of the plaint were denied and Preliminary Objection was raised that she previously filed a suit on the same cause of action but withdrew it on 28.02.1990. It was pleaded by the contesting defendant that the suit was barred by time and the mutation had been sanctioned on the basis of custom of Pagwanda to the exclusion of the petitioner and it was rightly done so. Divergent pleadings of the parties gave rise to the following issues:--
Whether the plaintiff is entitled to get a share in the suit land as inheritance of his father under Muhammadan Law and Mutation No. 698 sanctioned dated 11.8.1918 regarding land situated at Mouza Dufli Kabeer Khan and Mutation No. 1329 dated 9.8.1981 regarding the land situated at Mouza Dufli Kabeer Khan and registered Tamleek Namma dated 31.8.1981 regarding the land situated at Mouza Umar Wadda Cachal, Tehsil Liaqatpur are collusive, bogus and ineffective on the rights of the plaintiff and liable to be cancelled? OPP
Whether the suit is barred by time? OPD
Whether the suit is not maintainable in its present form? OPD
Whether the plaintiff filed a frivolous and false suit against the defendants and the defendants are entitled to get special cost U/S 35-A of CPC and to what amount? OPD
Relief.
The onus with regard, to Issue No. 1 was proposed upon the petitioner-suitor. While returning finding on Issue No. 1, the learned trial Judge came to the conclusion that Mst. Zainab is daughter of Muhammad Ramzan and her inheritance mutation was sanctioned in the name of Allah Wasaya only, but deferred the finding on the remaining part. Learned trial Judge, on Issue No. 2 held that the suit was barred by limitation and the suit ought to have been instituted within six years from the date of cause of action. Findings with regard to Issue No. 3 were recorded against the defendants. On Issue No. 4, it was observed that since the suit is being dismissed for technical reason, the defendants are not entitled to the special costs. In nutshell, the suit brought by the petitioner-suitor was dismissed. Appeal taken against the Judgment & decree dated 19.01.1994 was dismissed by the Learned Additional District Judge vide Judgment & decree dated 27.01.1994.
Learned counsel for the petitioner argued that the Judgments & decrees passed by both the Courts below are running counter to the law declared by the superior Courts. Bitterly argued that findings on Issue No. 2 are not tenable in law. Petitioner was co-owner and had to be treated equally in possession of the inherited property. It was further pleaded that the petitioner is a simple villager and pardab nashin lady and the mutation which has been sanctioned in her absence, there is no legal basis to sustain the same.
Conversely, Sardar Muhammad Hussain Khan, learned counsel for the respondents argued that the limitation to challenge the mutation of inheritance is six years under Article 120 of the Limitation Act. She earlier brought a suit on the same cause of action but it was withdrawn with leave of the Court to file afresh. Further stated that the mutation of inheritance was rightly sanctioned and the land had been transferred through Tamleek deed in favour of sons of Allah Wasaya-respondent.
I have heard the learned counsel for the parties at considerable length and perused the record with their able assistance.
This is stark reality that Mst. Zainab is daughter of Muhammad Ramzan deceased whose inheritance only devolved upon Allah Wasaya-respondent to the exclusion of the petitioner-daughter. In the mutation sanctioned way back on 11.08.1918 (Exh.P-2), presence of the petitioner has not been shown. Sufficient evidence is available on the record to reach at conclusion that the mutation was sanctioned in her absence.
Abdul Hakeem appeared as PW-1 who stated that he is son of Mst. Zainab and is constituted attorney on her behalf. Zainab is daughter of Ramzan alias Ramzoo. He stated that Allah Wasaya has died and he was brother of his mother. Allah Wasaya got entered the mutation in respect of inheritance of Ramzan but the name of her mother was not shown in the mutation. Mutation was got sanctioned quite secretly. He stated that whatever the share of his mother was, possession to that extent was delivered to her. He stated in unambiguous terms that in their village, the mutations were always sanctioned in accordance with the Shariah. Ghulam Hussain PW-2 also made statement in support of claim of the petitioner and more or less he got recorded the same statement, assimilable to PW-1. He stated that there was no custom in the vicinity.
Allah Diwaya appeared as DW-1 in the witness box. He stated that at the time of sanction of mutation, there was a custom of Pagwand and according to that, mutations were being sanctioned to the exclusion of daughters. Umar Wadda (DW-2) appeared in the witness box and stated that he is unaware, whether or not Mst. Zainab petitioner is entitled to the share of inheritance. He denied the factum of possession with the petitioner.
P.Ws. were put to Lengthy cross-examination, but they did not concede any limb of defendants' version. After closing, oral evidence copy of the order dated 28.02.1990 passed by the Civil Judge (Exh.P-1), Mutation No. 998 (Exh.P-2), Naqal Wajib-ul-Arz 1921-22 (Exh.P-3), copy of Jamabandi 1985-86 (Exh.P-4), Copy of Jamabandi 1982-83 Khata No. 90 (Exh.P-5), copy of Mutation No. 1329 (Exh.P-6), sale-deed (Exh.P-7) Pert Nikah (Exh.P-8), Power of Attorney (Exh.P-9) and Khasra Girdawri from Rabi 1978 to 1992 (Exh. P-10) were tendered in the shape of documentary evidence. On the side of the respondents-defendants, Khasra Girdawri 1975 to 1977 (Exh.D-1), Khasra Girdawri Rabi 1987 to Kharif 1987 (Exh.D-2), Khasra Girdawri Kharif 1987 to Rabi 1989 (Exh.D-3) and Khasra Girdawri from Kharif 1987 to Rabi 1987 & 1983 to 1987, were brought on record as Exh.D-4 & Exh.D-5, respectively. Exh.D-6 is a copy of the plaint; Exh.D-7 is written statement by Allah Wasaya; Exh.D-8 copy of the amended plaint and Exh.D-9 is copy of Khasra Girdawri from Kharif 1986 to Rabi 1992.
Copy of Wajib-ul-Arz Exh.P-3 discernibly shows that there was no custom available in that part of the area where the land in dispute is situated. The law has now been too settled to admit any debate that custom varies from Town to Town. Mohallah to Mohallah and street to street but in the case in hand, no evidence has been brought on the record to establish that the custom of Pagwand was existing in the vicinity, where the suit land was situated. Bald assertion in the written statement or the oral evidence, cannot be accepted on the face of document and entries embodied in Exh.P-3 which shows in clear terms that there was no custom existing in the locality.
The main question in this case required to be settled is of limitation. Under Article 120 of the Limitation Act, the suit for declaration could be filed within period of six years and under Article 141 of the said Act, the limitation is 12 years after the initial disposal of the property. Petitioner was admittedly a co-owner of the property. Findings with regard to the fact that petitioner is real daughter of Muhammad Ramzan-deceased, have been recorded by both the Courts below in clear and unambiguous terms. When this fact has been established that petitioner is a daughter of the deceased whose succession devolved on Allah Wasaya, his son, to the exclusion of petitioner-daughter, the question of limitation does not arise. Insofar as it stands resolved. The apex Court in Ghulam Ali & 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 01) held that it was not necessary for the suitor to seek annulment of the mutation concerned. On the face of this situation that the petitioner is co-owner in the suit property, the limitation would not run against her. Mutation in itself is not a document of title and the entries embodied in the mutation by itself do not create any title or ownership in favour of the person, in whose favour, it has been sanctioned. In such a situation, the burden would shift upon a person who claims that it was a valid transaction entered through the mutation of inheritance.
Petitioner in specific terms pleaded in the plaint that the mutation was the result of fraud and collusion and the whole transaction was kept concealed. It is significant to point out that the fraud vitiates the most solemn transaction and the superstructure raised upon it shall automatically fall on the ground. See Yousaf Ali vs. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104) and The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 Supreme Court 331).
On a question of fact, both the Courts below are not at variance that Mst. Zainab is a real daughter of the deceased-Muhammad Ramzan. It is well settled by now that the moment someone dies and owns landed property, the succession of his property automatically opens and the property gets mutated immediately and vests in the heirs and the said vesting was not dependant upon any intervention of any act on the part of the revenue authority or any other agency. This question came-up for consideration in Mst. Suban vs. Allah Ditta etc. (PLJ 2007 SC 634) wherein it has been held:--
"It is a proposition too well established by now that as soon as someone who owns some property, dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue authorities or any other State Agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the revenue record was maintained only for realization of land revenue and did not, by itself confer any title on anyone. It may also be added that efflux of time did not extinguish any rights in heritance because on the death of an owner of property, all the co-inheritors, immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against, them would start running not from the time of the death of their predecessor-in-interest nor even from the date of mutation, if there be any, but from the date when the right of any such co-sharers/co-inheritors in such land was denied by someone."
I am further fortified in my view by Muhammad Qasim Khan and 6 others vs. Mst. Mehbooba and 6 others (1991 SCMR 515), Mst. Fazal Jan vs. Roshan Din etc. (NLR 1993 Revenue 8) and Rehmatullah and others vs. Saleh Khan and others (PLJ 2007 SC 797). Looked at from whatever angle, the view of the honourable Supreme Court is consistent that in respect of matters of inheritances there is no limitation. On the face of this admitted, fact that the petitioner was a pardah nashin lady and simple villager inasmuch as she filed a suit through her son in his capacity as a constituted attorney.
Learned counsel for the respondents laid much stress on the point that once the suit has been withdrawn with permission to file afresh, the limitation would start from the previous proceedings while relying on Muhammad Yousaf and another vs. Additional District Judge, Attock and others (1992 MLD 856) and Raj Behari Singh and another vs. Chandrika Singh and others (AIR 1958 PATNA 217). No doubt that infringement of a right, happens at a particular time, the cause of action will commence from the date. In none of the cases cited at the bar the issue arose out of the case of inheritance. These matters, in fact, in the case of a pardah nashin lady stand on different pedestal and would make a departure from the ordinary law or the rule laid down in the other cases of ordinary nature. According to the view taken in AIR 1929 Madrass Page 10, the law of limitation is bad law and cannot be appreciated in the cases like the one in hand. Beneficial interpretation should be adopted. Petitioner, in fact, fell victim of the maltreatment and an act of excess on the part of her brother, who got the whole land mutated in his own name for worldly temptations while keeping, the pardah nashin lady in dark. In such cases, PLD 1990 Supreme Court 01, supra, is complete answer to the proposition.
In this case whole evidence has been recorded and sufficient documentary evidence has been brought on the record by both the parties. File of the case is fully packed one. On overall assessment, claim of the petitioner is correct and she is justified in demanding her share from the suit property left by her deceased father Muhammad Ramzan. Allah Wasaya-respondent, by adopting clever devices, has been keeping the petitioner in dark and there is overwhelming evidence available on the record to justify this conclusion arrived at by me. The impugned mutation sanctioned on 11.8.1918 is a classic example of fraud and the transaction on its face value being void from its inception has the vitiative affect.
For what has been stated above, I have come to the inescapable conclusion that both the Courts below committed illegalities and irregularities in non-suiting the petitioner on the hyper-technical reason of limitation which in the present state of circumstances and the narration of facts, could not have been attracted in this case. No limitation would run against void transaction. Consequently, the impugned Judgment & decree dated 27.09.1994 passed by the Learned Additional District Judge and that of the trial Judge dated 19.01.1994, are set-aside and suit of the petitioner-plaintiff is decreed in the terms prayed for. Fresh mutation, shall be sanctioned under sub-section (7) of Section 42 of the Land Revenue Act in favour of the petitioner in accordance with her Sharai share. The revision petition is accepted with costs throughout.
(R.A.) Petition accepted.
PLJ 2010 Lahore 355
Present: Syed Mansoor Ali Shah, J.
Dr. SHAMSHAD HUSSAIN SYED, CHIEF PHYSICIAN, LAHORE--Petitioner
versus
DISTRICT CONSUMER COURT, LAHORE and another--Respondents
W.P. No. 24729 of 2009, decided on 18.2.2010.
Punjab Consumer Protection Act, 2005--
----Ss. 2(c), 2(k), 25 & 35--Scope of--Complaint against diagnostic centre--Jurisdiction of Consumer Court--Services rendered by petitioner were faulty and defective as diagnostic centre--Petitioner filed an application before Consumer Court--Application was dismissed--Application for appointment of Medical Board before Consumer Court from an impartial expert opinion on the status of Anti HCV was allowed--Challenge to--Question of jurisdiction--License issued to diagnostic centre to carry out exclusive pre-recruitment tests for persons visiting or being recruited for employment to GCC Countries--Petitioner/Medical Centre recorded that customer's Anti HCV was Reactive--Declared unfit to travel to GCC states--Validity--Customer is a consumer and the petitioner/doctor rendered services to the patient--Internal arrangement between the petitioner and GCC states did not in any way affect the jurisdiction of the Consumer Court--Petitioner had availed medical services after paying consideration and is, therefore, a Consumer under the Act and Consumer Court had the jurisdiction to try the complaint of petitioner/medical centre--Order on merit and had found the order to be in compliance with the provisions of Punjab Consumer Protection Act, 2005--Consumer Court has jurisdiction to entertain the instant complaint--Petition was dismissed. [P. 359] A, B & C
Mr. Rizwan Mushtaq, Advocate for Petitioner.
Mr. Muhammad Arshad Baig, Advocate assisted by Mr. Shahid Mahmood Aleem, Advocate for Respondent No. 2.
Date of hearing: 18.2.2010.
Order
Brief facts are that Respondent No. 2 filed a complaint against the petitioner under Section 25 of the Punjab Consumer Protection Act, 2005 complaining that the services rendered by the petitioner to Respondent No. 2 were faulty and defective as the diagnostic centre of the petitioner, namely, Canal View Diagnostic Centre issued a wrong medical report dated 24.2.2009 recording that the Anti HCV of the petitioner was Reactive.
Thereafter, the petitioner filed an application under Section 35 of the Punjab Consumer Protection Act, 2005 (`Act') before the Consumer Court submitting that the complaint of Respondent No. 2 is vexatious and frivolous. The said application was dismissed vide order dated 26.11.2009. Thereafter, Respondent No. 2 filed an application for appointment of Medical Board/Pathologist before the Consumer Court from an impartial expert opinion/test on the status of his Anti HCV. The said application was allowed vide impugned order dated 17.12.2009 which has been impugned in this petition.
The sole contention raised by the petitioner is that the Consumer Court has no jurisdiction to entertain the present matter because Respondent No. 2 is not a "Customer" under Section 2(c) of the Punjab Consumer Protection Act, 2005. He argued that the petitioner's Canal View Diagnostic Centre is a centre licensed by the Executive Board of the Health Minister's Council for GCC States and carries out pre-recruitment medical tests for persons desirous of visiting/or seeking employment in GCC States and, therefore, does not offer any independent medical service.
Mainstay of the argument of the petitioner was that as he is rendering these medical services under license for a specific purpose of recruitment to GCC States, he is not offering any, independent medical services to the public and Respondent No. 2 is not a walk in customer but a candidate who approached the petitioner as a part of his recruitment procedure and, therefore, is not a "Consumer".
On the other hand, the counsel for the respondent submitted that irrespective of the internal arrangement between the petitioner's Diagnostic Centre and the GCC States, Respondent No. 2 approached the petitioner, who conducted his medical test and issued a medical report, which is signed by the petitioner, dated 24.2.2009 wherein it has been shown that the Anti HCV is Reactive (which in ordinary terms means that the petitioner has Hepatitis C). He further submits that Respondent No. 2 paid the fee (consideration) for obtaining the said medical report and, therefore, under the Punjab Consumer Protection Act, 2005, Respondent No. 2 is a customer and, therefore, the Consumer Court has jurisdiction to entertain the complaint in question.
Arguments heard. Record perused.
The license issued to the petitioner's Diagnostic Centre to carry out exclusive pre-recruitment tests for persons visiting or being recruited for employment to the GCC Countries is an internal arrangement of the petitioner and GCC States. As far as the instant matter is concerned, Respondent No. 2 approached the petitioner for a medical test. The respondent paid a fee and was issued a medical report signed by the petitioner (the counsel points out that the report was not directly issued to Respondent No. 2 but was sent to the Secretariat of GCC Countries). As a result of the medical report, wherein it was recorded that Respondent No. 2's Anti HCV was Reactive, Respondent No. 2 was declared unfit to travel to GCC States. It is useful to mention that Anti HCV is an antibody to the hepatitis C Virus. Its presence in the blood is indicative of an active or chronic Hepatitis C infection (source: www.answers.com).
In order to decide if Respondent No. 1 was a customer, it is important to understand the scope of the Punjab Consumer Protection Act, 2005. Preamble to the Act states:--
"Preamble. Whereas, it is expedient to provide for protection and promotion of the rights and interest of the consumers, speedy redress of consumer complaints and for matters connected therewith."
Indian Consumer Protection Act, 1986 has a similar preamble which states:--
"An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith."
"According to the preamble, which can provide useful assistance to ascertain the legislative intention of the Act, the Act was enacted, to provide for the protection of the interest of consumers. Use of the word protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control the otherwise plain meaning of a provision. The Act meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. The importance of the Act lies in promoting welfare of the society by enabling the Consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as,a network of rackets' or a society in which producers have secured power to rob the rest and the might or public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The legislature has taken precaution not only to define complaint',Complainant', consumer' but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in clause (r) and even to definedefect' and `deficiency' by clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in the commercial sense, as a purchaser of goods and in the larger sense user of services. It is a milestone in history of socio-economic legislation and is directed towards achieving public benefit." (Reliance is placed on Lucknow
Development Authority v. M.K. Gupta (AIR 1994 SC 787).
In Charan Singh v. Healing Touch Hospital (AIR 2000 SC 3138), the Supreme Court of India held:
"The Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial.
(c) "Consumer" means a person or entity who--
(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or
(ii) hires any services for a consideration and includes any beneficiary of such services," (emphasis supplied).
"services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include--
(i) the rendering of any service under a contract service;
(ii) the rendering of non-professional services like astrology or palmistry; or
(iii) a service, the essence of which is to deliver judgment by a Court of law or arbitrator."
(emphasis supplied)
It is, therefore, clear that Respondent No. 2 is a consumer and the petitioner rendered services to the said respondent. The internal arrangement between the petitioner and the GCC States does not in any way affect the jurisdiction of the Consumer Court. The petitioner has availed medical services after paying consideration and is, therefore, a Consumer under the Act and the Consumer Court has the jurisdiction to try the complaint of Respondent No. 2.
I have also reviewed the impugned order on merit and have found the said order to be in compliance with the provisions of the Punjab Consumer Protection Act, 2005.
As the sole ground agitated before this Court was regarding jurisdiction, it is held that the Consumer Court has jurisdiction to entertain the instant complaint. The instant petition, therefore, has no merits and is, therefore, dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 360 [Multan Bench Multan]
Present: Sardar Tariq Masood, J.
KHUDA BAKHSH--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, D.G. KHAN and 3 others--Respondents
W.P. No. 6801 of 2009, decided on 5.10.2009.
Constitution of Pakistan, 1973--
----Art. 199--Police Order, 2002, S. 115(c) & (d)--Pakistan Penal Code, (XLV of 1860), S. 201--Constitutional petition--Non-cognizable offence--Sought issuance of writ to set aside order passed regarding registration of the case against the petitioner and declaring illegal, without jurisdiction--Facts were found doubtful, as false and finding was confirmed by SHO--Prepared the cancellation report and produce before the Magistrate--Validity--Offence u/S. 115(c) & (d) of Police Order and u/S. 201, PPC were non-cognizable and Justice of Peace fell in error in passing the impugned order and consequently, while accepting Constitutional petition the impugned order was declared to be without lawful authority and of no legal effect. [P. 362] A
2008 PCr.LJ 1358, rel.
Sheikh Abdul Samad, Advocate for Petitioner.
Date of hearing: 5.10.2009.
Order
Khuda Bakhsh son of Qadir Bakhsh petitioner through this constitution petition u/A. 199 of the Islamic Republic of Pakistan, 1973 seeks issuance of writ to set aside the order dated 15.9.2009 passed by the learned Additional Sessions Judge, D.G.Khan regarding registration of case against the petitioner and declaring the some as illegal, without jurisdiction and contrary to law.
The brief facts giving rise to the filing of this writ petition are that Respondent No. 4 Muhammad Rafique lodged FIR. No. 234/2001 dated 9.7.2009 under Sections 467, 468, 471 PPC at Police Station City D.G Khan by the orders of the learned ASJ, D.G. Khan/Respondent No. 1.
The investigation of the above said case was entrusted to the petitioner who was an ASI posted at P.S. City D.G. Khan. During the investigation, the facts of the aforesaid FIR were found doubtful vide case Diary No. 2 dated 13.7.2009.
Thereafter the petitioner was transferred and investigation of the aforementioned case was entrusted to Khadim Hussain who also found the facts of the said FIR as false and finding was confirmed by Azhar Hussain Sangi, SHO on 4.8.2009. Said investigation was further confirmed by Tanvir Malik DSP/SDPO D.G. Khan on 5.8.2009 and he asked Khadim Hussain, S.I. to prepare the cancellation report and produce the same before the llaqa Magistrate.
Thereafter Respondent No. 4 moved an application before the learned ASJ, DG Khan, Respondent No. 1 for taking action against the petitioner as well as rest of the accused of case FIR No. 234-09 in which the learned ASJ directed the SHO/Respondent No. 3 to register a case against the petitioner under Section 201 PPC read with Section 155(c) of the Police Order, 2002 vide order dated 15.9.2009.
On 28.9.2009 when the matter came up for hearing notice was issued to Respondents No. 2 to 4 and operation was suspended by this Court.
Learned counsel for the petitioner contended that offence under Section 155(c) of the Police Order 2002 and Section 201 PPC are non-cognizable, hence, no FIR can be registered against the petitioner in a non-cognizable offence and the order for registration of the case against the petitioner in a non-cognizable offence is illegal, without jurisdiction and is liable to be set aside. Learned counsel for the petitioner has relied upon the case of Muhammad Zubair Malik Vs. S.H.O. and 5 others (2008 PCr.LJ 1358).
Heard.
Section 154 of Cr.P.C. deals with cognizable offences, whereas, Section 155 Cr.P.C. deals with the non-cognizable offense which reads as under:
"When information is given to an officer-in-charge of a Police-Station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate."
So, it is clear that instead of taking cognizance in a non-cognizable offence, only entries are made in the Roznamcha waqiati and the I.O. can not investigate the case at all without the direction of the Magistrate.
"Section 155, Cr.P.C. provides that when an application is received by the Incharge of the Police Station as to the commission of non-cognizable offence, he should make entries in a book (Roznamcha) maintained for the purpose and without any investigation, shall refer the matter to the Magistrate for orders and after obtaining, appropriate orders from him, he shall proceed in accordance with sub-section (3) of Section 155 Cr.P.C. In the instant case the application was submitted to the S.H.O., copy of the same was also submitted to the D.P.O. of the District but no action was taken. Finally application under Section 22-A and 22-B., Cr. P.C. was moved seeking direction in the name of concerned S.H.O. to take appropriate action in accordance with law. The learned Additional Sessions Judge dismissed the application simply on the ground that no order for registration of case can be passed by him with regard an offence, which is non-cognizable. The learned Additional Sessions Judge has failed to apply his judicial mind to the legal proposition. Obviously no order for registration of case could be passed but he should have directed the S.H.O. concerned to receive the application, entertain the same in the Roznamcha and thereafter under sub-section (2) of Section 155, Cr. P.C. apply to the Magistrate seeking permission to investigate the matter and proceed strictly in accordance under subsection (3) of Section 155, Cr. P.C."
No order as to costs in the facts and circumstances of this case.
(R.A.) Petition accepted.
PLJ 2010 Lahore 362 (DB)
Present: Nasir Saeed Sheikh and Mamoon Rashid Sheikh, JJ.
Lt. Col. Haji SHUJA-UD-DIN AHMAD (deceased) through Legal Representatives and 2 others--Petitioners
versus
BORDER AREA COMMITTEE through its Chairman Lahore and others--Respondents
W.P. No. 71/R of 2009, decided on 26.3.2010.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--To extent of declaring the allotment of land as bogus and fictitious--Sought for correction of revenue entries--Original allotment was cancelled on the ground that cost against the allotment had not been deposited--Petitioner was allotted land in two villages under Border Area Scheme by GHQ--Application was made before Border Area Committee for correction of revenue entries--Allotment was missed in revenue record--Land was exchanged--Validity--All sales/exchange were effected without obtaining NOC from GHQ Border Area Committee--Allotment in favour of second allottee were not found in Register RLB 11 of Border Area Committee nor their allotment letters existed in record--Held: Allotment of original allottee was first cancelled in the year 2004 when his daughter moved an application for correction of revenue entries which did not correspond with original allotted area--Border Area Committee cancelled the original allotment on the ground that the first allottee had not paid the cost of allotted land--Orders for cancelling the allotment of original allottee by B.A.C. as illegal and without any lawful authority as the same are not based on any lawful material--Both orders to extent were declared to be passed without any lawful authority and were of no legal effect--Petition was accepted. [Pp. 366 & 367] A & B
M/s. Ejaz Ahmad Janjua and Sh. Muhammad Hanif, Advocates for Petitioners.
Mr. S.M. Masud, Advocate for Respondents Nos. 13 & 18 & 26.
Mr. Aamir Zahoor Chohan, Advocate for Respondent No. 1/Boarder Area Committee.
Date of hearing: 16.3.2010.
Judgment
Nasir Saeed Sheikh, J.--This order shall dispose of Writ Petitions No. 58/R of 2008, 177/R of 2008, 178/R of 2008 and 71/R of 2009.
a. Mauza Jalloke, Tehsil Kasur 220-K 5-M
b. Mauza Pira Khana, Tehsil Kasur. 209-K 1-M
Total land: 429-Kanals 6-Marlas.
The allottee Lt. Col. Haji Shuja ud Din Ahmad is stated to have died in the year 1986. An application was made by his daughter on 28.04.2001 before the Border Area Committee for correction of the revenue entries with respect to the allotment made in favour of her father Lt. Col. Haji Shuja ud Din Ahmad contending that only 86-Kanals 13-Marlas area is reflected in the revenue record whereas the remaining allotted land measuring 342-Kanals 15-Marlas is missing in the revenue record. Upon this application, the Border Area Committee held an inquiry and cancelled the allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad on the ground that the cost against the allotment has not been deposited by the said allottee or his legal heirs.
The legal heirs of Lt. Col. Haji Shuja ud Din Ahmad instituted Writ Petition No. 58/R of 2008 against the order dated 21.04.2004 passed by the Border Area Committee cancelling the allotment of Lt. Col. Haji Shuja ud Din Ahmad on the ground that they were not heard before passing the order dated 21.04.2004 by the Border Area Committee.
The Border Area Committee in the first impugned order dated 21.04.2004 further observed that the land measuring 220-Kanals 5-Marlas situated in village Jalloke shown in the revenue record was further mutated to one Sep Ahmad Khan who in return sold the said land to Mazhar ul Haq petitioner of W.P. No. 177/R of 2008 through Mutation No. 222 dated 02.12.1981. The land measuring 209-Kanals 4-Marlas allotted to Lt. Col. Haji Shuja ud Din Ahmad in village Pira Khana was later on mutated in the name of one Surakhru Khan to the extent of 123-Kanals 6-Marlas. The said Surakhru Khan is stated to have exchanged the said land with the land of one Ghulam Muhammad and the said Ghulam Muhammad stated to have sold the land to one Sher Muhammad. All these sales/exchange were effected without obtaining NOC from GHQ/Border Area Committee. The allotment in favour of Sep Ahmad Khan and Surakhru Khan were not found in Register RLB II of the Border Area Committee nor their allotment letters existed in the record, therefore, these were held to be bogus and were cancelled through the order dated 21.04.2004.
The vendees of both second allottees Sep Ahmad Khan as well as Surakhru Khan instituted Writ Petition No. 130/R of 2004 and 131/R of 2004 against the order dated 21.04.2004 in which writ petitions the order dated 21.04.2004 was declared to be illegal and without lawful authority as having been passed without hearing the subsequent vendees/writ petitioners vide order dated 29.10.2007. The case was remanded back to the Border Area Committee and was taken up again by the Border Area Committee/respondent and vide order dated 01.12.2008, the Border Area Committee again passed similar order holding the allotment of Lt. Col. Haji Shuja ud Din Ahmad as cancelled on the ground of non-payment of cost whereas the allotment in favour of the subsequent allottees Sep Ahmad Khan and Surakhru Khan were again held to be not genuine. The Border Area Committee also declared the allotment of second allottees Sep Ahmad Khan and Surakhru Khan as liable to be cancelled also due to the fact that subsequent sales/exchange by the said allottees were made without obtaining NOC from GHQ/ Border Area Committee.
The legal heirs of Lt. Col. Haji Shuja ud Din Ahmad have instituted Writ Petition No. 71/R of 2009 against the order dated 01.12.2008 whereas the vendees from Sep Ahmad instituted Writ Petition No. 177/R of 2008 and Muhammad Ilyas vendee from subsequent transferee of allottee Surakhru Khan instituted Writ Petition No. 178/R 2008 against the order dated 01.12.2008. All the above mentioned writ petitions have been heard together and are disposed of through the present order.
It is contended by the learned counsel for the petitioner of Writ Petition No. 71/R of 2009 that admittedly the first allotment exists in favour of Lt. Col. Haji Shuja ud Din Ahmad through an allotment letter dated 18.11.1961 which fact is supported by the record of Border Area Committee and is subsequently incorporated in the revenue record. The learned counsel argued that the daughter of original allottee Lt. Col. Haji Shuja ud Din Ahmad made an application before Border Area Committee contending that as only a portion of the original allotted land was duly entered in the revenue record whereas the remaining land measuring 342 Kanals 15-Marlas is not incorporated in the revenue record, therefore, necessary orders for correcting the revenue entries in accordance with the original allotment in favour of Lt. Col. Haji Shuja ud Din Ahmad be passed. The learned counsel for the petitioners further argued that on this application, the Border Area Committee passed an order dated 21.04.2004 cancelling the entire allotment of land in favour of Lt. Col. Haji Shuja ud Din Ahmad. Learned counsel argued that firstly the order dated 21.04.2004 has been passed without any evidence and secondly this order was set aside by the Hon'ble High Court after hearing of Writ Petitions No. 130/R of 2004 and 131/R of 2004 vide order dated 29.10.2007. It is thus argued that the order passed by the Border Area Committee dated 01.12.2008 is absolutely illegal and without any lawful authority.
The learned counsel for the Border Area Committee/ respondents has argued that it was the duty of the original allottee to have deposited the cost of allotted land and that having been not done, the Border Area Committee was justified in cancelling the allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad.
The learned counsel for the petitioners in Writ Petitions No. 177/R of 2008 and 178/R of 2008 argued that the allotment in favour of the petitioners of the said writ petitions was incorrectly as well as illegally held to be fraudulent and bogus and that the predecessor of vendees of the original allottee Sep Ahmad Khan and Surakhru Khan were lawfully allotted the land by the Border Area Committee.
The learned counsel for the respondents controverted the arguments of the learned counsel for the petitioners in Writ Petition Nos. 177/R of 2008 and 178/R of 2008 by arguing that admittedly, the land in question stood allotted to Lt. Col. Haji Shuja ud Din Ahmad in year 1961 whereas the petitioners of Writ Petitions No. 177/R of 2008 claimed the allotment in favour of their predecessor Sep Ahmad Khan on 04.05.1964 through a document Annexure "A" whereas the predecessor in interest of writ petitioner of Writ Petition No. 178/R of 2008 Surakhru Khan was mutated land measuring 123-Kanals 6-Marlas vide mutation 25.04.1973 from Surakhru Khan son of Fateh Khan and further that there is no document of allotment existing in possession of the petitioner of Writ Petition No. 178/R of 2008 showing the allotment in favour of Surakhru Khan son of Fateh Khan from Border Area Committee. The learned counsel for the respondent/Border Area Committee argued that the allotment in favour of all the original allottees of Writ Petitions No. 177/R of 2008 and 178/R of 2008 were rightly found to be bogus and resultantly cancelled.
We have considered the arguments of the learned counsels for the parties and have perused the record with their assistance. The crucial point which shall decide the fate of all these writ petitions is that admittedly the total land measuring 429-Kanals 6-Marlas was originally allotted in favour of Lt. Col. Haji Shuja ud Din Ahmad on 18.11.1961 which fact is borne out in the revenue record, a photocopy of which has been found by the Court in the said record. The allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad was first cancelled in the year 2004 when his daughter Mst. Bushra moved an application for correction of revenue entries which did not correspond with the original allotted area. The Border Area Committee cancelled the original allotment of Lt. Col. Haji Shuja ud Din Ahmad on the ground that the said allottee had not paid the cost of the allotted land. The learned counsel for the respondents was asked as to how much amount was determined by the Border Area Committee which has not been paid by the original allottee as per contention of the learned counsel for the Respondent No. 1/Border Area Committee? The reply of the learned counsel was fairly in the negative. He further argued that the cost of the allotted land is determined by the revenue authorities after the allotment is made by the Border Area Committee/GHQ. The learned counsel for the respondents was asked as to whether any document is present with him in his record to show as to how much amount has been determined by the revenue authorities which the original allottee Lt. Col. Haji Shuja ud Din Ahmad was expected to pay and has not been paid? The learned counsel for the respondents was unable to refer to any such document wherein any such fact has been entered that any amount was due against Lt. Col. Haji Shuja ud Din Ahmad. The learned counsel for the respondents/Border Area Committee was asked as to whether any demand notice has been issued by the revenue authorities to the original allottee Lt. Col. Haji Shuja ud Din Ahmad or his successors. The learned counsel for the respondents stated that no such demand notice exists on the record of Border Area Committee nor he is able to refer to any such demand notice having been issued from the concerned revenue authorities. In view of the all the above circumstances, we are left with no doubt that the orders for cancelling the allotment of the original allottee Lt. Col. Haji Shuja ud Din Ahmad by the Border Area Committee firstly on 21.04.2004 and secondly on 01.12.2008 are both illegal and without any lawful authority as the same are not based on any lawful material so far these orders affect the allotment of Lt. Col. Haji Shuja ud Din Ahmad. Resultantly, both the said orders dated 21.04.2004 and 01.12.2008 to the above extent are declared to be passed without any lawful authority and are of no legal effect. The Writ Petition No. 71/R of 2009 is accordingly accepted in the light of observations made above.
The Writ Petition No. 58/R of 2008 has borne fruit in view of the order passed by this Court in Writ Petition No. 71/R of 2009 and is disposed of accordingly.
The effect of acceptance of Writ Petition No. 71/R of 2009 shall deprive the petitioners of Writ Petitions No. 177/R of 2008 and 178/R of 2008 of any locus standi to claim the land in question which originally stood allotted to Lt. Col. Haji Shuja-ud-Din Ahmad and which allotment admittedly remained intact till the year 2004 when it was first cancelled by the Border Area Committee through an order dated 21.04.2004 which order was also got cancelled by the petitioners of Writ Petitions No. 177/R of 2008 and 178/R of 2008 through an earlier order dated 29.10.2007 passed in Writ Petitions No. 130/R of 2004 and 131/R of 2004 by a learned single Judge of this Court. It is established that the land claimed by the petitioners of Writ Petition No. 177/R of 2008 and 178/R of 2008 stood first allotted to Lt. Col. Haji Shuja-ud-Din Ahmad and was no more available, therefore, the same could not have been allotted to the predecessor in interest of petitioners of Writ Petitions No. 177/R of 2008 and 178/R of 2008. The Writ Petitions No. 177/R of 2008 and 178/R of 2008 are accordingly dismissed and the orders dated 21.04.2004 and 01.12.2008 to the extent of declaring the allotment of Sep Ahmad Khan and Surakhru Khan as bogus and fictitious, are upheld. There shall be no orders as to costs.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 368 [Rawalpindi Bench Rawalpindi]
Present: Jamila Jahanoor Aslam, J.
SHAMAS RASHEED--Petitioner
versus
ADJ GUJARKHAN etc.--Respondents
W.P. No. 851 of 2008, decided on 28.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Delivery expenses--Maintainability--Suit for recovery of maintenance allowance, maternity/medical expenses and dowry articles--Entitled to maintenance @ Rs. 800/- only for the period of iddat whereas the minor was entitled to maintenance @ Rs. 1200/- p.m. till he attains the age of majority and after deduction of the interim maintenance already paid--Delivery expenses and treatment expenses of minor was allowed--Wife was found entitled to recovery of dowery article of a propose the list attached by her and gold ornaments were excluded--Both the parties preferred appeal before First Appellate Court--Maintenance was increased from Rs. 1200/- to Rs. 3,000/- till attaining the age of majority and value of dowry articles was increased--Challenge to--Validity--Enhancement in the maintenance allowance is justified as Rs. 3000/- p.m. barely covers the expenses of a growing school going child in these days of double digit inflation--As far as the delivery expenses is concerned--There are two matters to be addressed--First one is that either inadvertently as knowingly the petitioner has considered the figure as maintenance at least this is what he is terming it in the writ petition as well as in his submissions--This is a one time payment which is the delivery expenses--Second point that is needs to be clarified that delivery expenses are not limited to the expenditure of the actual birth in hospital or elsewhere, they also pertain to preparation for expected baby--Petition was dismissed. [P. 370] A & C
Delivery Expenses--
----Delivery expenses were not limited to the expenditure of the actual birth, in hospital or elsewhere--Held: Babies were not taken home from hospitals wrapped in newspapers as a lot of items need to be brought for the use of the baby after the birth, things like clothes, feeding bottles, formulae, bedding--All these were part of the delivery expenses too and it was the duty of the father as the provider foot the bill for the basic necessities of his child--Thereafter, he had to pay maintenance, as decided by Courts, if the matter be in litigation. [P. 370] B
Sahibzada Abdul Ghafoor Saqi, Advocate for Petitioner.
Syed Zafar Ullah Salari, Advocate for Respondent Nos. 3 & 4.
Date of hearing: 28.4.2009.
Order
A very brief background to present writ petition is that Petitioner and Respondent No. 3 were married and Respondent No. 4 was born in this wedlock. The bond broke-up and Respondent No. 4 has been in the custody of Respondent No. 3 since his birth.
After the break-up of the marriage Respondent No. 3 and 4 filed a suit for recovery of maintenance allowance, maternity/medical expenses and dowry articles of Respondent No. 3. The Family Court (Respondent No. 2) after framing issues and conducting the trial decreed the suit of Respondent Nos. 3 and 4 vide judgment/decree dated 13.09.2007 in the following terms.
Respondent No. 3 was entitled to maintenance @ Rs. 800/- only for the period of iddat whereas Respondent No. 4 was entitled to maintenance @ Rs. 1200/- per month till he attains the age of majority and after deduction of the interim maintenance already paid. Respondent No. 3 was allowed delivery expenses of Rs. 20,000/- and a further Rs. 4500/- as treatment expenses of Respondent No. 4 (minor). As far as the dowry articles are concerned Respondent No. 3 was found entitled to the recovery of the same apropos the list attached by her and marked "D", or Rs. 1,50,000/ in the alternative. However, gold ornaments have been excluded from the list Mark-D.
Petitioner, not satisfied with the judgment/decree dated 13.09.2007 impugned the same. The Respondents also preferred an appeal against the same judgment/decree of Respondent No. 2. The Additional District Judge, Gujar Khan (Respondent No. 1) heard both the appeals and consequently vide judgment/decree dated 01.03.2008 dismissed the appeal of the petitioner, whereas the appeal by the Respondents was partially allowed in the terms, that the maintenance of Respondent No. 2 was increased from Rs. 1200/- to Rs. 3000/- per month, till attaining the age of majority and the value of dowry articles was increased from Rs. 1,50,000/- as decided by Respondent No. 2 to Rs. 1,52,000/-.
The petitioner being aggrieved of both the judgments/decrees dated 01.03.2008 and 13.09.2007 passed by Respondents No. 1 and 2, has impugned the same by invoking the writ jurisdiction of this Court.
I have perused the record and I agree with the reasoning of both the Courts below. The enhancement in the maintenance allowance is justified as Rs. 3000/- per month barely covers the expenses of a growing, school going child in these days of double digit inflation. As far as the figure of Rs. 20,000/- is concerned there are two matters to be addressed qua this. First one is that either inadvertently as knowingly the petitioner has considered the figure as maintenance, at least this is what he is terming it in the writ petition as well as in his submissions. This is a one time payment which is the delivery expenses. Second point that needs to be clarified here, is that delivery expenses are not limited to the expenditure of the actual birth, in hospital or elsewhere, they also pertain to the preparation for the expected baby. Babies are not taken home from hospitals wrapped in the newspapers as a lot of items need to be brought for the use of the baby after the birth, things like clothes, feeding bottles, formulae, bedding etc. All these are part of the delivery expenses too and it is the duty of the father as the provider to foot the bill for the basic necessities of his child. Thereafter, he has to pay maintenance, as decided by Courts, if the matter be in litigation.
The petition is without merits and the impugned judgments/decrees dated 01.03.2008 and 13.09.2007 need not be interfered within the Constitutional jurisdiction of this Court.
Writ petition is disposed-off in the above terms.
(R.A.) Petition disposed of.
PLJ 2010 Lahore 371
Present: Ijaz Ahmad Chaudhry, J.
Mian MUHAMMAD ASIF--Petitioner
versus
SSP OPERATION, LAHORE and 2 others--Respondents
W.P. No. 21442 of 2009, decided on 10.12.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Re-investigation was challenged--Petitioner was declared innocent and report u/S. 173, Cr.P.C. had been submitted in the Court--Challan was submitted against the law by SHO and without making efforts for collecting any evidence cannot be made basis for stoppage of re-investigation--Validity--Investigation can be re-conducted in peculiar facts and circumstances of the case and mere submission of report in order to save the skin of the petitioner cannot be made basis for stoppage of the investigation--Held: Police opinion not binding on the Courts and the police is competent to reinvestigate the matter even after the discharge of the accused by magistrate, if some new evidence is brought on the record to prima facie cannot the accused with alleged offence. [P. 375] A
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 173 & 249-A--Constitutional petition--Re-investigation--Police cannot be stopped from re-investigation--Petitioner was placed in Column No. 2 and the Court had not summoned him but it seems that he had moved application u/S. 249-A, Cr.P.C. in order to further cement his innocence which opinion has been obtained through fraud--Held: Magistrate is restrained from passing any order on the application moved by petitioner u/S. 249-A, Cr.P.C. till the matter in reinvestigated and fresh final report u/S. 173, Cr.P.C. is submitted as the police cannot be stopped from reinvestigation of the matter, but however, the final verdict has to be passed by the Courts after evaluating the evidence adduced it during trial--Petition was dismissed. [P. 375] B
Mr. Irfan Ahmad Khan, Advocate for Petitioner.
Malik Fida Hussain, Advocate for Respondents.
Mr. Waqas Qadeer Dar, AAG.
Date of hearing: 10.12.2009.
Order
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mian Muhammad Asif petitioner has challenged re-investigation in case FIR No. 1379/2008 after submission of report under Section 173, Cr.P.C. as illegal and unlawful.
Briefly the facts are that the petitioner was involved in case FIR No. 1379 of 2008, dated 9.10.2008, registered under Sections 420/ 467/468/471/193 PPC at Police Station Lower Mall, Lahore on the application of Haji Sheikh Muhammad Tahir.
The learned counsel for the petitioner contends that he was declared innocent and report under Section 173, Cr.P.C. was submitted in the Court but now re-investigation has been started. Relies upon PLJ 2004 Lahore 1293. It is further contended that the petitioner is facing trial and the prosecution can produce evidence in its possession. It is next contended that challan was not signed by the SHO and report under Section 173, Cr.P.C. has to be signed by the concerned SHO, got no value and is illegal and unlawful. Learned counsel for the petitioner has placed on record copy of the order sheet according to which the petitioner has not been summoned and he is not facing trial, but only complainant has been summoned by the learned trial Court. It is also contended that report under Section 173, Cr.P.C. has been forwarded by the District Attorney; that the respondent has not moved any application for change of the investigation.
It is contended by the learned counsel for the respondent that property which was owned by the Central Government was worth of Rs. 26 to 30 lacs; that record of Sub-Registrar District Lahore was burnt in the year 1998 and the petitioner has committed forgery by inserting khasra number of the property which was actually in the name of the Central Government and in the said sale-deed the petitioner has committed the forgery; that an application was moved by the petitioner to SSP; that record of Lahore High Court was perused; that inquiry has been conducted on 28.1.2009 and it was brought to the notice of SP Headquarter by the ex-I.O. that challan has been submitted with mala fide and by concealing the fact of earlier I.O. namely Tayyab Ashraf, Inspector, who submitted report without joining the Revenue Authorities and other necessary parties in the said investigation. Relies upon PLD 2008 Lahore 488, to contend that after submission of report under Section 173, Cr.P.C. re-investigation can be conducted. Also relies upon PLD 2009 Lahore 101. and 2006 SCMR 373.
Learned AAG also supports the arguments of the learned counsel for the respondents.
I have heard the learned counsel for the parties and also gone through the documents attached with the writ petition. In brief allegation against the petitioner is that in order to grab property of crore of rupees situated at Multan Road, Chubergi, Lahore the petitioner has added khasra number of the said property in the sale-deed and has deprived the government from the property of huge amount. It is also mentioned in the FIR itself that Mian Muhammad petitioner on 13.7.1998 on the direction issued by this Court in W.P. No. 13903/98 submitted his affidavit with photocopy of the sale-deed in which khasra number of the property situated at Chuburgi was property of the Central Government. As such documentary evidence was prima facie available against the petitioner about the allegations, but when the record of the city Sub-Registrar was burnt in the year 1998 he had added these khasra number and thus usurped the said property whereupon case has been registered on 9.10.2008. However, according to the report submitted under Section 173, Cr.P.C. the petitioner was found innocent on the ground that no evidence has been collected and the Investigating Officer also made statement in favour of the petitioner at the time of bail before arrest. It appears that the investigation had been conducted without consulting the record of the Lahore High Court, Lahore in which same sale-deed was filed by the petitioner in the above-said writ petition wherein khasra numbers were included, but those were subsequently included in the name of the petitioner. The report submitted under Section 173, Cr.P.C. on the face of it did not contain signatures of the SHO of the Police Station Lower Mall, Lahore and under the Police Rules it is mandatory that the said report under Section 173, Cr.P.C. shall have to be signed by the SHO concerned. So Tayyab Ashraf, Inspector prima facie was in league with the petitioner, who has not investigated the case properly and declared the petitioner innocent in a clandestine manner. In such circumstances, on an application moved by the complainant for the transfer of the investigation, the SSP (investigation) entrusted the investigation to SP Headquarters who visited the office of Deputy Registrar (JudI) of this Court and perused the earlier sale-deed in which same khasra numbers were found present which have been subsequently added by the petitioner. In such circumstances, challan which has been submitted against the law by the SHO and without making efforts for collecting any evidence cannot be made basis for stoppage of the reinvestigation in the present case. The case law cited by the learned counsel for the petitioner is distinguishable from the case of the present case. On the other hand, learned counsel for the respondent has rightly relied upon 2004 SCMR 373, according to which the reinvestigation and submission of the subsequent challan in the Court is not barred and the relevant portion is reproduced as under:-
"Reinvestigation and submission of subsequent challan in the Court--Extent and scope--No legal bar exists for reinvestigation of a criminal case even after submission of final report under S. 173, Cr.P.C--Police can carry out the fresh investigation and submit its report to the Court, but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence, on which the accused had been tried and the case was finally decided upto the level of the High Court or the Supreme Court, subsequent challan would be entertained which is submitted as the result of reinvestigation or further investigation of the case by the police on the happening of a subsequent incident and that the Court would proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court."
Similarly, in PLD 2009 Lahore 101, it has been held as under:--
"xxx Reinvestigation generally, obviously cannot be appreciated. Successive investigation obviously because of cumbersome procedure involved generally, does not sound appreciable to the common man. The general impression that successive reinvestigation is under pressure of general impression that successive reinvestigation is under pressure of the influential persons is in a way to a danger to the society also. This has not only effected the moral fiber but has also brought about very dangerous effects on the general out look of the people at large. Influence, be it in any form is used by all the parties concerned in such matters to get favourable reports and the reinvestigation is one of its major methods. One may agree that investigation which is defective or incomplete, may in itself be because of some influence at the early stage of the proceedings. In such circumstances, reinvestigation in fact becomes necessary. However, if the earlier investigation is transparent, without any fault, independent and does not suffer from any illegality or irregularity and is complete in all respects, reinvestigation should not be allowed."
In the present case it can safely be held after the perusal of the report under Section 173, Cr.P.C. that Tayyab Ashraf Inspector had failed to perform his duty as Investigating Officer of the above-said case and second investigation was necessary, which has been conducted and the petitioner when was declared innocent by the police there was no reason for submission of report under Section 173, Cr.P.C. in which the petitioner was placed in Column No. 2. All this karwai seems to be done to save the skin of the petitioner and cannot be upheld by this Court while accepting this writ petition. Investigation can be re-conducted in the peculiar facts and circumstances of the present case and mere submission of report in order to save the skin of the petitioner cannot be made basis for stoppage of the investigation in the present case. Even otherwise, it is settled law that the police opinion not binding on the Courts and the police is competent to reinvestigate the matter even after the discharge of the accused by the learned Magistrate, if some new evidence is brought on the record to prima facie connect the said accused with the alleged offence. It is also claimed by the learned counsel for the petitioner that he has filed application under Section 249-A, Cr.P.C. it is strange that the petitioner was placed in Column No. 2 and the Court has not summoned him, but it seems that he has moved application under Section 249-A, Cr.P.C. in order to further cement his innocence which opinion has been obtained through fraud while in league with the previous Investigating Officer.
Learned Magistrate is restrained from passing any order on the application moved by the petitioner under Section 249-A, Cr.P.C. till the matter is reinvestigated and fresh final report under Section 173, Cr.P.C. is submitted as the police cannot be stopped from reinvestigation of the matter, but however, the final verdict has to be passed by the Courts after evaluating the evidence adduced before it during the trial. This writ petition having no merit is dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 375 [Multan Bench Multan]
Present: Arshad Mahmood, J.
ABDUL HAFEEZ--Petitioner
versus
MEMBER BOARD OF REVENUE, LAHORE and 4 others--Respondents
W.P. No. 3559 of 2009, decided 13.5.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Vacant post of permanent lambardar--Recommendation for appointment as lambardar--Rule of primogeniture not sole ground for appointment--Constitutional jurisdiction cannot substitute--Revenue Courts are not open to exception in writ jurisdiction--Allegations of being defaulter and landless--After fulfilling codal formalities respondent was appointed as lambardar--Appeals and review petitions were filed in revenue, hierarchy against appointment of lambardar failed which is now under assail in Constitutional petition--Grounds that principle of primogeniture was in force when cause of action accrued in favour of petitioner and thus he was entitled for the appointment on such score and that petitioner is more suitable than respondent to be appointed as lambardar--Consideration for such appointment, which has of course to be made on merit and blood relationship or descent cannot be made basis for claiming preference in the matter of appointment--Allegations of being defaulter remained uncontroverted before forums below--High Court in exercise of constitutional jurisdiction cannot substitute its own preferences with preferences of the competent fora unless it is shown that decisions made by competent authorities suffered from any jurisdictional defect or any illegality--Revenue Courts are not open to exception in writ jurisdiction--Petition was dismissed. [Pp. 377 & 378] A, B, C, D & E
2007 SCMR 287 ref.
Mr. Muhammad Arif Alvi, Advocate for Petitioner.
Date of hearing: 13.5.2009.
Order
Post of Lambardar in Chak No. 163/WB Tehsil and District Vehari fell vacant upon demise of permanent Lambardar namely Manik Khan who was father of the petitioner. Tehsildar invited applications through proclamation to fill in the vacancy. Through application dated 03.08.1999, petitioner entered into arena along with 21 other candidates. On 17.12.1999 petitioner was recommended for his appointment as Lambardar whereas nothing was reported in respect of other candidates. The report was returned to the Tehsildar Vehari on 28.12.1999 for submission of a detailed report after providing opportunity of being heard to all the applicants and through fresh process Respondent No. 5 was appointed Lambardar of the Chak vide order dated 29.9.2005. Aggrieved thereof petitioner and others filed appeals before the Executive District Officer (Revenue) which were dismissed vide order dated 19.12.2006. Review petitioners filed against the order dated 19.12.2006 also met the fate of dismissal on 14.4.2009. Hence this petition.
Learned counsel for the petitioner submitted that impugned orders passed by the Courts below are against law and facts, therefore, cannot sustain in the eye of law that petitioner was recommended for his appointment as Lambardar on the principle of primogeniture; that after the death of his father Dhal Bash of crop of Rabi-1999, Kharif-2000, Rabi-2000 and Rabi-2005 were delivered to the petitioner which he deposited well within time in the Government Treasury. Banking upon the dictum of law enunciated in "Maqbool Ahmed Qureshi versus The Islamic Republic of Pakistan" (PLD 1999 SC 484), "Noor Muhammad Lambardar versus Member (R), Board of Revenue, Punjab, Lahore and others" (2003 SCMR 708) and "Haji Noorwar Jan versus Senior Member Board of Revenue NWFP Peshawar and 4 others" (PLD 1991 SC 531) learned counsel stressed hard that appointment of petitioner on the principle of primogeniture was not effected by the decision of Hon'ble Shariat Appellate Bench of the Supreme Court.
I have heard the learned counsel for the petitioner at a considerable length and gone through the record.
Perusal of record reveals that petitioner was recommended for appointment as Lambardar by the Tehsildar vide report dated 17.12.1999 without any report in respect of other candidates consequently the report was returned on 28.12.1999 with the directions that a detailed report be submitted. After fulfilling codal formalities Ahmad Yar/Respondent No. 5 was appointed as Lambardar. Appeals and review petitions filed in the revenue hierarchy against the appointment of Respondent No. 5 failed which is now under assail in this constitutional petition. Before this Court the contestants are petitioner and Respondent No. 5. Learned counsel for the petitioner has stressed on two main grounds (i) that principle of primogeniture was in force when cause of action accrued in favour of the petitioner and thus he was entitled for the said appointment on this score and (ii) that petitioner is more suitable than Respondent No. 5 to be appointed as Lambardar.
As per dictum of law laid down by the Hon'ble Supreme Court in "Noor Muhammad Lambardar versus M.B.R, etc" (2003 SCMR 708) decision of the Shariat Appellate Bench of Supreme Court of Pakistan. (PLD 1999 SC 484) was effective from 01.09.1999 whereas post of the Lambardar fell vacant on 01.06.1999. As per dictum of law laid down in 2003 SCMR 708 (supra) when cause of accrued in favour of the petitioner rule of primogeniture was in force but hereditary claim is not the sole ground for appointment as Lambardar. It is only one of the relevant considerations for such appointment, which has, of course, to be made on merit and blood relationship or descent cannot be made basis for claiming preference in the matter of appointment. While holding so, I am fortified by the dictum of law enunciated in PLD 1999 SC 484 (supra). Therefore, this argument solely cannot advance cause of the petitioner.
Now coming to the second contention i.e. suitability of petitioner vis a vis Respondent No. 5. At the time of filing application for the post of Lambardar petitioner was landless whereas Respondent No. 5 owned 87-Kanals and 17-Marlas. Petitioner also lags behind the Respondent No. 5 in education. Allegations of being defaulter of Zari Tarqiati Bank Ltd., and late deposit of Dhal Bash remained uncontroverted before the forums below. Even otherwise this Court in the exercise of constitutional jurisdiction cannot substitute its own preferences with the preferences of the competent fora unless it is shown that the decision made by the competent authorities suffered from any jurisdictional defect or any illegality. Reference can be made to "Muhammad Rafique versus Nazir Ahmed and others" (2007 SCMR 287).
For what has been discussed above concurrent findings of the revenue Courts are not open to exception in writ jurisdiction, therefore, there is no force in this writ petition which is dismissed in limine.
(S.S.) Petition dismissed.
PLJ 2010 Lahore 378 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
MUHAMMAD ASLAM--Petitioner
versus
MEPCO etc.--Respondents
W.P. No. 790 of 2009, decided on 20.1.2010.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Electricity for tube-well--Mala fide intention--Revised demand notice--Being an agriculture applied for electricity connection for agricultural tube-well--Demand notice of two kinds were deposited and electricity connection was supplied--MEPCO with malafide intention issued revised demand notice for additional payment--Challenge to--Validity--Once the electricity connection was sanctioned and issued demand notice for deposit of specific amount, after that new demand for deposit of additional amount is highly excessive, harsh and exorbitant for small agriculturist when this section of life is already in big crises and on account of any omission or illegal act of the officials of WAPDA the petitioner cannot be burdened without any lawful justification--Notice issued by MEPCO for depositing of additional amount was declared to be illegal and without lawful authority and same is struck down--Petition was allowed. [P. 380] A
2005 SCMR 1814 & 2000 SCMR 907, rel.
Mr. Khizar Hayat Khan Punian, Advocate for Petitioner.
Mr. Ameer Aziz Qazi, Advocate for Respondents.
Date of hearing: 20.1.2010.
Order
Petitioner Muhammad Aslam son of Sardar Muhammad Afzal has impugned through this Constitutional petition the demand notice dated 03.10.2006, issued by Respondent No. 4 Deputy Manager (Operations), MEPCO, Division Rajanpur, calling upon the petitioner to deposit the cost of transformer to be installed by the respondent MEPCO/WAPDA for supply of electricity for tube-well to the petitioner.
The petitioner being an agriculturist applied for electricity connection for agricultural tube-well; Respondent No. 4 allowed the application and issued demand notice of two kinds, one for Rs. 14,400/-, and the other for Rs. 8000/-, which amounts were deposited by the petitioner and he was supplied the electricity connection; the petitioner continued irrigating his lands from tube-well for which he had got sanctioned the electricity connection and he continued to pay electricity bills and never defaulted. Copies of enormous electricity bills consumed by the petitioner are appended with this petition.
Respondent No. 4 allegedly with malafide intention issued revised demand notice dated 03.10.2006 for additional payment of Rs. 1,77,300/-.
Learned counsel for the petitioner contended that the second demand notice dated 03.10.2006 for deposit of Rs. 1,77,300/- is based on malafide. Contended that at the time of sanction of connection of the electricity for the tube-well the respondent WAPDA officials did not mention any such thing that thereafter there will be further demand for deposit of Rs. 1,77,300/-.
On the other hand, the learned counsel for the respondent MEPCO/WAPDA submitted that tube-well connection to the petitioner was sanctioned on his application made on 15.3.2003 from the village transformer in Jampur and was energized on 18.5.2006; the facility regarding installation of tube-well connection from village transformer was withdrawn vide authority Circular No. 132-45/D/G/DD/R CP) 58006 dated 11.3.2006; on withdrawal of the said facility, revised demand notice dated 30.10.2006 for the cost of transformer to the tune of Rs. 1,77,300/- was issued to the petitioner/consumer. He made reliance on the cases reported as 2005 SCMR 1814 and Abdul Haque Indhar and others vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907).
In rebuttal, learned counsel for the petitioner further submitted that on account of the act of public functionaries or officials the petitioner cannot be penalized. It was obligatory duty of MEPCO/WAPDA officials to check each and every thing at the time of sanctioning of the electricity connection and what were necessities which were required to be fulfilled by the consumers. WAPDA Authorities executed an agreement with the petitioner. Now issuing of fresh demand notice for deposit of Rs. 1,77,300/- is illegal, without jurisdiction and without lawful authority.
I have heard the learned counsel for the parties at length. The stance of the petitioner is correct. Once the electricity connection was sanctioned and issued demand notice for deposit of Rs. 14,400/- and Rs. 8000/-, after that new demand for deposit of Rs. 1,77,300/- is highly excessive, harsh and exorbitant for a small agriculturist when this section of life is already in big crisis and on account of any omission or illegal act of the officials of Wapda the petitioner cannot be burdened without any lawful justification. The notice dated 3.10.2006 issued by the respondent MEPCO for deposit of Rs. 1,77,300/- is declared to be illegal and without lawful authority and the same is struck down. The respondents are further directed to continue supply of electricity to the petitioner-consumer for his tube-well.
With the above observation and direction this writ petition is allowed with no order as to costs.
(R.A.) Petition allowed.
PLJ 2010 Lahore 380 [Multan Bench Multan]
Present: Syed Hamid Ali Shah, J.
Mst. FAYYAZI BEGUM and 6 others--Appellants
versus
ALI HASSAN and another--Respondents
F.A.O. No. 215 of 2007, decided on 13.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 58--Objection petition--Right and obligations of surety can be determined on the basis of such document--No amount was determined against the defendant during life time of the surety--Surety died before any direction or a decree was passed for recovery of amount from defendant--Liability of surety to pay on behalf of principle debtor--Suit for recovery on the basis of pronote--Leave to defend was granted conditional--Execution of decree, attached house of predecessor in interest of the appellant--Civil Court observed that property of surety can be sold for satisfaction of decree--Validity--Surety bond had been furnished for the payment of the amount, which the Court will determine against the defendant--A surety bond has to be construed strictly, according to terms therein--Liability of surety to pay on behalf of the principle debtor as per surety bond arise only when decree is passed to make payment of the amount--Held: Neither defendant was direct to pay amount nor the decree against the defendant was passed during life time of the surety--The decree which was passed after the death of surety, will neither bind the deceased surety nor his legal heirs--Estate of the deceased surety to extent of the share is liable for realization of the decretal amount and the other legal heirs are not bound under the law to pay the decretal amount out of the estate of deceased. [P. 383] A & C
Contract Act, 1872 (IX of 1872)--
----Ss. 126 & 135 to 139--Scope of--Applicability of--Question of--Execution of decree--Provisions of Sections 126 & 135 to 139 of Contract Act, do not apply, where the bond has been executed by surety in favour of the Court. [P. 383] B
Contract Act, 1872 (IX of 1872)--
----S. 131--Execution of decree--Death of surety results into revocation of a continue guarantee so far as it regards future transaction--Question of--Property of surety can be sold for satisfaction of the decree--Validity--Principal debtor was held liable to pay suit amount after death of surety--Legal heirs of the surety or his estate cannot be made liable for realization of decretal amount--Execution Court while passing the order has failed to construe the surety bond according to its terms and held legal heirs of deceased surety liable, erroneously--Liability of surety to pay arises, only when decree is passed--Decree will not bind the surety, whose death has taken place prior to the decree--Finding of Executing Court is not legally sustainable and accordingly set aside. [P. 384] D
Sh. Umer Draz, Advocate for Appellants.
Ch. Muhammad Anwar Ghumun, Advocate for Respondents.
Date of hearing: 23.4.2009.
Judgment
Respondent No. 1 filed a suit for recovery of Rs. 20,00000/- on the basis of pronote dated 26.4.2002 against Respondent No. 2. Respondent No. 2 was granted conditional leave to defend and Abdul Sattar predecessor of the appellants stood surety. Abdul Sattar died on 7.5.2005, leaving behind the appellants as his legal heirs. The suit was decreed vide judgment and decree dated 16.1.2007. Learned Court in the course of execution of the decree, attached house of the predecessor-in-interest of the appellants bearing No. 274 Block No. 11 Ward No. 14, Mohallah Sultanawala, Jhang Sadar. The appellants filed objection petition under Order XXI Rule 58 CPC which the learned Court dismissed, vide order dated 1.8.2007. Learned Court while passing the impugned order observed that the deceased furnished his property i.e. House No. 273 Block No. 11, Saleemi Street, Ward No. 14. Mohallah Sultanawala, Jhang Sadar, therefore, the property of the surety can be sold for the satisfaction of the decree.
Learned counsel for the appellants has contended that the suit was decreed on 16.1.2007, after the death of their predecessor Abdul Sattar, the predecessor of the appellants, stood surety and his personal liability comes to an end with his death. His legal heirs were not made party when the impugned judgment was passed. The property was attached without notice to the legal heirs. The liability of the surety was reduced by the Court itself to Rs. 10,00000/- from Rs. 20,00000/-, therefore, the decretal amount over and above the sum guaranteed is not legal. Learned counsel submitted that by making this submission, the appellants do not admit the liability of their predecessor to the extent of Rs. 10,00000/-. The Court has not applied it's conscious mind to the controversy in hand and has held the appellant liable for an amount, more than the one for which their predecessor stood surety.
Learned counsel for the respondents, on the other hand, stood behind the impugned judgment and submitted that the Court observed in the impugned order that the decree was not adjusted under Order XXI Rule 2 CPC. The surety had offered, it's property and the property which has been offered as security, can be sold for execution of the decree, even after the death of the surety. Learned counsel has vehemently contended that liability of the surety is co-extensive with that one of the principle debtor.
Heard learned counsel for the parties and record perused.
The defendant Amjad Pervaiz is son of late Abdul Sattar (surety). Leave to defend the suit was granted to the defendant on 16.11.2002, who in the leave grant order was directed to furnish surety bond for a sum of Rs. 20,000000/-. Learned trial Court on the application of the defendant accepted the surety bond of deceased Abdul Sattar for a sum of Rs. 10,00000/-. Abdul Sattar submitted surety bond in the Court on 31.12.2002. The surety bond is the paramount document and right and obligations of the surety can be determined on the basis of this document alone. The surety bond reads as under:--
URDU
It is evident from the above that the surety bond had been furnished for the payment of the amount, which the Court will determine against the defendant. No amount was determined against the defendant during the life time of the surety. The surety died before any direction or a decree was passed for the recovery of the amount from the defendant. A surety bond has to be construed strictly, according to the terms mentioned therein. Liability of the surety to pay on behalf of the principle debtor as per the surety bond arise only when the decree is passed or the defendant is directed to make payment of the amount. Neither the defendant was directed to pay any amount nor the decree against the defendant was passed during life time of the surety. The decree which was passed after the death of the surety, will neither bind the deceased surety nor his legal heirs.
The provisions of Sections 126 and 135 to 139 of the Contract Act do not apply, where the bond has been executed by the surety in favour of the Court. The principles underlying these Sections, however, apply. As authority for this proposition reference can be made to the cases of "Parvatibai Vs. Vinayak Balwant (AIR 1939 Bombay 23), "Narayan Ramchandra Bhagwat Vs. Markandya Tukaram and another" (AIR 1959 Bombay 516) and "T.N. & Q. Bank Vs. Official Assignee" (AIR 1940 Madras 396). The Courts in the above cases held that when the parties entered into new arrangement and brought substantial variation in the original contract and granted time to the principal debtor, the executant of the surety bond who has submitted the same in the Court, stands discharged. Section 131 of the Contract Act, 1872 postulates that death of the surety results into revocation of a continue guarantee so far as it regards future transaction. The defendant/principal debtor was held liable to pay suit amount after the death of the surety. Therefore, legal heirs of the surety or his estate cannot be made liable for the realization of decretal amount. Learned Executing Court, while passing the impugned order has failed to construe the surety bond according to it's terms and held the legal heirs of the deceased surety liable, erroneously. The liability of surety to pay, arises, only when the decree is passed. The decree will not bind the surety, whose death has taken place prior to the decree. The finding of the Executing Court is not legally sustainable and is accordingly set aside.
The upshot of above discussion is that this appeal succeeds and order impugned dated 1.8.2007 is set aside. The estate of the deceased surety to the extent of the share of Respondent No. 2 is only liable for the realization of the decretal amount and the other legal heirs are not bound under the law to pay the decretal amount, out of the estate of the deceased.
(R.A.) Appeal accepted.
PLJ 2010 Lahore 384
Present: Nazeer Ahmad Ghazi, J.
MUHAMMAD RAFIQUE--Petitioner
versus
MUHAMMAD BOOTA and 2 others--Respondents
W.P. No. 14645 of 2009, decided on 21.7.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345--Constitution of Pakistan, 1973, Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365--Constitutional petition--No authorize to compromise--After abduction the deceased had committed her murder by way of strangulation and thereafter threw her dead body in the canal--Prosecution deposed that he had not objection on the acquittal of accused--Petitioner moved an application u/S. 249-A, Cr.P.C. and the accused was acquitted--Facts of the case were brought to the knowledge of Sessions Judge and permission to arrest the accused for murder of deceased--Permission to arrest was allowed--Challenge to--Held: Once it is established that evidence regarding the murder of deceased by the petitioner and his co-accused was available in file of the case, the complainant was not only solely authorize to compromise the same u/S. 345, Cr.P.C.--It were all the legal heirs of deceased who only could enter into compromise and forgive the accused--Petition was dismissed. [P. 387] C
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 403 & 435--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Principle of estoppels--Accused was acquitted by Judicial Magistrate cannot be vexed twice--Agency was estopped to agitate the matter before Sessions Judge again--Misconceived and mistaken--Power of calling and examine the record--Validity--Prosecution deposed that he got the case registered on the basis of misunderstanding--No objection on acquittal of the accused--Accused was acquitted--Matter was brought to the knowledge of Sessions Judge and permission to arrest the accused for murder was allowed--Challenge to--Under Section 435, Cr.P.C. a Sessions Judge has ample powers of calling and examining the record of any proceeding before any inferior criminal Court situated within local limits of his jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed to the regularity of any proceeding of such inferior Courts, therefore, what to speak of taking an action in the pursuance of letter issued by higher up of police, even he was authorized to proceed if some order comes to his knowledge through any source and no formal application is necessary--Impugned order was passed by Sessions Judge on judicial side exercising his revisional power u/S. 435, Cr.P.C. and language used in the order has clear effect of setting aside the order of magistrate acquitting the accused. [P. 387] A
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 403 & 173--Concept of estoppels is also alien to criminal law--Applicability--Accused was neither challaned nor tried for murder as is evident from report submitted before Judicial magistrate u/S. 173, Cr.P.C. and order of acquittal passed by him--Held: If Sessions Judge finds any illegality, misuse of process of law or material irregularity or jurisdictional defect in order of lower Court he can examine the same and set aside the order which has been done in instant case by him. [P. 387] B
Ch. Zaheer Ahmad Farooq, Advocate for Petitioner.
Date of hearing: 21.7.2009.
Order
Through this constitutional petition under Article 199 of the Islamic Republic of Pakistan, 1973 Muhammad Rafique son of Nawab Din petitioner has challenged the order dated 14.7.2009 passed by the learned Sessions Judge, Lahore.
The brief facts of the case are that at the instance of one Muhammad Boota case FIR No. 338 dated 21.3.2008 u/S. 365 PPC was registered at P.S. Factory Area against the petitioner and others for the abduction of Mst. Hamidan Bibi, the wife of the petitioner. During investigation of the case it was found that the petitioner after abducting the deceased Mst. Hamidan Bibi had committed her murder with the help of his son-in-law Shera by way of strangulation and thereafter threw her dead body in the canal. It also transpired that during the investigation statements of Nousher son of Waryam, Rehmat Ali son of Siraj Din, Haider Ali son of Imam Bukhsh and Muhammad Ishaq son of Muhammad Ibrahim were recorded who fully implicated the petitioner and his son-in-law Shera as co-accused. In spite of this the Investigating Officer in a clandestine manner submitted the Challan u/S. 365 P.P.C. in the Court of Judicial Magistrate, 1st Class, Model Town, Lahore. Charge was framed and evidence of the prosecution was summoned, whereby, Muhammad Boota, the complainant of the case appeared as PW-1 and deposed that he got the ease registered on the basis of misunderstanding and now he has satisfied himself that the petitioner was not his culprit/accused and he had no objection on the acquittal of the accused. The Urdu version of complainant's statement is available on the file of this case as Annexure-C.
It is interesting to note that in his statement the complainant has mentioned his case as FIR No. 349/08 instead of Case FIR No. 338/08 which shows that the petitioner and some of the officials from the prosecution side were in haste and also in league to demolish the murder case. Immediately after recording of the said statement of the Complainant, the petitioner moved an application under Section 249-A Cr.P.C. and the learned Judicial Magistrate vide his order dated 29.7.2009 acquitted the accused petitioner.
Another very strange fact of the case is that in spite of ample evidence, available on the police file, during the investigation, the learned Judicial Magistrate has not bothered to have a glance on the material available with the prosecution. It appears that he was in a hurry for extraneous reasons, otherwise, the trial Court is supposed to frame the charge, after going through the FIR, the report under Sec. 173 Cr.P.C. the statements of the witnesses as well as documents available on the file. Subsequently, when this factum of acquittal came to the knowledge of the higher echelon in the hierarchy of the police, letter dated 14.3.2009 was written to the learned Sessions Judge, Lahore by the SSP/Admin on behalf of the Capital City Police Officer, Lahore, wherein all the important facts of the case were brought to the knowledge of the learned S.J. Lahore and permission to arrest the accused for the murder of Mst. Hamidan Bibi was sought from the learned Sessions Judge who after hearing both the parties allowed the arrest of accused/petitioner Muhammad Rafique U/Ss. 302/201 PPC and to investigate the case in accordance with law. It caused a distress to the petitioner and aggrieved he has filed the instant writ petition.
Main thrust of learned counsel for the petitioner was on the point that impugned order dated 14.7.2009 was without jurisdiction as well as backing of law. According to him, it has not the effect of setting aside the order dated 29.7.2008 of learned Magistrate acquitting the petitioner as, there is no provision in Code of Criminal Procedure which authorizes the learned Sessions Judge to pass any such like order merely on the basis of a letter issued by police. Even if it is presumed for the sake of arguments that the learned Sessions Judge passed the impugned order while acting as Justice of Peace U/S 22-A of Cr.P.C; even then he was not in a position to hold that such and such offences are made out as per dictums laid down by the higher Courts. Unless order of the acquittal is set aside in clear terms, the petitioner cannot be left to face the adverse consequences of impugned order, while enjoying double presumption of innocence.
Further submitted that as the petitioner was acquitted by the learned Judicial Magistrate vide his order dated 29.7.2008 he can not be vexed twice, in view of immunity provided under Sec.403 Cr.P.C. He has further added that the principle of estoppels applies in this case, therefore, the Investigating Agency was estopped to agitate the matter before the learned Sessions Judge, Lahore again.
I am afraid that contention of the learned counsel for the petitioner is misconceived and mistaken. Under Section 435 of Cr.P.C. a Sessions Judge has ample powers of calling and examining the record of any proceedings before any inferior Criminal Court situated within the local limits of his jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed to the regularity of any proceedings of such inferior Court, therefore, what to speak of taking an action in the pursuance of letter issued by higher up of the police, even he was authorized to proceed if some order comes to his knowledge through any source and no formal application is necessary. I can safely conclude that the impugned order dated 14.7.2009 was passed by learned Sessions Judge on judicial side exercising his revisional powers U/S 435 of Cr.P.C. and the language used in the order has clear effect of setting aside the order of Magistrate dated 29.7.2008 acquitting the petitioner.
Further more the concept of estoppels is also alien to the criminal law. As far as application of Section 403 Cr.P.C. is concerned, the petitioner was neither Challaned nor tried for the murder of Mst. Hamidan Bibi as is evident from the report submitted before the learned Judicial Magistrate under Sec. 173 Cr.P.C and order of acquittal passed by him. If Sessions Judge finds any illegality, misuse of process of law or material irregularity or jurisdictional defect in the order of lower Court he can examine the same and set aside the order which has been done in this case by him.
It is observed that once it is established that evidence regarding the murder of Mst. Hamidan Bibi, by the petitioner and his co-accused was available in the file of the case, the complainant namely Muhammad Boota was not solely authorized to compromise the same under Section 345 Cr.P.C. It were all the legal heirs of the deceased Mst. Hamidan Bibi who only could enter into the compromise and forgive the petitioner.
The learned counsel for the petitioner has not been able to point out any illegality, material irregularity or jurisdictional defect in the impugned order, therefore, this writ petition being meritless is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 388
Present: Umar Ata Bandial, J.
Dr. M. PERVEZ IQBAL QAZI, HEAD/CHIEF SCIENTIFIC OFFICER, GLASS & CERAMICS RESEARCH CENTRE P.C.S.I.R. LABORATORIES, LAHORE--Petitioner
versus
SECRETARY TO GOVT. OF PAKISTAN MINISTRY OF SCIENCE AND TECHNOLOGY, ISLAMABAD and 8 others--Respondents
W.P. No. 5234 of 2008, decided on 10.4.2009.
Employees Service Regulations, 1981--
----Regl. 15-B(i)(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petitioner was ignored by promotion board having not a civil servant--Question--Whether the petitioner is entitled to promotion from anti-dated--Cause of delay in petitioner's promotion as being factors beyond his control--Whether petitioner satisfies the objective or subjective criteria for promotion--Whether he is entitled that his promotion be ante-dated to a still earlier date--Whether on the date when petitioner was promoted had he achieved qualifying research work for promotion--Question is obviously yes because the petitioner was promoted--Held: Petitioner would have been eligible to be considered for promotion--Legally valid fiction by virtue of the ante-date and the fact that the petitioner satisfies the substantive requirements of promotion--Petitioner is when the first batch of his juniors were promoted--Petition was allowed. [P. 391] A & B
Mian Manzoor Hussain, Advocate for Petitioner.
Mr. Umar Farooq, Advocate for Respondent No. 2 with Abdul Hayee Zia-ud-din, Principal Admn. Officer, PCSIR.
Date of hearing: 10.4.2009.
Order
The petitioner is an employee of the Respondent No. 2, Pakistan Council of Scientific and Industrial Research Council ("Council"). He is not a civil servant. In 1998 he was ignored by the promotion board when his batch mates were considered and promoted to BS.19. The petitioner commenced litigation against the Council in 1998 to secure his promotion. Ultimately he succeeded and in compliance with judgment of this Court dated 18.07.2007 given in W.P. No. 8672/2006, the Council by order dated 29.8.2007 promoted the petitioner to BS.19 with retrospective effect from 12.02.1998. Thereafter, on 18.1.2008 the petitioner was promoted to BS.20 also retrospectively with effect from 21.03.2007.
"(i) Persons who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that:--
(a) a person eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion he will take his seniority with the original batch;
(b) when in a single reference, the Selection Board/DPC are asked to recommend more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the person concerned, the recommendation of the Selection Board/DPC in respect of such person when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made."
It is contended by the learned counsel for the petitioner that officers junior to the petitioner were promoted to BS.20 on 12.05.2004. Under the provisions of the aforesaid Regulation 15-B, the petitioner claims ante-dated promotion with effect from 12.5.2004 because delay in the petitioner's promotion after that date was for reasons beyond his control in terms of Regulation 15-B supra. He submits that the reason for the petitioner's supersession was the unlawful refusal by the Council to promote the petitioner to BS 19 against which he had to resort litigation. The direction in the judgment of this Court dated 18.07.2007 followed by the Council's decision to antedate the petitioner's promotion to BS.19 from 12.2.1998 explains the cause of delay in the petitioner's promotion to BS.20 as being factors beyond his control. In the circumstances, learned counsel refers to Regulation 15-B supra to claim that his promotion be ante-dated to 12.05.2004, the date when his junior colleagues were promoted. He relies on Mian Safdar Mahmood and 18 others vs Punjab Service Tribunal and 2 others (1992 SCMR 1394) and Managing Director (Power), WAPDA and others vs Muhammad Luqman (PLD 2003 S.C. 175) which reiterate the general principle that a Government employee if eligible is entitled to proforma promotion with effect from the date when his juniors were promoted. It is this principle that is enshrined in the aforesaid Regulation 15-B of the Council.
Learned counsel for the respondent has opposed the prayer on the ground that the petitioner claims his right under non-statutory regulations which are neither enforceable against nor binding on the council. He relies on Mrs. Anisa Rehman vs. PIAC (1994 SCMR 2232). Secondly, he objects that the petitioner's claimed promotion from an earlier date involves subjective assessment which the Court cannot make. In this behalf he refers to Muhammad Anis & others vs Abdul Hasib & others (PLD 1994 S.C. 539) and Mian Abdul Malik vs. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129). Presently, he contends that the petitioner was not eligible to be considered for promotion to BS-20 on 12.05.2004 because he lacked the qualifying research for promotion on that date. Accordingly, the ante-date fixed by the Council for petitioner's promotion to BS-20, that is 21.03.2007, satisfies regulation 15-B supra.
Heard. The respondent has a duty to act justly, fairly and according to the standards that it sets for itself. Therefore its Service Regulations of 1981 cannot be disregarded at whim and are enforceable. Reliance is placed upon Muhammad Shoaib Roomi vs Secretary, Education Department Government of Punjab (2005 SCMR 605); Rizwan Akhtar vs Union of Punjab (2003 PLC (CS) 1508). Be that as it may, Regulation 15-B supra reiterates the settled rule of law recognized in Luqman's case (PLD 2003 S.C. 175). Accordingly, the rule contained in Regulation 15-B represents a legal duty of the Council under the general law of the land. The present petition filed to enforce that duty under law is therefore maintainable. The eligibility and qualification of the petitioner for promotion to BS-20 on both objective and subjective criteria admittedly stand satisfied as evidenced by the Council's decision of 18.01.2008 to promote the petitioner to BS-20 with effect from 21.3.2007. The question before the Court is therefore not whether the petitioner satisfies the objective or subjective criteria for promotion but whether he is entitled that his promotion be antedated to a still earlier date, namely 12.5.2004.
The objection by the learned counsel for the Council that in the year 2004 the petitioner's case was not ripe for consideration for promotion to BS-20 for lack of qualifying research is also entirely presumptuous. This is because until 29.08.2007 the petitioner remained in litigation with the Council to secure his promotion to BS-19. Therefore the only relevant date when he could be considered for promotion to BS.20 is after 29.08.2007. At that point of time, the query whether by or before the year 2004 the petitioner possessed qualifying research for promotion to BS.20 is as academic a question as it would be to assess the research work that the petitioner would have done until 2004 if he had actually been promoted to BS.19 in 1998. In the year 2004 the petitioner was detained in BS.18 and was therefore in any event ineligible for promotion to BS.20. In a realistic context the relevant question to be asked is whether on the date when the petitioner was promoted to BS.19, that is 29.08.2007, had he achieved qualifying research work for promotion to BS-20. The answer to that question is obviously yes because the petitioner was promoted to BS.20 on 18.01.2008 retrospectively with effect from 21.3.2007.
Accordingly, once the petitioner had met the substantive requirements for promotion to BS.20 on 18.1.2008, the only point that ought to be considered is whether his promotion to BS-20 had been with-held in 2004 for reasons beyond his control. The answer to that question is in the affirmative because his promotion to BS-19 is ante-dated to 1998 by the Council. Therefore the petitioner would have been eligible to be considered for promotion to BS-20 in 2004. Based on that legally valid fiction by virtue of the ante-date and the fact that the petitioner satisfies the substantive requirements of promotion to BS.20, he is entitled to the benefit of the Regulation 15-B supra with effect from 12.05.2004 when the first batch of his juniors were promoted.
This petition is allowed in the foregoing terms with no orders as to costs.
(R.A.) Petition allowed.
PLJ 2010 Lahore 392 [Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
MEPCO through Chief Executive Multan and 2 others--Petitioners
versus
RAO HABIB-UR-REHMAN--Respondent
C.R. No. 249 of 2009, decided on 13.4.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908), Ss. 115, 151 & O. XXXIX, Rr. 1 & 2--Civil revision was barred by thirty seven days--Application for grant of temporary injunction--Direction to install transformer and not to claim expenditure from respondent--Appeal was also rejected--Challenge to--Matter of limitation--No doubt an application u/S. 5 of Limitation Act, seeking condonation of delay has also been filed, alongwith instant petition--Held: No ground, which could be considered as plausible or sufficient, for condonation of delay--Government functionaries in matter of limitation cannot be treated differently from the ordinary litigants from general public--Law of limitation has equal application to all--Petition was dismissed. [P. 393] A & B
Rao Muhammad Iqbal, Advocate for Petitioner.
Date of hearing: 13.4.2009.
Order
Respondent No. 3 Rao Habib-ur-Rehman, filed a suit for declaration and permanent injunction against the petitioner alongwith which an application under Order XXXIX Rules 1 & 2 read with Section 151 CPC for the grant of temporary injunction was also filed. The Civil Judge vide the impugned order dated 24.07.2008, directed the petitioner to install a transformer at the place mentioned in the suit and not to claim expenditure thereof from Respondent No. 3 till the final decision of the suit, where against an appeal was preferred which was rejected vide order dated 20.11.2008 passed by the learned Additional Sessions Judge Burewala District Vehari.
Through this revision petition the petitioner assails both the orders passed by the learned Courts below.
It is inter alia contended that learned Courts below could not justifiably pass the impugned order and should have burdened Respondent No. 3 to bear costs of the transformer and that by allowing interim relief in fact the main relief has been given to the Respondent No. 3.
I have heard the learned counsel for the petitioner at quite some length and with his able assistance have minutely gone through the available record as well as the impugned orders.
This petition admittedly is barred by thirty-seven days. No doubt an application under Section 5 of the Limitation Act seeking Condonation of delay has also been filed, along with this petition but the sole ground urged in Para 4 of the said application is as follows.
"that the delay in few days for filing the civil revision was due to the administrative and official formalities"
To my mind that is no ground, winch could be considered as plausible or sufficient, for condonation of delay. By now it is well-settled proposition of law that Government functionaries in matters of limitation cannot be treated differently from those ordinary litigants from general public. The law of limitation, therefore, has equal application to all.
On merits both the learned Courts below proceeded to pass well-reasoned orders, in accordance with the peculiar facts of the case and while applying the relevant law which is also in lines with the order dated 15.03.2006 passed by this Court in cases of similar nature. Besides the order impugned is interim in nature.
For the aforesaid reasons I do not find any merits in this petition which is hereby dismissed in limine, as barred by time as well as on merits.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 393
Present: Kh. Farooq Saeed, J.
Mst. FARZANA KAUSAR--Petitioner
versus
M. TUFAIL and 2 others--Respondents
W.P. No. 2648 of 2009, heard on 26.5.2009.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Custody of minor--Direction to hand over the custody of minor to the mother--Grandfather of minor preferred an appeal which was allowed by First Appellate Court--Case was remanded for fresh trial--Challenge to--Right of Hazanat--Held: In the case of a child at the age of seven years, the right of Hazanat of mother cannot be substituted or equated with any other right--In the case of a girl another paramount factor is guidance which every girl is required on her attaining the age of majority--This obviously cannot be done by grandfather--First Appellate Court has not exercised his jurisdiction in an appropriation manner--If in his opinion the consent of the minor is to be obtained to adjudge the case there was no need of remanding it to the Guardian Judge--High Court normally would not have interfered, but, however, it is a matter of future and welfare of a kid, the direction of First Appellate Judge was modified. [P. 396] A & B
Mr. Irfan Qureshi, Advocate for Petitioner.
Mr. Kashif Siddique Bhatti & Syed Amjad Iqbal Hussain, Advocates for Respondents.
Date of hearing: 26.5.2009.
Judgment
The brief facts of the case are that the petitioner who is mother of the minor after death of her husband is statedly forced to live apart. She, therefore, filed an application under Section 25 of the Guardian and Wards Act, 1890, for custody of her minor daughter namely Aiza Naseer against the Respondent No. 1.
The Guardian Judge on divergent contentions of the parties framed the following issues:--
Whether welfare of minor lies in her custody with the petitioner as against the respondent? OPA
Whether the plaintiff has lost her right of hizanat of minor as she has contracted second marriage? OPD
Relief.
The Guardian Judge vide his order dated 26.11.2008 accepted the application and directed to hand over the custody of the minor to the petitioner. The Respondent No. 1 who is grand-father of the minor preferred an appeal which was allowed by the Addl. District Judge vide his order dated 22.1.2009 in the manner that the order dated 26.11.2008 of the Guardian Judge was set aside and the case was remanded for fresh trial with the direction to decide the issue after taking consent of the minor.
This direction of the First Appellate Court is challenged inter alia on the basis of following grounds:--
(i) that the minor is a female and is only of seven years old. Petitioner is the real mother and has got the right of "Hazanat" which cannot be substituted or denied under any argument;
(ii) that the Respondent No. 1 is an ailing man of 75 years of age. The petitioner is an educated and well behaved lady. The claim that she is married is incorrect as she has not yet done so;
(iii) that the minor is at the age of seven years now and in the near future being a girl shall be needing the guidance of her mother. Presently she is not in a position to know her good and bad, meaning thereby she cannot adjudge her welfare at this age.
The respondent case on the other hand is that the petitioner left her daughter at her option when she was only two years of age. She preferred going to her job and not to stay at home with her daughter while she was offered to remain there and the respondent is ready to bear their expenses alongwith daughter.
Moreso, the daughter is not willing to go with her. She starts crying whenever it comes to her knowledge that she is likely to go with her mother. She is not at all attached with her for the obvious reasons, besides, if the petitioner comes to their terms, they can ultimately allow her to take the custody also.
Both the sides have argued the case in their favour. The petitioner claim remains that in the famous case of "Mst. Ulfat Shaheen Vs. Akram Khan and 2 others" reported as (2006 C.L.C 51) not only the writ petition was allowed to be entertained but it was also held that where there is an error of law this Court must interfere in the matter of custody also.
The respondent relied upon (1994 M.L.D 1098) re: "Mst. Zainab Bibi Vs. Rehmat Ali and 2 others" and said that the minors attaining the age of discretion, Court while granting custody of minor must ascertain the wishes of the minor. Further in the case "Mst. Rubia Jilani Vs. Raja Zahoor Akhtar and 2 others" reported as (1996 C.L.C 1603) the Court has held as under:--
(a) The paramount consideration is the welfare of the minor;
(b) This welfare must be judged consistently with the law to which the minor is subject;
(c) While determining the welfare of the minor regard shall be had inter alia to the--
(i) age, sex, religion of the minor and
(ii) character and capacity of the proposed guardian
(iii) if the minor is old enough to form an intelligent preference, the Court may consider that preference."
An accumulative reading of the above judgment makes it clear that in the case of minor if she or he has attained the age where she can decide by exercising an intelligent preference only then minor should be allowed to avail the same. Furthermore, in the case of a child at the age of seven years, the right of "Hazanat" of the mother cannot be substituted or equated with any other right. In the case of a girl another paramount factor is the guidance which every girl is required on her attaining the age of majority. This obviously cannot be done by grand-father.
In any case, since in this case the Addl. District Judge has not exercised his jurisdiction in an appropriate manner. If in his opinion the consent of the minor is to be obtained to adjudge the case there was no need of remanding it to the Guardian Judge.
This Court normally would not have interfered, but, however, since it is a matter of future and welfare of a kid, the direction of the Addl. District Judge is modified.
The matter with regard to custody shall be decided by the Addl. District Judge himself and the same shall be decided on the sole consideration of the welfare of the child who is a girl and not young enough to adjudge her welfare within two months after receiving this order.
Disposed of.
(R.A.) Petition disposed of.
PLJ 2010 Lahore 396 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
ALLAH BAKHSH--Petitioner
versus
ALLAH BAKHSH--Respondent
C.R. No. 636-D of 1992, decided on 14.12.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 29(3)--Civil Procedure Code, (V of 1908), S. 115--Civil revision was filed beyond 90 days--Application for condonation of delay--Question of--Whether the delay in filing of civil revision beyond 90 days was not condonable in case--Period of limitation for filing revision has prescribed by S. 115, CPC itself which was as enactment--Held: Section 29(2) of Limitation Act, envisages that where period of limitation was different provided by any special/local law or enactment provisions condoned in Sections 4, 9, 18 & 22 of Limitation Act would apply and remaining provisions would not be applicable where limitation was provided by any special enactment other than Limitation Act, 1908--Application for condonation of delay in filing the revision was dismissed as being hopelessly time barred. [P. 399] A
Mian Muhammad Jamal, Advocate for Petitioner.
Mr. Muhammad Ashraf Qureshi, Advocate for Respondent.
Date of hearing: 14.12.2009.
Order
Through this civil revision, the petitioner Allah Bukhsh son of Nabi Bukhsh has assailed the judgments and decrees of two Courts below. First judgment and decree of the learned trial Court passed on 26.01.1988 and second judgment and decree of lower Appellate Court dated 10.07.1991. Instant revision was filed on 17.11.1992. First order passed by this Court on 2.12.1992 is as under:--
"This revision petition, seemingly time barred by over one year, is sought to be considered on merits but learned counsel is not prepared on the question of condonation of delay, whereabout he has filed CM. No. 1/C-92.
To enable him to support the submission made therein with reference to precedent-cases, adjournment is made for a fortnight, as prayed."
Brief facts of the instant case are that plaintiff Allah Bakhsh was owner of agricultural land measuring 11 kanals in Khata No. 45 in Mauza Panah Kharal Tehsil Layyah. With regard to this land (hereinafter called the suit land) sale-deed dated 3.5.1961 is purported to have been executed by him, in favour of the defendant. On the basis of this sale-deed, Mutation No. 1256 was attested on 07.03.1972 in favour of the defendant. The possession of the land was also delivered to petitioner/defendant. That subsequently, after near about 24 years respondent/plaintiff assailed sale-deed as well as Mutation No. 1256 dated 7.3.1972. It has been further alleged by the plaintiff that he never sold away the suit land to the defendant and the sale-deed which the latter was possessed of was false, fake and forged and was never executed by him and also was without any consideration. It has been asserted that possession was also never delivered by him to the defendant. About the impugned mutation, it has been contended that it being based on a void and illegal document is also liable to be set aside. Under these circumstances, the plaintiff has brought the instant suit for declaring both the afore-mentioned documents as illegal, void, without jurisdiction result of impersonation and in effective qua his ownership rights. As an alternative plea it has been maintained by the plaintiff that he was coming in long continuous uninterrupted possession of the suit land, so has become its owner on account of adverse possession and is entitled to decree for declaration on this basis also. As a consequential relief a permanent prohibitory injunction has also been sought against the defendant.
Defendant filed written statement and raised preliminary as well as factual objections.
Out of the divergent pleadings learned trial Court framed the following issues:--
ISSUES:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit has not been properly valued? If so, its effect? OPD.
(3) Whether the suit is bad for non-joinder of necessary parties? If so, its effect? OPD.
(4) Whether the plaintiff is the owner in possession of the suit land? OPP.
(5) Whether the impugned registered sale-deed and the consequent mutation are against facts and law and void? OPP.
(6) Whether the plaintiff is owner of the disputed land by way of adverse possession, in the alternative.
(7) Relief.
The petitioner produced Manzoor Husain PW-1, Allah Rakhia PW-2 and Allah Bakhsh PW-3. He also produced copy of mutation Ex.P-1, copy of mutation Ex.P-2, copy of sale-deed Ex.P-3, copy of register Haqdaran Zamin Ex. P-4, copy of Khasra girdawari Ex.P-5 and copy of birth register under objection Ex.P-6.
Defendant himself appeared as DW-1 and produced Ghulam Farid as DW-2. No documentary evidence was produced by him.
The learned trial Court after hearing both the parties and after appraisal of evidence on record dismissed the suit on 26.01.1988. The appeal of respondent/plaintiff was accepted on 10.07.1991.
This revision petition was time barred as explicitly mentioned in the order dated 02.12.1992. Learned counsel for the petitioner was asked first to cross this barrier of limitation as the revision petition is hopelessly time barred.
This Court in its order dated 14.12.2009 has observed that this revision petition was filed beyond 90 days and C.M. No. 1-C/1992 was filed for condonation of delay. Learned counsel for the petitioner was confronted with this situation and was asked to cross the barrier of limitation.
At the very outset learned counsel for respondent has also raised this objection that this revision petition is hopelessly time barred so prior to arguments on merit this, question of limitation should be decided.
Learned counsel for the petitioner could not persuaded this Court to condone the delay in filing the revision as ratio settled by the Hon'ble Supreme Court in its judgments followed by the High Courts that the delay in filing the civil revision cannot be condoned. Reference can be cited of the cases reported as "Shujat Hussain Vs Muhammad Habib and another" 2003 SCMR 170, "Allah Ditta and another Vs. Muhammad Shah and others" 2001 SCMR 286, 2006 SCMR 676, "Haji Ahmad Vs. Noor Muhammad reported as 2004 SCMR 1630. These judgments are being followed by the High Courts. In another case reported as "Pakistan Telecommunication Mobile limited vs. Furqan Hiyat Khan" reported as 2008 CLC 628 delay of one day was not condoned in filing the civil revision and although petitioner had moved application under Section 5 of the Limitation Act, praying condonation of delay. It was held in a reported case "Hafeez Ahmad V. Civil Judge, Lahore and others" reported in 2008 SCMR 107, leave to appeal was granted by Honorable Supreme Court to consider the question whether the delay in filing revision petition beyond 90 days was not condonable in the case. Period of limitation for filing revision has prescribed by Section 115 of CPC itself which was as enactment. Section 29(2) of Limitation Act, 1908 envisages that where period of limitation was differently provided by any special/local law or enactment provisions condoned in Sections 4, 9, 18 & 22 of said act would apply and remaining provisions of said act would not be applicable where limitation was provided by any special enactment other than Limitation Act, 1908.
In the light of above mentioned cases application under Section 5 of Limitation Act, 1908, for condonation of delay in filing the instant civil revision is dismissed and main civil revision is also dismissed as being hopelessly time barred. No order as to cost.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 400 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
Mian KASHIF MEHMOOD-UL-HASSAN--Petitioner
versus
JUDGE FAMILY COURT etc.--Respondents
W.P. No. 9384 of 2009, decided 16.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Family Courts Act, 1964, S. 17-A--Constitutional petition--Right of cross-examination was closed--Petitioner filed an application before Family Court to frame appropriate issues--Application was dismissed--Challenge to--Question of--Interim orders passed in family cases can be assailed in writ jurisdiction--Interference in interlocutory order and in proceedings of Trial Court--Validity--Relief was refused unless interim orders bear characteristics of effect of final order--Interim order could not be subjected to judicial scrutiny in writ jurisdiction--Held: Order assailed in the instant writ petition is of interim in nature it does not bear the characteristic of final order--Writ petition was dismissed. [P. 403] C
Writ Jurisdiction--
----Interim orders passed in family cases can be assailed in writ jurisdiction--Validity--Against interim order in family cases High Court can interfere in writ jurisdiction. [P. 402] A
PLJ 1986 Lah. 541, PLD 1982 Lah. 168, PLD 1982 Lah. 92, 1988 MLD 2949, NLR 1988 Lah. 599, 1994 CLC 14 & NLR 1995 Civil 134, rel.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Constitution of Pakistan, 1973--Art. 199--Application before Family Court for rejection of plaint which was refused--Held: Against an interim order writ petition is not maintainable unless interim order gets the characteristics of final order. [P. 403] B
2008 CLC 585 rel.
Syed Athar Hassan Bukhari, Advocate for Petitioner.
Date of hearing: 16.12.2009.
Order
Through this constitutional petition, the petitioner seeks setting aside of the order dated 10.11.2009 passed by learned Judge Family Court, on the application of the petitioner, for framing of appropriate issues in the light of divergent pleadings of the parties. Learned Judge Family Court not only dismissed the application, also recorded the evidence of the defendant, DW-1 to DW-3 the same day.
Brief facts of the instant case are that Mst. Muddasar Nawaz daughter of Haji Muhammad Nawaz filed a suit for dissolution of marriage against the petitioner. Respondents Nos. 2 & 3 filed suit for maintenance allowance alleging therein that Respondent No. 2 married with petitioner on 25.12.2003 and out of this wedlock Respondent No. 3 was born on 23.08.2006. In the beginning relations between the spouses remained cordial which later on become strained. It is alleged in the suit that the petitioner expelled them from the house in three clothes. The petitioner/defendant contested the suit and filed separate written statements, controverted the contents of each suit. In the written statement it was alleged that Mst. Muddasar Nawaz got benefit of Rs. 9,00,000/- during the "abadi" period when she was going to participate in the marriage ceremony of her younger sister. At that time she took golden ornaments, detail of which has been given in the written statement. He took stance that he never expelled the petitioner from his house. He still wants her re-union.
At one stage, the case was transferred from the Court of Abid Hussain Malik, Judge Family Court to the Court of Mr. Jalil Ahmad, Judge Family Court on 06.12.2009.
Later on the petitioner/defendant dis-appeared from the Court and ex-parte proceedings were initiated against the petitioner. The petitioner submitted an application for setting aside ex-parte proceedings which was accepted subject to payment of cost of Rs. 200/- vide order dated 07.10.2009.
Learned counsel submits that no proper issues were framed from the divergent pleadings of the parties and on 12.10.2009 only one following issue was framed.
Issues.
"Whether plaintiff is entitled to the decree as prayed for in the plaint? OPP"
"Whether the plaintiff is entitled to the decree of dissolution of marriage? OPP."
On 02.11.2009 the examination-in-chief of PW-1 and PW-2 were recorded but the counsel for the petitioner was ill and cross-examination was not held. Learned counsel submits that the Judge Family Court without granting fair and square opportunity of cross-examination closed his right of cross-examination on 2.11.2009. On 10.11.2009 the petitioner submitted an application before Judge Family Court to frame the appropriate issues and dismissed the application on 10.11.2009. Present writ petition is filed, to assail the order passed by learned Judge Family Court on 10.11.2009 which is of interim in nature and does not reflect characteristic of final adjudication of the dispute. In family matters interim orders cannot be assailed through constitutional petition unless any interim order attains the characteristic of final order. Learned counsel for the petitioner was asked to assist this Court, on law point, interim orders passed in family cases can be assailed in writ jurisdiction. He made reliance on PLD 1982 Lahore 168 (DB), PLD 1982 Lahore 92, PLJ 1986 Lahore 541, 1988 MLD 2949, NLR 1968 Lahore 599 (DB), 1994 CLC 14 and NLR 1995 Civil 134.
In all these judgments cited above not in a single judgment it is held that against interim order in family cases this Court can interfere in writ jurisdiction. I concur the view expressed by my learned brother, J., in "Ishfaq Ahmad vs. Judge Family Court" (2007 YLR 1550). In this case defendant failed to file written statement the right of defence to file written statement, was struck off. The said order was challenged in the constitutional jurisdiction. Interference in interlocutory order and in the proceedings of the trial Court in the pending family suit before the learned Judge Family Court, was refused. It was held by the learned Judge that if suit was decided against the defendant ultimately and he wanted to file an appeal there it would be open for him to assail impugned order in the appeal but in writ jurisdiction the learned Judge refused to interfere in the interim order of the Judge Family Court. The learned brother Judge also observed that scope of appeal is wider than that of writ petition. In another case reported as "Abdul Karim vs. Ata Mansoor" (2007 CLC 1671), an application filed under Order VII Rule 11 of CPC before the learned Judge Family Court for rejection of plaint which was refused. Against this order writ petition was filed the same was also dismissed on the point of maintainability. Against an interim order writ petition is not maintainable unless the interim order gets the characteristics of final order. In case reported "Muhammad Irfan vs. Judge Family Court" (2008 CLC 585 (c)), interim maintenance allowance was fixed by the learned Judge Family Court under Section 17-A of the Family Courts Act, 1964, which was challenged in the constitutional jurisdiction. Relief was refused unless interim orders bear characteristics of effect of final order. Interim order could not be subjected to judicial scrutiny in writ jurisdiction. I concur the view expressed in these three cases. Order assailed in the instant writ petition is of interim in nature it does not bear the characteristic of final order. I would not like to interfere in this order in writ jurisdiction. This writ petition is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 403 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
WAQAR AHMED--Petitioner
versus
DIRECTOR PUBLIC INFORMATION (COLLEGES) PUNJAB, LAHORE etc.--Respondents
W.P. No. 314 of 2010, decided on 18.1.2010.
Constitution of Pakistan, 1973--
----Art. 212(3)--Constitutional petition--Maintainability--Question of--High Court has no jurisdiction to interfere in the judgment passed by Punjab Service Tribunals under Art. 212(3) of Constitution of Pakistan the jurisdiction is vested with Supreme Court, appeal is provided against the judgment of Administrative Tribunal, Federal Service Tribunal or Provincial Service Tribunal--Petition was not maintainable and the same is dismissed in limine. [P. 404] A
Syed Hamid Hassan Peerzada, Advocate for Petitioner.
Date of hearing: 18.1.2010.
Order
Through this constitutional petition, petitioner seeks indulgence of this Court for declaring the impugned judgment and decree dated
Lah. Muhammad Nawaz v. Ghulam Mustafa Ansari PLJ (Mian Saqib Nisar, J.)
2010 Muhammad Nawaz v. Ghulam Mustafa Ansari Lah. (Mian Saqib Nisar, J.)
12.11.2009, passed by learned Member-III, Punjab Service Tribunal, Lahore.
Learned counsel for the petitioner submits that there is dispute of promotion between the petitioner and private Respondents No. 4 to 6; petitioner was confronted with the proposition that against the judgment of Punjab Service Tribunal appeal before the Hon'ble Supreme Court of Pakistan under Article 212(3) of the Constitution is filed; learned counsel makes reliance on case titled as Export Promotion Bureau and others vs. Qaiser Shafiullah (1994 SCMR 859) if order is without jurisdiction he contends that this Court can interfere in the judgment passed by the Punjab Service Tribunal.
The contention of the learned counsel is misconceived. Case cited by the learned counsel for the petitioner is not related to the law point involved in this petition does not advance the case of the petitioner. What ever the grievance of the petitioner is from the judgment passed by Member-III, Punjab Service Tribunal, petitioner can assail the same before the Hon'ble Supreme Court of Pakistan, this Court has no jurisdiction to interfere in the judgment passed by Punjab Service Tribunal under Article 212(3) the jurisdiction is vested with the Hon'ble Supreme Court, appeal is provided against the judgment of Administrative Tribunal, Federal Service Tribunal or Provincial Service Tribunal.
Resultantly, this writ petition is not maintainable and the same is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 404
Present: Mian Saqib Nisar, J.
MUHAMMAD NAWAZ--Petitioner
versus
GHULAM MUSTAFA ANSARI TEHSILDAR WITH POWERS OF ASSTT. COLLECTOR 1ST GRADE, AHMAD PUR SIAL, DISTT. JHANG and 7 others--Respondents
W.P. No. 2509 of 2009, heard on 29.4.2009.
Land Revenue Act, 1967--
----S. 163(2)(a)(ii)--Constitution of Pakistan, 1973, Art. 199--Power of review--Joint khata--Petitioner obtained a decree for partition from Tehsildar--Review was sought--Review order could be passed--Power of review can only be exercised, if the necessary sanction in that behalf has been first obtained by the reviewing authority which is a condition precedent and sine qua non for the review--No final relief of review can be granted without the sanction--Validity--Held: Where forum has power to grant the final relief, it has inherent power to grant any interim relief vice verse, where the forum yet itself does not have power to grant the final relief, it shall have no power even to grant the interim relief--Tehsildar, without first seeking the sanction could not pass the impugned order, which is declared to be without lawful authority and jurisdiction and cannot sustain in law--Petition allowed. [P. 406] A
Ms. Erum Sajjad Gull, Advocate for Petitioner.
Mr. Ejaz Anwar, Advocate for Respondent Nos. 2 to 6.
Date of hearing: 29.4.2009.
Judgment
For the division of the joint khata the petitioner has obtained a decree for partition from the Tehsildar-Respondent No. 1; Respondents No. 2 to 6 seeking review of the above moved an application under Section 163 of the Land Revenue Act, 1967, accompanied by an application for the grant of temporary injunction, upon which the Tehsildar has passed the following impugned order:--
URDU
Hence this petition.
2A. Confronted with the above, learned counsel for Respondents No. 2 to 6 states that a compromise has been effected between the parties with the Courtesy of a local MPA, therefore, the petition be dismissed, however, no such settlement has been placed on the record. On merits it is submitted that an application for condonation of delay was moved, which is pending; without seeking the sanction of the higher officer, the Tehsildar/Respondent No. 1 could validly grant the interim relief, which power is inherently vested with him.
PLJ 2010 Lahore 406 [Multan Bench Multan]
Present: Arshad Mahmood, J.
MUHAMMAD HAYAT KHAN--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION, RAJANPUR through its Nazim and 2 others--Respondents
W.P. No. 6852 of 2008, decided on 29.4.2009.
Punjab Local Government Ordinance, 2001--
----S. 190--Punjab Local Government (Auction of Collection Rights) Rules, 2003--R. 24--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Right of appeal--Question of maintainability--Auction for contract qua collection of tax on transfer of immovable property--Petitioner was declared successful bidder in the auction--Partial amount was deposited--Charge of the contract had not yet been handed over to him whereas he had discharged all obligations at his end--Grievance of the petitioner to extent of execution of agreement and delivery of lease stands redressed pendente lite instant petition--Possession of lease and collection of tax is being made by him--Terms and conditions of the auction as also lease agreement--Binding the adopt the procedure--Validity--For resolution of the controversy as to commencement of time of lease petitioner is required to approach the D.C.O. for arbitration--Punjab Local Government (Auction of Collection Rights) Rules 2003 of the auction of collection Rules 2003 also insists upon the mode whereunder an arbitrator has to decide the dispute under Arbitration Act--Held: S. 190 of Ordinance 2001 also provides right of appeal to any person aggrieved by any order of Local Government or its functionaries--Agreement was executed during pendency of constitutional petition--Petition was not maintainable. [P. 409] A & B
Mr. Muhammad Ozair Chughtai, Advocate for Petitioner.
Sardar Zafar Ahmad Lund, Advocate for Respondents.
Date of hearing: 7.4.2009.
Order
Brief facts of the case necessary for the disposal of this petition are that petitioner being approved contractor of respondents participated in the auction for contract qua collection of fee/tax on the transfer of immovable property with effect from 1.7.2008 to 30.6.2009 as per terms and conditions of auction. Petitioner offered Rs. 91,00,000/- (rupees ninety one lac only) and declared successful bidder in the auction held on 9.9.2008. Thereafter he was called upon to deposit partial amount of a sum of Rs. 16,02,000/- (rupees sixteen lac two thousand only), which included 2% as security, 10% advance of total bid money, advance installment for the month of September, 2008 and salary of Clerk of the said month, which was accordingly paid by him on 27.9.2008. It is pointed out that vide communication dated 13.9.2008 in response whereof above payment was made period of lease was curtailed from one year to 10 months i.e. from 1.9.2008 to 30.6.2009 on account of auction of the lease on 9.9.2008. It is clearly mentioned in the communication that amount of collection from 1st September, 2008 till the date of possession of the lease all revenue collected in the meanwhile shall be adjusted/reduced from the petitioner's liability. Being conscious of the aforesaid important features of this document as aforesaid the petitioner deposited the above amount of Rs. 16,18,544/- (rupees sixteen lac eighteen thousand five hundred and forty four only). In the meanwhile, the matter was place before the Council for its approval which was accordingly accorded on 23.9.2008. At this juncture the petitioner averring that the confirmation of bid was not communicated to him and that he was being demanded payment of installments with effect from 1.9.2008 although charge of the contract had not yet been handed over to him whereas he had discharged all obligations at his end filed this constitutional petition and in the above backdrop praying as below:
"It is, therefore, humbly prayed that order for demanding the installments of lease for the month of September 2008 and till handing over the charge/possession of lease my kindly be declared illegal, void and without jurisdiction. The respondent may kindly be directed to act upon as per rules and law and to hand over the charge of lease to the petitioner immediately. And period of lease may kindly be treated from the date of delivery of possession. The respondents may kindly be restrained from canceling the lease of the petitioner. And any other relief which deem fit may also be granted to the petitioner in the larger interest of justice."
During proceedings understanding developed inter se the parties and consequently petitioner and respondents executed agreement on 14.2.2009 and petitioner provided surties to the satisfaction of respondents as a result whereof the proper possession of lease was delivered to the petitioner on that very day i.e. 14.2.2009. Grievance of the petitioner to the extent of execution of agreement and delivery of lease stands redressed pendente lite this petition. He has also paid advance installments for the month of September, 2008 as indicated above before filing of this petition. Controversy inter se the parties now boils down as to time of commencement of the period of lease i.e. whether it will run from the date of auction or the date of delivery of possession of lease.
Learned counsel for the petitioner contends that time of lease should reckon from the date of delivery of possession and not from the date of auction of lease for collection of tax. In support of his contentions the learned counsel relief upon two unreported decisions of this Court in Writ Petition No. 11802/1995 and Writ Petition No. 15636/1995.
On the other side, while referring to Para 18 of the terms and conditions of the lease and of lease agreement dated 14.2.2009 it is vehemently argued on behalf of the respondents that as a dispute has arisen between the contractor and the respondents, it has to be resolved through arbitration by the District Co-ordination Officer, which is the appropriate forum and direct petition before this Court without exhausting the alternate remedy is not maintainable. In addition learned counsel relies upon Rule 24 of the Punjab Local Government (Auction of Collection Rights) Rules 2003 to further strengthen his stance. He has also referred to Section 190 of the Punjab Local Government Ordinance, 2001 to reinforce his position that any person aggrieved by any order passed by the Local Government or its functionaries has a right of appeal before the authority, which is an adequate remedy.
I have heard the learned counsel for the parties at length and perused the relevant record with their able assistance.
Petitioner is in possession of lease and collection of tax on transfer of property is being made by him. He is signatory of the terms and conditions of the auction as also of lease agreement, embodying Paras 18 binding both sides to adopt the procedure of arbitration in the event of any dispute inter se them, therefore, for resolution of the controversy as to commencement of the time of lease petitioner is required to approach the District Co-ordination Officer for arbitration. Punjab Local Government (Auction of Collection Rights) Rules 2003 of the auction of collection Rules, 2003 also insists upon the above mode whereunder an arbitrator has to decide the dispute under the Arbitration Act, 1940 within one month. Section 190 of the Punjab Local Government Ordinance, 2001 also provides right of appeal to any person aggrieved by any order of the Local Government or its functionaries. The unreported cases referred by learned counsel for the petitioner are distinguishable as in both these cases arbitration clause in the agreement was not pressed whereas in the present case petitioner is signatory to the terms and conditions of auction and lease agreement containing arbitration clause (clause-18). Needless to point out that the agreement was executed during pendency of this constitutional petition. Therefore, in view of availability of adequate remedy to the petitioner in the above forms, this constitutional petition is not maintainable and is disposed of as such. However, the petitioner, if so advised, will be at liberty to approach the appropriate forum for the redressal of his grievance.
(R.A.) Petition disposed of.
PLJ 2010 Lahore 409 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
Malik AMANULLAH KHAN--Petitioner
versus
BOARD OF REVENUE--Respondent
W.P. No. 432 of 2010, decided on 20.1.2010.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Cancellation of appointment of patwari--Question of grievance of the appointment--Petitioner has some personal vendetta against respondents that Court cannot assume the role of investigating officer as much factual controversy is involved and it needs probe and investigation about the allegation leveled against respondents--For some personal vendetta discretionary powers in the constitutional petition cannot be exercised--Petition dismissed. [P. 410] A
Mr. Ahsan Raza Hashmi, Advocate for Petitioner.
Date of hearing: 20.1.2010.
Order
Through this constitutional petition the petitioner seeks cancellation of appointment of Respondents No. 7 and 8 who are working as Patwari in Tehsil Keror District Layyah.
Learned counsel submitted that respondent DDO (R), Keror District Layyah issued appointment Letter No. 11,12 & 15 as Patwaris to Respondents No. 7 and 8 on 16.1.1998 on the basis of this appointment letter Respondents No. 7 and 8 joined the office of Patwari. Learned counsel further submitted that Deputy Commissioner/District Officer (R) Respondent No. 4 directed the Respondent No. 5 to cancel the appointments of Respondents No. 7 and 8 as their appointments have been made during the ban. He further contended that in compliance of order dated 4.2.2008 D.D.O. (Revenue), Keror Respondent No. 5 withdrew the appointment order of Respondents No. 7 and 8 vide order dated 4.2.1998; that Respondent No. 7 filed W.P. No. 1019/98 and this writ petition was dismissed for non-prosecution and also on merits vide order dated 9.12.2002 whereas W.P. No. 1020/98 was dismissed as withdrawn on 22.12.2003. Learned counsel submitted that he moved an application to Respondent No. 6 that Respondents No. 7 and 8 had committed fraud with the department and they are working as Patwari, their appointments should be withdrawn. Petitioner also submitted applications to other revenue officers. The petitioner also approached the Anti-Corruption department and to her high-ups for action against Respondents No. 7 and 3 but all in vain. The petitioner made his best efforts filing complaints before respondents and before other forums for the removal of the Respondents No. 7 and 8 from the office of Patwari. As a lost resort petitioner has filed this writ petition.
At the very out set this Court put him a question to the petitioner how he is aggrieved of the appointments made in 1998 near about 12 years have elapsed and he has filed this writ petition such a belated stage. The petitioner replied that the petitioner has filed the application before the authorities who are impleaded as respondents but no body give attention to the request of the petitioner but he could not answer how he is aggrieved from the appointments of Respondents No. 7 and 8. In my opinion it appears that petitioner has some personal vendetta against Respondents No. 7 and 8 as he is continuously making complaints against Respondents No. 7 and 8. This Court cannot assume the role of Investigating Officer as much factual controversy is involved and it needs probe and investigation about the allegation leveled against Respondents No. 7 and 8. For some personal vendetta discretionary powers in the Constitutional petition cannot be exercised.
In the light of above discussion this writ petition is dismissed in limine.
(S.S.) Petition dismissed.
PLJ 2010 Lahore 411
Present: Saif-ur-Rehman, J.
MUHAMMAD TUFAIL--Petitioner
versus
ABDUL MAJEED and 3 others--Respondents
C.R. No. 2781 of 2004, heard on 6.4.2009.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 17--Two attesting witnesses--Document of lease deed--Lease of more then one year, was essentially required to be registered--Execution by lessor and lessee was mandatory--Future financial obligations--According to Art. 17 of Qanun-e-Shahadat Order it was to be proved essentially by examining two attesting witnesses. [P. 415] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 17--Requirement of an attesting witness--Prove to execution--Witness did not make any statement that document was signed in his presence--Validity--Petitioner was left with testimony of only one attesting witness which was not sufficient to prove the execution--Deposition of scribe who was not an attesting witness could not substitute the requirement of an attesting witness. [P. 415] B
Execution of Lease Deed--
----Deny his signatures--Not got confronted with document contents of documents--Lapse on part of petitioner was fatal--Validit--After denial of execution of lease deed by respondent was incumbent upon the petitioner to prove that contents of documents were read over to respondent who had signed the same in taken of its correctness--Held: Execution of document had not been proved by the petitioner according to parameters prescribed in. [P. 415] C & D
1995 CLC 43 & 2002 CLC 1244.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 107--Registration of document--Lease of more than one year--Essentially required to be registered and its execution by both lessor and lessee was mandatory--Contention of--Lease in-question could be treated as month to month or valid for first year enforceable under the concept of holding over is also devoid of force. [P. 416] E
Registration Act, 1908 (XVI of 1908)--
----S. 49--Un-registered document--Extinguish any title--Effect of non-registration of document to be registered--Essentially--To effect of non-registration of document required to be registered according to which no document could operate to create declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, to or in immovable property or confer any power to adopt, unless it has been registered--None of the authorities declares that an un-registered document, essentially required to be registered might create or extinguish any title. [P. 416] F
Transfer of Property Act, 1882 (IV of 1882)--
----S. 106--Lease deed--Non-registration of document--Effect of--Such document could be used for co-related purposes and the lessee could avail of benefit of the lease of his case fell u/S. 106 of Transfer of Property Act. [P. 416] G
Civil Procedure Code, 1908 (V of 1908)--
----S. 25-A--Special costs--No issue regarding special costs--Whereas in the present case issue regarding special costs had been framed and conclusion was drawn by Courts below on basis of appreciation of evidence. [P. 417] H
Ch. Tanvir Ahmad Hinjra, Advocate for Petitioner.
Respondent No. 1 in person.
Date of hearing: 6.4.2009.
Judgment
The land constituting subject matter of this controversy is admittedly owned by Respondent No. 1. The petitioner filed suit for declaration contending therein that he obtained lease of this land for a period of four years w.e.f. May, 1998 to May, 2002. An amount of Rs. 54,840/- was settled as lease money which was paid in lump sum to Respondent No. 1 who executed lease deed in favour of petitioner. Later on respondents changed their mind and started causing interference in the rights and possession of the petitioner through illegal means.
The suit was resisted by the respondents.
Learned trial Court framed following issues:--
(1) Whether the plaintiff had got no cause of action to file the instant suit? OPD
(2) Whether the instant suit is not proceedable in its present form? OPD
(3) Whether the instant suit is deficient in Court fee? OPD
(4) Whether the instant suit is not maintainable in its present form? OPD
(5) Whether the instant suit is false and frivolous and as such, the defendants are entitled to recover special costs u/S. 35-A CPC? OPD
(6) Whether the plaintiff has been holding the suit land as a lessee under Defendants No. 1 to 3? OPP
(7) Whether the plaintiff is entitled to get decree for declaration as prayed? OPP
(8) Relief.
On conclusion of the trial, suit filed by the petitioner was dismissed with special costs of Rs. 5000/- by learned Civil Judge vide his judgment dated 04-06-2002. Appeal against the said decree was dismissed by the learned Additional District Judge on 22-10-2004.
Learned counsel for the petitioner contended that learned Courts below had failed to appreciate the evidence in accordance with law. The petitioner proved execution of lease deed Ex.P-1 by examining its scribe and the marginal witnesses. Respondents had failed to rebut the evidence. The controversy was decided against the petitioner mainly on the point that lease deed was not a registered document. The petitioner could not be non-suited merely on this ground. At the most it could be treated as lease from year to year and since the total lease amount had been received by the respondents, therefore, under the doctrine of holding over incorporated in Section 116 of the Transfer of Property Act, 1882, the petitioner could hold possession of the land in dispute till expiry of the lease period and the document of lease could be used for collateral purpose. It was further contended that no ground for granting special costs had been mentioned in the impugned judgments which were liable to be set aside on this short ground. Reliance was placed on the authorities reported as AIR (30) 1943 Madras 286, PLD 1962 Dacca 126, PLD 1962 (WP) Karachi 368, 1994 CLC 1687, 1986 CLC 770, 1995 CLC 43, 1998 MLD 53 and 2002 CLC 1244.
Conversely Abdul Majeed/Respondent No. 1, present in Court, contended that land in dispute had been in possession of father of the petitioner as lessee/tenant. Later on this land was given on lease only for one year to the petitioner who, however, started cutting the trees from the said land and causing damage to it. Thereafter he approached the police for registration of case against the petitioner who had failed to pay lease money as well. It was after initiation of proceedings by the respondents that the petitioner filed this suit on the basis of forged and fabricated document. Forgery by the petitioner had been proved as a result of which a case had been registered against the petitioner. The above referred lease deed, in addition to being forged document was also void being unregistered. Its execution could not be proved. This revision having been filed against the concurrent findings of the learned Courts below was not maintainable.
I have considered the respective contentions of the parties in the light of relevant law and facts on record.
In order to prove the lease, the petitioner produced document described as lease deed Ex.P-1 and examined Niaz Ahmad PW-2 its scribe, Manzoor Ahmad PW-3 and Kamal Din PW-4 to prove the same. Both PW-3 and PW-4 deposed that they had signed Ex.P-1 as marginal witnesses. Kamal Din PW-4 did not mention any thing about the signing of Ex.P-1 by Respondent No. 1 in his presence. Likewise PW-3 also remained silent about this fact during his examination-in-chief, however, during his cross-examination he deposed that Respondent No. 1 was also present and he had also signed Ex.P-1.
Section 107 of the Transfer of Property Act, 1882 requires:--
"A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments, than one each such instrument shall be executed by both the lessor and the lessee:
Provided that the Provincial Government may, from time to time, by notification in the official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."
Precisely, since it was shown to be a lease of more than one year, the same was essentially required to be registered and its execution by both lessor and lessee was mandatory. Admittedly Ex.P-1 is not a registered document and the same was not signed by Respondent No. 1.
The document definitely involved future financial obligations, therefore, according to Article 17 of the Qanun-e-Shahadat Order, 1984 it was to be proved essentially by examining two attesting witnesses. For proper appreciation of the proposition Article 17 is reproduced as under:-
"(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.
(a) in matters pertaining to financial or future obligations, if reduced to writing the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly, and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
Since PW-4 did not make any statement that document was singed in his presence by Respondent No. 1, therefore, petitioner was left with testimony of only one attesting witness i.e. Manzoor Ahmad PW-3 which was not sufficient to prove the execution. The deposition of scribe who was not an attesting witness could not substitute the requirement of an attesting witness.
Even otherwise Respondent No. 1 was not got confronted with document Ex.P-1 to admit or deny his signatures on the same when he was in the witness box. This lapse on the part of the petitioner was also fatal for his case. In addition to this after denial of execution of lease deed by Respondent No. 1 it was incumbent upon the petitioner to prove that the contents of documents were read over to Respondent No. 1 who had signed the same in token of its correctness. No note, however, to this effect was found on Ex.P-1 and statement of Muhammad Tufail PW-1 to this effect was not sufficient to prove that contents of the document were read over to Respondent No. 1 or that he had signed the same after admitting the contents as correct.
For the said reasons it is found that execution of document had not been proved by the petitioner according to parameters prescribed in 1995 CLC 43 (Mst. Noor Jehan and others Vs. Muhammad Rafique and others) and 2002 CLC 1244 (Ghulam Sidique Vs. Mst. Ajaib and others).
The contention of the petitioner that the lease in question could be treated as month to month or valid for the first year enforceable under the concept of holding over is also devoid of force. Before discussion is taken up on this subject, it is essential to have a look through Section 116 of the Transfer of Property Act which reads :--
"If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.
According to Section 106:--
"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month's notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice expiring with the end of a month of the tenancy......."
The ratio arrived at in case law reported in PLD 1962 (WP) Karachi 368 (Haji Dawood & Co. Vs. Haji Muhammad Jqbal and others); PLD 1962 Dacca 126 (Bashir Ullah and others Vs. the Province of East Pakistan and others) and 1994 CLC 1687 (Muhammad Nazir and others Vs. Malli) is also in consonance with the said provisions of law.
It is pertinent to note that Section 49 of the Registration Act, 1908 relates to effect of non-registration of document required to be registered according to which no document could operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property or confer any power to adopt, unless it has been registered. None of the above mentioned authorities declares that ah unregistered document, essentially required to be registered may create or extinguish any title. The only exception, in such cases, shall be that such document could be used for co-related purposes and the lessee could avail of the benefit of the lease if his case fell under Section 106 of the Transfer of Property Act.
The petitioner, however, confined himself only to the proof of lease deed, the execution of which for the foregoing reasons could neither be proved nor could it be proved that the same was being used by him for any co-related purpose referred in the authorities.
The learned Courts below clearly held that the petitioner had filed suit to get his possession prolonged. The findings to this effect are sufficiently supported by the evidence on record and circumstances of the case. An independent issue to this effect had also been framed by the learned trial Court. In the cases of V. Swarnam Iyer Vs. Veeraqu Ammal (AIR (30) 1943 Madras 286) and Saeed Ahmad and others Vs. Mst. Khatoon Begum and others (1998 MLD 53), special costs had not been claimed and no issue regarding special costs stood framed, whereas in the present case issue regarding special costs had been framed and conclusion was drawn by learned Courts below on the basis of appreciation of evidence, therefore, both the authorities provide no help to the petitioner.
In view of the above discussion, this revision is held to be without any force which is hereby dismissed with costs.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 417
Present: Asif Saeed Khan Khosa, J.
ZULFIQAR MUSTAFA--Petitioner
versus
SHO POLICE STATION SAMANABAD and 2 others--Respondents
W.P. No. 6277 of 2008, heard on 4.2.2010.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Applicability of--Dishonoured Cheques, issuance of--Provisions of S. 489-F of PPC are applicable in the case of dishonouring of cheques dishonestly issued by one person to the other. [P. 419] A
PLD 2006 Lah. 752 & PLD 2009 Lah. 541 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Dishonoured cheque, issuance of--Criminal proceedings--Dishonestly issuing a cheque for the purpose of discharging an obligation which cheque is dishonoured has clearly been made a crime and thus the petitioner might not be allowed to take shelter behind a civil statute--Petition dismissed. [P. 420] B
Mr. A.K. Dogar, Advocate with Petitioner in person.
Raja Nadeem Haider, Addl.A.G for Respondents No. 1 & 2.
Mr. Sajjad Mahmood Butt and Mr. Hamid Ashraf, Advocates with Complainant/Respondent No. 3 in person.
Date of hearing: 4.2.2010.
Judgment
Through this writ petition Zulfiqar Mustafa petitioner has sought a declaration that FIR No. 127 registered at Police Station Samanabad, Lahore on 25.03.2008 at the instance of Liaqat Ali complainant in respect of an offence under Section 489-F, PPC is without lawful authority and of no legal effect and practically the petitioner has sought quashing of the said FIR by this Court.
At the outset it has been pointed out by the learned Additional Advocate-General appearing for the State that after completion of investigation of the above mentioned criminal case a Challan had been submitted before the learned trial Court on 07.10.2008 and the case is now pending trial awaiting decision of the present writ petition for the last about a year and a quarter. Normally after completion of the investigation and submission of a Challan quashing of an FIR is not resorted to by this Court as the concerned accused person has an adequate alternate statutory remedy available to him before the trial Court under Sections 249-A/265-K, Cr.P.C. for seeking his premature acquittal but the learned counsel for the petitioner has insisted that the present writ petition may be decided on its merits because this writ petition had been filed before this Court prior to submission of the Challan before the trial Court.
I have heard the learned counsel for the parties at some length and have gone through the documents appended with this writ petition as well as the precedent cases referred to by them with their assistance.
It has straightaway been noticed by me that the impugned FIR had been registered by the local police upon a direction issued by this Court at the instance of the complainant. It is of critical importance to mention here that issuance of the relevant cheques by the petitioner in favour of the complainant and dishonouring of the said cheques by the concerned bank on account of insufficiency of funds are facts which are not disputed by the petitioner. The question as to whether the relevant cheques had been issued by the petitioner on the basis of dishonest intention is a question which necessarily calls for holding of a factual inquiry which exercise cannot be undertaken by this Court in the present summary proceedings under Article 199 of the Constitution. Apart from that, as already observed above, a Challan has already been submitted before the learned trial Court in connection with this case and the question of dishonest intention on the part of the petitioner shall be decided by the learned trial Court on the basis of the evidence which is yet to be adduced before it.
It has been argued by the learned counsel for the petitioner that the provisions of Section 489-F, PPC did not stand attracted to the allegations levelled by the complainant because the relevant cheques had not been issued by the petitioner for the purpose of repayment of any loan and the said cheques had in fact been issued towards investment in a partnership business. According to the learned counsel for the petitioner the relevant cheques had been issued by the petitioner in favour of the complainant by way of providing surety for the profits to be accrued in the business of the parties. These submissions of the learned counsel for the petitioner overlook the fact that it had never been alleged by the complainant that the relevant cheques had been issued by the petitioner towards repayment of any loan and the case of the complainant has throughout been that the said cheques had been issued by the petitioner for the purpose of discharging some financial obligations of the petitioner existing towards the complainant and if that be so then the provisions of Section 489-F, PPC could prima facie legitimately be pressed against the petitioner.
It has also been argued by the learned counsel for the petitioner that the provisions of Section 489-F, PPC stand attracted only to a case where a cheque is issued in favour of a bank towards repayment of a loan obtained from such bank and not to a case wherein a cheque is issued by one individual in favour of an other individual in furtherance of their private dealings. The learned counsel for the petitioner has relied in this respect upon the cases of Muhammad Ayub v. Rana Abdul Rehman and another (2006 YLR 1852) and Maj. (Rtd.) Javed Inayat Khan Kiyani v. The State (PLD 2006 Lahore 752). This submission of the learned counsel for the petitioner as well as his reliance upon the above mentioned precedent cases have been found by me to be utterly misconceived as it had never been held in the said precedent cases as canvassed by the learned counsel for the petitioner. In the case of Maj. (Rtd.) Javed Inayat Khan Kiyani v. The State (PLD 2006 Lahore 752) and also in the case of Muhammad Iqbal v. Station House Officer, Police Station Hajipura, Sialkot and two others (PLD 2009 Lahore 541) it had clearly been recognized and held that the provisions of Section 489-F, PPC do come into play in cases of dishonouring of cheques dishonestly issued by one individual in favour of another individual. It had further been held in the said cases that in a case of a dishonoured cheque issued by an individual in favour of a bank towards repayment of a loan obtained from that bank the provisions of Section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are applicable. It appears that the learned counsel for the petitioner has not read the above mentioned precedent cases before placing reliance upon the same.
It has further been argued by the learned counsel for the petitioner that the word "obligation" used in Section 489-F, PPC has not been defined in the Pakistan Penal Code and, thus, the definition of that word contained in Section 3 of the Specific Relief Act, 1877 is to be borrowed so as to understand the correct import of the provisions of Section 489-F, PPC. He has also referred in this context to the provisions of Section 12 of the Specific Relief Act, 1877. According to the learned counsel for the petitioner an obligation to pay a sum of money on the basis of a contract gives rise to a civil liability and criminal prosecution for the same cannot be launched. This submission of the learned counsel for the petitioner has also failed to impress me because a word used in a criminal statute does not necessarily have to borrow a meaning from a civil statute. Through an amendment introduced in the Pakistan Penal Code Section 489-F, PPC had been inserted therein and dishonestly issuing a cheque for the purpose of discharging an obligation which cheque is dishonoured has clearly been made by the legislature a crime and, thus, the petitioner may not be allowed to take shelter behind a civil statue to avoid his criminal liability in that regard. These observations made by me also take care of the next argument advanced by the learned counsel for the petitioner regarding the petitioner's obligations being civil in nature entailing civil liability based upon rendition of accounts. When the law itself has made a particular action criminally culpable then an attempt to thwart the intention of such law with reference to a civil statute may not be acceptable.
It has lastly been submitted by the learned counsel for the petitioner that the relevant cheques had never been given by the petitioner to the complainant with any dishonest intention or for the purpose of avoiding payment and, thus, the provisions of Section 489-F, PPC cannot be pressed against him. He has referred in this respect to the provisions of Section 24, PPC defining "Dishonesty". The learned counsel for the petitioner has maintained that the petitioner had not obtained any wrongful gain through dishonouring of the relevant cheques and, thus, his conduct could not be termed as dishonest and, therefore, the petitioner cannot be prosecuted for an offence under Section 489-F, PPC. This submission of the learned counsel for the petitioner conveniently overlooks that the definition of "Dishonesty" contained in Section 24, PPC not only speaks of wrongful gain of one person but it also speaks of wrongful loss to another person. In the case in hand the petitioner appears to have gained by not parting with the sum of money which was the subject matter of the relevant cheques and the complainant had apparently suffered a wrongful loss on account of dishonouring of those cheques. In this view of the matter the definition of "Dishonesty" contained in Section 24, PPC seems to be applicable against the petitioner rather than providing any shelter to him.
The discussion made above leads me to conclude that there is hardly any occasion for this Court to interfere in the matter at such a stage when the learned trial Court has already taken cognizance of the case and it is yet to receive evidence for resolution of various factual and legal issues involved in this case. The learned counsel for the complainant has referred to the cases of Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192), Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others (PLD 2006 SC 598) and Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276) to contend that this Court ought to be slow in interfering in the matter at such a juncture and in the above mentioned circumstances of this case I have found the learned counsel for the complainant to be quite justified in that regard. This writ petition is, therefore, dismissed with no order as to costs.
(A.A.) Petition dismissed.
PLJ 2010 Lahore 421 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
GHULAM MURTAZA--Petitioner
versus
A.S.J. and others--Respondents
W.P. No. 9866 of 2009, decided on 23.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Contradiction in the statement of complainant made in cursory evidence concurrent findings--Criminal revision--Statements of the other two prosecution witnesses also certain contradictions--Criminal revision of the petitioner filed against the order of Magistrate has also rightly been dismissed by the Addl. Sessions Judge--There are concurrent findings given by the two Courts below based on good appreciation of evidence and material before them, which need no interference by that Court in writ jurisdiction--Petition dismissed. [P. 423] A
Mr. Sohail Waqarul Haq Chaudhry, Advocate for Petitioner.
Date of hearing: 23.12.2009.
Order
Through this Constitutional petition petitioner Ghulam Murtaza son of Muhammad Ashraf assails the order dated 11.12.2009, whereby the learned Additional Sessions Judge, Kot Addu, dismissed the criminal revision filed by the petitioner against the order dated 25.11.2009 of the Magistrate Section 30, Kot Addu, District Muzaffargarh, dismissing the private complaint filed by the petitioner against Respondents Nos. 3 to 5 for snatching his motorcycle on pistol point and giving him beating.
Facts of the case are very simple. According to the instant petition, Respondents Nos. 3 to 5, namely, Ibrar Hussain son of Muhammad Anwar Chohan, Muhammad Sarfraz son of Karam Ali and Ahmad Nawaz son of Murad Ali stopped the petitioner while he was on his way on the motorcycle to the house of his sister at Chak No. 557/TDA. The respondents on pistol point deprived him from his motorcycle and also gave beating and ran away from the scene; on the hue and cry raised by him and on the report of firing PWs attracted to the spot.
Learned counsel for the petitioner submits that on the statement of the petitioner the concerned Police Station registered the case only against one person; that they did not mention the other two accused in the FIR, and that no proper sections were incorporated in the FIR; the petitioner filed a private complaint but the learned Illaqa Magistrate after recording cursory evidence illegally dismissed the same. Further submits that criminal revision petition filed by the petitioner against the said order of the Magistrate has also illegally been dismissed by the learned Additional Sessions Judge.
I have heard the learned counsel for the petitioner and perused the file. Learned Magistrate Section-30 recorded the cursory evidence of the complainant Ghulam Murtaza and PWs Abdul Ghaffar and Ijaz Ahmad. Ghulam Murtaza complainant stated that a muffled face person stopped him and shown him 30-bore pistol and asked him to hand over the motorcycle, but on his resistance the muffled person gave him a But-blow of the pistol on his head and during resistance veil of the said muffled face person was dropped and he was recognized by the complainant as Ibrar Ahmad, and the other accused persons were recognized as Muhammad Sarfraz and Ahmad Nawaz. The complainant did not state whether their veils were dropped or not and how he recognized them. He stated in his evidence that all the accused were armed with pistols, whereas it is not so mentioned in the complaint. Abdul Ghaffar stated in his statement before the Court that the accused were giving beating to the complainant with hand and they were armed with revolver and they were trying to snatch the motor cycle. He did not remember the registration of the motorcycle. It is to be noted that complainant in the FIR got recorded by him regarding the same occurrence mentioned Amir Maqsood and Shaukat Ali as witnesses but in the complaint he did not mention their names as witnesses. Further the private complaint was filed after five months of the lodging of the FIR.
There are material contradiction in the statement of the complainant made by him in cursory evidence and the complainant. Statements of the other two PWs also contain contradictions. The learned trial Court rightly dismissed the complaint of the petitioner by giving cogent reasons. The criminal revision of the petitioner filed against the order of the learned Magistrate has also rightly been dismissed by the learned Additional Sessions Judge. There are concurrent findings given by the two Courts below based on good appreciation of evidence and material before them, which need no interference by this Court in writ jurisdiction.
For the reasons discussed above, this writ petition fails, and the same is dismissed in limine.
(S.S.) Petition dismissed.
PLJ 2010 Lahore 423 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
ALLAH DITTA and 5 others--Petitioners
versus
MUHAMMAD SHAFI and others--Respondents
C.R. No. 55 of 2010 and C.M. No. 112-C of 2010, decided on 20.1.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXXIX, Rr. 1, 2--Civil revision--Suit for permanent injunction to effect that plaintiffs were owners in possession of three shops--Defendants were intending to get the possession illegally and forcibly without partition--To know the veracity of the facts a local commission was appointed by Trial Court--Temporary injunction was allowed--Appeal was also dismissed--Assailed--Question of--Whether plaintiff were in possession of the suit property by illegal means or on basis of the ownership it would be decided after recording of evidence--Validity--Plaintiff's and petitioners were admittedly co-sharers and owners in impugned khata--Fact of possession of the suit property by plaintiffs was admitted irrespective of the fact--Whether some was legal or illegal or respondents had obtained the possession of the suit land forcibly--Report of local commission to extent of possession upon the suit property also supported the version of the petitioners--Held: During the pendency of the suit the trial Court appointed a local commission who submitted report that plaintiffs were in possession of the suit property at spot--Facts of possession was admitted by petitioners--Orders passed by Courts below were based on convincing, rational and cogent reasons--Petitioners failed to point out any illegality or irregularity--Basic ingredient for grant of temporary injunction i.e. possession of plaintiffs was admitted on the site--Even they were owners in joint khata which was yet to be partitioned, which fact establishes their prima facie case--If the temporary injunction was refused and trial Court the apprehension was very much there that the defendants could create inconvenience by selling joint property in hands of others--Petition was dismissed. [Pp. 425 & 426] A & B
Mr. Tahir Mehmood, Advocate for Petitioners.
Date of hearing: 20.1.2010.
Order
Allah Ditta son of Allah Bakhsh and 5 others through the instant Civil Revision under Section 115, CPC, call in question the order dated 15.12.2009, passed by the learned Additional District Judge, Jatoi, dismissing the appeal filed by the petitioners against the order dated 01.06.2009 of the learned Civil Judge 1st Class, Jatoi whereby he had accepted the application of the plaintiff-respondents seeking temporary injunction filed in a suit for permanent injunction.
Facts in brief leading to the filing of the present civil revision are that respondents Muhammad Shan etc., filed a civil suit for permanent injunction to the effect that the plaintiffs-respondents are owners in possession of three shops on land measuring 10-Marlas, situated in Khasra No. 85/17/3 through Mutations Nos. 2289 and 2234, in Mauza Dakhhli Jhalaren, Tehsil Jatoi, District Muzaffargarh, as described in the head-note of the plaint and that the defendants-petitioners are intending to get the possession of the said property illegally and forcibly without partition. Along with the suit an application under Order XXXIX, Rules 1 and 2, CPC was also filed praying that the defendants-petitioners be restrained from interfering in the possession of the plaintiffs-respondents. The defendants-petitioners filed their written statement, wherein preliminary objections were taken that the shops are in ownership of the defendants-petitioners, the meter at the spot was installed in their name; the shops which are two in number were in the ownership of Respondent No. 1 Allah Ditta who sold out these two shops through Mutation No. 6691 dated 29.10.2007 to Defendants Nos. 4 and 5 for valuable consideration of Rs. 2 lacs. The defendants-petitioners also filed reply to the application for temporary injunction.
It is pertinent to note that to know the veracity of the facts a local commission was also appointed by the trial Court for site-inspection and to submit a report. The local commission on 20.4.2009 filed its report before the trial Court. The learned trial Court vide order dated 01.06.2099 allowed the temporary injunction accepting the application under Order XXXIX, Rules 1 and 2 CPC and ordered the parties to maintain status-quo till the decision of the suit. However, the learned trial Court observed that the instant injunctive order would not affect any proceedings of partition conducted by the competent forum. The present petitioners filed an appeal assailing the order dated 1.6.2009 passed by the learned trial Court before the learned Additional District Judge, who vide judgment dated 15.12.2009 dismissed the said appeal.
The learned counsel for the petitioners submitted that the petitioners are in possession of two shops on the site, which fact is also supported by the report of the local commission appointed by the learned trial Court. Further contended that the shops were owned by Defendant No. 1 who sold out through Mutation No. 6691 to Defendants Nos.4 and 5 for consideration of Rs. 2 lacs and Defendant No. 1 had handed over the possession of the shops to the Defendants Nos.5 and 6 but later on the plaintiffs got possession upon the shops.
I have heard the learned counsel for the petitioners at length. The learned trial Court as well as the lower appellate Court both have observed in their respective orders that the plaintiffs-respondents and the petitioners are admittedly co-sharers and owners in the impugned Khata No. 57 of Mauza Jhalaren. The fact of possession of the suit property by the plaintiffs-respondents is admitted by the defendants-petitioners irrespective of the fact whether the same was legal or illegal or the plaintiffs-respondents have obtained the possession of the suit land forcibly. Report of the local commission to the extent of possession upon the suit property/shops also supported the version of the plaintiff-petitioners as it is observed in the said report of the local commission that:--
The learned trial Court rightly allowed the application for temporary injunction and the learned Additional District Judge in appeal vide order dated 15.12.2009 upheld the order of the trial Court giving cogent reasons. Possession of the plaintiffs is admitted on the suit property. Whether the plaintiffs are in possession of the suit property by illegal means or on the basis of the ownership it would be decided after recording of the evidence. The learned Additional District Judge observed that during the pendency of the suit the learned trial Court appointed a local commission who submitted report that the plaintiffs are in possession of the suit property at the spot. The fact of possession was admitted by the petitioners-defendants. Both the orders passed by the Courts below are based on convincing, rational and cogent reasons. Learned counsel for the petitioners failed to point out any illegality or irregularity. In the impugned orders basic ingredient for grant of temporary injunction, i.e. possession of the plaintiffs is admitted on the site. Even they are owners in joint Khata which is yet to be partitioned, which fact establishes their prima facie case. If the application was dismissed and if the temporary injunction was refused and order for maintaining the status-quo was not passed by the trial Court the apprehension was very much there that the defendants could create inconvenience by selling joint property in the hands of others.
In the light of above discussion, I do not like to interfere in the orders impugned in this petition, which is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 426 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
ABID HUSSAIN--Petitioner
versus
JUDGE FAMILY COURT--Respondent
W.P. No. 7733 of 2009, decided on 11.11.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Order passed by Executing Court in execution proceedings on objection petition was challenged through writ petition--Petitioner did not assail judgment and decree of Family Court and did not file an appeal before Distt Judge--Appeal was not filed as such judgment and decree of Family Court attained the status of finality--Validity--Petitioner did not file the appeal against the judgment and decree, thus the decree attained finality--Present objection petition was filed just to prolong the matter to avoid payments, till passing of the order petitioner did not pay single penny to respondent--Petition was dismissed in limine. [P. 428] A
Mr. Mazhar Hayat Bhatti, Advocate for Petitioner.
Date of hearing: 11.11.2009.
Order
Through this constitutional petition, petitioner calls in question the order dated 04.06.2009 passed by learned Judge Family Court/Executing Court in execution proceedings on objection petition filed by the petitioner/judgment-debtor.
Brief facts of the instant writ petition are that petitioner was married with Respondent No. 2, Sajida Mai on 16.02.2001, against four tolas gold ornaments, and 5 Marlas land situated in Mauza Kherra abad Basti Perraywali was fixed as dower in Nikah Nama. In the beginning relations between the spouses remained cordial and they enjoyed the happy matrimonial life, out of this wedlock, Muhammad Noshairwan Respondent No. 3 was born.
Learned counsel for the petitioner submits that Respondent No. 2 remained in the house of the petitioner and a forged divorce deed was prepared by her she went away with her parents she filed a suit for maintenance allowance and delivery charges Rs. 25,000/-; that petitioner also filed a suit for conjugal rights against Respondent No. 2 when she went to her parents; that petitioner also initiated criminal proceedings for forging a divorce deed; however, suit for maintenance of Respondent No. 2 was decreed at the rate of Rs. 2000/- per month for plaintiff Respondent No. 2 Mst. Sajida Mai d/o Ghulam Hussain till the existence of marriage in case of divorce till the period of Iddat and the learned Judge Family Court also fixed Rs. 1000/- per month for the minor Muhammad Noshairwan from the date of institution of the suit till the minor attains majority; that it is pertinent to mention here that petitioner did not assail the judgment and decree of maintenance passed against her by the Judge Family Court and did not bother to file appeal against judgment and decree passed by the learned Judge Family Court, Multan, Respondent Nos. 2 & 3 in whose favour judgment and decree for maintenance allowance was passed filed by the execution proceeding petition of 30.11.2000; during these proceedings the parties started negotiations for reconciliation but all in vain; present petitioner filed objection petition in the executing Court on 30.6.2008; that the Respondent No. 2 filed reply of objection petition; learned Judge/ Executing Court dismissed the objection petition vide order dated 4.6.2009; through this writ petition petitioner is assailing the order dated 04.06.2009 passed by learned Executing Court dismissing the objection petition of the petitioner.
I have heard the learned counsel for the parties and perused the record.
Learned counsel for the petitioner when was confronted that petitioner did not assail judgment and decree of Judge Family Court and did not file an appeal before the District Judge, he candidly confessed that appeal was not filed, as such, the judgment and decree of the learned Judge Family Court attained the status of finality. Relevant para of the impugned order dated 04.06.2009 passed by Judge Family Court is reproduced hereunder:--
"From the perusal of the record it has transpired that the suit for conjugal rights was dismissed by learned Judge Family Court, Mr. Azhar-ul-Haq dated 06.11.2006 in which it was also permission for granted to the plaintiff that he may file the suit for conjugal rights within six month from the date of this judgment. The suit for decree holder on decreed on the same dated on 06.11.09, there is no condition mentioned in the judgment. In this way, the Plaintiff No. 1 is bound to live with the judgment debtor as well as decree Holder No. 2 is minor. The judgment debtor appeared in the Court and did not pay any single penny and did not in stated whether he want to pay the maintenance allowance of the decree Holder No. 2, therefore, prima facie case it looks that the application has been filed just to prolong the matter."
I find no illegality or irregularity in the impugned order dated 04.06.2009 passed by Judge Family Court. Petitioner did not file the appeal against the judgment and decree, thus, the judgment and decree dated 04.06.2009, attained the finality, present objection petition is filed just to prolong the matter to avoid payments, till passing of this order petitioner did not pay single penny to the respondent or his minor son, Muhammad Noshairwan, The Executing Court rightly dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 429 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
SHAHID RAZA--Petitioner
versus
A.D.J. and others--Respondents
W.P. No. 9430 of 2009, decided on 11.12.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Specific Relief Act, (I of 1877), S. 9--Suit for possession--Joint owners of the property--Defendant filed an application u/O. VII, R. 11, CPC alleging that the plaintiff and defendant were joint owners of the property--Application was dismissed and the suit was decreed ex-parte--Respondents moved an application u/S. 12(2) of CPC on the ground that impugned judgment and decree had been obtained through fraud and misrepresentation which was dismissed--Challenged through revision petition which had been accepted--Assailed--Controversy between the parties could only be resolved after framing the issues and recording the evidence--Held: Trial Court committed illegality dismissing application, filed u/S. 12(2), CPC for setting aside judgment without framing issues on the question of fraud--Case was remanded rightly to trial Court with direction to decide the application filed by defendant u/S. 12(2) of CPC afresh after framing necessary issue and then after recording of evidence of the parties--Petition was dismissed. [P. 431] A
2008 SCMR 236, PLD 2006 SC 773 & 2008 SCMR 236, rel.
Syed Jawad Jafri, Advocate on behalf of the petitioner.
Date of hearing: 11.12.2009.
Order
The petitioner Shahid Raza S/o Safdar Ali field a suit for possession under Section 9 of the Specific Relief Act against the predecessor in interest of Respondents No. 3 to 9 namely Muhammad Abdullah. The defendant Muhammad Abdullah, put appearance before the learned trial Court and filed an application under Order VII, Rule 11 CPC alleging therein that the plaintiff and defendant are joint owners of the property. It was further alleged that without partition of the joint property the plaintiff cannot claim for the possession of the specific portion of the joint property and the said application filed under Order VII, Rule 11 of CPC was dismissed vide order dated 23.9.2008, as the defendant was proceeded ex-parte. Thereafter the plaintiff was directed to produce ex-parte proof and the case was adjourned to 31.10.2008 and after recording the evidence of the plaintiff the suit was decreed ex-parte vide judgment and decree dated 19.12.2008.
Later on, on 3.2.2008, the respondents moved an application under Section 12(2) of CPC, on the ground that the impugned judgment and decree has been obtained through fraud and misrepresentation. The said application under Section 12(2) CPC was dismissed by the learned trial Court vide order dated 29.4.2009. The respondents assailed the order dated 19.4.2008 through revision petition and the same was accepted vide order dated 8.9.2009. Hence, the instant writ petition has been filed for setting aside the impugned order dated 8.9.2009, passed by the learned Addl: District Judge, D.G.Khan.
Learned counsel for the petitioner contended that the impugned order dated 8.3.2009 is against law and facts and is liable to be declared null and void. That no element of fraud or misrepresentation from the side of the petitioner/plaintiff has been correctly visualized. That the defendant Muhammad Abdullah and his counsel committed willful absent from the proceedings of the learned trial Court and the learned trial Court has rightly observed that Mr. Jehangir Khan Wadani, Advocate was the advocate of the defendant and he was properly engaged and it was his responsibility to pursue the case. The learned counsel relied upon "Messrs Dadabhoy Cement Industries Ltd. and 6 others vs. National Development Finance Corporation, Karachi" (2002 SCMR 1761), Shafi Muhammad and 13 others vs. Muhammad Farooq and 3 others" (1989 CLC 937), "Mrs. Anis Haider and others vs. S. Amir Haider and others" (2008 SCMR 236), "Industrial Development Bank of Pakistan vs. National Engineering Works and others" (1993 MLD 1344), during the arguments. Learned counsel for the petitioner submitted that it was not necessary that in each and every case in which an application under Order 12(2) CPC was filed, issues were necessary to be framed. That the learned Addl: Sessions Judge committed illegality while setting aside the order dated 29.4.2009 passed by the learned trial Court the order passed by learned Addl: District Judge is not based on cogent and sagacious reasoning and the same is liable to be set aside.
It is evident from the perusal of record that the learned Addl: District Judge while passing the impugned order has observed as under:-
"I am afraid that impression token and reasons advanced by learned Civil Judge were not much inspiring rather misconceived. There is no cavil to the preposition that a decree passed against a dead person is void ab-initio as per dictums laid down by this Court. Learned Court further observed that Petitioners No. 1 & 2 are minors were as Respondent No. 3 is the widow of original defendant Abdullah, widow as parda observing lady and Courts are supposed to protect their interest. When an advocate is engaged by his client, who later or expires, the advocate has least interest the case unless legal heirs/family members approached him, therefore, non-appearance of above advocate in the above suit after the death of his client was not unnatural.
Even if, the learned civil judge opts to dismiss such like application, he was supposed to keep in view the questions raised on behalf of petitioners, which involved and require thorough inquiry/investigation not possible without recording the evidence. Whether any mis-representation was exercised by Respondent No. 1 or any fraud was committed by, or the question requiring detailed inquiry into the fact.
Impugned order passed by learned civil judge was not maintainable which is hereby set aside. Learned Court shall proceed into the matter after framing the issues and shall record the evidence. Matter is remanded back in above terms petitioner is accepted."
(R.A.) Petition dismissed.
PLJ 2010 Lahore 432
Present: Raja Muhammad Shafqat Khan Abbasi, J.
MUHAMMAD ASLAM and another--Petitioners
versus
MUHAMMAD SHARIF and antoher--Respondents
C.R. No. 609 of 2009, decided on 11.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Right of producing evidence was closed--Two witnesses were examined and thereafter no witness was brought in the witness box despite acceptance of their application for production of additional evidence--Validity--Sufficient opportunities were provided to the petitioner for providing witnesses--Even on the specific date, they were directed to produce the evidence otherwise, right will be struck off and the case was kept in waiting and at that juncture, trial Court proceeded to close the right of production of evidence. [P. 435] A
Adjournments--
----Consecutive and successive adjournments--Conduct of--Misuse of process of Court--Failed to produce evidence despite granting of more than nine consecutive and successive adjournments for that purpose--Warning, final and last opportunity at six different occasions were also given to petitioners--Conduct of the petitioners indicates as to how much they were serious in their cause--Held: Trial Court could not keep pending the cause for an indefinite period--It was duty of plaintiff to lead evidence in order to prove their cause. [P. 436] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XVIII, Rr. 1 & 3--Adjournment--Prerogative and discretion of the Court--Held: Parties cannot claim adjournment as matter of right--It is prerogative and discretion of the Court to grant or refuse adjournment in terms of Order XVII, Rules 1 & 3 of CPC--If sufficient cause is shown, the Court can grant adjournment. [P. 436] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XVIII, R. 1(3)--Cause improper delay in proceedings--When evidence of the case once begun, then hearing would be continued from day to day until all the witness in attendance had been examined--Validity--Under Order 17, Rule 1(3) of CPC, when sufficient cause is not shown--Held: Court shall proceed with the suit forth with--These provisions are not meant to enable the party to cause improper delay in proceedings. [P. 436] D
Civil Procedure Code, 1908 (V of 1908)--
----O.XVII, R. (3)--Sufficient reason--Nine opportunities were provided despite burden of costs and giving warning--Order sheet did not indicate sufficient reason for further adjournment, hence, trial Court was right in proceeding under Order 17, Rule 3 of CPC and dismissing the case on the basis of material available on record. [P. 436] E
2008 SCMR 322 & 2004 YLR 1166, rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XVII, R. 3--Civil revision--Right of evidence was closed--Matter remained pending for about more than three years--Nine opportunities were provided--Validity--Sufficient opportunities had been provided to petitioners to prove their claim, but they had failed to do so and matter remained pending for about more than three years for recording of evidence of the petitioners--No misreading of record or misinterpretation of law had been pointed out for the petitioner in the impugned judgments--Petition was dismissed. [P. 436] F
Sardar Muhammad Ramzan, Advocate for Petitioners.
Nemo for Respondent.
Date of hearing: 24.4.2009.
Order
The petitioners, namely, Muhammad Aslam, son, and Mst. Khalida Bibi, daughter of Noor Alam (deceased), by filing this revision petition under Section 115 C.P.C. have called in question the judgment and decree dated 23.1.2009 passed by the learned Additional District Judge, Kharian, District Gujrat, whereby he dismissed their appeal maintaining the judgment and decree dated 8.4.2008 passed by the learned Civil Judge IIIrd Class, Kharian, whereby he while closing their right of producing evidence under Order XVII, Rule 3 C.P.C. dismissed their suit for possession through pre-emption.
Precisely the facts giving rise to this revision petition are that a parcel of land measuring 7 marlas, bearing Khasra Nos.735/2. Khata No. 161/186, as per Register Haqdaran Zameen 2000-01, situate at Mauza Kotla Qasim Khan, tehsil Kharian was sold by Muhammad Afzal. Muhammad Amjad and Muhammad Inayat to Muhammad Sharif respondent for a consideration of Rs. 7,000/-, but in the mutation it was mentioned as Rs. 11,000/-, Noor Alam deceased, predecessor-in-interest of the petitioners, filed a suit for possession through pre-emption narrating therein that he came to know of the sale on 23.6.2004, at 9.00 a.m. through Muhammad Iqbal son of Muhammad Shafique in the presence of Haji Muhammad Siddique and Muhammad Aslam; he at once declared his intention of pre-emption in presence of the witnesses and thereby performed Talb-e-Mawathibat"; thereafter, notice of "Talb-e-Ishhad" was served upon the respondent through registered Post/AD No. 1462, dated 23.6.2004, attested by two truthful witnesses asking the respondent to admit superior right over the suit property and transfer the same, but he refused to do so; Noor Alam deceased filed a suit for possession through pre-emption on 31.7.2004 on the basis of common Khata and common source of water and having superior right over the suit property; the respondent contested the suit by filing written statement; out of the divergent pleadings of the parties, the learned trial Judge vide order dated 1.12.2004 proceeded to frame fourteen issues inclusive of the relief and fix the case for evidence of the plaintiff on 24.2.2005, on which date statement of Postmaster (PW-1) was recorded; thereafter on 26.5.2005, statement of one witness (P.W.2) was also recorded and the case was postponed to 12.9.2005 for rent of the evidence of the plaintiff, but on the said date application for impleading legal heirs of Noor Alam plaintiff was filed, which was not contested by the respondent and was allowed; from 1.10.2005 to 30.11.2005, the case remained pending for filing of amended memo of plaint and reply thereto; on the last date, the plaintiffs were ordered to produce evidence on 23.2.2006, but on the said date evidence was not produced; the petitioners moved an application seeking permission to produce secondary evidence, which was allowed on 28.7.2007 and the case was posted for hearing on 15.9.2007; thereafter seven adjournments were afforded to the petitioners for producing evidence and on 11.3.2008, the learned trial Judge providing last opportunity to the petitioners adjourned the case to 8.4.2008 and on the said date, when the petitioners again failed to produce their witnesses, their right to produce evidence was closed and their suit was dismissed vide judgment and decree dated 8.4.2006; being aggrieved of the said judgment and decree, the petitioners/plaintiffs preferred appeal before the learned Additional District Judge, Kharian, which was also dismissed vide judgment and decree dated 23.1.2009. Hence, the instant revision petition.
This petition came up for hearing on 13.4.2009, when pre-admission notice was issued to the respondent for today. Service upon him was ordered to be effected through ordinary course, registered Post/AD as well as T.C.S. at the expense of the petitioners, but they failed to deposit the expenses, due to which notice could not be issued to the respondent. In this situation, I proceed to decide this revision petition today on merits.
It has been argued by the learned counsel for the petitioners that as the judgments and decrees of both the Courts below are result of misreading or non-reading of record, therefore, the same are not sustainable in the eyes of law; that due to unavoidable circumstances the petitioners could not produce the evidence as Muhammad Aslam (the petitioner), who is necessary witness, had gone abroad; that the judgments of the Courts below are contrary to law, perverse and, hence, are liable to be set aside.
I have heard the learned counsel for the petitioners at considerable length and have gone through the record available on the file as also judgments and decrees of the Courts below.
Perusal of the judgment and decree dated 8.4.2008 passed by the learned Civil Judge, Kharian reveals that the said learned Judge after observing the fact that the suit in hand had been filed on 31.7.2004 and issues had been framed on 1.12.2004 and from the said date, the suit was lingering on for the evidence of the petitioners for one reason or the other. Copy of order sheet of the trial Court appended with this petition shows that before death of Noor Alam, the predecessor-in-interest of the petitioners, two witnesses had been examined and thereafter no witness was brought in the witness box despite acceptance of their application for production of additional evidence. Sufficient opportunities had been provided to the petitioners for the said purpose and ultimately the trial Court while granting them last opportunity on 11.3.2008 had postponed the case to 8.4.2008. Even on the said date, the learned counsel appearing on their behalf was directed to produce the evidence otherwise their right will be struck off and the case was kept in waiting till 2.30 p.m. and at that juncture, the learned trial Judge proceeded to close the right of production of evidence of the petitioners.
Insofar as the appellate judgment and decree dated 23.1.2009 is concerned, it appears that the learned appellate Judge after viewing the case from all its angles and considering the grounds urged by the petitioners has rightly upheld the judgment and decree of the trial Court. The contention of the learned counsel for the petitioners that Muhammad Aslam, one of the petitioners, who was patient of sugar, eyesight and hypertension, had undergone an operation at England and the doctor had advised him rest due to which he could not come to Pakistan and ultimately he arrived in Pakistan on 18.4.2008, whereas his right to produce evidence was closed on 8.4.2008, does not carry any substance because this ground had not been taken by the learned counsel while filing the appeal before the Court below and on the day when the impugned judgment and decree was being passed, the learned counsel had produced Photostat of the Passport of Muhammad Aslam petitioner. The learned appellate Judge while dealing with the said stance, proceeded to observe that the said document goes on to show that the appellant is not interested in prosecution of the case instituted by him and that had he been interested, he must not have withheld the proceedings before the trial Court by not producing his evidence.
In the present case, issues had been framed on 1.12.2004 and statement of P.W.2 was recorded on 26.5.2005. The petitioners failed to produce their remaining evidence despite granting of more than nine consecutive and successive adjournments for the said purpose. They were also given warning, final and last opportunity at six different occasions. In this regard, conduct of the petitioners is clearly a misuse of the process of Court, for which no indulgence can be shown. Conduct of the petitioners indicates as to how much they were serious in their cause. The trial Court could not keep pending the cause for an indefinite period. It was duty of the plainitiff/petitioners to lead evidence in order to prove their cause.
Parties cannot claim adjournment as a matter of right. It is prerogative and discretion of the Court to grant or refuse adjournment in terms of Order XVII, Rules 1 and 3 C.P.C. If sufficient cause is shown, the Court can grant adjournment in terms of provisions of sub-rule (2) of Rule 1 of Order XVII C.P.C. It has been provided that when evidence of the case once begun, then hearing shall be continued from day-to-day until all the witnesses in attendance have been examined. Under sub-rule (3) of Rule 1 of Order XVII C.P.C, when sufficient cause is not shown, it has been provided that the Court shall proceed with the suit forthwith. These provisions are not meant to enable the party to cause improper delay in the proceedings. In the present case, petitioners had been provided as many as nine opportunities despite burden of costs and giving warning. The order sheet does not indicate "sufficient reason" for further adjournment, hence, the trial Court was right in proceeding under Rule 3 of Order XVII C.P.C. and dismissing the case on the basis of material available on the record. Reliance is placed on the cases of Zahoor v. Election Tribunal (2008 S.C.M.R. 322) and Muhammad Afzal v. Muhammad Ashraf (2004 Y.L.R. 1166).
The judgments and decrees passed by the Courts below are based on solid reasons. Sufficient opportunities had been provided to the petitioners to prove their claim, but they failed to do so and the matter remained pending for about more than three years for recording of evidence of the plaintiffs/petitioners. No misreading of record or misinterpretation of law has been pointed out by the learned I counsel for the petitioners in the impugned judgments and decrees.
Resultantly, this revision petition fails and is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 437
Present: Syed Mansoor Ali Shah, J.
MUHAMMAD USMAN and another--Petitioners
versus
ADDL. DISTRICT JUDGE, LAHORE and others--Respondents
W.P. No. 19643 of 2009, decided on 10.2.2010.
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Ss. 9(b) & 19--Civil Procedure Code, (V of 1908), O.I, R. 10--Eviction petition--Registration of tenancy agreement--Tenant was liable to pay the fine--Eviction petition was filed on the ground of default and expiry of period of tenancy--Petitioner filed an application u/O. I, R. 10, CPC to be impleaded as party to eviction petition--Application and leave to defend was rejected--Rent controller imposed penalty--Validity--Requirement of registration of tenancy agreement is further highlighted in S. 9 of Ordinance, 2007, which provides that no application shall be entertained unless the tenancy conforms to the provisions of Rented Premises Ordinance--Fine provided u/S. 9(a)(b) is yet another incentive for registration and a disincentive for keeping un-registered agreement hanging--Held: Existing tenancy agreement was in writing and is, therefore, required to be registered as soon as possible and certainly before invoking S. 9 of Ordinance--Section 9 was invoked without registration of tenancy agreement the landlord or tenant was liable to pay the fine provided--Application of the landlord cannot be entertained unless it is registered and tenancy brought in conformity with Ordinance, 2007 or else the landlord in such situation was liable to pay the fine and cannot stand behind the comfort period of two years. [Pp. 443 & 445] F, K & L
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Preamble--S. 5(5)--Objective of Punjab Rented Premise Ordinance, is to regulate the relationship of landlord and tenant and to provide an expeditious mechanism for settlement of their disputes--Such objective finds translated in S. 5 of Ordinance, which introduces the requirement of a tenancy agreement and its registration with Rent Registrar by landlord--Under S. 5(5) of Ordinance the tenancy agreement registered in the office of Rent Registrar. [P. 442] A
Tenancy Agreement--
----Registration of--Advantage of a written and a registered tenancy agreement--It acts as a written and registered proof of the relationship between landlord and tenant--A large majority of rent matters arise out of denial of the relationship. [P. 442] B
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----S. 5--Scope of--Rental affairs of landlord and tenant--Un-necessary rent related litigation and to provide effective enforcement of rent/ tenancy agreements--Validity--Reduction in un-necessary rental litigation and confidence of public in enforcement of rental agreement will boost the rental market and encourage more real estate to enter the rental sector thereby reducing the shortage of housing and providing an impetus to the economy--Held: Legislative intent is to better regulate the rental affairs of landlord and tenant reduce litigation and create healthy economic activity. [P. 442] C
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Ss. 5 & 8--Agreement between landlord and tenant--Existing tenancy--Registartion of--New tenancies are to be registered--Existing tenancy should be registered as soon as possible but not later than two years from the date of coming into force of Punjab Rented Premises Ordinance, 2007. [P. 443] D
Words and Phrases--
----As soon as possible--Reflects the legislative urgency while at the same time a comfort period of two years is also provided. [P. 443] E
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Ss. 5, 8 & 9--True legislative intent--Interpretation of the preamble and Ss. 5, 8 & 9 have to be done in a manner which brings out true legislative intent, suppress the mischief intended to be suppressed and advance the remedy provided under the law. [P. 443] G
Interpretation of Statutes--
----The statutes have to be construed in a manner so as to promote the purpose and object of Act, and not too literally so as to defeat the purpose and render the provision meaningless and atiose. [P. 443] H
Mathematical precision--
----Human powers to foresee the manifold sets of facts--English language is not an instrument--Validity--Where the draftsman of Acts of parliament have often been unfairly criticised--Held: When a defect appears a judge cannot simply fold his hands and blame draftsman--He must set to work on the constructive task of finding the intention of parliament and he must do this not only from language of the statute but also from consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy and then he must supplement the written words so as to give force and life to the intention of the legislature. [P. 444] I
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Preamble & Ss. 5, 8 & 9--Beneficial legislation--Not only providing benefit to the parties but also helping in Courts--Being a beneficial legislation it has to be construed liberally in order to bring out the real intent of the legislature and also to ensure that its multiple benefits are fully enforced and extended. [P. 444] J
2006 SCMR 1751 & 1990 PLC (CS) 749, ref.
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Ss. 8 & 9--Existing tenancy--Effect of non-compliance--Question of existing tenancy--Where existing tenancy is in writing the same ought to be registered as soon as possible and rigours of S. 9 of Ordinance, 2007 will fully apply to such a tenancy agreement--Wherein the petitioners had been directed to deposit the penalty u/S. 9(b)--Petitioner had already deposited the fine, no useful purpose will be served in remanding the case to Rent Tribunal--Petition was dismissed. [P. 445] N
Punjab Rented Premises Ordinance, 2007 (XXI of 2007)--
----Ss. 8 & 9--An oral tenancy agreement--Time required to reduce into writing--In exceptional cases where tenant for some reason refuses to reduce the oral agreement in writing despite of landlord's insistance the import of Ss. 8 & 9 will have to be revisited afresh. [P. 445] M
Mr. M. Raheel Kamran Sheikh, Advocate for Petitioner.
Ms. Aaliya Neelum, Advocate for Respondent No. 3.
Mr. Sarfraz Ali, Advocate for Respondent No. 3 in connected W.P. No. 188-2010.
Date of hearing: 10.2.2010.
Order
This order shall dispose of Writ Petition No. 19643 of 2009 and Writ Petition No. 188 of 2010 as both the petitions are directed against the same consolidated order dated 17.09.2009, passed by the learned Additional District Judge, Lahore (Respondent No. 1).
Brief facts are that the petitioners filed an eviction petition against Respondent No. 3 on 26.05.2008 on the grounds of default and expiry of the period of tenancy. Respondent No. 3 filed leave to defend while one Haji Wazir Muhammad (Respondent No. 3 in the connected W.P. No. 188 of 2010) filed an application under Order I, Rule 10 of the Code of Civil Procedure (Act No. V of 1908) to be impleaded as party to the eviction petition. The leave application alongwith application under Order I, Rule 10 CPC were dismissed on 9.10.2008. However, while parting with the order, the Rent Controller imposed penalty on the petitioners under Section 9(b) of the Punjab Rented Premises Ordinance, 2007 ("Ordinance") (Punjab Ordinance No. XXI of 2007) with the direction to deposit the same in the government treasury within four months from the date of the order or else the ejectment petition would be deemed to have been rejected.
Parties filed appeals against the said order. Petitioners' appeal was only to the extent of penalty imposed vide order dated 9.10.2008 of the Rent Controller. Through a consolidated judgment dated 17.9.2009 learned Additional District Judge, Lahore dismissed the appeal of the petitioners and upheld the penalty imposed under Section 9(b) of the Ordinance while allowing the appeal of Respondent No. 3 and Haji Wazir Muhammad (Respondent No. 3 in the connected writ petition). The said order is impugned before this Court in constitutional jurisdiction.
Counsel for the petitioners argued that the sole ground for the dismissal of their appeal was that their tenancy agreement was not registered at the time of filing of the eviction petition. He submitted that the impugned order proceeds on the assumption that if Section 9 of the Ordinance is not complied with as a condition precedent the eviction petition or any other application is not maintainable. Petitioners submitted that their tenancy agreement on the basis of which eviction petition was filed, was dated 30.04.2007, the Ordinance in question was promulgated on 16.11.2007 and, therefore, the tenancy in question was an existing tenancy and was, therefore, protected under Section 8 of the Ordinance wherein a maximum period of two years have been granted to bring the existing tenancy in conformity with the provisions of the Ordinance. He submitted that the said period of two years would have lapsed on 16.11.2009 and during the concessional period of two years Section 9 could not be applied to the existing tenancy as opposed to the new tenancy. He further submitted that reliance in the impugned order on a judgment of this Court i.e. "Messrs Wateen Telecom (Pvt.) Ltd. through Attorney v. Malik Abdul Ahad and 2 others" (PLD 2009 Lahore 429) is misplaced. He submits that this case has no application to the present case as according to the facts of the said case it pertains to a new tenancy and, therefore, the question of existing tenancy and the protection of Section 8 of the Ordinance were not under consideration in the said judgment.
Counsel for Respondent No. 3 submitted that Section 9 of the Ordinance is applicable to the present case as it does not create distinction between the new and the existing tenancy and is applicable to both the tenancies. She further submitted that according to the eviction order dated 09.10.2008 the petitioners were to deposit the said penalty within four months but he deposited the same in January, 2010, however, having deposited the said amount they are estopped from challenging the vires of the sections as the petitioners have already acted upon the said provisions of law.
In rebuttal, counsel for the petitioners submitted that the petitioners have challenged the said provision of law before the learned Additional District Judge and at the same time under protest complied with the order of the Rent Controller.
Counsel for Respondent No. 3 in the connected Writ Petition No. 188/2010 supported the arguments of the counsel for Respondent No. 3 in this case and submitted that Section 9 of the Ordinance applies with full force to the petitioners.
Arguments heard. The sole question for determination in this case is the interpretation of Sections 8 and 9 of the Punjab Rented Premises Ordinance, 2007 and the importance of registration of tenancy agreements. For ready reference Preamble, Sections 2(m) 5, 8 and 9 of the Ordinance are reproduced hereunder:--
"Preamble: Whereas it is expedient to regulate the relationship of landlord and tenant, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for connected matters;
2(m) "Tenancy agreement" means an agreement in writing by which a landlord lets out a premises to a tenant.
(2) A landlord shall present the tenancy agreement before the Rent Registrar.
(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.
(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.
(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.
(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in sub-section (2).
Existing tenancy.--An existing landlord and tenant shall as soon as possible but not later than two years from the date of coming into force of this Ordinance, bring the tenancy in conformity with the provisions of this Ordinance.
Effect of non-compliance.--If a tenancy does not conform to the provisions of this Ordinance, the Rent Tribunal shall not entertain an application under this Ordinance:--
(a) on behalf of the tenant, unless he deposits a fine equivalent to five percent of the annual value of the rent of the premises in the Government treasury; and
(b) on behalf of the landlord, unless the deposits a fine equivalent to ten percent of the annual value of the rent of the premises in the Government treasury."
(emphasis supplied)
The objective of the Ordinance underlined in the preamble is to regulate the relationship of landlord and tenant and to provide an expeditious mechanism for settlement of their disputes. This objective finds translated in Section 5 of the Ordinance, which introduces the requirement of a Tenancy Agreement (a written agreement) and its registration with the Rent Registrar by the landlord. Under Section 5(5) of the Ordinance the Tenancy Agreement registered in the office of the Rent Registrar or a certified copy thereof "shall be a proof of the relationship of landlord and tenant."
Advantage of a written and a registered Tenancy Agreement is that it acts as a written and registered proof of the relationship between landlord and tenant. A large majority of rent matters arise out of denial of the said relationship. Therefore, on a policy level, the purpose of Section 5 is to minimize unnecessary rent related litigation and to provide effective enforcement of rent/tenancy agreements. The legislation also has an economic underpinning. Reduction in unnecessary rental litigation and confidence of public in the enforcement of rental agreements will boost the rental market and encourage more real estate to enter the rental sector thereby reducing the shortage of housing and providing an impetus to the economy. On the whole the legislative intent is to better regulate the rental affairs of landlord and tenant, reduce litigation and create healthy economic activity.
While the new tenancies are to be registered under Section 5 of the Ordinance. The existing tenancy is provided for under Section 8 of the Ordinance. The said section mandates that the existing tenancy should be registered as soon as possible but not later than two years from the date of coming into force of this Ordinance i.e. 16.11.2009. The phrase as soon as possible in the above section reflects the legislative urgency while at the same time a comfort period of two years is also provided. The legislative intent in this section appears to carry both: a sense of urgency coupled with a concessional breathing period. The gap mentioned above needs to be explored and understood for proper understanding of the Ordinance. I will come to this later once I have discussed the other provisions of the Ordinance.
The requirement of registration of tenancy agreement is further highlighted in Section 9 of the Ordinance, which provides that no application under the Ordinance (applications as mentioned in Section 19 of the Ordinance) shall be entertained unless the tenancy conforms to the provisions of this Ordinance. The fine provided under Section 9(a) and (b) is yet another incentive for registration and a disincentive for keeping unregistered agreements hanging.
The interpretation of the preamble and Sections 5, 8 and 9 have to be done in a manner which brings out the true legislative intent, suppress the mischief intended to be suppressed and advance the remedy provided under the law. "The task of interpretation is not a mere exercise of any mechanical jurisdiction. Courts are entitled to probe and find the intention of the instrument, and its purpose and give meaning to the words to further the same so as to suppress the mischief and further just and fair results. The statutes have to be construed in a manner so as to promote the purpose and object of the Act, and not too literally so as to defeat the purpose or render the provision meaningless and otiose ...Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted." Interpretation of Statutes by N.S. Bindra (Tenth Edition, Page 338).
Lord Denning, in his book, The Discipline of Law, made a seminal observation on ironing out the creases' by quoting a passage from Seaford
Court Estates Ltd v. Ashar ([1949] 2 All ER 155);
"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and even if it were, it is not possible to provide for them in terms free from ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsman of Acts of parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsman have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written words so as to giveforce and life; to the intention of the legislature...A judge should ask himself the question: If the makers of the
Act had themselves come across this ruck in the texture of it, how would they have straightened it out ? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases." (emphasis supplied).
Reading of Sections 5, 8 and 9 of the Ordinance shows that the Ordinance is a piece of beneficial legislation. Not only providing benefit to the parties (landlord and tenant) but also helping in reducing the large number of rent cases pending in Courts. This is in addition to the economic activity. It is intended to generate in the real estate sector. Being a beneficial legislation it has to be construed liberally in order to bring out the real intent of the legislature and also to ensure that its multiple benefits are fully enforced and extended. Reliance is placed on Messrs Ashraf Sugar Mills Ltd. through General Manager vs. Manzoor Ahmad (2006 SCMR 1751) and Ijaz Akhtar vs. Secretary, Punjab Public Service Commission and others (1990 PLC (C.S.) 749).
Where existing tenancy agreement is in writing, the same can be easily registered and there is no reason why the landlord should shy away from registering the same. I am of the view that part of Section 8 emphasizing legislative urgency of bringing the tenancy in conformity with the Ordinance as soon as possible fully applies to written existing tenancies. In the facts of the present case the existing tenancy agreement is in writing and is therefore required to be registered as soon as possible and certainly before invoking Section 9 of the Ordinance. In case Section 9 is invoked without registration of the tenancy agreement the landlord or the tenant is liable to pay the fine provided therein. This interpretation, to my mind, advances the real object of the law and does justice to its beneficial intent.
Section 9 as far as written existing tenancy is concerned is therefore an independent provision. The application of the landlord cannot be entertained unless it is registered and the tenancy brought in conformity with the Ordinance or else the landlord in such situations is liable to pay the fine and cannot stand behind the comfort period of two years provided in Section 8 of the Ordinance.
The comfort period provided in Section 8 in my opinion provides for an oral tenancy agreement, which for several different reasons, might require time to reduce the same into writing. The said period is provided to cover for such delay. I am also of the view that in exceptional cases where the tenant for some reason refuses to reduce the oral agreement in writing despite of landlord's insistence, the import of Sections 8 and 9 of the Ordinance will have to be revisited afresh. As this is not the case before me, I leave these questions to be dealt with in an appropriate case.
For the above reasons, I hold that where existing tenancy is in writing, the same ought to be registered as soon as possible and the rigours of Section 9 of the Ordinance will fully apply to such a tenancy agreement. I find no illegality in the impugned order, wherein the petitioners have been directed to deposit the penalty under Section 9(b) of the Ordinance. I therefore maintain Order dated 17-9-2009 of the Leaned Additional District Judge, Lahore to the extent of the fine only. However, considering that the petitioner has already deposited the fine on 28.1.2009, no useful purpose will be served in remanding the case to the Rent Tribunal in this particular case. I, therefore, modify the impugned order to the extent of remand. The appeals of the respondents will be deemed to be pending before Additional District Judge Lahore, who will decide the same on merits expeditiously.
This petition is, therefore, partially allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2010 Lahore 446
Present: Syed Mansoor Ali Shah, J.
JALALUDDIN--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Sports, Islamabad and 3 others--Respondents
W.P. No. 5657 of 2010, decided on 26.3.2010.
Sports (Development and Control) Ordinance, 1962--
----S. 4(3)(i)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Alternate remedy--Effective of--Maintainability--Entitlement of member of governing body of P.C.B.--Matter for approval of patron--Power to conduct the election--Validity--Election Commissioner of PCB had already forwarded the name of respondent to the patron for approval and notification--Challenge to--Held: Petitioner could file an appeal before the penal of arbitrators under Para 35(2) of Constitution of PCB and therefore, in presence of an effective alternate remedy the instant petition was not maintainable--Petition was dismissed. [P. 448] A
Hafiz Liaquat Ali, Advocate for Petitioner.
Mr. Tafazal Rizvi, Advocate for Respondent.
Ms. Saba Latif, Advocate for Respondents.
Date of hearing: 26.3.2010.
Order
Grievance of the petitioner is that he has been elected by five service organization/departments namely (i) National Bank of Pakistan (ii) SNGPL (iii) KRL (iv) SSGC and (v) Pakistan Customs and is therefore entitled to be Member of the Governing Body of Pakistan Cricket Board (P.C.B). He further prays that the election of Respondent No. 4 as a member of the Governing Body of P.C.B. be declared to be illegal and unlawful.
Learned counsel for the respondents submits while referring to paragraph 8 (1) (c) of the Constitution of P.C.B. issued under Section 3 (1) and Section 4 of the Sports (Development and Control) Ordinance, 1962 vide SRO No. 64(KE)/2007 dated 20.09.2007 (Gazetted on 18th October, 2007) that the Governing Body of PCB consists of one representative of Service Organizations, who play first class cricket, and the said representative shall be elected from amongst the Service Organizations. He further referred to the second proviso to paragraph 8 (3) which states "Provided further that members so retiring shall continue to perform their functions until they are reappointed or their successors are appointed, as the case may be, and every effort shall be made by PCB to fill up the vacancies of retiring members as early as possible" (emphasis supplied). He further referred to paragraph 34 (2) to show that the Election Commissioner has the power to conduct the elections in the present matter and finally referred to Paragraph 35(2) to show that in case of any dispute arising out of any decision of PCB the matter is to be referred to arbitration and that the petitioner has not availed this statutory remedy.
Learned counsel for the PCB submitted that the petitioner has approached PCB on his own while the correct process in the past has been that the PCB wrote to the Service Organizations requesting them to send their nomination of one representative as a member of the Governing Body. He submitted that this process has further been institutionalized by the PCB this year and the process regarding the election of one representative from the Service Organizations and Departments is now conducted under the auspices of P.C.B. in a joint meeting of the Service Organizations in order to ensure transparency.
The process in this regard was initiated on 4th January 2010, when letters were issued by the PCB to the respective Service Organizations and Departments requesting them to elect one representative from amongst them. According to the counsel seven under mentioned Service Organizations are authorized to elect one representative :--
(i) PIA;
(ii) HBL;
(iii) NBP;
(iv) ZTBL;
(v) WAPDA;
(vi) SNGPL; and
(vii) KRL
He further submitted that SSGC and Pakistan Customs have been relegated, therefore, they do not fall in the list of Service Organizations and Departments, who have been authorized to participate in the election of their representative under paragraph 8 (1) (c) of the Constitution of the PCB.
In order to ensure transparency the meeting was held by the PCB in the light of authority given under paragraph 8 of the Constitution. The said meeting was scheduled on 15.01.2010. Counsel further submitted that the letters in favour of the petitioner are prior to the said date, however, on 15.01.2010 the representatives of seven Service Organizations met under the auspices of Election Commissioner of PCB and elected Naveed Akram Cheema (Respondent No. 4) as their representative for governing body of PCB. Thereafter, PCB under paragraph 8 (2) of the Constitution has forwarded the matter for the approval of the Patron (President of Pakistan). Learned counsel further submits that the letters procured by the petitioner have bitter value as the representatives of Service Organizations formally met subsequent to the date of the letters procured by the petitioner and elected Respondent No. 4. The said counsel has placed on record the minutes of the meeting dated 15.01.2010.
Arguments heard. The Election Commissioner of PCB has already forwarded the name of Respondent No. 4 to the Patron for approval and notification, in case the petitioner is aggrieved of the said decision, he can file an appeal before the penal of arbitrators under para 35 (2) of the Constitution of PCB and therefore, in the presence of an effective alternate remedy this petition is not maintainable.
In any case even if the list of Service Organization who have issued letters in favour of the petitioner are considered three out of the seven namely (i) NBP (ii) SNGPL (iii) KRL have subsequently voted for Respondent No. 4 in the meeting held on 15.01.2010 under the umbrella of Election Commission of PCB in terms of proviso to paragraph 8 (3) of the constitution and therefore, seven Service Organizations (as mentioned above) have voted in favour of Respondent No. 4. Therefore, even on merits the petitioner has no case. This petition has no merit and is, therefore, dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 449
Present: Iqbal Hameed-ur-Rehman, J.
SAJIDA ABDULLAH (ESE TEACHER) GOVERNMENT ELEMENTARY SCHOOL SEOKE, TEHSIL DASKA, DISTRICT SIALKOT--Petitioner
versus
DISTRICT COORDINATION OFFICER and 2 others--Respondents
W.P. No. 20538 of 2009, decided on 1.3.2010.
Constitution of Pakistan, 1973--
----Arts. 193, 199 & 212(2)--Constitutional petition--Mutual transfer--Again transfered due to political pressure--Wed lock policy--Maintainability--Fundamental right of any citizen of the country are infringed, extra ordinary constitutional jurisdiction of High Court under Art. 199 of the Constitution--Not only the basic/fundamental right of the petitioner had been usurped but the same is also against the spirit of wedlock policy introduced by the Government--Impugned order has malafidely and illegally been passed in contravention of basic law and policy declared by Government as such instant petition was maintainable before High Court--Held: If one spouse in government department was posted at one city and the other spouse is at a different city is definitely going to cause mental distress to both of them with the consequences which are not only injurious to them but to the public and government exchequer as well--Order had been passed due to political pressure of the local MPA is fortified when the same had been issued in sheer violation of the wedlock policy. [Pp. 451 & 452] A, B & C
2003 PLC (CS) 1322 rel. PLD 1995 SC 530, ref.
Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.
Mr. Muhammad Azeem Malik, Additional Advocate General Punjab.
Rai Wali Muhammad, Advocate for Respondent No. 3.
Mr. Muhammad Iqbal Gondal, Deputy District Education Officer, Office of Executive District Officer (Education), Sialkot.
Date of hearing: 1.3.2010.
Order
By way of instant petition, the petitioner has assailed the impugned transfer order dated 15.10.2009; whereby the petitioner was transferred to Govt. Girls Primary School, Kotli Dasu Singh, Daska, District Sialkot.
Brief facts of the case as depicted in the instant writ petition are that petitioner was posted as ESE, Govt. Girls Primary School Dharamkot, Tehsil Daska, District Sialkot on 07.10.2002. That by way of mutual transfer the petitioner was transferred and posted at Government Girls Elementary School Seoke vide order dated 01.09.2009. The petitioner joined her new place of posting on 09.09.2009, however, due to political pressure she was again transferred to Girls Primary School Kotli Daso Singh vide order dated 15.10.2009, which has been impugned through the instant writ petition.
Learned Additional Advocate General at the very outset states that grievance of the petitioner to the extent of non-payment of her salary has been redressed by the respondents and payment of her salary has been made to the petitioner upto 31st January 2010.
Learned counsel for the petitioner has vehemently contended that the mutual transfer order dated 1st September 2009 has been cancelled without giving any cogent reason just after thirteen days. It is alleged that the impugned order dated 15.10.2009 has not been passed on administrative grounds rather on the political pressure of local MPA namely Ch. Jameel Ashraf who also wrote a letter to Respondent No. 1 in this regard. Learned counsel went on arguing that even on account of Wedlock Policy the petitioner is entitled to be posted at Government Girls Elementary School Sioke as husband of the petitioner is also posted in the same village. To substantiate thus stance, learned counsel for the petitioner has relied upon PLD 1995 SC 530. While summing up his arguments learned counsel for the petitioner has submitted that the case of the petitioner is on equal footings to that decided in the supra case as such impugned order dated 15.10.2009 is liable to be set aside.
Learned counsel representing, Respondent No. 3 has vehemently controverted the assertions advanced by learned counsel for the petitioner. Learned counsel for Respondent No. 3 has also raised objection on the maintainability of the present writ petition, as according to him due to bar of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, Service Tribunal has the exclusive jurisdiction to entertain, such matters. While controverting, the contention of learned counsel for the petitioner regarding, political pressure in the impugned transfer order, learned counsel for Respondent No. 3 has contended that the petitioner has not approached this Court with clean hands as forgery has been committed in the D.O. letter of the local MPA and the said MPA. Ch. Jameel Ashraf has also wrote letter to Respondent No. 2 regarding this factum that his D.O. letter has been misused by the petitioner and his signatures are also bogus. It is further stated that transfer of the petitioner has been made on the basis of application submitted by the residents of village Sioke and the petitioner in order to approach this Court has given colour to her transfer as on the basis of political motivation.
Learned Additional Advocate General while adopting the arguments advanced on behalf Respondent No 3, has further added that the transfer order dated 15th October 2009 has been made purely on administrative grounds. When confronted with the main contention of learned counsel for the petitioner with regard to mutual transfer of the petitioner as well as wedlock policy, learned Additional Advocate General has not been able to controvert the same.
Arguments advanced from all corners have been heard. I have also gone through the record available on file minutely.
First of all I intend to dilate upon the question of maintainability of the instant writ petition. By now it is settled principle of law that wherever fundamental rights of any citizen of the country are infringed, extra ordinary constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 comes to play. Through the impugned order dated 15.10.2009, not only the basic/fundamental rights of the petitioner have been usurped but the same is also against the spirit of Wedlock Policy introduced by the Government, therefore, the impugned order has mala fidely and illegally been passed in contravention of basic law and the policy declared by Government of the Punjab as such the instant petition is maintainable before this Court.
In the light of submissions advanced by learned counsel for the petitioner, the main points to be determined by this Court are (i) the transfer order dated 01.09.2009 was made on mutual transfer basis; (ii) the posting, of the petitioner at Government Girls Elementary School Sioke, Daska, District Sialkot is as per Wedlock Policy of the Government of the Punjab as husband of the petitioner who is also an employee of the Education Department is also posted in the same village; and (iii) Transfer order dated 15th October 2009 was issued due to political pressure raised by the local MPA. Learned counsel for Respondent No.3 as well as learned Additional Advocate General have not been able to controvert that the transfer order dated 01.09.2009; whereby the petitioner was transferred to Government Girls Elementary School Sioke, Daska, District Sialkot was a mutual transfer. There is also no denial to the fact that the husband of the petitioner is serving in village Sioke, Daska and the same is also within the spirit of the Wedlock Policy, introduced by the Government of the Punjab and the same is acted upon zealously. If one spouse in Government department is posted at one city and the other spouse is posted at a different city is definitely going to cause mental distress to both of them with the consequences which are not only injurious to them, but to the public and government exchequer as well. Respondent No. 2 while issuing, order dated 15.10.2009 has not advanced any plausible reason for transferring the petitioner to a different station, which admittedly is against the spirit of the Wedlock Policy and is liable to be struck down on this sole ground. The contention of learned counsel for the petitioner that the order has been passed due to political pressure of the local MPA is fortified when the same has been issued in sheer violation of the Wedlock Policy and that's too without giving any cogent reasons.
As a result of my above discussion, while relying, upon the dictum of law laid down in the case of Muhammad Zia-ul-Haq Vs. Secretary to Government of the Punjab, Livestock and Dairy Development Department, Lahore and 4 others (2003 PLC [CS] 1322), impugned transfer order dated 15.10.2009, issued by Respondent No. 2 is set aside.
(R.A.) Petition accepted.
PLJ 2010 Lahore 452
Present: Ijaz-ul-Ahsan, J.
NAZAR MUHAMMAD WARRAICH, EX-AREA MANAGER, STATE LIFE SECTOR DASKA ZONE, SIALKOT and 7 others--Petitioners
versus
ZONAL HEAD, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others--Respondents
W.P. No. 12525 of 2009, decided on 10.3.2010.
Sacked Employees (Re-instatement) Ordinance, 2010--
----Pre-amble--It was being promulgated to provide relief to the persons who were appointed in a corporation service or autonomous or semi-autonomous bodies or in Government service during the period from 1.11.1993 to 30.11.1996 and were dismissed, removed or terminated from service during the period from 1.11.1996 to 31.12.1998. [P. 454] A
Sacked Employees (Re-instatement) Ordinance, 2010--
----S. 3--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Petitioners were working as Area Managers with State Life Insurance Corporation on probation basis--Services were terminated without cause--Entitlement of re-instatement--Services were terminated through termination letters due to fail to meet the requisite target--Validity--No distinction had been created between the employees who were terminated for cause and those whose services were terminated without cause--Relevant provision only provides a time period within which if an employee was appointed and thereafter terminated for any reason including dismissal, removal, termination or having been given golden hand shake was entitled to reinstatement in service on one scale higher to his substantive scale of posting at the time of termination of services--Held: Employment of the petitioners having been terminated on account of their inability to meet the targets disentitles them to avail the benefit of S. 3 of Ordinance, 2010--Petition was allowed. [P. 455] B & C
Constitution of Pakistan, 1973--
----Arts. 25 & 199--Sacked Employees (Reinstatement) Ordinance, 2010--S. 3--Constitutional petition--Discrimination--Equality of law--Right of equal treatment and non-discrimination--Petitioners were terminated on the basis of that they had failed to meet the requisite targets--President promulgated the Sacked Employees (Re-instatement) Ordinance, Petitioners sought reinstatement in terms of S.3 of Ordinance, 2010--Validity--Art. 25 of Constitution, guarantees equality before the law and non-discrimination between equally placed persons--Held: Despite being entitled to the benefit of S. 3, the petitioners had been discriminated against without lawful reason which was violative of their fundamental rights guaranteed under Constitution of Pakistan--Petitioners were also entitled to the benefit of S. 3 of Sacked Employees (Reinstatement) Ordinance, 2010--Further held: A policy of pick and choose on the part of state functionaries is an anathema to the right of equal treatment and non-discrimination, guaranteed to citizens under the Constitution--Petition was allowed. [Pp. 455 & 456] D
Rao Abdul Jabbar Khan, Advocate for Petitioners.
Mr. Sher Zaman Khan, Advocate for Respondents.
Date of hearing: 17.2.2010.
Order
The petitioners were working as Area Managers with the State Life Insurance Corporation of Pakistan at its Zonal Office at Sialkot. Their appointment as Area Manager was initially on probation for a period of six months whereafter it was liable to be converted to confirmation subject to qualifying certain exams and meeting targets given by the Management from time to time. At the very outset it may be observed that it is not the case of either of the parties that the petitioners did not qualify the requisite exams. Further their services were terminated through termination letters of various dates between August 31, 1997 to June 15, 1998. Second ground was that they had failed to meet the requisite targets.
In 2009, the President of Pakistan promulgated. The Sacked Employees (Re-instatement) Ordinance, 2010. The pre-amble of the Ordinance stated that it was being promulgated to provide relief to the persons who were appointed in a corporation service or autonomous or semi-autonomous bodies or in Government service during the period from the 1.11.1993 to 30.11.1996 and were dismissed, removed or terminated from service during the period from 1.11.1996 to 31.12.1998. Admittedly, the petitioners fall in the aforesaid category. Section 3 of the aforesaid Ordinance provides as follows :--
Reinstatement of Employees.--Notwithstanding anything contained in any law for the time being in force, judgment of any Tribunal or a Court including the Supreme Court and the High Court, contract or terms and conditions of service, all persons appointed in corporation or Government Service, during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and dismissed, removed, terminated or given forced golden hand shake during the period from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive) shall be reinstated immediately in service on one scale higher to their substantive scale of the post at the time of termination of service and report for duly to their respective departments or organizations."
The petitioners submitted applications seeking re-instatement in terms of Section 3 above. However, the applications moved by the petitioners have neither been processed nor have they been re-instated into service. In this regard the learned counsel has drawn my attention to a notice published by the respondent in daily Nawa-i-Waqt dated 06.06.2009, in which the names of 36 individuals were published. It was stated that State Life Insurance Corporation of Pakistan had commenced re-instatement of trainee executives, whose services have been terminated and the persons named in the advertisement were directed to contact the General Manager (P&GS), Principle Office State Life Building No.9 Dr. Ziauddin Ahmad Road, Karachi in this regard.
The learned counsel for the petitioners submits that a number of similarly placed employees have been re-instated but the petitioners have been left out of the process.
The learned counsel for the respondents submits that in the first place the petition is not competent because the petitioners have made a mis-statement in the prayer of the petition. He further submits that the petitioners were Area Managers and their jobs were dependent upon meeting certain targets to them. In view of the fact that they had failed to meet the targets, their services had rightly been terminated. He adds that the remedy of the petitioner lies before the cabinet committee before whom a large number of their colleagues had agitated the matter and received relief.
I have heard the learned counsel for the parties. The Ordinance was initially promulgated in the year 2009. It has been re-promulgated a number of times and the latest version is the Sacked Employees (Re-instatement) Ordinance, 2010, which still holds the field. The petitioners filed their applications under Section 3 of the Ordinance within time, they were justified in expecting that their applications will be duly processed and they will be treated in accordance with law. It is an admitted position that similarly played employees have either been re-instated by the respondent or by the cabinet committee set up in this regard. A perusal of the Ordinance, specially, Section 3 indicates that no distinction has been created between the employees who were terminated for cause and those whose services were terminated without cause. This relevant provision only provides a time period within which if an employee was appointed and thereafter terminated for any reason including dismissal, removal, termination or having been given golden hand shake, is entitled to reinstatement in service on one scale higher to his substantive scale of the posting at the time of termination of services. I, therefore, do not find myself in agreement with the argument of the learned counsel for the respondents that the employment of the petitioners having been terminated on account of their inability to meet the targets disentitles them to avail the benefit of Section 3. There is material on record to indicate that the petitioners have been discriminated against. Article 25 of the Constitution of Islamic Republic of Pakistan guarantees equality before the law and non discrimination between equally placed persons. I find that despite being entitled to the benefit of Section 3, the petitioners have been discriminated against without lawful reason, which is violative of their fundamental rights guaranteed to them under the Constitution of Islamic Republic of Pakistan. I, therefore, hold that the petitioners are also entitled to the benefit of Section 3 of the Sacked Employees (Reinstatement) Ordinance, 2010, as other similarly placed employees of the respondent corporation who have been reinstated. A policy of pick and choose on the part of the state functionaries is an anathema to the right of equal treatment and non discrimination, guaranteed to citizens under the Constitution. The respondents are accordingly directed to process the applications of the petitioners on non discriminatory basis, strictly in accordance with law and provide them such benefits, to which they are entitled in terms of the Ordinance.
Petition allowed in the aforesaid terms. No order as to costs.
(R.A.) Petition allowed.
PLJ 2010 Lahore 456 [Multan Bench Multan]
Present: Abdul Sattar Goraya, J.
SHAHID HUSSAIN and another--Petitioners
versus
ADDITIONAL SESSIONS JUDGE, TAUNSA SHARIF DISTT. D.G. KHAN and others--Respondents
W.P. No. 3718 of 2009, decided on 13.7.2009.
Police Order, 2002--
----S. 155(c)(d)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Non-cognizable offences--Entries in Roznamcha Waqiati can be made and investigating officer cannot investigate the case until there is permission from Magistrate--Complaint was pending in the Court of Addl. Sessions Judge--Warrants of arrest against witnesses were issued--SHO was directed to execute the warrants through Sub-Inspector--Case of conscious omission on the part of the SHO--Validity--In respect of non-cognizable offences, only entries in Roznamcha Waqiate can be made and investigating officer cannot investigate the case until there is permission from the magistrate--Held: Offence u/S. 155(c) & (d) of Police Order, 2002, are non-cognizable and Addl. Sessions Judge has fallen in error in passing the impugned order--Petition was accepted. [Pp. 457 & 458] A & B
2008 PCr.LJ 1358, rel.
Sh. Abdul Samad, Advocate for Petitioners.
Rana Muhammad Hussain, Assistant Advocate General for Respondents.
Date of hearing: 13.7.2009.
Order
By means of this Constitutional petition, the order dated 14.05.2009 passed by the learned Additional Sessions Judge, Taunsa Sharif has been questioned.
Facts in brief are that complaint titled, "Nazar Hussain v. Nazar Hussain etc" was pending in the Court of learned Addl. Sessions Judge where Zulfiqar Ali ASI appeared before the Court and his statement was recorded. Warrants of arrest against the two C.Ws., were issued and the case was adjourned to 14.05.2008. SHO Police Station Vohova District D.G. Khan was directed to execute the warrants through Sub-Inspector of Police. He was further directed that in case of non-execution of the warrant, SHO shall appear in person but on 14.5.2009 Shahid Hussain petitioner appeared before the Court and reported in writing that the warrant of arrest in question earlier was entrusted to Bashir Ahmad ASI for execution but he has been transferred and left the charge and today early in the morning, this warrant was given to Moharar of the Police Station but the same could not be executed. The Learned ASJ felt that this was a case of conscious omission on the part of the said SHO. Consequently it was directed that FIR under Section 153 (c) & (d) of Police Order, 2002 may be registered against the delinquents.
Learned counsel for the petitioners states that Section 155 (c) & (d) of Police Order, 2002 are non-cognizable and this question came-up tor consideration in Writ Petition No.310/07/BWP in which this Court maintained the order of acquittal on 02.06.2008.
This fact remains that Section 155, Cr.P.C. deals with the non-cognizable offences which reads as under:
"When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the information to the Magistrate."
In respect of non-cognizable offences, only entries in the Roznamcha Waqiati can be made and the Investigating Officer cannot investigate the case until there is permission from the Magistrate. This question came-up for consideration in Muhammad Zubair Malik v. S.H.O. and 5 others (2008 P.Cr.L.J. 1358) wherein it was held:
"Section 155, Cr.P.C. provides that when an application is received by the Incharge of the police station as to the commission of non-cognizable offence, he should make entries in a book (Roznamcha) maintained for the purpose and without any investigation, shall refer the matter to the Magistrate for orders and after obtaining appropriate orders from him, he shall proceed in accordance with sub-section (3) of Section 155, Cr.P.C. In the instant case the application was submitted to the S.H.O copy of the same was also submitted to D.P.O. of the District but no action was taken. Finally application under Sections 22-A and 22-B. Cr.P.C. was moved seeking direction in the name of concerned S.H.O. to take appropriate action in accordance with law. The learned Additional Sessions Judge dismissed the application simply on the ground that no order for registration of case can be passed by him with regard to an offence, which is non-cognizable. The learned Additional Sessions Judge has failed to apply his judicial mind to the legal proposition. Obviously no order for registration of case could be passed but he should have directed the S.H.O. concerned to receive the application, entertain the same in the Roznamcha and thereafter under sub-section (2) of Section 155, Cr.P.C. apply to the Magistrate seeking permission to investigate the matter and proceed strictly in accordance under sub-section (3) of Section 155, Cr.P.C."
The position, therefore, which in any event from the above quoted judgment is that the offence under Section 155 (c) & (d) of Police Order, 2002 are non-cognizable and the learned Additional Sessions Judge has fallen in error in passing the impugned order. Consequently, I accept this petition. The impugned order dated 14.5.2009 of the learned Additional Sessions Judge is declared to be without lawful authority and of no legal affect. There is no order as to costs in the facts & circumstances of the case.
(R.A.) Petition accepted.
PLJ 2010 Lahore 458 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
MUHAMMAD AKHTAR SHAHZAD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE etc.--Respondents
W.P. No. 9021 of 2009, decided on 3.12.2009.
Punjab Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Defence order was struck of--Application for issuance of order of Qufal Shikni with the help of Police--Petitioner did not assail order by which order appeal of the petitioner was dismissed by Addl. Session Judge--Order got the finality--Constitutional petition--Validity--Petitioner cannot assail the execution proceedings as he failed to assail the order by which appeal filed by him was dismissed--Held: Execution Court committed no illegality, passing order in execution proceedings against the petitioner and the orders passed on different dates on different applications in favour of decree holder/ applicant landlord, all orders were legal do not need interference of High Court in writ jurisdiction--Petition was dismissed. [P. 460] A
Rao Abdul Qayyum, Advocate for Petitioner.
Date of hearing: 3.12.2009.
Order
Through this writ petition, the petitioner has prayed the following relief:--
"It is humbly prayed that this writ petition may graciously be accepted, the impugned judgment dated 28.4.2009 passed by Mr. Mushtaq Ahmad, Additional District Judge, Alipur, the order dated 15.10.2008 passed by Mr. Shakeel Ahmad, learned Rent Controller, Alipur and also the orders dated 06.11.2009 and 12.11.2009 passed by Mr. Asim Mansoor, learned Rent Controller, Alipur in the execution petition filed by Mian Muhammad Ijaz, Respondent No.3 herein, against the petitioner-judgment debtor may graciously be set aside/quashed by declaring the same as illegal and without lawful authority and the Ejectment petition titled "Mian Muhammad Ijaz Khalil versus Muhammad Akhtar Shehzad" may graciously be remanded back to the learned Rent Controller, Alipur for decision afresh on merits and strictly in accordance with law and with the provisions of Order XLI, CPC after recording the evidence of the parties on the issues already framed by him on 20.09.2008."
Brief facts of the case are that Respondent No.3 filed an ejectment petition against the petitioner regarding the shop contending that after the death of his predecessor in interest, Muhammad Akhtar Shehzad, the present petitioner/tenant got the shop on rent vide agreement dated 04.08.2003 but the said tenant has become defaulter and shop is required for personal need and tenancy period has been elapsed.
On 20.09.2008 case was fixed for evidence of applicant. On 15.10.2008 the Rent Controller ordered under Section 13(6) of Punjab Rent Restriction Ordinance, the defendant petitioner to deposit Rs. 17500/- as of arrears of rent. On the next date of hearing i.e. 20.10.2008 the Rent Controller struck off the defence of the petitioner vide order dated 30.10.2009. Petitioner could not deposit Rs. 17500/- as required by order dated 30.10.2009.
As the petitioner/respondent in ejectment petition did not make the compliance of order passed under Section 13(6) of the Punjab Urban Rent Restriction Ordinance. Learned trial Court straightway passed the ejectment order of the petitioner respondent. Petitioner assails the order dated 20.10.2008 by which defence of the petitioner was struck off. Petitioner filed an appeal before the Additional District Judge, Alipur, assailing order dated 15.10.2008 by which order his defence was struck off. Learned Additional District Judge, Alipur, vide order dated 28.04.2008 dismissed the appeal of the petitioner.
Later on, applicant/landlord filed an application on 29.7.2009 for entrustment of the execution petition to some other court of learned Rent Controller as Mr. Shakeel Ahmad, learned Rent Controller was entrusted the criminal cases and on this application execution petition was entrusted to Mr. Asim Mansoor, learned Rent Controller, Alipur in execution petition on 31.07.2009 notice was issued to judgment-debtor for 16.10.2009. On 16.10.2009, notices were again issued to judgment-debtor for 06.10.2009. After obtaining the report from the Ahlmad, notice was ordered to be issued against the judgment-debtor for 6.11.2009. On 6.11.2009 it was reported by the Process Server that judgment-debtor has refused to accept the notice. On this report of the process server, learned Rent Controller ordered for issuance of warrant Dakhal. On 10.11.2009 Bailiff of Civil Court made an application before the Rent Controller, Alipur for issuance of order of Qufal Shikni with the help of the police, on which, report was called from the Ahlmad after procuring the report learned Rent Controller vide his order dated 12.11.2009 issued order for Qufal Shikni. The petitioner did pot assail order dated 28.4.2009 by which order appeal of the petitioner was dismissed by Additional District Judge, Alipur and this order got the finality. Subsequently, the petitioner cannot assail the execution proceedings as he failed to assail the order dated 28.4.2009 by which appeal filed by him was dismissed. The execution Court committed no illegality, passing order in execution proceedings against the petitioner and the orders passed on different dates on different applications in favour of the decree-holder/applicant landlord, all orders are legal do not need interference of this Court in writ jurisdiction. Present petitioner did not assail order dated 28.4.2009, which got status of finality. This writ petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 461
Present: Syed Mansoor Ali Shah, J.
Mst. SHABANA LATIF--Petitioner
versus
EXECUTIVE DISTRICT OFFICER (EDUCATION) SIALKOT and 2 others--Respondents
W.P. No. 6522 of 2010, decided on 14.4.2010.
Constitution of Pakistan, 1973--
----Arts. 9 & 199--Constitutional petition--Civil servant--Withholding of salary--Public functionaries in running and managing Public Institutions--Administration and governance of public institutions--Personal like and dislikes--Contract of employment of civil servant was withdrawn--Civil servant was reinstated--Once again resumed the responsibility--No departmental proceedings against the civil servant but the civil servant was being deprived of her salary--Challenge to--Validity--Education department was settling some personal score with the civil servant by withholding her salary--Favouritism, partiality, preferential treatment, personal likes and dislikes had no place in administration and governance of public institutions--Such elements breed inequality, unfairness, bias and discrimination which weaken institution--Every step taken by public functionaries in running and managing public institutions must be strictly in accordance with law--Held: Withholding of salary without any lawful reasons offends Art. 9 of Constitution of 1973, which cannot be permitted--Departments were directed to immediately release salary of the civil servant--Petition was allowed.
[Pp. 463 & 464] A & C
Salary--
----Civil servant--Withholding of salary--No departmental proceedings against the civil servant but she being deprived of her salary--Held: Salary is the lifeline of an employee and cannot be withheld unlawfully--Salary is, therefore, integral part and parcel of livelihood of any employee and, therefore, an integral part of right to life. [P. 464] B
Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.
Mr. Muhammad Zubair Khalid, Addl. Advocate General.
Mr. Muhammad Ali, EDO (Education), Sialkot.
Mst. Zarina Shahid, DEO (W) EE, Sialkot.
Mst. Asia Khatoon, Deputy DEO (W) Daska.
Date of hearing: 14.4.2010.
Order
Brief facts of the case are that the petitioner was appointed as ESE on contract basis in Government Girls Elementary School Koreki, Tehsil Daska, District Sialkot on 16.11.2003, where after she gave joining report on 24.11.2003 and started her teaching career. The appointment order dated 16.11.2003 was duly verified by the District Education Officer, Sialkot on 16.10.2006.
That without notice to the petitioner, the contract of employment of the petitioner was withdrawn/cancelled vide order dated 23.06.2007 of the District Education Officer (W-EE) Sialkot (Respondent No. 2). Counsel submits that the said withdrawal was based on inquiry conducted against one Tehzeeb Fatima. The said inquiry was finally concluded and Tehzeeb Fatima was exonerated vide order dated 11.03.2008 passed by the Secretary, Education Government of the Punjab. As a consequence the departmental appeal of the petitioner was also allowed and petitioner was reinstated in service vide order dated 19.04.2008 passed by Respondent No. l thereafter, the petitioner once again resumed the responsibility as ESE and started work. Thereafter, the petitioner made an application before Respondents No. 1 & 2 regarding the release of her salary and vide letter dated 16.10.2009 of Respondent No. 1 and 1.10.2009 of Respondent No. 2, directions were given that salary of the petitioner be disbursed to her. Thereafter, the petitioner, who was working at Government Girls Elementary School Koreki, Tehsil Daska, made an application for transfer to Government Girls Primary School Mallheki Daska which was also allowed vide transfer order dated 23.10.2009. Counsel submits that the petitioner has been continuously working since 2007 but her salary is not being paid to her. He contends that there are no departmental proceedings against the petitioner but she is being deprived of her salary. He relied on Administrator, District Council, Larkana and another vs. Ghulab Khan and 5 others (2001 SCMR 1320), Qazi Akhtar Ali vs. Director of Agriculture (Economics and Marketing) Punjab Agriculture House Lahore and another (2000 PLC (C.S.) 784), and Sughran Begum vs. Metropolitan Corporation of Lahore and others (1996 CLC 472) to submit that salary cannot be withheld at any stage.
Learned Law Officer referred to the Contract Appointment Policy for the year 2004 and highlighted Clauses IV (iii), VI (vii) and XIV(i, iii, ix), Clause XVII to show that the appointment of the petitioner is contractual in nature. He took pains to explain that appointment of ESE against Government Girls Elementary School Koreki, Tehsil Daska is bogus because as per public advertisement dated 25.09.2003 no such post was advertised. He also referred to Agha Salim Khurshid vs. Federation of Pakistan and others (1998 SCMR 1930) to submit that a contract employee has no vested right and can be terminated without notice.
Arguments heard. Record perused.
The petitioner was appointed as an ESE on 16.11.2003 and joined the service on 24.11.2003. The said order of appointment was verified by Respondent No. 2 on 16.10.2006. During her employment her contract was cancelled on 23.06.2007 but she was reinstated in service and the said contract/employment was restored vide order dated 19.04.2008 which was effective from 23.06.2007. Since then, the petitioner has been continuously working as is evident from letter dated 16.10.2009 whereby Respondent No. 1 directed the Deputy District Education Officer (W), Daska to release the salary of the petitioner. Similarly, letter dated 01.10.2009 issued by Respondent No. 2 recommending that salary of the petitioner be disbursed and finally transfer letter dated 23.10.2009 issued by Respondent No. 1. These letters have not been denied or controverted by the respondents who are present in the Court, therefore, there is little doubt that the petitioner is working with the respondents Department as an ESE.
The argument on behalf of the respondents that the appointment as well as departmental appeal of the petitioner is bogus and based on fraud is preposterous and does not stand to reason. If this was the case, what was holding the respondents from initiating appropriate proceedings against the petitioner under the law. When the Law Officer was questioned if there are any departmental proceedings pending against, the petitioner, the answer was a categorical "No". In the absence of any departmental proceedings or any other adverse order passed against the petitioner, there is no justification whatsoever, for withholding the salary of the petitioner since May, 2007. It is also noted that the decision in departmental appeal in favour of the petitioner has not been challenged by the respondents before any higher forum and has attained finality. Reliance by the Law Officer on Agha Salim Khurshid vs. Federation of Pakistan etc. (1998 SCMR 1930) is misplaced as this case does not pertain to withholding of salary. Even otherwise, the said precedent does not hold that a contract employee can be terminated without notice. It simply holds that a contract employee can be terminated strictly in accordance with the terms of his contract.
The conduct of Respondents No. 1 and 2 has left the Court disturbed. It appears that the respondents are settling some personal score with the petitioner by withholding her salary. Favoritism, partiality, preferential treatment, personal likes and dislikes have no place in the administration and governance of public institutions. Such elements breed inequality, unfairness, bias and discrimination which weaken institutions. Every step taken by public functionaries in running and managing public institutions must be strictly in accordance with law. Public institutions and public functionaries manning such institutions must make Article 4 of the Constitution to be their golden rule of governance. Once respect for rule of law takes root in institutions, they are bound to progress and be reckoned as building blocks in the national development.
The petitioner has been continuously working and above referred letters establish the same. Withholding salary of the petitioner since May, 2007 is totally without lawful authority. This is also a violation of Article 3 of the Constitution of the Islamic Republic of Pakistan, 1973 as the petitioner has been exploited over these years and made to work without salary.
It is clear that salary is the lifeline of an employee and cannot be withheld unlawfully. Salary is therefore integral part and parcel of livelihood of any employee and therefore an integral part of right to life. This Court in W.P. No. 5062/2009 held:-
Right to life also includes right to livelihood. Without protection of livelihood and job security professional life is sapped of passion and desire to work which is essential for progress and development. No employment that borders on fear and favour can reap results. Livelihood provides the economic means required to lead a healthy and a regular life. Right to livelihood or right to security of tenure therefore are integral, innate and inbred in a professional career of a public sector employee. Livelihood cannot be deprived unless convincing material is placed on the record that supports a larger public interest of taking such an action. Without the presence and existence of a larger public interest the petitioner cannot be deprived of his fundamental right. In this case the impugned order fails to disclose any reason. Reliance is placed upon re. Olga Tellis and others v. Bombay Municipal Corporation and others (AIR 1986 SC 180) re. M.C. Mehta and another v. Union of India and others (1986) 2 SCC 176), re. State of Maharashtra v. Chandrabhan (AIR 1983 SC 803), re. Air India Statutory Corporation, and others v. United Labour Union and others (AIR 1997 SC 645), CJP CASE re. Chief Justice of Pakistan Mr. Justice Iflikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others (C.P. 21/2007), re. Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), re. Mehram Ali and others v. Federation of Pakistan and others (PLD 1986 SC 1445) and re. Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693).
Withholding of salary without any lawful reasons offends Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 which cannot be permitted. Respondents are directed to immediately release salary of the petitioner from May, 2007 to date within a fortnight from today:
District Co-ordination Officer, Sialkot is directed to initiate departmental inquiry against Respondents No. 1 and 2 to ascertain why salary of the petitioner was not paid since May, 2007. The inquiry report alongwith action taken against Respondents No. 1 and 2 will be placed before this Court through the Registrar within a period of three months from today.
For the above reasons, this petition is allowed.
(R.A.) Petition allowed.
PLJ 2010 Lahore 465
Present: Shahid Hameed Dar, J.
AMJAD RIAZ--Petitioner
versus
ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, SIALKOT and 10 others--Respondents
W.P. No. 5745 of 2010, decided on 9.6.2010.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 156 & 157--Domain of Investigation officer--Incharge of Investigation did not require any permission to investigate the circumstances of the case from the judiciary--It is the domain of I.O. to collect the evidence in a criminal case u/Ss. 156 & 157, Cr.P.C. and the Courts could not interfere with it by suggesting the mode, means, procedure or result of such investigation. [P. ] A
Police Order, 2002 (22 of 2002)--
----S. 18(6) & Scope--Criminal Procedure Code, (V of 1898)--Ss. 22-A & 22-B--Powers of Ex-officio Justice of Peace--Power u/Ss. 22-A & 22-B, Cr.P.C. conferred upon the Ex-officio Justice of Peace mainly relate to issues, non registration of a criminal case, transfer of investigation from one Police Officer to an other within scope of S. 18(6) Police Order, 2002 and the neglect/failure or excess committed by a police authority in relation to its functions and duties. [P. ] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)--Jurisdiction of Ex-officio Justice of Peace--A Justice of Peace can direct the police to do the needful in accordance with law but not to suggest the procedure or give direction to do a certain act. [P. ] C
PLD 2005 Lah. 470, rel.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1890)--Ss. 22-A & 22-B--Constitutional Petition--Independent of investigation which cannot be approved of--Principles of dispensation of criminal justice--Proceedings being under taken by Ex-officio Justice of peace was challenged--Abduction of 8 years child--Without causing recovery of abductee, accused was sent to judicial lock-up--Petition u/Ss. 22-A, & 22-B, Cr.P.C. for redressal of grievance qua dishonest investigation of the case and non-recovery of abducted son, which was disposed of without any substantial relief to the petitioner--Validity--Proceedings being conducted by Ex-officio Justice of Peace, independent of investigation of the case, which cannot be approved of--Accused instead of joining the investigation, were absconding and their relative, through an application u/S. 22A/22-B, Cr.P.C. had planned to side line the investigation of the case and thereby, win an opinion qua the truthfulness or otherwise, of the allegation--Accused pondered over the proposition of approaching respondent to seek a relief of their choice but the law was not on their side--Held: Ex-officio Justice of Peace could only pass direction to investigation officer to conduct the investigation honestly and even handedly by hearing both the sides, collect the evidence and prepare a report u/S. 173, Cr.P.C. containing a gist of investigation--Rost done by Ex-officio justice of peace cannot be approved of nor it can be held as legal or warranted by law--Proceedings pending before Ex-officio Justice of Peace on an application u/S. 22-A & 22-B, Cr.P.C. were quashed being illegal, unwarranted by law and ab inito void--Petition was allowed. [P. ] D & F
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 182--Charges alleged by informant were false--Proceedings against informant--Authority of investigation officer to decide taking action u/S. 1872, PPC if he comes to conclusion on conducting the investigation that the charges alleged by informant were false--In such situation, the initiation of proceedings against the informant shall be synonymous with the outcome of the investigation. [P. ] E
Ch. Muhammad Lehrasib Khan Gondal, Advocate for Petitioner.
Mr. Iftikhar Hassan, Advocate for Respondents.
Mr. Aamir Jalil Siddiqui, AAG for Respondent No. 6.
Mr. Ashiq Hussain, SI.
Date of hearing: 1.6.2010.
Order
Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks indulgence of this Court as he feels aggrieved of the proceedings being undertaken by the learned Addl: Sessions Judge, Sialkot/Ex-Officio Justice of Peace, Respondent No. 1, on a petition moved by one Rehman Basheer, Respondent No. 6 under section 22-A/22-B Cr.P.C, who happens to be a nephew of accused Mehmood Ahmad (Respondent No. 7) of case FIR No. 669 of 2009 dated 29.11.2009, registered under section 364-A PPC, at P.S Hajipura, Sialkot, on the complaint of Amjad Riaz (petitioner) regarding abduction of his son Bilal, aged 8 years.
The brief facts, leading to the filing of the instant petition are that Amjad Riaz petitioner alleged in his FIR No. 669 of 2009 supra that his son Bilal had been abducted at gunpoint by accused Mehmood Ahmad etc. at 5:15 p.m. on 29.11.2009; the local police arrested only one accused Mehmood Ahmad, Respondent No. 7 but without causing recovery of the abductee, he was sent to the judicial lockup; his co-accused are still at large; the petitioner filed a petition under Sections 22-A/22-B Cr.P.C before the learned Ex-Officio Justice of Peace, Sialkot for redressal of his grievance qua dishonest investigation of his case and non recovery of his abducted son, which was disposed of on 11.01.2010 without any substantial relief to the petitioner; one Rehman Basheer, Respondent No. 6, who is nephew of Respondents No. 7 and 8 filed a petition under Section 22-A/22-B Cr.P.C against the petitioner and Respondents No. 3 to 5 for. registration of a criminal case against them in the backdrop of above said FIR, before the learned Ex-Officio Justice of Peace, Sialkot, who sought a report from the SHO and also ordered for personal appearance of the Principal of Punjab School Sialkot Booth, where the alleged abductee was a student; the police submitted its report and also got recorded the statement of the Principal; the learned Justice of Peace being dissatisfied with the report/comments of the SHO, referred the matter to DPO, Sialkot, Respondent No. 3 for another report, which was made available but the learned Ex-Officio Justice of Peace did not feel satisfied and he again called for the Principal of the said school for recording fresh statement before him; the attendance record of the Punjab School was taken into possession by the Justice of Peace and thereafter referred the matter for further probe to RPO, Gujranwala, Respondent No. 2; on one hand the police did not effect the recovery of the abducted son of the petitioner and on the other hand the learned Ex-Officio Justice of Peace embarked upon conducting parallel inquiry into the matter by referring the matter to different police officers and the Principal of the Public School; the inquiry being conducted by the learned Ex-Officio Justice of Peace Sialkot caused anxiety and annoyance to the petitioner, hence, the instant petition.
Learned counsel for the petitioner contends that the impugned proceedings being conducted by the learned Ex-Officio Justice of Peace were violative of the powers conferred upon him under Sections 22-A/22-B Cr.P.C where-under a Justice of Peace could direct the police official/Investigating Officer to do the needful in accordance with law but he could not suggest the procedure or to give a direction to do or not to do a certain act; the Justice of Peace is not a judicial officer and he, at the most, can direct the SHO concerned to proceed and conduct the investigation in accordance with law; the proceedings being conducted by the Respondent No. 1 are not only directory but also the way, method, procedure and the result is being suggested by the Ex-Officio Justice of Peace which is in sheer disregard to the settled principles of dispensation of criminal justice; the police has already filed an incomplete report under Section 173 Cr.P.C before the trial Court and the learned Judicial Magistrate, being seized of the matter, had taken cognizance and summoned the accused to face the trial; under Section 156 Cr.P.C, an officer in charge of investigation had the statutory right to conduct investigation of a cognizable offence and such investigation could not be interfered with by the judiciary, what to talk about the powers of the Justice of Peace under Sections 22-A/22-B Cr.P.C, the anxiety on the part of Respondent No. 1 is uncalled for and by way of the partisan proceedings under Sections 22-A/22-B Cr.P.C, the investigation of the case got conducted by the petitioner was being interfered with, sans any justification, authority and approval of law; through the impugned proceedings, the Respondent No. 1 was adamant to fabricate false evidence in favour of Respondents No. 7 to 10 etc. who are the accused of FIR No. 669/09 supra; the Ex-Officio Justice of Peace, Respondent No. 1 has not only assumed the role of an Investigating Officer but has also changed the inquiry of the aforesaid application of Respondent No. 6 at lightening pace from the first I.O to the DPO and then to the RPO which amounts to making a mockery of law; the abducted son of the petitioner is yet to be recovered due to indolent behaviour of the Investigating Officer and on the other hand the Respondent No. 1 through the impugned proceedings has encouraged them to be as apathetic to the petitioner as they can; the learned Ex-Officio Justice of Peace may be estopped to conduct impugned inquiry/investigation and let the police do its duty under Section 156 Cr.P.C; the impugned proceedings may be declared illegal, unwarranted by law and ab-initio void.
On the other hand learned Assistant Advocate General assisted by learned counsel for Respondent No. 6 submits that the petitioner has filed the instant petition malafidely and maliciously so as to camouflage his baseless and concocted version, contained in FIR No. 669/09 supra; the petitioner is a habitual offender and a conspirator by temperament who has not even spared his minor son aged 8 years and has used him as a tool against all ethical norms to lodge a false case against the Respondents No. 7 to 10; the application under Sections 22-A/22-B Cr.P.C moved by Respondent No. 6 before the learned Ex-Officio Justice of Peace is based upon true facts whereby a criminal case is required to be registered against the petitioner as he had lodged a false case against the relatives of Respondent No. 6 qua the abduction of his son who was regularly, attending his classes at above said Punjab School even after the registration of the said criminal case; the inquiry being conducted by Respondent No. 1 was the need of the hour and the anxiety shown by. him was natural and called for due to obnoxious conduct of the petitioner; the proceedings pending before the Respondent No. 1 were legal and justified which had no bearing upon the proceedings of the trial being conducted by the learned Judicial Magistrate; the instant petition may be dismissed, being devoid of merit.
I have heard learned counsel for the parties and have perused the entire relevant record.
The petitioner is the complainant of the above said criminal which has been got lodged by him against Respondents No. 7 to 10 with the allegation that they had abducted his minor son Bilal Ahmad at gun point on 29.11.2009 and the people present at the spot including the complainant could not save the innocent child except watching the seen helplessly. According to the FIR the accused had committed the occurrence in the perspective of previous enmity between the parties. This case is pending investigation with, Malik Ashraf ASI, Respondent No. 5 who has virtually done nothing except causing the arrest of Mehmood Ahmad accused, Respondent No. 7 and dispatching him to the judicial lockup without the recovery of the abductee. He has submitted an incomplete challan under Section 173 Cr.P.C before the learned Judicial Magistrate for trial of the accused. The other accused are still at large. At this stage, Respondent No. 6, a relative of accused Mehmood Ahmad and Muhammad Haneef, Respondents No. 6 & 7 moved an application Under Sections 22-A/22-B Cr.P.C requesting therein that case FIR No. 669/09 supra had been lodged by Amjad Riaz (petitioner) with a concocted version as his allegedly abducted son had been attending his classes at the Punjab School Sialkot Booth regularly even after the registration of said FIR, so a criminal case be registered against him. Such an application perse, is not maintainable for the reason that it required an action by the Ex-Officio Justice of Peace which is directly relatable to the outcome of the investigation of the above said FIR. The contention of Rehman Basheer, Respondent No. 6, as contained in his application, may be the version of the accused Mehmood Ahmad etc. during the course of investigation yet it could not be entertained and considered by the Respondent No. 1 for holding/directing inquiries one after the other. The Ex-Officio Justice of Peace could have disposed of the petition with the direction to the petitioner and the accused of the above said case to join the investigation and raise the plea of their choice before the Investigation Officer but he instead, indulged himself in a series of inquiries/investigations, as mentioned hereinbefore, which is uncalled for and unwarranted by law. A direction could have been passed by the Justice of Peace to the Police Officer, connected with the investigation of the said FIR to do the needful in accordance with law and even for that matter an officer in charge of investigation did not require any permission to investigate the circumstances of the said case from the judiciary, what to talk about an order in this regard, by the Justice of Peace under Sections 22-A/22-B Cr.P.C. It is the domain of the Investigating Officer to collect the evidence in a criminal case under Section 156, 157 Cr.P.C and the Courts could not interfere with it by suggesting the mode, procedure or the result of such investigation. The powers under Sections 22-A/22-B Cr.P.C conferred upon the Ex-Officio Justice of Peace mainly relate to the issues, non registration of a criminal case, transfer of investigation from one police officer to an other within the scope of section 18(6) Police Order 2002, and the neglect/failure or excess committed by a police authority in relation to its functions and duties. The full bench of this Court in a case reported as "Khizer Hayat and others Vs. Inspector General of Police (Punjab), Lahore and others" (PLD 2005, Lahore, page 470) has taken care of the aforesaid area of jurisdiction of the Ex-Officio Justice of Peace under Section 22-A(6) Cr.P.C. As per the full bench judgment, a Justice of Peace can direct the police to do the needful in accordance with law but not to suggest the • procedure or give direction, as mentioned above, to do a certain act. Any such direction given, during the investigation of a criminal case, is a plain departure from the settled provisions of law.
In another case "Muhammad Habib Vs. Addl: Sessions Judge/Justice of Peace, Jampur, District Rajanpur and two others" (PLD 2009 Lahore 235) it has been observed by this Court:--
"An Ex-Officio Justice of Peace i.e Sessions Judge and nominated Addl: Sessions Judge in the District/Sessions Divisions, has the powers to issued appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police official to another and for neglect, failure or excess committed by a police authority in relation to its functions and duties. At the cost of repetition it is noteworthy that justice of Peace or Ex-Officio Justice of Peace is not a Court as envisaged under Section 22(6) of the Cr.P.C or the relevant provisions of the C.P.C. The available record does not show as to how and with what authority the learned Addl: Sessions Judge Jampur, entertained the request of Mst. Subhal Mai, respondent as Ex-Officio Justice of Peace, particularly when it is manifest from a bare perusal of sections 22-A and 22-B, Cr.P.C that the controversy between Mst. Subhal Mai respondent and Examiner Muhammad Habib, petitioner does not fall within the legally defined domain of Justice of Peace of Ex-Officio Justice of Peace."
I find that through the impugned proceedings being conducted by the learned Ex-Officio Justice of Peace, Sialkot, the fate of Criminal Case No. 669/09 Supra is being decided independent of the investigation of the said case, which cannot be approved of. The accused instead of joining the investigation, are absconding and their relative, Respondent No. 6 through an application under Section 22-A/22-B Cr.P.C has planned to sideline the investigation of the above said case and thereby, win an opinion from Respondent No. 1, qua the truthfulness or otherwise of the allegations contained in the mentioned FIR. The accused, Respondents No. 7 to 10 might have pondered over the proposition of approaching Respondent No. 1 to seek a relief of their choice but the law is not on their side, so far as the application under discussion, is concerned. It shall again be the authority of the Investigating Officer to decide taking action under Section 182 PPC if he comes to the conclusion on conducting the investigation that the charges alleged by the informant were false. In such like situation, the initiation of proceedings against the informant/complainant shall be synonymous with the outcome of the investigation.
The nutshell of the above discussion is that the Ex-Officio Justice of Peace, Respondent No. 6 could only pass a direction to the Investigating Officer of case FIR No. 669/09 supra to conduct the investigation honestly and evenhandedly, by hearing both the sides, collect the evidence and prepare a report under Section 173 Cr.P.C containing a gist of investigation. Rest done by the Respondent No. 1, as discussed above, cannot be approved of nor it can be held as legal or warranted by law. The instant petition is allowed within the meaning that the proceedings pending before the learned Ex-Officio Justice of Peace, Respondent No. 1 on an application under Sections 22-A/22-B Cr.P.C, moved by Respondent No. 6,. are hereby quashed being illegal, unwarranted by law and ab-initio void. The Respondent No. 6 and the Respondents-Accused No. 7 to 10, however, shall be at liberty to advance any plea of their choice, before the Investigating Officer who presently; conducts the investigation of above said criminal case. Disposed of.
(R.A.) Petition allowed.
PLJ 2010 Lahore 472 (DB)
Present: Kh. Muhammad Sharif, C.J. and Waqar Hassan Mir, J.
MUHAMMAD NAWAZ--Petitioner
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 3 others--Respondents
W.P. No. 8717 of 2010, decided on 27.5.2010.
Words and Phrases--
----Punishment--Meaning of--Punishment means, any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a Court, for same crime or offence committed by him or for his omission of a duty enjoined by law. [P. 476] A
Black Law Dictionary ref.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 25(a)--Criminal Procedure Code, (V of 1898), S. 403--Constitution of Pakistan, 1973, Arts. 13(a) & 199--Constitutional petition--Quashing of inquiry--Misappropriation of funds on account of repair charges of heavy earth moving machinery--Fake documents--To adopt voluntary return u/S. 25(a) of NAO--Voluntary return and plea bargain--Question of--Voluntary return had never culminated into conviction and difference in both inquiries--Validity--It takes place out of Court and strict senso between chairman NAB and accused and culminates into release and not discharge or acquittal--Held: Voluntary return proceedings confined only between the chairman and accused and were never before any Court--No question of trial and if the voluntary return was approved as desired by the accused, it does not amount to discharge or acquittal--NAB authorities were rights in conducting the inquiry against the petitioner and no fundamental right of the petitioner had been militated or infringed--Petition was dismissed. [Pp. 476, 479 & 480] B, C & E
General Clauses Act, 1897 (X of 1897)--
----S. 25--National Accountability Ordinance, 1999, S. 25(a)--Criminal Procedure Code, (V of 1898), S. 403--Constitution of Pakistan, 1973, Arts. 13 & 199--Distinction between earlier voluntary return and present inquiry--Quashing of inquiry--Vexing twice--Misappropriation of funds on account of repair charges--Preparing take documents--To adopt voluntary return--Show-cause notice regarding inquiry of corruption and corrupt practice--Validity--There was no scope of vexing twice--Earlier inquiry was about misappropriation of funds by Directors including the petitioner and inquiry was confined to misappropriation of finances, but the inquiry lodged against the petitioner was about his assets beyond means to which he has to specifically explain as to how he has accumulated all these funds and finances--Held: The inquiry did not mean the case of the petitioner as that of vexing twice--Even u/S. 26 of General Clauses Act, 1897 there is no bar on the simultaneous prosecution and prohibited only is the duplicate punishment and not the trial--Petition was dismissed. [P. 480] D
PLD 1963 Dacca 719, PLD 1965 Kar. 541, PLD 1965 Lah. 461, 1995 SCMR 626 ref.
Mr. Zulfiqar Ahmad Bhutta, Advocate for Petitioner.
Rana Abdul Shakoor Khan, Legal Expert for NAB, Rawalpindi.
Mr. Muhammad Aamer Marth, A.D/I.O NAB, Rawalpindi.
Date of hearing: 27.5.2010.
Order
Waqar Hassan Mir, J.--This writ petition has been filed for quashment of inquiry against the petitioner by the NAB authorities. Chronology of events in this case is that the petitioner served in Capital Development Authority ("CDA") as Steno-typist where he served for about 20 years and ultimately he resigned from service when faced an inquiry by the NAB Rawalpindi with the title as "INVESTIGATION AGAINST MPO WING CDA FOR MISAPPROPRIATION OF FUNDS ON ACCOUNT OF REPAIR CHARGES OF HEAVY EARTH MOVING MACHINERY/ VEHICLES BY PREPARING FAKE DOCUMENTS". In the year 2007, the above titled inquiry was pending before the NAB and during the inquiry of the said case, Mr. Sana Ullah Baloch, Deputy Director Technical CDA, Islamabad received a Letter No. 221/T-5/1W/NAB(R)/2006 dated 28th November, 2007 in which name of the present petitioner was introduced as one of the suspects. The main portion/body of the said letter is reproduced below:
"Reference"
A NAB (R) Letter No. 221/T-5/IW-1/NAB(R)/2006 dated 20.11.2007 B.CDA Letter No. CDA/SW-Tech-9(24)/2007/1376 dated 21.11.2007.
(i) M/S Haq Traders.
(ii) M/S A&S International.
(iii) M/S Fareed Brothers.
(iv) M/S S&B Traders.
(v) M/S Bhatti Brothers.
(vi) M/S Baba Traders.
(vii) M/S Gondal Traders.
(viii) M/S M.M Traders.
As a result of inquiries of above mentioned case, the petitioner was served with a notice regarding inquiry of the corruption and corrupt practices under the provision of MAO, 1999 and schedule thereof, resultantly in pursuance of the notice by NAB, the petitioner was treated as an accused under the NAO, 1999, however, the concerned NAB authorities suggested the petitioner to adopt Voluntary Return under Section 25(a) of NAO, 1999; the petitioner preferred to adopt the same and ultimately deal of Voluntary Return in view of Section 25(a) of NAO, 1999 was allowed and settled. Section 25(a) of NAO, 1999 which deals with the "Voluntary Return" reads as under:
"25. Voluntary return, and plea bargain.--
(a) Notwithstanding anything contained in Section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue.
Provided that the matter is not sub judice in any Court of law."
Thereafter, the NAB Rawalpindi under the signatures of Mr. Shafqat Mehmood, Deputy Director Coordination, Investigation Wing-I, again summoned the petitioner to face another inquiry under the title of "INQUIRY AGAINST MUHAMMAD NAWAZ GONDAL, EX-STENOGRAPHER, CDA ISLAMABAD" and the petitioner was directed to appear before Muhammad Aamer Marth, Assistant Director/ Investigating Officer, NAB Rawalpindi, Hence this petition.
Learned counsel for the petitioner submits that the petitioner now has been summoned regarding the matters which were already inquired into in the previous inquiry and settled through Voluntary Return under Section 25(a) of NAO, 1999 and as such an amount of Rs.2,35,00,000/- was paid by the petitioner; that the petitioner is also being harassed by the Inquiry Officer of the case namely Muhammad Aamer Marth who was also Inquiry Officer in the previous inquiry and also knows this fact very well that under the same allegations and incomes Voluntary Return has already taken place. Further submits that Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 403 of Cr.P.C protect any accused from double jeopardy and the second inquiry against the petitioner is hit by the above Article/Section; that discharge of the accused under Section 25(a) of the NAO, 1999 is protected as having the same effect as discharged by the Court because both discharges are final and have same effect as such the petitioner is also entitled to be treated in view of Section 403 of Cr.P.C; that under Section 17 of NAO, 1999, Section 403 Cr.P.C is applicable to the NAB cases. Lastly argued that nature of allegation and the amount regarding which Voluntary Return took place is the same which is subject matter of the present inquiry against the petitioner as such the present inquiry against the petitioner is against the law and. protections guaranteed to a citizen by the Constitution of Islamic Republic of Pakistan, 1973.
On the other hand, learned counsel for NAB submits that the previous inquiry was against the officials of MPO Directorate of CDA in which the petitioner worked as bogus contractor on illegal/non-genuine firms having names as mentioned in the writ petition and he caused loss of approximately Rs.70 Million to the State Exchequer; that the instant inquiry wherein the petitioner has been called by the I.O. is relating to accumulation of assets beyond his legitimate sources of income and a separate inquiry was authorized on 12.03.2010, whereas Voluntary Return was executed in another inquiry against officials of MPO Directorate CDA and MPO contractors regarding misappropriation of funds on account of repair charges of heavy earth moving machinery/vehicles by preparing fake documents; that there was no deal in the NAB and the petitioner as an accused in MPO case, settled his corruption amount which he took from CDA in lieu of GST and extra prices with reference to 1%; his case of bogus bills and false vouchers is still pending in which, investigation has been completed and draft reference is being prepared by the Prosecution Wing for filing in the Accountability Court. Lastly submits that the petitioner is not being jeopardized because in both the cases the nature of offence is entirely different; moreover, in the Voluntary Return under Section 25(a), alleged person is not deemed convicted.
Heard. Record perused.
We find that paramount argument of learned counsel for the petitioner is that once a Voluntary Return has been settled down and an amount of Rs. 2,35,00,000/- has been paid to the NAB, the same has become past and closed transaction in its entirety. Whereas, learned counsel for the NAB submits that the earlier inquiry was regarding misappropriation of funds whereas the present inquiry is as to how the accused/petitioner has accumulated worth beyond his means. Learned counsel for the petitioner has raised three basic points (i) conviction/discharge as Voluntary Return was finalized (ii) punishment (iii) vexing twice and mischief of Article 13 of the Constitution and Section 403 of Cr.P.C; which have been vehemently controverted by learned counsel for the NAB saying that the Voluntary Return has never culminated into conviction and that there is difference in both the inquiries as the first was against misappropriation of funds and the present one is about assets beyond means, therefore, there is no question of double jeopardy or vexing twice.
We intend to dilate upon above three points. Firstly, the "punishment"; as per Black's Law Dictionary, "punishment" means "any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a Court, for some crime or offence committed by him, or for his omission of a duty enjoined by law. A deprivation of property or some right. But does not include a civil penalty redounding to the benefit of an individual, such as a forfeiture of interest." A careful reading of Section 25(a) of NAO, 1999, which relates to "Voluntary Return", shows that it takes place out of Court and stricto senso between the Chairman NAB and the accused and culminates into release and not discharge or acquittal. Article 13(a) of the Constitution and Section 403 (1) of Cr.P.C read as under:
"13. No person--
(a) shall be prosecuted or punished for the same offence more than once;"------
"403. Persons once convicted or acquitted not to be tried for the same offence.--(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237."
But the rule involved is of "autrefois acquit" and "autrefois convict" for which, we are well advised to look into the case law.
In Ashutosh Tokdar vs. The State (PLD 1963 Dacca 719) it has been held that:
"Acquittal of accused in previous trial is no bar to his subsequent prosecution in respect of greater number of articles though these might have been received at same time as those in question in previous trial."
(Underlining is ours)
In Madad Ali vs. The State (PLD 1965 (W.P.) Karachi 541), it has been provided that:
"Bar of trial under S. 403 -- Limited to offence for which different charge might have been made under S. 236 or for which conviction might have been recorded under S. 237--person discharged at previous trial, not in jeopardy, of being convicted of offence for which he is subsequently tried"--Evidence identical to that given at previous trial may be led in support of charge at subsequent trial."
(Underlining is ours)
It has been held in Muhammad Ikram and others vs. The State (PLD 1965 (W.P.) Lahore 461):
"Offences, for which accused tried subsequently, neither part of offence alleged at previous trial nor in any manner connected with facts alleged at earlier trial -- Whether provisions of section attracted -- "Same" and "similar" facts -- Distinct -- Autrefois acquit and autrefois convict -- Principles how far and to what extent applicable in cases not failing within purview of S. 403 Cr.P.C.
Section 403, has no application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial; nor is this section attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial. Apart from the offence for which the accused may have already been tried and convicted or acquitted at the, previous trial, the protection contained in subsection (1) of Section 403 extends to an offence for which a charge different from the one made against the accused at the previous trial might have been made on the same facts under Section 236 Cr.P.C., and also in respect of an offence for which he might have been convicted at the previous trial under Section 237 Cr.P.C.; but the protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. A distinction has to be made here between "same" and "similar" facts." (Underlining is ours)
Muhammad Ashraf and others vs. The State (1995 SCMR 626) provides that:
"Maxim: "Nemo bis puniture aut vexatur pro eodum delicto" (no one is to be twice vexed for one and the same offence) -- Rule that no man shall be vexed twice for the same offence -- Application -- Rule of "autrefois acquit" and rule of "autrefois convict" -- Protection given by Art. 13(a), Constitution of Pakistan (1973) is against prosecution and double punishment -- Constitutional guarantee is available only if the accused is convicted and punished and if the first prosecution results in acquittal, the second prosecution is not prohibited. Rule of double jeopardy, however, is found in S. 403(1), Cr.P.C, which prohibits the second trial for an offence during course of existence of conviction or acquittal of a person as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction -- Rule against autrefois acquit finds place in S. 403(1), Cr.P.C and the counterpart of the said rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Art. 13(a), Constitution of Pakistan (1973) -- If one trial ends in conviction and punishment and in the second case accused is acquitted, and the two judgments are placed in juxtaposition and it becomes evident that the judgment of conviction in point of time is rendered first, judgment of conviction will hold the field -- Subsequent acquittal of accused thus cannot reflect upon his conviction and sentence awarded to him on the basis of the trial. Provisions of S. 26, General Clauses Act 1897, does not debar the simultaneous prosecution but prohibits duplicate punishment and not the trial.
The rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis puniture aut vexatur pro eodum delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of Criminal Law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence. This doctrine is enshrined deeply in the legal system of the countries following Anglo-American Jurisprudence. It is incorporated in one form or another in the statutory law, or as a constitutional guarantee in the constitutions of some of the countries.
In Constitution of Pakistan (1973), this rule is enacted in Article 13(a).
The protection given by this Article 13(a) of the Constitution is against prosecution and double punishment. By prosecution is meant a trial, followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment. If as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted, Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. It is, however, open to the Legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13(a). Such extension of rule of double jeopardy is to be found in Section 403(1) of the Criminal Procedure Code.
The Constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquittal is concerned. Section 403(1) however prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the same may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against "autrefois acquit" finds place in Section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a). (Underlining is ours)
In the present case, as learned counsel for the petitioner has brought into his arguments Article 13 of the Constitution as well as Section 403 Cr.P.C claiming that the petitioner was being vexed twice, therefore, it was found incumbent by us to have fully addressed the proposition involved of two principles i.e. "autrefois acquit" and "autrefois convict". As it is already observed above that the Voluntary Return proceedings confined only between the Chairman and the accused/approved as desired by the accused/petitioner, it does not amount to discharge or acquittal. It was simply release not even out of case, but before the case and has also drawn a line of distinction between the earlier Voluntary Return and the present inquiry. There was no scope of vexing twice the petitioner. The earlier inquiry was about misappropriation of funds by the Directors including the petitioner and the inquiry was confined to the misappropriation of finances, but the present inquiry lodged against the present petitioner was about his assets beyond means to which he has to specifically explain as to how he has accumulated all these funds and finances. By now it is very clear that the present inquiry does not mean the case of the petitioner as that of vexing twice. Had it been so, even under Section 26 of General Clauses Act, 1897, there is no bar on the simultaneous prosecution and prohibited only is the duplicate punishment and not the trial.
For what has been discussed above, we hold that the NAB authorities are right in conducting the inquiry against the present petitioner and no fundamental right of the petitioner has ever been militated or infringed. Therefore, this petition is dismissed and the NAB authorities are directed to proceed with the matter as expeditiously as possible.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 480 [Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
SAJID IQBAL--Petitioner
versus
SUPERINTENDENT OF JAIL CENTRAL JAIL ADIYALA RAWALPINDI and 4 others--Respondents
W.P. No. 1011 of 2010, decided on 28.4.2010.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 382-B--Pakistan Air Force Act, 1953, S. 71--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Detention period prior to sentence be counted--Petitioner was convicted of offences u/S. 71 of Pakistan Air Force Act--Conviction and sentence to suffer rigorous imprisonment in civil prison--Validity--Benefit of S. 382-B, Cr.P.C. must be given to a convict and pre-sentence period spent by him in jail must be taken into account--Why such benefit would be denied to an ex-employee of PAF, who had convicted under Pakistan Air Force Act--Petition was allowed. [P. 481] A
PLD 2010 FSC 1, PLD 1991 SC 1065, PLD 1992 SC 11, 1997 SCMR 55, PLD 1998 SC 152, 1998 SCMR 1539 & 2001 SCMR 416, rel.
Mir Muhammad Ghufran Khurshid Imtiazi, Advocate for Petitioner.
Mr. Babar Ali, Standing Counsel for Respondents.
Date of hearing: 28.4.2010.
Order
The facts in brief are that the petitioner Sajid Iqbal, who was employed in the Pakistan Air Force as a Corporal Technician, was tried by the Field General Court Martial Air Headquarters Northern Area Command, PAF and was on 28.3.2008 convicted of offences under Section 71 of the Pakistan Air Force Act, 1953. Upon his conviction, the petitioner was dismissed from service and was also sentenced to suffer rigorous imprisonment in a civil prison for six years alongwith a fine of Rs.3000/-.
Through this petition, the petitioner, who is presently confined in Central Jail, Rawalpindi, seeks to avail the benefit of 382-B of Cr.P.C. and prays that the period of his detention prior to the sentence be counted as per the settled law. Reliance is placed on PLD 2010 Federal Shariat Court as well as on PLD 1991 S.C. 1065, PLD 1992 SC 11, 1997 SCMR 55, PLD 1995 SC 152, 1998 SCMR 1539 and 2001 SCMR 416.
I agree with the learned counsel for the petitioner that it is settled law that the benefit of Section 382-B Cr.P.C. must be given to a convict and the pre-sentence period spent by him in jail must be taken into account. I see no reason as to why such benefit should be denied to an ex-employee of the Pakistan Air Force, who was convicted under the Pakistan Air Force Act, 1953.
For what has been discussed above, this petition is allowed with the direction that the petitioner's sentence of six years be reckoned from the day of his arrest by taking into account the pre-sentence period, if any, served by him in detention or jail.
(R.A.) Petition allowed.
PLJ 2010 Lahore 482
Present: S. Ali Hassan Rizvi, J.
Sayed AQDAS ABBAS--Petitioner
versus
Mst. SAMINA SHAHBAZ through Special Attorney and 2 others--Respondents
W.P. No. 7788 of 2009, decided on 28.4.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintenance allowance for special child--Challenge the validity of order--Jurisdiction--Direction to pay of maintenance allowance @ of Rs. 15,000/- for the minor who was a special child--Monthly salary was Rs. 41,000/- and interim maintenance of Rs. 15000/- p.m. was exorbitant--Under S. 9 of Family Court Act, he was obliged to submit his written statement on his appearance in Court--Instead of filing written statement and documents relating to his salary/income, he moved an application u/S. 7 of Act, 1964 pointing out technicalities--Validity--Interim maintenance @ of Rs. 15,000/- pm. for a special child who was under treatment was exorbitant--Such rate of maintenance would be adjustable at the time of final determination of the maintenance is palpably exorbitant, the same can be reduced even in writ jurisdiction. [P. 483] A, B & C
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Act, 1964, S. 9--Constitutional petition--Interim maintenance--Special child--Jurisdiction of High Court--Validity--Legislature in its own wisdom, did not provide any appeal, revision or review against the order relating to interim maintenance--Held: Order of interim maintenance cannot be disturbed in writ jurisdiction unless the same on the face of it is shown to be exorbitant--Petitioner has not paid even a single penny for his retarted son and is instead fighting legal battle uptil High Court--No case for interference in writ jurisdiction. [P. 484] D
PLJ 2009 Lah. 108, 2007 MLD 41 & PLD 2004 Lah. 349, ref.
Syed Abid Mumtaz Tirmizi, Advocate for Petitioner.
Date of hearing: 28.4.2009.
Order
This writ petition filed by Syed Aqdas Abbas petitioner seeks to challenge the validity of order dated 16.4.2009 whereby the learned Judge Family Court, Lahore had directed payment of maintenance allowance at the rate of Rs. 15,000/- for the minor Plaintiff/Respondent No. 2 (Syed Muhammad Irtaza) who was a "special child."
The ground taken are that the petitioner had not yet submitted his written statement; that his monthly salary was Rs.41,000/- and that the interim maintenance of Rs. 15,000/- per month was exorbitant. In support of the above submissions, reference was made to Zafar Hussain Vs. Begum Farzana Nazli and others (PLD 2004 Lahore 349), Makhdoom Ali Vs. Mst. Razia Sultana and others (2007 MLD 41) and Mst. Sitwat Chughtai and another Vs. Judge Family Court, Lahore and another (PLJ 2009 Lahore 108).
After hearing learned counsel for the petitioner and perusing the record, I find that the petitioner did not appear before the learned Judge Family Court unless a proclamation had appeared in the newspaper against him. Under Section 9 of the Family Court Act, 1964, he was obliged to submit his written statement on his appearance in Court. Instead of filing written statement and documents relating to his salary/income, he moved an application under Section 7 of the Family Court Act, 1964 pointing out some technicalities. The disposal of that application took six dates from 19.1.2009 to 4.4.2009. It was on the 7th date that the impugned order was passed by the learned Judge Family Court on 16.4.2009 after hearing the parties.
If the petitioner/defendant was faithful in prosecuting his remedy before the learned Judge Family Court, he should have submitted written statement and proof as to his salary/income. He did not do so. In Para 9 of the impugned order, the learned Judge Family Court observed that the petitioner/defendant was a Professor by profession and his monthly take-home pay was Rs.41,000/- per month besides other source of income on the basis of writing of books. The learned Judge also took notice of the fact that Syed Muhammad Irtaza (Respondent No. 2) was a special child and was under treatment of Dr. Nazir Ahmad Khan.
In the above circumstances, it is difficult to say that interim maintenance at the rate of Rs. 15,000/- per month for a special child who was under treatment of Dr. Nazir Ahmad Khan, was exorbitant. In any case, this rate of maintenance shall be adjustable at the time of final determination of the maintenance amount. If the petitioner is mindful of his defence, he should immediately submit his written statement bringing to the Court every proof as to his monthly income etc. I would have no cavil with the proposition that where rate of interim maintenance is palpably exorbitant, the same may be reduced even in writ jurisdiction. However, in the present case, there appears to be no such eventuality. The Legislature in its own wisdom, did not provide any appeal, revision or review against the order relating to interim maintenance. The order of interim maintenance cannot be disturbed in writ jurisdiction unless the same on the face of it is shown to be exorbitant. The writ petitioner has not paid even a single penny for his retarted son and is instead fighting legal battle uptil the High Court. He did not submit his salary slip either before the Trial Court or even before this Court. The reasons recorded by the learned Judge Family Court in the impugned order appear to be sound. The rulings cited being in different situations, were not apt similes. No case for interference in writ jurisdiction with the impugned order dated 16.4.2009 passed by the learned Judge Family Court has been made out. Consequently, the writ petition is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 484
Present: Raja Muhammad Shafqat Khan Abbasi, J.
Rana MUHAMMAD BOOTA and another--Petitioners
versus
MUHAMMAD AMIR--Respondent
C.R. No. 576 of 2009, decided on 20.4.2009.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24(2)--Civil Procedure Code, (V of 1908), S. 115 & O. VII, R. 11--Right of pre-emption on the ground that they were owners--Application u/Order VII, Rule 11 of CPC was filed on the ground that they by concealing that facts with mala fide intention about valuation of property only deposited zar-e-soem--No Court can extend time as prescribed in S. 24(2) of Pre-emption Act--Suit was barred by limitation--Civil revision--Question of--Whether provisions of S. 24 of Pre-emption Act, are directory or mandatory in nature--Validity--Deposit of 1/3rd of sale price of the property has to be deposited upto 30 days of the filing of suit and not beyond that and the amount has to be determined through a process of approximation resulting in the probable value if there is nothing mentioned in sale-deed or the mutation--Period has been prescribed by statute, which was mandatory--Trial Court would have no jurisdiction to extend the time--Held: Courts below have rightly held that the petitioner had misled the trial Court with a mala fide intention fixed lesser zar-e-soem considering the price of land--Trial Court was not authorized to extend the limit of 30 days of deposit of zar-e-soem--Petitioner has not been able to point out any illegality or perversity of reasoning or jurisdiction error in impugned order and decree of Courts below calling for interference of High Court in its revisional jurisdiction--Petitioners dismissed. [Pp. 487 & 488] A, C & D
Administration of Justice--
----When law required a particular thing is to be done in a manner, it has to be done in that manner. [P. 488] B
PLD 1997 Lah. 549, 1992 SCMR 746, PLD 1971 SC 61, 1995 CLC 957 & 1995 CLC 2202, ref.
Mr. Muhammad Amin Lone, Advocate for Petitioner.
Date of hearing: 20.4.2009.
Order
The petitioners, namely, Rana Muhammad Boota and Barkat Ali sons of Jalal Din, by filing this civil revision under Section 115 C.P.C. have called in question the judgment and decree dated 23.12.2008 passed by the learned Additional District Judge, Ferozewala, District Sheikhupura, whereby he dismissed their appeal confirming the order dated 19.5.2008 passed by the learned Civil Judge 1st Class, Jhang, whereby he while accepting the application under Order VII Rule 11 C.P.C. moved by Muhammad Amir, respondent/defendant dismissed the civil suit for possession through pre-emption filed by the petitioners/plaintiffs.
Precisely the facts giving rise to this revision petition are that a parcel of land measuring 1 kanal, 18 marlas falling in Khewat No. 67, Khatoni No. 456, Square No. 66, Killa No. 18, situate at village Budhanke, tehsil Muridke, District Sheikhupura had been purchased by Muhammad Younas son of Muhammad Shafi for a consideration of Rs.8,00,000/- vide Mutation No. 925, dated 27.1.2004, who later on sold the said piece of land to the respondent/defendant through oral Mutation No. 1123, dated 28.4.2006 for a consideration of Rs.8,00,000/-; the petitioners/plaintiffs on coming to know of the said sale on 12.8.2006 at 4/5.00 p.m. through Syed Nazir Shah son of Syed Ulfat Shah, Irshad son of Inayat and Inayat Ali son of Muhammad Din, immediately pronounced their right of pre-emption on the ground that they are co-owners; the respondent/defendant while contesting the suit filed an application under Order VII, Rule 11 C.P.C. seeking dismissal of the suit on the ground they by concealing the facts with mala fide intention about valuation of the property only deposited Zar-e-Soem Rs.2,66,667/- in the Bank instead of Rs.5,00,000/- because actually the price of disputed land was Rs. 15,00,000/-; that the Zar-e-Soem was to be deposited within 30 days of the institution of the suit and no Court can extend the time, as prescribed in Section 24(2) of the Punjab Pre-emption Act, 1991 and that the suit is barred by limitation, as such, merits dismissal; the petitioners/plaintiffs contested the said application by filing a reply thereto; the learned Civil Judge 1st Class, Ferozewala, vide order dated 19.5.2008 proceeded to accept the said application and rejected the plaint of the petitioners/plaintiffs under Order VII Rule 11 C.P.C; being aggrieved of the said order, the petitioners/plaintiffs preferred appeal before the learned Additional District Judge, Ferozewala, which was also dismissed vide judgment and decree dated 23.12.2008. Hence, the instant revision petition.
This petition came up for hearing on 6.4.2009, when pre-admission notice was issued to the respondent for today. Service upon him was ordered to be effected through ordinary course as well as T.C.S. at the expense of the petitioners, but they failed to deposit the expenses, due to which notice could not be issued to the respondent. In this situation, I proceed to decide this revision petition today on merits.
It has been contended by the learned counsel for the petitioners that the Courts below were not justified to reject the plaint of the petitioners under Order VII, Rule 11 C.P.C.; that both the Courts below were wrong in holding that the petitioners have given the price of land as Rs.8,00,000/- mala fidely, whereas the actual price thereof was Rs.15,00,000/; that the controversy involved relates to questions of facts, which cannot be resolved without recording of evidence, therefore, the Courts below have erred in law in ousting the petitioners on the preliminary objections.
I have heard the learned counsel for the petitioners at considerable length and have also gone through the order passed by the learned Civil Judge as well as the judgment and decree passed by the learned Additional District Judge.
The Courts below have non-suited the petitioners solely on the ground that they had not deposited the Zar-e-Soem as required under Section 24(2) of the Punjab Pre-emption Act, 1991. The question involved herein is that whether provisions of Section 24 (ibid) are directory or mandatory in nature. This issue came into discussion in the case of Niaz Muhammad Khan v. Mian Fazal Raqib (P.L.D. 1974 S.C. 134), wherein the Hon'ble Apex Court proceeded to observe as under:--
"As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is director, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amount to the invalidity of the act done in disobedience to the provision.
Viewed in this light, and keeping in mind the fact that the provisions in question are embodied in a statute dealing with a right which has been described as predatory or piratical in nature, it would appear that the requirement enjoined by sub-sections (1) and (4) of Section 23 of the Act is mandatory in nature as failure to comply with the same is to be visited by the penal consequence of the rejection of the plaint once it came to the conclusion that the directions of the trial Court in regard to the furnishing of security had not been complied with within the period specified."
Similar was the position in the case of Haji Abdul Qadir v. Zafar Shaheen (P.L.D. 1997 Lahore 549), wherein it was held that "a statute is a directory when its provisions need not to be complied with meticulousness and their substantial compliance is enough while mandatory statute or its provisions is whose non-compliance renders the act invalid. This distinction was highlighted in early case of Hurford v. Omaha 4 Neb. 336. It is instructive to quote the relevant provisions of this judgment:
"If the provisions involved relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provisions may he regarded as directory, but where it directs acts or proceedings to be done in a certain way and indicates that a compliance with such provisions is essential to the validity of the act or proceedings, or requires some antecedent and prerequisite conditions to exist prior to the exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory."
Deposit of 1/3rd of sale price of the property has to be deposited upto 30 days of the filing of the suit and not beyond that and the amount has to be determined through a process of approximation resulting in the probable value if there is nothing mentioned in the sale-deed or the mutation. In this view of the matter, the period has been prescribed by the statute, which was mandatory. Trial Court would have no jurisdiction to extend the time. Reliance can profitably be made to the cases of Awal Noor v. District Judge, Karak and 8 others (1992 S.C.M.R. 746), Ata Muhammad Qureshi v. The Settlement Commissioner, Lahore & 2 others (P.L.D. 1971 S.C, 61), Jamshed Ali & 2 others v. Ghulam Hassan (1995 C.L.C. 957), and Mst. Wafa Jan v. Mahram Zad (1995 C.L.C. 2202).
It is settled principle of law that when law required a particular thing is to be done in a manner, it has to be done in that manner. In the present case, the petitioner moved an application through D.D.O (R) on 15.8.2006, wherein it was requested that sale of the disputed land has been effected for Rs. 15,00,000/-, but the concerned Patwari has not provided them a certified copy of the mutation. The petitioners filed another application before the revenue authorities on 18.8.2006, in which sale consideration was mentioned as Rs.8,00,000/-, but the price of the land has been shown as Rs. 15,00,000/- fictitiously. These applications indicate that it was in the knowledge of the petitioners that price of the land has been fixed as Rs. 15,00,000/-. In this view of the matter, the Courts below have rightly held that the petitioners had misled the trial Court with a mala fide intention fixed lesser Zar-e-Soem considering the price of land as Rs.8,00,000/-. In view of this situation, the plea of the petitioners that they were not in the knowledge of the price of sale does not carry any weight. They were aware of the date and number of mutation as mentioned in the plaint. They themselves undervalued the plaint. The trial Court was not authorized to extend the limit of 30 days of deposit of Zar-e-Soem. The learned counsel for the petitioner has not been able to point out any illegality or perversity of reasoning or jurisdictional error in the impugned order/judgment and decree of the Courts below calling for interference this Court in its revisional jurisdiction.
Resultantly, this revision petition being meritless is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 488 (DB)
Present: S. Ali Hassan Rizvi and Muhammad Ashraf Bhatti, JJ.
MUHAMMAD ASGHAR--Appellant
versus
MIAN MUHAMMAD HUSSAIN--Respondent
R.F.A. No. 432 of 2003, heard on 30.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 148 & O. XXXVII, Rr. 1 & 2 (2)--Limitation Act, 1908, S. 5--Suit for recovery on the basis of an alleged pronote--Application seeking leave to appear and defend the suit was allowed subject to furnishing security equals to the suit amount--Defaulted in furnishing surety with specific period--Defence be struck off and the suit be decreed--Trial Court observed that delay in furnishing security was condonable--Validity--Greater always includes lesser and if trial judge had mandate to direct furnishing of security within a period of time, he had the authority to extend time u/S. 148, C.P.C.--Held: All procedural laws are framed for advancement of justice and to take cause to logical end for and against the litigating parties--Technicalities cannot be allowed to operate as tyrant masters so as to smother and frustrate the genuine claims--Provisions of S. 148, CPC were consciously invoked by trial Court whereby delay was condoned on the application of defendant--Provisions of S. 5 of Limitation Act, had been made applicable to the proceedings of suit tried summarily u/O. XXXVII, Rule, 3(3), CPC. [P. 492] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 99--Appellant did not challenge the impugned orders when he has lost his suit after full-dress trial--When the plaintiff/appellant had no case on merits--Being so, the findings of trial Court could neither be varied nor reversed nor interfered within any manner vide Section 99 of CPC. [P. 492] B
Mr. Abdul Razzaq Mirza, Advocate for Appellant.
Mr. Naseer Ahmed Sial, Advocate for Respondent.
Date of hearing: 30.4.2009.
Judgment
S. Ali Hassan Rizvi, J.--Muhammad Asghar plaintiff/ appellant had on 09.02.2002 filed a suit under Order XXXVII, Rules 1 & 2, CPC for recovery of Rs.4,00,000/- on the basis of an alleged Pronote dated 03.06.2000.
Muhammad Hussain defendant/respondent moved an application under Order XXXVII Rule 2(2), CPC seeking leave to appear and defend the suit which was allowed by the learned Additional District Judge, Depalpur by order dated 20.04.2002 subject to furnishing security equals to the suit amount within seven days otherwise it was directed that his application would stand dismissed. Vide order 13.11.2002 the learned trial Judge observed that the delay in furnishing security was condonable. He, therefore, allowed the defendant/respondent to submit his written statement. The written statement was accordingly filed on 23.11.2002. By the same order dated 13.11.2002 the learned trial Judge dismissed application of the plaintiff/appellant seeking the striking off defence of the defendant/respondent and decreeing the suit straightaway under Order XXXVII, Rule 2(2), CPC taking the averments in the plaint as admitted.
The trial proceeded on the following issues as framed on 25.02.2003.
"ISSUES:
Whether the plaintiff has no cause of action against the defendant? OPD
Whether the plaintiff has not come to the Court with clean hands and the defendant is entitled to special costs U/S. 35-A CPC? OPD
Whether the plaintiff is entitled to the decree for recovery of Rs.4,00,000/- on the basis of pronote dated 3.6.2000? OPP
Relief."
On conclusion of the trial, the learned Additional District Judge, vide judgment dated 05.07.2003 dismissed the suit with special costs of Rs.5000/- to be paid to the defendant/respondent. The present RFA was filed on 16.10.2003 challenging the validity of the aforesaid judgment and decree dated 05.07.2003.
We have heard learned counsel for the parties and gone through the record.
ISSUE NO. 3 being crucial, was taken up by the learned trial Court in the first instance. The stance of the respondent/defendant in his written statement was that the plaintiff/appellant had no valid cause of action; that the suit was false and frivolous and that the alleged Pronote was not testified by two witnesses. On facts, it was averred by the defendant/respondent that he had no acquaintance with the plaintiff/appellant Muhammad Asghar; that there was no Lain-Dain between him and the plaintiff/appellant; that he had never received any money and that the entire suit was based on false version. As to the execution of the Pronote, it was the case of the defendant/respondent that he was village simpleton; that Zulfiqar who was son of Mst. Iqbal Begum the daughter of his Tayazad, Muhammad Jahangir, had some business relation with the plaintiff/appellant; that aforesaid Zulfiqar was kept under illegal confinement by the plaintiff/appellant; that he (defendant/respondent) alongwith his father-in-law Abdul Aziz, had gone to get him released and at that time the plaintiff/appellant had unduly got his thumb impressions on some papers.
The learned trial Judge after discussing the entire evidence found Issued No. 3 against the plaintiff/appellant holding that the defence version inspired his confidence; that no consideration was ever passed on to the defendant/respondent and there was indeed a dispute between aforesaid Zulfiqar and Muhammad Ashgar.
Mian Muhammad Hussain, defendant/respondent appeared as DW-1. He examined Zulfiqar as DW-2. Their statements were found consistent with the defence version as given in the written statement. The learned trial Judge conversely found that Muhammad Zafar (PW-2) and Bashir Ahmad (PW-3) were shop-keepers and tenants of one Ghulam Abbas who was Mamoon of the plaintiff/appellant whereas PW-4 Abdul Khaliq was a petition writer working in the chamber of father of the plaintiff/appellant. He, therefore, disbelieved the evidence led by the plaintiff/appellant. We also find that the statements of PW-2, PW-3 and PW-4 as aforementioned lacked luster of impartiality. The plaintiff/appellant Muhammad Asghar appeared as PW-1. He failed to prove as to what was the occasion for advancing Rs.4,00,000/- to the defendant/respondent on his simple request and there and then without any previous relationship, whatsoever. The defendant/respondent was an old man of 75 years.
After going through the evidence and ratiocination adopted by the learned trial Court, we find that the plaintiff/appellant had failed to prove his case as set up in the plaint. He was, therefore, not entitled to the decree for recovery of Rs.4,00,000/-. Consequently, we uphold the findings of the learned trial Court on this issue.
Since we have affirmed the findings of the learned trial Court on Issue No. 3 as above, it could not be held that the plaintiff/appellant had any valid cause of action. The learned trial Court had rightly come to the conclusion that the plaintiff/appellant had not come to the Court with clean hands. Suit was, therefore, rightly dismissed with special-costs of Rs.5000/-.
Learned counsel for the plaintiff/appellant nevertheless contended that the defendant/respondent having not furnished the surety as directed by the learned trial Court by order dated 20.04.2002 within seven days, his written statement as also the evidence could not have been read on record and that consequently plaintiff/appellant was entitled to decree in terms of Order XXXVII, Rule 2(2), CPC. According to learned counsel for the appellant, the defendant/respondent had failed to submit his written statement and furnish security within seven days as directed by the learned trial Court by order dated 20.04.2002 and that, therefore, he having thus defaulted, the averments made in the plaint would be deemed to have been admitted entitling the appellant to a decree in terms of Order XXXVII, Rule 2(2), CPC.
We have hesitation to go by the above contentions for reasons more than one. Firstly, the defendant/respondent was allowed to appear and defend the suit by order dated 20.04.2002 subject to the condition that he would furnish security equal to the suit amount within seven days. The learned trial Judge was moved by the plaintiff/appellant pointing out that the defendant/respondent having defaulted in furnishing surety within seven days, his defence be struck off and the suit be decreed straightaway. This application of the plaintiff/appellant was rejected by the learned trial Court on 13.11.2002 and 04.02.2003 which orders were not further agitated against. The plaintiff/appellant submitted himself to the trial being held by the learned trial Court after framing issues. He led evidence without demur. The aforesaid orders could have been challenged in revision but nothing of the sorts was done. Greater always includes lesser and if the learned trial Judge had the mandate to direct furnishing of security within a certain period of time, he had the authority to extend time under Section 148, CPC and this is what he had done. We, therefore, feel that the plaintiff/appellant had conceptually accepted the orders dated 13.11.2002 and 04.02.2003 whereby the defendant/respondent was allowed to submit his written statement and requisite security till the next date. It may be noted that all procedural laws are framed for advancement of justice and to take a cause to a logical end for and against the litigating parties. Technicalities cannot be allowed to operate as tyrant masters so as to smother and frustrate the genuine claims. The provisions of Section 148, CPC were consciously invoked by the learned trial Court whereby delay was condoned on the application of the defendant/respondent. The said provisions could be brought into consideration either suo-motu by the Court in the interest of justice or on the application of the party concerned. The provisions of Section 5 of the Limitation Act have been made applicable to the proceedings of suit tried summarily under Order XXXVII, Rule 3(3), CPC.
At the risk of repetition it may be observed that the plaintiff/appellant did not challenge the orders dated 13.11.2002 or 04.02.2003 and now when he has lost his suit after full-dress trial, he cannot be allowed to turn round and rake up the same question, which was raised by him and did not find favour with the learned trial Court. In any case, nothing substantial was likely to turn upon the above question when the plaintiff/appellant had no case on merits. That being so, the findings of the learned trial Court could neither be varied nor reversed nor interfered with in any manner vide Section 99 of the CPC. The learned trial Judge in his aforesaid orders had also found that the defendant/respondent had submitted surety bond on 06.05.2002 i.e. two days before the date fixed in the main case. He held that the omission on the part of defendant/respondent was bona fide and, therefore, deserved to be supplied. We have no reason to differ.
No other point was raised. No misreading or non-reading of the evidence on record was pointed out either. We, therefore, uphold the judgment and decree of the learned trial Court dated 05.07.2003 dismissing the suit of the plaintiff/appellant and dismiss this Regular First Appeal with costs.
The record of the trial Court be returned intact.
(R.A.) R.F.A. dismissed.
PLJ 2010 Lahore 493 [Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
Sh. MUHAMMAD USMAN--Appellant
versus
AURANGZEB MUGHAL & others--Respondents
SAO No. 12 of 2009, decided on 14.4.2010.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 13-A & 15(6)--Notice of change of ownership--Ejectment petition on the grounds of willfully defaulted in payment of monthly rent--Ejectment of tenant on ground of his own personal need--No evidence was produced to prove that he had paid rent to landord--Within 30 days of the receipt of notice of change of ownership, tenant was bound to pay rent due to new landlord--Held: Phrase "rent due does not refer just to future rent but also includes previous months" rent as might be due and payable to the new landlord--Appellant committed willful default in payment of the rent due to respondents--Further held: Appellant had willfully defaulted in the payment of rent due to respondents who in good faith need the disputed shop for use of their dependent and jobless brother--No irregularity, illegality or infirmity in impugned orders which were lawful and had been passed in accordance with the evidence on record--Second appeal was dismissed. [Pp. 497 & 498] A, B & C
2001 SCMR 31, 2007 CLC 1495 & 2000 CLC 126, ref.
Hafiz Saeed Ahmad Sheikh, Advocate for Appellant.
Mr. Munir Ahmad Malik, Advocate for Respondents.
Date of hearing: 28.1.2010.
Judgment
Through this second appeal filed under Section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959 ("the Ordinance"), the appellant impugns his ejectment from Shop No. C/295/5, situated in Moti Bazaar, Rawalpindi, ordered by the Rent Controller, Rawalpindi, by his judgment dated 24.11.2008 which was subsequently upheld by the Additional District Judge, Rawalpindi, vide his judgment dated 09.04.2009.
Facts necessary for the disposal of this appeal are that on 26.5.1991 the previous owner of the disputed shop rented it out to appellant's father by means of a rent agreement of the same date. After the death of his father, the appellant succeeded as the tenant of the shop. It is on 12.5.2005 that the respondents purchased the shop in dispute whereafter on 8.11.2005 they gave a notice of change of ownership to the appellant under Section 13-A of the Ordinance. Thereafter, on 14.12.2005 they filed an ejectment petition under Section 13 of the Ordinance against the appellant on the grounds that he had willfully defaulted in the payment of monthly rent of Rs. 1500/- from May, 2005 to December 2005 and that the tenanted premises were bonafide needed by the respondents for the use of their real younger brother, who was jobless for the last 5/6 years, so that he could carry on the garments business in the vacated shop.
An additional ground was raised on the basis of the evidence produced by the respondents that the appellant was also liable to be ejected for having failed to pay the enhanced rent due to the statutory increase in terms of Section 5-A of the Ordinance. The learned Rent Controller by his order dated 24.11.2008 accepted the ejectment petition on both the grounds but rejected the additional ground of default in payment of enhanced rent for having not been pleaded in the ejectment petition. However, the learned Additional District Judge, while upholding the order of the Rent Controller, also held that the appellant had committed default in the payment of the enhanced rent even though the same had not been demanded by the respondents nor such a ground had been pleaded by them in their ejectment petition.
The learned counsel for the appellant has assailed the finding of Additional District Judge that the appellant committed willful default in the payment of enhanced rent under Section 5-A of the Ordinance and has also taken exception to the findings of the Courts below on the issues of personal need and default in the payment of rent for the period May 2005 to December 2005.
A reference may be made to Section 5-A of the Ordinance which provides that in the case of a non-residential building, there shall be an automatic increase of 25% in the rent after every three years. According to the learned counsel for the appellant, the ground of willful default in the payment of enhanced rent is not available to the landlord unless the landlord has formally called upon the tenant to pay the said rent. In support of his argument, learned counsel has referred to Syed Ilyas Ali Abbasi vs. Mst. Allah Rakhi (2001 SCMR 31), Dildar Hussain vs Shahzada Alamgir (2007 CLC 1495) and Javed Iqbal vs S.M.Khurram Wasti (2000 CLC 126) which lay down that there is no willful default by the tenant in the payment of the enhanced rent under Section 5-A of the Ordinance, unless he has failed to do so upon demand having been made by the landlord. In the present case, according to the learned counsel, no demand was admittedly made for the enhanced rent and consequently, the Additional District Judge, has erred in finding that the appellant had committed willful default in payment of rent. I agree with the learned counsel for the appellant that the above authorities, particularly, Syed Ilyas Ali Abbasi vs. Mst. Allah Rakhi (2001 SCMR 31) is directly applicable to the instant case and the learned Additional District Judge erred in law when he found that the appellant had committed willful default in the payment of the enhanced rent due under Section 5-A of the Ordinance even though no demand for the enhanced rent had been made by the respondents. I must also say that, upon closer scrutiny, the case law to the contrary cited by the learned counsel for the respondents including Muhammad Irfan vs. Muhammad Zahid Hussain Anjum (2000 SCMR 207) and Pakistan Bait-UI-Mal vs. Umar Mahmood Kasuri and another (2009 AC 436) does not appear to be applicable to the facts of the present case.
As to the personal need of the respondents, it has been contended by the appellant's counsel that the Courts below have misinterpreted the saw as a landlord can under Section 13(3)(a)(ii)(a) of the Ordinance seek the ejectment of the tenant on the ground of his own personal need or that of his children, but cannot do so if the tenanted premises are needed for use by his brother. In this regard, learned counsel for the appellant referred to Muhammad Zahir Khan Vs. Ch. Shah Muhammad (PLD 1980 Lhr 125) and Minhaj ul Abidin Khan and 5 others vs. Mst. Shamim Akhtar (1988 CLC 2433) but the same are not relevant as they do not pertain to the issue of a landlord requiring his non-residential building for the use of his brother. On the other hand, Learned counsel for the respondent has placed reliance on Muhammad Afzal Vs. Muhammad Tufail (2000 MLD 1858), Mahmood-ul-Hassan vs. Muhammad Jameel (1980 CLC 829) which lay down that a landlord can seek the eviction of the tenant on the ground of personal need, even though the tenanted premises are not required by the landlord himself but for use by his brother who is dependent on the landlord.
According to the evidence produced by the respondents, they needed the disputed shop in good faith for their dependant younger brother so that he could run his garments business therein. It was also stated by the respondents that their younger brother was jobless and lived with them in the same house in the joint family system. In rebuttal, the appellant tried to show that the respondents' brother was not jobless but was gainfully employed by producing income tax returns but the said returns were rightly rejected on the ground that the same could net be produced and read in evidence under Section 216 of the Income Tax Ordinance, 2001. Appellant also produced some affidavits to show that the respondents' brother was running a shop in the same premises but the same were not found to be convincing by the Courts below as the shop was found to be rented and that too not in the name of respondents' brother but in the name of Respondent No. 2. In the circumstances, the appellant failed to produce evidence to rebut the stand of the respondents that their younger brother is dependant on them as he is jobless and has no source of income. Muhammad Afzal Vs. Muhammad Tufail (2000 MLD 1858), supports the view that the personal need of a landlord to have his non-residential properly vacated by the tenant includes the need of or use by his relatives including his brother provided they are dependant on him. Obviously, such a need has to be regarded as the personal need of the landlord who stands to benefit in material terms as he is likely to be relieved of the financial burden of his dependant relative because such a relative can become independent of him upon having a place of business. In view thereof, the Courts below have come to the right conclusion that the respondents were entitled to seek ejectment of the appellant, even though they aid not require the shop for themselves but needed it in good faith for the use of their brother, who was dependent on them and wanted to set up his own business in the shop.
The issue about the default in the payment of rent for 8 months from May 2005 to December 2005 is more factual than legal as the parties have been at odds not only about the amount of monthly rent but also if it was paid. According to the appellant, the monthly rent of the shop was Rs.550/- which for the period May 2005 to October 2005 was paid to one Muhammad Asif on behalf of the previous landlord as the appellant admittedly did not until 8.11.2005 receive any notice from the respondents under Section 13-A of the Ordinance for change of ownership and that after receipt of the said notice, the appellant tendered the rent at the same rate for the months of November and December 2005 but upon respondents' refusal to receive it, the rent was deposited in the Court. On the other hand, it is argued on behalf of the respondents that the rent due was Rs. 1500/- per month and it was payable to the respondents by the appellant from May 2005 when they became owners of the shop.
The learned Courts below after thoroughly examining the oral as well as documentary evidence have given concurrent findings that the amount of rent due and payable by the appellant to the respondents was Rs.1500/- per month and no payment of the said rent was made to the respondents from the month of May 2005 to the month of December 2005. It may be observed even though rent agreement dated 26.05.1991 was not produced either by the appellant or by the respondents, the learned Rent Controller came to the conclusion that the rent agreed between the appellant and the previous landlord was Rs. 1500/- per month on the basis of PT1 form for the year 1993-94 wherein rent of Rs. 1500/- per month was stated and PT1 form of the year 1997-98 which mentioned an even higher rent of Rs.2000/- per month. In the absence of the availability of the rent deed, the learned Rent Controller was justified to rely on the said old official record of the Excise and Taxation Department to which a presumption of truth is attached. The receipts produced by the appellant, to show that he had been paying Rs. 550/- per month as the agreed rent, were rightly rejected by the seamed Rent Controller as the same were not proved in the absence of Muhammad Asif who purportedly issued them on behalf of the previous landlord coupled with the fact there was no evidence that the said Asif had any authority to receive the rent. As such, the finding of the learned Courts below that the agreed rent in respect of the disputed shop was Rs. 1500/- per month cannot be questioned.
This leaves me to deal with question if the learned Courts below rightly concluded that the appellant committed default as he did not pay the rent of Rs. 1500/- per month to the respondents for the period May 2005 to December 2005. Learned counsel for the appellant has argued that until 8.11.2005 the appellant received no notice as to change of ownership of the shop in question wherefor he was net liable to pay any rent to the respondent for the period May 2005 to October 2005. As stated earlier, no evidence was produced by the appellant to prove that he had paid the rent to the previous landlord as the receipts therefor have not been proved by the person who purportedly issued them. As such, no payment of rent having been made to the previous landlord, the appellant, after admittedly having received notice dated 8.11.2005 from the respondents, was bound to pay them the rent at the rate of Rs.1500/- per month from May 2005 to October 2005 as at least on 8.11.2005, if not earlier, he had knowledge that the respondents had become his new landlords with effect from 12.5.2005. A reference to Section 13-A of the Ordinance reveals that within 30 days of the receipt of notice of change of ownership, the tenant is bound to pay rent due to the new landlord. In my view, the phrase "rent due" does not refer just to future rent but also includes previous months' rent as may be due and payable to the new landlord. As regards rent for the months of November and December 2005, the appellant also committed default as, instead of depositing the payable monthly rent of Rs. 1500/-, he paid it at the rate of Rs. 550/- per month only. I, therefore, affirm the finding that the appellant committed willful default in the payment of the rent due to the respondents.
In the light of the discussion set out above, it stands established that the appellant has willfully defaulted in the payment of rent due to the respondents who in good faith need the disputed shop for use of their dependent and jobless brother. With the exception of the finding as to statutory increase of rent in the judgment and decree dated 9.4.2009, I see no irregularity, illegality or infirmity in the impugned judgments & decrees which are lawful and have been passed in accordance with the evidence on record. Accordingly, this second appeal is dismissed but without any order as to costs. As a result, the appellant is liable to be ejected from the disputed shop but, in the interest of justice, the appellant is allowed to occupy the disputed shop till 30th May, 2010, by which date the appellant shall handover the vacant possession of the shop to the respondents and shall also pay the rent due upto 30th May, 2010, within a fortnight from today.
(R.A.) Appeal dismissed.
PLJ 2010 Lahore 498 [Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
RAHM DAD and 7 others--Petitioners
versus
MANAGING DIRECTOR FAUJI FOUNDATION, RAWALPINDI and 2 others--Respondents
C.R.No. 424 of 2006, decided on 13.4.2010.
Punjab Land Acquisition Rules, 1983--
----R. 14(1)--General Clauses Act, 1897, Ss. 3(21) & 3(28)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Acquisition of land--Fauji Foundation, a charitable trust--Fauji Foundation vide conveyance deed sold and transferred the Textile Mills--Suit for possession of land was filed by petitioner--Textile Mills had abandoned the purpose for which land was acquired as the land was being split into residential plots--Purpose of land had been abandoned--Original owner--Suit was dismissed by Courts below--Challenge to--Applicable of Rule 4(1) where land had been acquired for any department of Govt. or local authority for a public purpose--Validity--Land in-question was acquired for Punjab Post-War Service Reconstruction Fund, which later became Fauji Foundation--Both Foundations were charitable trusts formed under Charitable Endowments Act, 1890, which do not fall within definition of Government or a local authority as given in Ss. 3(21) & 3(28) of General Clauses Act--Held: Petitioners cannot take the benefit of Rule 14 as it applies only where the land had been acquired by Govt. or local authority and it cannot extend to an acquisition of the land in favour of a company or other legal entity of a similar nature--Civil revision was dismissed. [P. 501] A
Punjab Land Acquisition Rules, 1983--
----R. 14--Acquired land was utilized for more than 30 years for public purpose and then it was transferred to a company which was said to be utilizing it for purpose other than public purpose--Applicable of Rule 14 of Rules 1983--Validity--Rule 14 would apply if the land was never used for the public purpose for which it was acquired, but would not apply where the public purpose was abandoned after the land had been used for declared public purpose for a considerable period of time--Revision was dismissed. [Pp. 501 & 502] B
2006 CLC 1, ref.
Punjab Land Acquisition Rules, 1983--
----R. 14--Acquisition of land for the purpose of Trust--Acquired land was transferred to textile mills--Purpose of land had been abandoned--Claim being original owner of land--Applicable of Rules 14 of Punjab Land Acquisition Rules--Rule 14 even when it is applicable does not provide for return of land to the original owners or their heirs but leaves it to the Govt. which might in its discretion return it to the original owners. [P. 502] C
1992 MLD 2364, ref.
Punjab Land Acquisition Rules, 1983--
----R. 14--Land was acquired for trust--Acquired land was transferred to textile mills--Purpose of acquisition of land had been abandoned--As of right for return of land due to non-use of it for purpose it was acquired--Grievance of--Validity--Government in its discretion might return the land to its owners if it has abandoned the scheme for which it had been acquired but for that matter the petitioner ought to approach the Government straightaway and Govt. in its discretion may, if so wishes return the land to them on the condition it deems fit--Held: Petitioners were not entitled to the return of land acquired were in accordance with law and cannot be called into question on any ground--Revision was dismissed. [P. 502] D & E
PLJ 2010 Lah. 49 & PLD 11993 SC 453, rel.
Mr. Mujeeb-ur-Rehman Kiyani, Advocate for Petitioner.
Date of hearing: 13.4.2010.
Order
The necessary facts as they emerge from a reading of this civil revision petition are that vide notified award dated October 24, 1952, land measuring 85 kanals 10 Marlas in the revenue estates of Gujarpur and Kala, Tehsil & District, Jhelum, was acquired for Fauji Textile Mills, Kala. The said acquisition was pursuant to an agreement dated October 24, 1952, between the Governor of Punjab, and the Treasurer, Charitable Endowments, Punjab, acting for and on behalf of the Punjab Postwar Services Reconstruction Fund, Lahore. The Punjab Post-War Services Reconstruction Fund, Lahore, appears to have been succeeded by Fauji Foundation, a charitable trust created under the Charitable Endowments Act, 1890. A textile mills was later set up on the acquired land by Fauji Foundation. After operating the textile mills until 05.1.1985, Fauji Foundation vide conveyance deed dated 05.1.1985 sold and transferred the textile mills including its land to Alliance Textile Mills Limited. Thereafter, on 31.7.1985 the petitioners filed a suit for possession of the land of the Fauji Textile Mills on the ground that Alliance Textile Mills Limited had abandoned the purpose for which the land was acquired as the land was being split into residential plots which were being sold. It was contended in the suit that since the purpose of the acquisition of land had been abandoned, the land had to revert back to the petitioners, being the original owners or their heirs, in view of Rule 14 of the Punjab Land Acquisition Rules, 1983. Vide judgment & decree dated 21.4.2001, the Civil Judge, Jhelum, dismissed the suit whereafter an appeal filed against the said judgment and decree was also dismissed by the Additional District Judge, Jhelum vide judgment & decree dated 06.5.2006.
Now, by means of this civil revision, the petitioners assail the judgments and decrees dated 21.4.2001 and 6.5.2006 passed by the Civil Judge, Jhelum and Additional District Judge, Jhelum, respectively.
It is contended by the learned counsel for the petitioner that the judgments of the Courts below have over-looked Rule 14 which clearly lays down that if the purpose for which the land is acquired is abandoned, the land must be returned to the original owners or their legal heirs. In support of his contention, the learned counsel has relied on Rana Ziladar Khan Vs. Province of Punjab through Collector Sialkot and others (PLJ 2010 Lahore 49) as well as Province of Punjab through Collector and other Vs. Saeed Ahmad & another (PLD 1993 S.C. 453). In order to appreciate the contention of the learned counsel, it would be necessary to examine if Rule 14 can be construed to be applicable to the present case. Rule 14 is reproduced below:--
(1) Where any land has been acquired for any Department of the Government or a local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposal of the same in accordance with the order of Govt.
(2) The disposal of land under sub-rule (1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs as under:--
(i) Free of cost to the original owners or their heirs, if compensation for acquisition of land has not been paid.
(ii) On refunding the amount paid as compensation less than 15 percent granted for compulsory acquisition, if the original landowners or their heirs have already received cash compensation in respect of their land. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it.
(3) Where the original land-owners or their heirs where provided alternate land in lieu of their acquired land, such land shall not be restored to them but shall be utilized or disposed of by the Board of Revenue in accordance with the policy of the Government regarding disposal and alienation of lands."
From a perusal of the aforesaid Rule 14(1), it is clear that Rule 14 has relevance and applies only where the land has been acquired for any department of the Government or a local authority for a public purpose. In the present case, the land in question was acquired for Punjab Post-War Services Reconstruction Fund, Lahore, which later became Fauji Foundation. From the record, it appears that both Punjab Post-War Services Reconstruction Fund, Lahore and the Fauji Foundation are charitable trusts formed under the Charitable Endowments Act, 1890, which do not fall within the definition of Government or a Local Authority as given in Section 3(21) and Section 3(28) of the General Clauses Act, 1897 . In this view of the matter, the petitioners cannot take the benefit of Rule 14 as it applies only where the land has been acquired by the Government or Local Authority and it cannot extend to an acquisition of the land in favour of a company or other legal entity of a similar nature.
Even otherwise, it is doubtful that the Rule 14 remains applicable if the land is utilized for the public purpose for which it was acquired for sometime and then the purpose is abandoned. In the present case, the land was acquired in 1952 whereafter it was utilized for more than 30 years for the public purpose and then it was transferred to a company, which is said to be utilizing it for a purpose other than public purpose. In my view, Rule 14 would apply if the land is never used for the public purpose for which it is acquired, but will not apply where the public purpose is abandoned after the land has been used for the declared public purpose for a considerable period of time. In this regard, reference may be made to Rana Abdul Qadir etc. vs. Government of Pakistan, M/o Defence Production Division through Secretary Defence, Rawalpindi etc. (2006 CLC 01), wherein it was observed "that distinction need to be kept in view in the case of withdrawal from acquisition and where the acquisition is complete in all respects but the erstwhile landowner seek return of the land.
In Rana Ziladar Khan Vs. Province of Punjab through Collector Sialkot and others, referred to by the learned counsel, the land was acquired by the Punjab Government to establish a colony but the scheme was abolished and the possession of the land also remained with the land owners. As such, neither the acquisition was complete nor was the land ever used for the public purpose for which it was acquired. Similarly, in Province of Punjab through Collector and others vs. Saeed Ahmad & another, supra, the land whose return was sought had been acquired by the Punjab Government for a building a highway. Both these cases relied upon by the learned counsel are thus distinguishable as the land sought to be returned was acquired for the Government which is not so in the instant case.
In any case, Rule 14 even when it is applicable does not provide for return of the land to the original owners or their heirs but leaves it to the Government which may in its discretion return it to the said owners. I may refer to Bashir Ahmad Akhtar and others Vs. Collector, Land Acquisition and others 1992 MLD 2364 wherein it was observed that;
"The only grievance of the petitioners is that since the purpose of constructing cantonment on the acquired land has been abandoned, and that the purpose of acquisition having not been fulfilled their land should be returned to them. Learned counsel has failed to show any provision of law whereunder the petitioners are entitled, as of right, for return of their land due to non-use of it for the purpose it was acquired. In Rule 14 of the Punjab Land Acquisition Rules, 1983, it is stated that the Government in its discretion may return the land to its owners if it has abandoned the scheme for which it had been acquired but for that matter the petitioners ought to approach the Government straightaway and the Government in its discretion may, if so wishes, return the land to them on the condition it deems fit."
(R.A.) Revision dismissed.
PLJ 2010 Lahore 503
Present: Ch. Muhammad Tariq, J.
MUHAMMAD JAMEEL--Petitioner
versus
AZMAT NAVEED and 2 others--Respondents
W.P. No. 6471 of 2009, decided on 7.4.2010.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minors--Welfare of the minors--Question--Whether it lies with father or with the mother--Application for custody of minors was dismissed--Appeal was also dismissed--Challenge to--Validity--Petitioner had contracted second marriage and it would not be in the welfare of the minors that their custody be taken from the real mother and handed over to the step mother--Petitioner had not paid any amount to the minors on account of maintenance and now the respondents had filed an execution petition for the recovery of arrears as well as future maintenance--Concurrent findings of fact against the petitioner which could not be interfered by High Court while exercising its constitutional jurisdiction--Petition was dismissed. [P. 504] A & B
Mr. Amjad Farouck Bismil Rajpout, Advocate for Petitioner.
Rao Abdul Jabbar Khan, Advocate for Respondents.
Date of hearing: 7.4.2010.
Order
Brief facts of the case are that the petitioner Muhammad Jameel was married with Respondent No. 1 Azmat Naveed on 17.6.2001. Out of this wedlock, two females issues namely Farial Jameel and Feeza Jameel were born who are alive and in the custody of their real mother Respondent No. 1. Due to strained relations between the parties, the marriage was terminated through divorce. The petitioner filed a petition under Section 25 of the Guardians and Wards Act before the learned Guardian Judge, Pasrur for the custody of the minors who vide his judgment and decree dated 25.10.2008 dismissed the petition for the custody of the minors. This order was assailed in appeal which met the same fate hence this writ petition.
The learned counsel for the petitioner contends that the impugned judgment as well as the judgment passed by the learned Guardian Judge is against the law and facts. Learned counsel further contends that welfare of the minors lies with the petitioner who is the real father of the minors. Learned counsel further contends that atmosphere in the house of Respondent No. 1 is not favourable to the minors. Therefore, this writ petition be allowed, the impugned judgment as well as the judgment passed by the learned Guardian Judge, Pasrur be set aside and the custody of the minors be handed over to him.
On the other hand, the learned counsel for the respondents contends that there are concurrent findings against the petitioner. The petitioner has contracted second marriage and has not paid any amount on account of maintenance to the minors despite the fact that a decree for the payment of maintenance has been passed against the petitioner, so the writ petition be dismissed.
Arguments heard. Record perused.
It is a case in which the paramount, consideration is the welfare of the minors that whether it lies with the father or with the mother. Admittedly, the petitioner has contracted second marriage and it will not be in the welfare of the minors that their custody be taken from the real mother and handed over to the step mother. Similarly, the petitioner has not denied the suit for recovery of maintenance filed against him which was decreed in favour of the minors and against the petitioner but despite the decree, the petitioner has not paid any amount to the minors on account of maintenance and now the respondents have filed an execution petition for the recovery of arrears as well as future maintenance. There is also concurrent findings of fact against the petitioner which could not be interfered by this Court while exercising its constitutional jurisdiction.
In view of the above discussion, this writ petition is devoid of any merit, the same is dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 505
Present: Ch. Muhammad Tariq, J.
ASLAM MEHMOOD--Petitioner
versus
MEMBER (JUDICIAL-VII) BOARD OF REVENUE PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 19030 of 2009, decided on 17.3.2010.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Appointment of lumberdar--Rule of primogeniture--Injunction of Islam--Abolition of rule--Jurisdiction--Validity--Dealing with hereditary claim of the petitioner, High Court observed that rule of primogeniture was declared as against the injunction of Islam so by virtue of abolition of rule of primogeniture, qualification of hereditary claim has ceased to exist--Concurrent findings of fact by Courts below which could not be interfered in constitutional jurisdiction of High Court--Petition was dismissed.
[P. 506] A
Rana Zahoor Ali Khan, Advocate for Petitioner.
Date of hearing: 17.3.2010.
Order
The learned counsel for the petitioner inter-alia contends that the petitioner is permanent resident of Chak No. 70/GB Tehsil & District Jhang. He owns land measuring 19 Kanals 1 Marla which devolved upon the petitioner on the death of his father. Nazir Ahmed, the father of petitioner was Lumberdar who died on 27.3.2007 leaving behind him one son the (petitioner). During the life time of late Nazir Ahmed, the petitioner had been performing the duties of Lumberdar on his behalf. He qualifies all conditions which are set forth for the appointment of lumberdar.
The learned counsel further submits that after the death of Nazir Ahmed, the petitioner moved in writing to the concerned authorities that since he is only son of deceased Nazir Ahmed, Lumberdar so he be substitute at his place. Respondents No. 4 & 5 also applied for the said appointment. After due scrutiny conducted by field staff, concerned authorities recommended the name of petitioner and Respondent No. 4 that Lumberdar be appointed amongst the petitioner and Respondent No. 4.
That vide order dated 9.10.2007, District Officer (Revenue) Jhang appointed Respondent No. 1 as Lumberdar and ignored the petitioner. Feeling aggrieved, the petitioner assailed the order of Respondent No. 3 before Executive District Officer (Revenue) Jhang but appeal of the petitioner was dismissed by Respondent No. 2 vide order dated 9.10.2007. The petitioner further assailed the order dated 9.10.2007 before the Member (Judicial-VII), Board of Revenue, Lahore which also met the same fate, hence this writ petition.
Arguments heard, record perused.
The petitioner has put more stress on the hereditary claim that the petitioner is only son of deceased Lumberdar so he be appointed as headman. The petitioner further contends that he also qualifies other contentions which are set forth for the appointment of headman. Dealing with the hereditary claim of the petitioner, this Court observed that rule of primogeniture was declared by the August Supreme Court of Pakistan as against the injunctions of Islam so by virtue of abolition of rule of primogeniture, qualification of hereditary claim has ceased to exist. On merit, since there is concurrent findings of fact by three learned Courts below which cannot be interfered in the Constitution Jurisdiction of this Court.
In the light of above discussion, no interference is called for. Writ Petition is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 506 [Multan Bench Multan]
Present: Sagheer Ahmad Qadri, J.
MUHAMMAD ASHFAQ--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 3733 of 2010, decided on 5.5.2010.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Pakistan Penal Code, (XLV of 1860)--Ss. 420, 468, 471 & 467--Constitutional petition--Quashing of FIR--Forged document was used in proceeding under Land Revenue Act, whereby appointment of lumberdar was being considered--Validity--Alleged forged document was submitted before Revenue Court, provision of Cr.P.C. the complaint could only be lodged by presiding officer of the Court only be lodged by presiding officer of the Court or any superior officer to whom he was subordinate--Registration of the case itself is illegal and thus all the subsequent proceedings taken in the scenario will amount to continuation of illegality--FIR was quashed. [P. 509] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 195(1)(c)--Forged document was used in proceedings under Land Revenue Act--The term Court includes a Civil, Revenue or Criminal Court but does not include a Registrar or Sub-Registrar under Registration Act--Proceedings were pending before a Revenue Court and S. 195(1)(c) of Cr.P.C. no Court can take cognizance of any such offence as described in S. 463 i.e. forgery or punishable u/S. 471, PPC, meaning thereby the use of forged document as genuine, except on complaint lodged by Court concerned. [P. 508] A
Rana Asif Saeed, Advocate with Petitioner.
Mr. Sarfraz Ahmad Zia, DPG for State.
Date of hearing: 5.5.2010.
Order
Petitioner Muhammad Ashfaq, who is an accused in case FIR. No. 52/2010 dated 18.2.2010 under Section 420, 468, 471 and 467 PPC registered at Police Station City Duniyapur District Lodhran has moved this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A Cr.P.C. for the quashment of above mentioned FIR.
Brief facts in order to dispose of this petition are that FIR above mentioned was registered on the statement of Rasheed Ahmad son Bashir Ahmad/Respondent No. 3 wherein he alleged that his father was Lumberdar of Chak No. 255/WB on whose death fresh proceedings for the appointment of Lumberdar were initiated wherein the accused/petitioner Muhammad Ashfaq, being one of the candidates, submitted a character certificate dated 28.7.2005 issued by Police Station City Mailsi but during its verification it was found to be forged, because four cases were found registered against him. On the said application instant FIR was registered against the petitioner.
Learned counsel for the petitioner contends that FIR could not be lodged on the complaint of a private person i.e. Respondent No. 3, as allegedly the fictitious and bogus document was produced before the Revenue Officer, under Section 195(1)(c) of Cr.P.C. It is for the concerned Court itself before whom forged document is produced, which could take action or lodge a complaint, thus it was argued that the registration of case is illegal and without lawful justification and barred by the above mentioned provision of Cr.P.C; that no evidence was collected by the I.O; that as registration of case itself is illegal, therefore, further investigation is a futile exercise and it be quashed. Relies on PLD 1992 Lahore 178 (Muhammad Shafi Vs. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others) and 1999 MLD 2243 (Mahabat Khan and 5 others Vs. Senior Superintendent of Police and 5 others).
On the other hand, learned DPG, however, conceded the points agitated by the learned counsel for the petitioner.
I have considered the arguments advanced by learned counsel for the parties and perused the record.
Under Section 195(1)(C) Cr.P.C. it is specifically provided as under:--
195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence.--(1) No Court shall take cognizance:
(a) ------
(b) ------
(c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
Admittedly according to the FIR, it is alleged that forged document was used by the petitioner-accused in proceedings under the Land Revenue Act, whereby appointment of Lumberdar was being considered. Under sub-section (2) of Section 195, ibid, the term "Court" includes a Civil Revenue or Criminal Court but does not include a Registrar or Sub-Registrar under the Registration Act, 1908. Admittedly, the proceedings were pending before a Revenue Court and under sub-section (1)(c) no Court can take cognizance of any such offence as described in Section 463 i.e. forgery or punishable under Section 471 PPC, meaning thereby the use of forged document as genuine, except on the complaint lodged by the Court concerned. The word complaint has been defined in Section 4(h) of the Cr.P.C., which is reproduced as under:
(h) "Complaint". "Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the reports of a police-officer."
Therefore, if the FIR above mentioned is seen it is initiated by Rasheed Ahmad a rival candidate for the appointment of Lamberdar. Admittedly, the alleged forged document was submitted before the Revenue Court, therefore, in view of above mentioned provision of the Cr.P.C. the complaint could only be lodged by the Presiding Officer of said Court or any superior officer to whom he was subordinate. The FIR lodged by Rasheed Ahmad respondent and report under Section 173 Cr.P.C. submitted by the I.O. on the basis of which the learned trial Court/magistrate is to take cognizance thus, does not fall within the definition of complaint, which is the intention of law, therefore, registration of this case itself is illegal and thus all the subsequent proceedings taken, in this scenario will amount to continuation of illegality. Under these circumstances, FIR. No. 52/2010 dated 18.2.2010 under Sections 420, 468, 471 and 467 PPC registered at Police Station Duniyapur District Lodhran, is hereby quashed. Disposed of.
(R.A.) Petition disposed of.
PLJ 2010 Lahore 509
Present: Ijaz Ahmad Chaudhary, J.
Mst. NAZIRAN BIBI--Petitioner
versus
ABDUL and five others--Respondents
W.P. No. 362 of 2010, heard on 14.5.2010.
Constitution of Pakistan, 1973--
----Art. 199--Illegal Dispossession Act, 2005, S. 3--Constitutional petition--Forcible possession of the property--Oral assertion of petitioner with regard to taking of forcible possession of the property--No material to substantiate the oral assertion is available--Validity--Due to promulgation of Illegal Dispossession Act, 2005 all the other remedies available to litigants become redundant and every body choses to adopt summary procedure to take possession of properties by invoking provisions of Illegal Dispossession Act--Petitioner has no documentary evidence in her support which establishes that she is ever in possession of the property and her oral assertion cannot be made basis for entertaining the application u/S. 3 of Illegal Dispossession Act--Respondent has rebuted the claim of petitioner by producing sufficient documentary evidence that they are owner of disputed property being co-sharers and they are in possession of the property--Petition was dismissed. [P. 511] A & B
Mr. Muhammad Amin Goraya, Advocate for Petitioner.
Mr. Zaheer-ul-Hassan Zahoor, Advocate for Respondents No. 1 to 4.
Date of hearing: 14.5.2010.
Judgment
Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks setting aside of the order dated 24.11.2009 passed by the learned Additional Sessions Judge, Pakpattan Sharif through which the complaint filed by the petitioner under Section 3 of the Illegal Dispossession Act, 2005 has been dismissed.
Brief facts leading to the filing of this writ petition are that the petitioner claimed that she was in possession of the property measuring 4 marlas, detailed as Khewat No. 967, Khatoni No. 3076 to 3192, Qitaat 239, Share 4/23287 out of Saalam Khata 1164 kanal. She was a widow and she had raised construction over said property like boundary wall, one room and a bath room and she was in possession of said property. On 10.01.2009 Respondents No. 1 to 4 alongwith three unknowns who belong to Qabza group at 10.00 a.m. while armed with fire-arms and without any justification at gunpoint had taken forcible possession the property in question. After receipt of complaint, statement of the petitioner was recorded as PW-1 in which she had reiterated her claim. The respondents were summoned. The learned trial Court has obtained police reports thrice and in one police report at the time of summoning of the respondents only one sentence has been mentioned that the possession of the house of Mst. Naziran Bibi has been taken. Through the impugned order dated 24.11.2009, the complaint filed by the petitioner was dismissed. Hence, this petition.
The learned counsel for the petitioner contends that the petitioner was lawful owner in possession of property comprising over 4 marlas which was situated in Khewat No. 967/944 and Respondents No. 1 to 4 had taken possession of the said land forcibly but the learned trial Court/Additional Sessions Judge, Pakpattan Sharif after hearing the respondents came to the conclusion that the petitioner can seek other remedies as no case under Illegal Dispossession was made out. The learned trial Court has dismissed the complaint in a slipshod manner which order is liable to be set aside and a direction may be issued to proceed into the matter after recording the evidence of the parties. On the other hand, the learned counsel for Respondents No. 1 to 4 opposes this petition on the ground that Gulzar one of the respondents is husband of the real brother of the petitioner who has sold the land to Respondent No. 1. They had constructed the said portion of land and had also got installed electricity meter in their name in the year 2001. The learned counsel for Respondents No. 1 to 4 has also produced copy of Jama Bandi for the year 2001 which shows that the said land was in possession of Gulzar Ali and out of said land, 15 marlas are in possession of Shahzad Ali and Mumtaz Ali sons of Abdul and their possession according to the revenue record is with the respondents.
I have heard the learned counsel for the parties and perused the record with their assistance. It is borne out from the record that only oral assertion of the petitioner with regard to taking of forcible possession of the property in dispute by the respondents is available and no material to substantiate the oral assertion is available on the record of this file from where it can be established that she is in possession of said property before filing of compliant under Illegal Dispossession Act, 2005. Contrary to that the respondents have supplied sufficient material showing that they are in possession of the property being co-sharers. It seems that in spite of adopting civil procedure she has chosen to take possession through Illegal Dispossession Act. It is noticed by this Court that due to promulgation of Illegal Dispossession Act, 2005 all the other remedies available to the litigants become redundant and everybody choses to adopt summary procedure to take possession of properties by invoking provisions of Illegal Dispossession Act. As the petitioner has no documentary evidence in her support which establishes that she is ever in possession of the said property and her oral assertion cannot be made basis for entertaining the application under Section 3 of the Illegal Dispossession Act, 2005. On the other hand, the respondents has rebutted the claim of the petitioner by producing sufficient documentary evidence that they are owner of the disputed property being co-sharers and they are in possession of the property.
For what has been discussed, no interference is required in the impugned order dated 24.11.2009 passed by the learned Additional Sessions Judge, Pakpattan Sharif and this writ petition is, therefore, dismissed.
R.A.) Petition dismissed.
PLJ 2010 Lahore 512 (DB) [Rawalpindi Bench Rawalpindi]
Present: Asad Munir and Ijaz Ahmed, JJ.
Haji MAAZULLAH KHAN--Appellant
versus
KAIYAN HOMI KAIKOBAD and 2 others--Respondents
R.F.A. No. 25 of 2008, heard on 15.4.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96--Appeal from original decree--Regular First Appeal--Agreement to sell--Entire price of the sale of suit property--Entire loan amount due to H.B.L.--A sum of specific amount as loan which agreed to be repaid but was never repaid--An agreement to sell was executed--Where the unpaid loan was treated and acknowledged as earnest money while the balance amount was agreed to be paid on delivery of possession--On failure to transfer and delivery the possession of the suit property--Suit for specific performance of agreement to sell was filed--Suit was decreed--Validity--Judgment and decree was never sought by appellant who only sought specific performance of the agreement to sell but Civil Court rushed to pass the decree without application of mind and without making a proper inquiry to ascertain that the outstanding amount due to the bank had been declared--Held: Bank had no interest in the suit property which shall be transferred to the appellant free of mortgage in accordance with the terms of the agreement to sell as well as in view of statement that respondent has received the entire price in consideration of the sale of the suit property--Appeal was allowed. [Pp. 13 & 14] A & B
Mr. Umar Farooq, Advocate for Appellant.
Mr. Nadeem Yousaf Rana, Advocate for Respondent No. 3.
Date of hearing: 15.4.2010.
Judgment
Asad Munir, J.--The brief facts giving rise to this appeal are that the appellant advanced to Respondent No. 1 a sum of Rs.66,200,300/- as loan which was agreed to be repaid within one year but was never repaid. Instead, an agreement to sell dated 28.12.2005 was executed between Respondent No. 2, on behalf of Respondent No. 1. and the appellant whereby the Respondent No. 1 agreed to sell his property No. B-12417, known as Kaikabad Mansion, situated at the Main Murree Road (Jinnah Road) at a sale price of Rs. 67,500,333/- where for the amount of Rs.66,200,000/- of the unpaid loan was treated and acknowledged as earnest money while the balance amount of Rs. 1,300,000/- was agreed to be paid by the appellant on delivery of possession and transfer of the property to be completed by 30.6.2006, However, at the time of the execution of the agreement to sell dated 28.12.2005, the suit property was subject to a mortgage created by Respondent No. 1 in favour of Habib Bank Ltd, Respondent No. 3, in consideration of a loan advanced to Respondent No. 1. Accordingly, it was undertaken by the Respondent No. 1 that the transfer of the suit property to the appellant would be free from the mortgage which will be redeemed by Respondent No. 1 by returning the outstanding amount of the loan to the bank. On the failure of the respondents to transfer and deliver the possession of the suit property, the appellant on 19.8.2006 filed a suit for specific performance of the agreement to sell dated 28.12.2005 with a permanent injunction restraining the respondents from alienating the suit property. Respondent No. 2 submitted written statement, on behalf of both the respondents, wherein the execution of the agreement to sell was admitted alongwith an acknowledgement of the receipt of the earnest money of Rs.66,200,000/- paid by the appellant. On 26.9.2006, Respondent No. 2, who is the real brother and general attorney of Respondent No. 1, also appeared before the Civil Judge and recorded his statement that he had no objection if the suit of the appellant was decreed as he had received the balance sale-price of Rs. 1,300,000/- and that the entire loan amount due to Habib Bank Limited, Respondent No. 3, had been paid back. Subsequently, the bank manager of Respondent No. 3 was summoned in order to confirm the repayment of the loan. However, the bank manager of Respondent No. 3 only stated that an amount of Rs. 33,231,063/- had been borrowed by Respondent No. 1 but was non-committal about the bank having received the said amount. The learned trial Court vide its judgment and decree dated 13.11.2007 instead of making an inquiry as to the status of the mortgage particularly as to whether it had been redeemed proceeded to pass a money decree in favour of the appellant to the effect that he was entitled to receive from the respondents double the amount paid by him to the respondents i.e. Rs. 135,000,000/- on the ground that the respondents had committed fraud as they had no title to sell the suit property as long as it was mortgaged with the bank for default in the payment of the amount due to the bank.
Through this regular first appeal, the judgment and decree dated 13.11.2007, passed by Civil Judge, Rawalpindi, has been called into question. Learned counsel for the appellant has contended that the said, judgment and decree has been passed by the learned Civil Judge without realizing that such a judgment and decree was never sought by the appellant who only sought specific performance of the agreement to sell dated 28.12.2005 but the learned Civil Judge rushed to pass the decree without application of mind and without making a proper inquiry to ascertain that the outstanding amount due to the bank had been cleared.
However, Mr. Nadeem Yousaf Rana, Advocate, learned counsel for Habib Bank Limited, Respondent No. 3, has put an end to the whole controversy as he has stated that the entire amount due and payable to the bank has been paid by Respondent No. 1 and the bank has no objection if the decree for specific performance is passed in favour of the appellant and against the respondents.
In this view of the matter, the bank has no interest in the suit property which shall be transferred to the appellant free of the mortgage in accordance with the terms of the agreement to sell dated 28.12.2005 as well as in view of Respondent No. 2's statement that Respondent No. 1 has received the entire price in consideration of the sale of the suit property.
We, therefore, allow this appeal and set aside the judgment and decree dated 13.11.2007, passed by the Civil Judge, Rawalpindi. Accordingly, the appellant's suit for specific performance of agreement to sell dated 28.12.2005 is decreed as prayed for in the plaint. There is no order as to costs.
(R.A.) Appeal accepted.
PLJ 2010 Lahore 514 [Multan Bench Multan]
Present: Tariq Javaid, J.
TAJVEED IQBAL--Petitioner
versus
RETURNING OFFICER, NA-178, MUZAFFARGARH and 2 others--Respondents
W.P. No. 3943 of 2010, decided on 14.5.2010.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14--Constitution of Pakistan, 1973, Art. 199--Writ of quo-warranto--Eligibility of candidate--Scrutiny of nomination papers--Objection to acceptance of nomination papers of any candidate--Petitioner did not file any objections before Returning Officer--No locus standi--Validity--Candidate who was contesting elections had a right to raise the objections on the eligibility of the candidate and/or acceptance of the nomination papers whereas any other elector can raise objection to acceptance of nomination papers of any candidate--Held: An elector, who had filed an objection to nomination of a candidate was only permitted to attend the scrutiny of the nomination papers of that candidate meaning thereby if any voter or elector raises any objection his function, as soon as he had laid the information before Returning Officer comes to an end--Petitioners had no locus standi as far as issuance of writ in nature of quo warranto--Further held: Petitioners could not be granted relief unless they were aggrieved persons within the meaning of Art. 199 and that in case of quo warranto the person against whom the relief was being claimed must be holding an office of public nature--Petitioners were neither aggrieved persons within the meanings of Art. 199 nor respondent was holding any office of profit--Petition was not maintainable. [Pp. 523, 526 & 528] A, G & H
Writ of Quo Warranto--
----Fundamental law--Only remedy available--Writ of quo warranto was issued upon an information which can be lodged against a person who claims or usurps office/Franchise or liberty, and upon such information being laid, the Court will inquire by what authority the person who claims or has usurped the office, supports his claim. [P. 524] B
Writ of Mandamus--
----Constitutional jurisdiction--Rule of law--Aggrieved person--In case of writ in the nature of mandamus the person invoking the constitutional jurisdiction of High Court must be an aggrieved person whereas in case of invoking the constitutional jurisdiction for issue of writ in the nature of quo warranto he does not need to be an aggrieved person. [Pp. 524 & 526] C & D
Writ of Quo Warranto--
----Question of--Grant of writ in nature of mandamus--In case of quo warranto he need not be an aggrieved person but it is imperative that the person against whom a writ is sought to be issued must be incumbent of a Public Office. [P. 526] E
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(i)--Information before Election Commission--Aggrieved person is only a candidate--Role of an elector comes to an end as soon as he has laid information before the Election Commission--He has no more role to play nor he can be deemed to be an aggrieved person--Only aggrieved person is candidate who admittedly filed appeal against the rejection of his objections and subsequently withdrew the same. [P. 526] F
PLD 2008 Kar. 310, 313, 429 & 487, PLD 2009 SC 237, 2006 SCMR 1356, PLD 2009 SC 237 & PLD 2010 SC 265, PLD 2009 SC 237, PLD 2009 SC 531, rel.
Malik Muhammad Rafiq Rajwana and Rana Javaid Akhtar and Mr. Javaid Iqbal Ansari, Standing Counsels for Federation of Pakistan.
Nemo for the private Respondent.
Mr. Zafarullah Khan Khakwani, Advocates for Petitioner.
Mr. Mubbashar Latif Gill, AAG.
Date of hearing: 14.5.2010.
Order
This order shall dispose of the instant writ petition as well as W.P. No. 4397/2010 (Muhammad Asghar Khan versus Jamshad Ahmad Khan Dasti and another), as common question of law and fact is involved therein.
The petitioners have challenged the acceptance of nomination papers of Respondent No. 2, who is said to have been disqualified vide judgment passed by the Hon'ble Supreme Court in C.P. No. 287/2008. The petitioner in W.P. No. 3943/2010 did not file any objections before the Returning Officer whereas the petitioner in W.P. No. 4397/2010 raised objections before the Returning Officer (NA-178 Muzaffargarh-III), which were rejected.
It is maintained by the learned counsel for the petitioners that under the above said judgment the Respondent No. 2, for all practical purposes stands disqualified to contest the elections as a definite finding with regard to his character has been recorded by the Hon'ble Supreme Court in the said judgment. The relevant portion is as under:--
"14. The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter-alia, of impersonation--posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating -- cheating not only his own constituents but the nation at large. However, on account of his confessing repentance shown through the resignation tendered by him and also on account of the fact that we are not called upon, in these proceedings, to punish him for his above-noticed acts, we have decided to exercise restraint in the said connection. This would, however, not preclude anyone else from moving in the matter if it is so desired. And we may add that, unfortunately, he does not appear to be the only one being guilty as afore-said as just today alone, two others, namely Nazir Ahmed Jatt, M.N.A. from Vehari (a respondent in Civil Appeal No. 1673 of 2008) and one Muhammad Ajmal, M.P.A. from Faisalabad (a petitioner in Civil Petition N.2049-L of 2009) who also stood accused of having contested their respective elections on the strength of fake and bogus degrees and "SANADS" had also elected not to defend the said allegations; had chosen not even to appear before us in person and had instead tendered their respective resignations from their respective seats. And what makes it a matter of further concern to us is that the matter does not end at these three as we also have more cases coming up on our cause-list carrying similar allegations against some other legislators.
"17. A perusal of the relevant constitutional and statutory provisions would reveal that a Returning Officer appointed under Section 7 of the Representation of People Act of 1976, is the key-man in the entire exercise of conducting an honest, a just and a fair election in accordance with law, as commanded by Article 218 of the Constitution. Needless to add that the first and the most crucial step towards the attainment of the said commanded goal is to ensure that no person who is not constitutional and legally qualified to contest any such election is allowed to enter the arena. And for the said purpose, the provisions of Section 14 of the said Act clothe the said Officer with immense powers to conduct such enquiries as he deems fit to make sure that only the qualified persons are allowed to contest an election and no in-eligible intruders are permitted to participate in the same. A reference especially to sub-section (3) of the said Section 14 would demonstrate that in order to carry out the said process of screening, the Returning Officers have not been left at the mercy of anyone and he is obliged to move in the matter of his own motion without sitting there and waiting for an objector to come forward so that he could reject the nomination papers of an un-qualified person. The relevant provisions of the said sub-section read as under:--
"(3) The Returning Officer may, either of his own motion or upon any objections, {either by an elector or) {by any person referred to in sub-section (1)},} conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of Section 12 or Section 13 has not been complied with {or submits any false or incorrect declaration or statement in any material particular}; or
(d) the signature of the proposer or the seconder is not genuine;} (emphasis and under-lining has been supplied).
In the present case and the like, we are not satisfied with the performance of the Returning Officers who appear not to have taken any steps at all to determine the eligibility of the concerned candidates or to determine whether the said candidates were actually possessed of the acclaimed qualifications. They need to be more careful in future."
It is contended on behalf of the petitioners that at the time of filing of the nomination papers they objected to the candidature of the said respondent on the basis of the judgment passed by the Hon'ble Supreme Court, which was turned down. The reasons given for rejection of the objections filed by the writ petitioner in W.P. No. 4397 were as follows:--
"2. Applicant did not study of judgment passed by the Honourable Supreme Court of Pakistan in case "Civil Petition No. 287/2008" Nawabzada Iftikhar Ahmed Khan versus Chief Election Commissioner of Pakistan and others that the Honourable Supreme Court of Pakistan in his judgment did not suggest any punishment to Jamshaid Ahmed Dasti, but direction was issued to the Election Commission of Pakistan to conduct the bye-Elections of the seat vacated by Jamshaid Ahmed Dasti in accordance with law. "As the petition is converted into an appeal and allowed as a result whereof all the orders and decisions rendered in the matter by the concerned authorities and even the impugned judgment of the Lahore High Court are set aside as being of no legal consequences. It may be added that legal questions raised in this petition are being left un-answered as having been rendered only of academic nature."
The punishment awarded by the Court of Mr. Ijaz Mehmood Choudhry, District & Sessions Judge, Muzaffargarh in case FIR No. 892/01 was suspended by Lahore High Court Multan Bench, Multan and criminal appeal is pending before the Honourable High Court.
That Decision on case Election Appeal 6/A of 2010 titled as Mian Imran Masood v/s Returning Officer etc. did not apply to the present case because said Judgment passed by Election Tribunal.
But in case Nawabzada Iftikhar Ahmed Khan V/S Chief Election Commissioner, the Honourable Supreme Court of Pakistan did not disqualify Jamshaid Ahmed Dasti to contest the further Election and not awarded any punishment.
Now the objection raised by Nawabzada Iftikhar Ahmed Khan is over ruled, and Nomination Paper of Jamshaid Dasti is hereby accepted."
"In such circumstances we are of the considered view that the writ petition before the Lahore High Court, Lahore filed by Respondent No. 5 was maintainable in law. The contentions raised by learned Advocate General, Punjab being without substance are therefore repelled. Even the doctrine "Semper Proesumitur Pro negante" (Presumption is always in the favour of the one denying or in favour of the negative) pressed into service by learned Advocate General, Punjab would not be attracted in the present case for the simple reason that there was no denial. Even otherwise the facts were borne out from the record. The contentions raised on behalf of learned Advocate General, Punjab suggesting the filing of a writ of quo warranto by Respondent No. 5 would amount to negate the provisions of sub-section (5-A) of Section 14 of the Representation of the People Act, 1976 as Respondent No. 5 has placed the information regarding inherent disqualification of Respondent No. 1 before the Election Tribunal prior to completion of the election process. Besides the suggestion being unreasonable and contrary to the rule of advancement of cause of justice if accepted, was bound to encourage multiplicity of litigation which in a way tantamounts to denial of justice."
It was also argued that where the impugned order is patently illegal it cannot be said that a statute has prescribed a remedy, as such the High Court is debarred from exercising its constitutional jurisdiction. Reliance was placed on Ahad Sharif alias Muhammad Ahad and another versus Javed Tariq and others (2006 SCMR 1356 and 1713). The learned counsel for the petitioner further argued that under the dictum laid down by the Hon'ble Supreme Court, in Mian Muhammad Shahbaz Sharif's case (PLD 2009 Supreme Court 237) supra and Lt. Col. Farzand Ali and others versus Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98) the petitioner was entitled to the writ of quo warranto even before the respondent has entered into office. In support of this argument reliance has also been placed on Basanta Lal versus Comrs. For the Port of Calcutta & others (AIR 1951 Calcutta 460, 570) and Dr. Mobashir Hassan and others versus Federation of Pakistan and others (PLD 2010 Supreme Court 265).
The arguments advanced by the learned counsels for the petitioners are not convincing. Their reliance on PLD 2009 Supreme Court 237 is also of little help to them for the reason being firstly, that if every elector is said to have a right to raise objections and then file writ petitions then it shall give rise to multiplicity of litigation. The law makers, appear to have rightly allowed an elector to raise objections but without any right or interest therein. The right of appeal is given only to the candidates who raise objections to the acceptance or rejections of nomination papers filed by them or by their competitors, as the case may be. Secondly, the reliance on PLD 2009 Supreme Court 227 could not be placed as the same judgment was reviewed by the larger Bench of the Hon'ble Supreme Court, soon after its passing through PLD 2009 Supreme Court 531 and thirdly, PLD 2009 Supreme Court 237 has been passed without having taken into consideration the law relating to the writs of quo warranto and mandamus. It would be more advantageous to follow the age old settled principles for the development of laws and application thereof.
Learned counsel appearing on behalf of the Election Commission maintained that the Election Commission has already issued a circular dated 6th May 2010 whereby it has been unequivocally maintained that the Supreme Court's judgment passed in C.P. No. 287/2008 Nawabzada Iftikhar Ahmad Khan versus Chief Election Commissioner, Islamabad and others shall be implemented in letter and spirit. In view of the statement made by the learned DAG and Standing Counsels there hardly appears to be any ground to agitate the question being raised in these petitions.
In the above judgment it was observed by their Lordships in the Hon'ble Supreme Court that their Lordships are not satisfied with the performance of the Returning Officers, who did not appear to have taken any steps at all to determine the eligibility of the concerned candidates or to determine whether the said candidate was actually possessed of the requisite qualifications. They were also warned to be careful in future. In response to the said observation the Election Commission appears to have issued circular dated 6th May 2010, for implementation of the Supreme Court's Judgment. The Election Commission being constitutional body is mandated under the Constitution to implement the judgments passed by the Hon'ble Supreme Court in letter and spirit. The petitioners have been seeking constitutional remedy instead of approaching the Election Commission. Since an information with regard to the ineligibility the respondent has already been laid before the Election Commission through the judgment passed in C.P. No. 287/2008, I do not think any more direction is required. All Institutions are bound to implement the judgments of the Hon'ble Supreme Court.
Adverting back to the grievance of the petitioner the law relating to the filing of nomination papers is contained in Section 14 of the Representation of People Act, 1976. For resolution of the present controversy the relevant provisions are Section 14 (1) (3) and (5) which are being re-produced as under:--
"14. Scrutiny.--(1) The candidates, their election agents, (the proposers and seconders and one other person authorized in this behalf by-candidate) (and an elector who has filed an objection to the nomination of a candidate,) may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under Section 12:
(Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.)
(3) The Returning Officer may, either of his own motion or upon any objection (either by an elector or) {by any person referred to in sub-section (l)} conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that-
(a) the candidate is not qualified to be elected as a member;
{(b) the proposer or the seconder is not qualified to subscribe the nomination paper;}
(c) any provision of Section 12 or Section 13 has not been complied which {or submits any false or incorrect declaration or statement in any material particular}; or
{(d) the signature of the proposer or the seconder is not genuine:}
Provided that:--
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
6{(1a) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;}
(5) A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.}
"199. Jurisdiction of High Court.--
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,----
(a) on the application of any aggrieved party, make an order,--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order,--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.
"In early times the writ of quo warranto was in the nature of a writ of right for the king against any subject who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim in order to determine the right."
According to Mr. A.K. Brohi the essential thing in the words of Lord Reading is,--
"Whether there has been usurpation of an office of a public nature and an office substantive in character that is an office independent of title."
"In the first instance, it seems to me that the writ as prayed was not competent. The principles applicable to a writ of mandamus are well-known. They are set out in the monograph on the subject of mandamus in the 11th volume of Halsbury's Laws of England in the following words:--
"(i) An applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought.
(ii) In order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposed a legal duty.
(iii) It is only in respect of a legal right that mandamus will issue.
(iv) The legal right to enforce the performance of a duty must be in the applicant himself. The Court will therefore only enforce the performance of statutory duty by public bodies on the application of a person who can show that he has himself a legal right to insist on such performance."
The ground put forward by the petitioner Masud-ul-Hasan was merely that he was himself an elected member and that there was an election impending for the chairmanship of the Town Committee and if Khadim Hussain remained as a member, this would be "likely to materially and adversely affect the forthcoming election of the Chairman and thereby wrongfully injure the petitioner's right." The interest of the petitioner was at the best of an indirect nature. Merely as a member of the Town Committee, there did not reside in him a legal right to demand that the Collector should remove another member of the same Committee. There is here no legal and specific right vested in Masud-ul-Hasan to enforce the removal of Khadim Hussain, and it seems to me that was a sufficient ground upon which the writ could have been refused.
But, that was not the only relief which Masudul Hasan could claim. He could have moved for an order in the nature of a writ of quo warranto with equal efficacy. Referring again to the monograph on Crown Proceedings in Volume II of Halsbury' s Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office."
"I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose.
"12. With regard to the first objection it may be noted that under Article 199 (1)(a) of the constitutional jurisdiction of the High Court can be invoked by an aggrieved person which denotes a person who has suffered a legal grievance, against whom decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is also the requirement that the person invoking the constitutional jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental right guaranteed under the Constitution has been violated resulting in legal loss. It is, however, to be noted that Respondent No. 1 has approached High Court of Balochistan by way of a constitutional petition wherein he had prayed for issuance of a writ of quo warranto against the appellant. A writ of the quo warranto is in the nature of laying an information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty. Its object is to determine the legality of the holder of a statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Where a person prays for a writ of quo warranto the Court would be under an obligation to enquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office.
For issuance of a writ of quo warranto the person invoking the jurisdiction of the High Court under Article 199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move the High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke the constitutional jurisdiction under Article 199 of the Constitution in a manner as generally required by the said Article."
"It is sine qua non for invoking the jurisdiction of the High Court through a Writ Petition, under the clauses referred to above and under which the instant writ comes, that the petitioner must be an aggrieved person and he must have a locus standi for availing such a jurisdiction. The word aggrieved or aggrieved party has not been defined in the Constitution, however, from time to time it has been interpreted by the superior Courts in the given circumstance of the case."
(R.A.) Petition dismissed.
PLJ 2010 Lahore 529
Present: Maulvi Anwar-ul-Haq, J.
MUNSHI MUHAMMAD (deceased) and others--Petitioners
versus
DISTRICT OFFICER (REVENUE), GUJRANWALA and 2 others--Respondents
W.P. No. 8404 of 2008, heard on 12.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 14--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Pre-emption decree cannot be incorporated in revenue records--Limitation--Suit for pre-emption was filed by brother of vendor and one other suit was also filed--Both suits were dismissed holding that the vendees were occupying the land as non-occupancy tenants at the time of sale--First Appeal was allowed--Civil revision was dismissed for non-prosecution--Assailed--An application was filed before collector for incorporating the decree in revenue records--Collector verified the decree from Civil Court and passed order for incorporation of the decree in revenue records--Mutation was attested in favour of respondent--Challenge to--Contention--Court while passing a pre-emption decree had to direct the pre-emptor to deposit the purchase money into the Court and to fix a date for same and title would be deemed to have accrued to plaintiff from the date of such payment--No provision for offering the purchase money to the vendees--Same was to be deposited in Court and of course, to be withdrawn by the vendees--Question of--Whether the decree is also liable to be executed after dismissal of civil revision will be looked into by executing Court--Validity--Period of limitation having gone by the pre-emption decree cannot be incorporated in revenue records the same is without any legal basis--Held: Revenue Authorities are obliged under the law to give effect to a decree where under plaintiff has acquired title in the land--Petition was dismissed. [Pp. 531 & 532] A, B, C & D
Dr. A. Basit, Advocate for Petitioners.
Rai Wali Muhammad & Mr. Abdul Ghafoor Sheikh, Advocates for Respondent No. 3.
Nemo for other Respondents.
Date of hearing: 12.5.2009.
Judgment
Vide registered sale-deed dated 22.2.1978 the petitioners purchased land measuring 3 kanals 4 marlas comprising Khasra No. 4720/2569 for a consideration of Rs. 16,000/-. On 21.2.1979 Shukar Din Respondent No. 3 claiming to be a brother of the vendor filed a suit for possession by pre-emption. Yet another suit was filed by one Noor Muhammad. The suits were contested by the said vendees. The learned trial Court dismissed both the suits vide judgment and decree dated 16.7.1985 holding that the vendees were occupying the land as non-occupancy tenants at the time of sale. Noor Muhammad the rival pre-emptor did not file any appeal. However, Shukar Din respondent filed a first appeal, which was allowed by a learned ADJ, Gujranwala, on 3.11.1985. He decreed the suit on payment of Rs. 16,000/- to be deposited till 3.12.1985. Against this judgment and decree, the petitioners filed C.R.No. 12/1986 in this Court on 5.1.1986. It came up before the Court on 7.1.1986 when the case was directed to be listed for motion hearing. On 12.1.1986 records were sent for and status quo was ordered to be maintained. The revision remained pending in motion till 1.2.2008 when it was dismissed vide judgment of the even date of this Court.
I may note here that the revision was dismissed for non-prosecution on 23.4.1986. C.M. No. 1494-C/03 was filed for its restoration. It came up on 3.11.2003. It was allowed and the revision was restored on the same date.
In the said interregnum, Shukar Din respondent filed an application before the Collector, Gujranwala, praying that the decree be incorporated in the revenue records. The Collector got the copy of the decree verified from the learned Senior Civil Judge, Gujranwala and passed orders on 25.6.2002 for incorporation of the decree in the revenue records. Mutation No. 27508 was accordingly entered on 1.7.2002 and attested on 23.7.2002. The land was mutated in favour of Shukar Din respondent.
Dr. A. Basit, Advocate/learned counsel for the petitioners contends that the period prescribed for execution of the decree passed on 3.11.1985 had long expired and as such the Collector had no lawful authority to pass the said order and the mutation sanctioned pursuant thereto is also void. According to him, a pre-emption decree can be incorporated in the revenue records only through the process of execution. Learned counsel for Respondent No. 3, on the other hand, contend that the said civil revision was filed against the decree, which was dismissed for non-prosecution and the decree was incorporated in the revenue records before it was restored. The civil revision had been finally dismissed on 1.2.2008 and as such the said decree-holder has still time to execute the decree as well. According to the learned counsel, it is the duty of the revenue Officers to incorporate a pre-emption decree in the revenue records notwithstanding that it has not been put into execution cannot be put into execution because of bar of limitation, as the title accrues to the pre-emptor upon payment of price as directed by the Court in terms of Order XX, Rule 14 CPC. Dr. A. Basit, Advocate, re-joins to state that the question as to whether the amount has been deposited is one to be decided by the Executing Court and that his client has already approached the Executing Court who has issued a stay order.
I have gone through the file of this writ petition as also of C.R.No. 12/86, with the assistance of learned counsel for the parties. The history of the case has been stated above. Coming to the said contention of the learned counsel for the petitioners, under Order XX Rule 14 CPC, the Court while passing a pre-emption decree has to direct the pre-emptor-plaintiff to deposit the purchase money into the Court and to fix a date for the same and the title shall be deemed to have accrued to the plaintiff from the date of such payment. I have examined the writ petition as well as the petition (Annex-I) filed by the petitioners in the Court of learned District Judge, Gujranwala. There is no allegation that the purchase money as determined by the learned ADJ, Gujranwala, has not been deposited by the Respondent No. 3. In the writ petition, it has been stated in ground (iv) that the sale price has not been offered to the petitioners. I am afraid there is no provision for offering the purchase money to the vendees. The same is to be deposited in Court and, of course, to be withdrawn by the vendees. In reply to my query, learned counsel for the petitioners admits that an application for withdrawal of the amount has not been made so far. Let them make the application and the amount will be released accordingly, if not already released.
Coming to the said contention of the learned counsel i.e. that the period of limitation having gone by, the pre-emption decree cannot be incorporated in the revenue records, the same is without any legal basis. A Division Bench of this Court in the case of Ali Ahmad and another v. Muhammad Fazal and another (PLD 1973 Lahore 207) held that under Order XX, Rule 14 CPC, the title accrues to the pre-emptor on payment of the decretal amount and is not dependent upon the delivery of the possession. The plea regarding limitation was dealt with as follows in Para-34 of the report at page 213 thereof:--
"4. The appellants, therefore, can succeed only if they are able to make out that Section 28 of the Limitation Act is attracted. It reads as: "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." This section applies to suits, and suit as provided under Section 2, clause (10) of the Limitation Act "does not include an appeal or an application". Article 182 does not prescribe the period of limitation for the institution of a suit by the decree-holder. It merely prescribed the period of limitation for an application for delivery of possession to him. Section 28 does not apply to applications for execution under Article 182. Therefore, if the respondent did not apply for the execution within the period of limitation, his right and title in the property which he acquired by virtue of the decree for pre-emption is not extinguished. He continues to be the owner of the land notwithstanding that he did not file an application for execution."
Finally, it was held that the revenue Authorities are obliged under the law to give effect to a decree whereunder the plaintiff has acquired title in the land. The said judgment was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Ali Ahmad and another v. Muhammad Fazal and another (1972 SCMR 322).
The question as to whether the decree is also liable to be executed after the dismissal of C.R.No. 12/1986 on 1.2.2008 will be looked into by the Executing Court in case the Respondent No. 3 files an execution petition.
The writ petition is accordingly dismissed but without any orders as to costs.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 532
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD SHAFQAT ALI (deceased) through his Legal Heirs and others--Petitioners
versus
NAVEED-UZ-ZAFAR, ADDITIONAL DISTRICT JUDGE, LAHORE and others--Respondents
W.P. No. 3922 of 1983, heard on 30.4.2009.
Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)--
----S. 1(2)--Effect of--Where the ejectment application was filed at a point of time when the Repealing Act had taken effect--Petitioners had no protection under S. 30 of Act, 1958--Petition was dismissed. [P. 535] A
Sh. Khalid Habib, Advocate for Petitioners.
Responent No. 5 in person.
Nemo for other Respondents.
Date of hearing: 30.4.2009.
Judgment
On 9.9.1974 Abdul Majid Khan, the predecessor-in-interest of Respondents No. 3 to 6, filed an application for ejectment of the petitioners from a part of House No. S-II-25-S-4, further described in the application. In the application, there is a reference to an earlier ejectment application filed by Abdul Majid against Fateh Muhammad (the predecessor-in-interest of the petitioners) who died during the pendency of the said application. The matter was contested by Muhammad Shafaqat Ali Petitioner No. 1 who was later proceeded against ex parte and an ejectment order was passed. In the course of execution, the petitioners filed objections that they are the LRs and had not been impleaded. Objections were ultimately allowed by a learned ADJ, Lahore. It was then stated that Abdul Majid had served a notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the said predecessor-in-interest of the petitioners. The ejectment application filed pursuant thereto was allowed but the order could not be executed. The ejectment of the petitioners was sought on the ground of default in payment of rent. The Petitioner No. 1 was stated to be an unauthorized sub-tenant. Bona fide personal requirement was also asserted. The petitioners filed a joint reply on 19.11.1974. It was asserted that the PTO on the basis whereof the ejectment application has been filed gives only 1/4th share to Abdul Majid and without partition ejectment cannot be sought. It was also stated that an LPA is pending in this Court against the transfer order in favour of Abdul Majid. Non-service of notice under Section 30 of the said Act, 1958, was also alleged. Following issues were framed by the learned Rent Controller:--
Whether the petitioner is transferee of property in dispute? OPA.
Whether the relationship of landlord and tenant exists between the parties? OPA.
Whether notice under Section 30 of Act, XXVIII of 1958 has been served upon the respondents? OPA.
Whether the partition is barred under Section 14 of the Ordinance, VI of 1959? OPR.
Evidence of the parties was recorded. The learned Rent Controller passed an ejectment order on 7.11.1977. A first appeal filed by the petitioners was dismissed by a learned ADJ, Lahore, on 19.7.1983.
Before I proceed further I deem it appropriate to state the history of litigation pertaining to the said property on the settlement side. In the first instance, the entire Property No. S-II-25-S-4 was transferred to Abdul Majid vide order dated 20.4.1960. One Allah Banda, stated to be the predecessor-in-interest of the petitioners and Ali Hassan, filed appeals against the said order. These appeals were accepted by the Settlement Commissioner on 23.1.1961 who remanded the case to the DSC. After remand the DSC transferred the entire property in favour of Allah Banda. Against this order two appeals were filed including the one by Abdul Majid. The ASC vide order dated 31.7.1963 held only Abdul Majid to be entitled to the transfer of the entire property. Against this order, four revision petitions were filed, which were dismissed by the Settlement Commissioner on 14.12.1964. This led to filing of W.P.No. 256-R/65 by Abrar Hussain while W.P.No. 825-R/66 by Ali Hussain while W.P.No. 591-R/65 was filed by the petitioners. All these writ petitions were decided by this Court by means of a common judgment dated 5.3.1971 (Copy of this judgment is Ex.A.6). W.P.No. 591-R/65 filed by the petitioners as also W.P.No. 256-R/65 filed by Abrar Hussain was dismissed. However, W.P.No. 825-R/66 field by Ali Hassan was allowed inasmuch as it was held that the property shall stand transferred to Ali Hassan and Abdul Majid in the ratio of 3/4th to l/4th. Against this common judgment, the petitioners filed LPA No. 63/71, which was dismissed by a learned Division Bench of this Court on 15.7.2003. C.P.No. 2444-L/03 filed by the petitioners has been dismissed by the Hon'ble Supreme Court of Pakistan on 17.2.2009. I may note here that the findings upheld by the Hon'ble Supreme Court are that Allah Banda had failed to establish his possession over the property in dispute within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. I may further note here that the said Fateh Muhammad was a son of said Allah Banda and as such a brother of Petitioner No. 1.
Sh. Khalid Habib, Advocate/learned counsel for the petitioners has contended that since a PTO had not been issued in favour of Abdul Majid, he could not have filed the ejectment petition on the basis of a simple order holding him entitled to the transfer. He relies on the case of Shabbir Ahmad v. Mst. Kabir-un-isa and others (PLD 1975 SC 58). According to him, notwithstanding the repeal of the Evacuee Properties and Displaced Persons (Compensation and Rehabilitation) Act, 1958, a notice under Section 30 thereof was an absolute precondition and the same having not been complied with, the ejectment application was not competent. He relies on the case of Muhammad Iqbal Ahmad Qureshi v. Mst. Jaleesa Begum (PLD 1980 Lahore 443). Alternately argues that notice was served only upon Fateh Muhammad and not upon Allah Banda the father of Petitioner No. 1 who was in possession before the year 1958. Finally, contends that the PTO gives only l/4th share to Abdul Majid and as such he could not file the ejectment application. On the other hand, the Respondent No. 5 in person supports the impugned orders. According to him, the PTO has admittedly been issued and a co-transferee can file an ejectment petition. According to him, only Fateh Muhammad was in possession at the relevant time and a notice was duly served upon him.
I have gone through the writ petition and the documents, appended therewith, with the assistance of the learned counsel for the petitioners. The history of the litigation that had gone on for about 50 years terminating in the judgment dated 17.2.2009 of the Hon'ble Supreme Court has already been stated above.
So far as the said first contention of the learned counsel is concerned, I find that there is no denial in the written statement regarding issuance of PTO in favour of Abdul Majid. The only objection is that he has been given 1/4th share in the property. The said judgment in the case of Shabbir Ahmad, also lays down that a person in whose favour a PTO has been issued is a transferee within the meaning of Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. So far as the objection as to competency of Abdul Majid to file ejectment petition being only a co-transferee is concerned, the same has been correctly met with by the learned Rent Controller with reference to the case of Khalique Ahmed v. Abdul Ghani and another (PLD 1973 SC 214).
The contention of the learned counsel that notwithstanding the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a notice under Section 30 thereof is mandatory, does find support from the said case of Muhammad Iqbal Ahmad Qureshi. However, the Hon'ble Supreme Court of Pakistan has held otherwise in the case of Mst. Jaleesa Begum v. Iqbal Ahmad Qureshi (PLD 1982 SC 396). It has been held that protection from eviction envisaged by Section 30 of the Act, XXVIII of 1958 disappeared with the repeal of the said Act upon promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. I may note here that although the said Act of 1975 (XIV of 1975) was enacted on 28.1.1975 yet under Section 1(2) of the same it had to take effect on 1.7.1974. The ejectment application itself was filed on 9.9.1974 i.e. at a point of time when the said repealing Act had taken effect. I, therefore, do find that the petitioners were not having any protection under Section 30 of the said Act (XXVIII of 1958) and there was no need to serve a notice as being claimed by the petitioners. Be that as it may, I find that it has been proved on record that a notice, in fact, was served under the said provision of law upon Fateh Muhammad while regarding Allah Banda, the predecessor of the Petitioner No. 1, the finding of fact upheld by the Hon'ble Supreme Court is that he was not in possession during the relevant time.
The transfer in favour of Abdul Majid having been upheld up-to Hon'ble Supreme Court of Pakistan while the claim of Fateh Muhammad and Allah Banda having been rejected, the relationship of landlord and tenant being there, rent having, admittedly not been paid, no exception can be taken to the impugned ejectment orders. The writ petition is accordingly dismissed but without any orders as to costs.
(A.A.) Petition dismissed.
PLJ 2010 Lahore 536
Present: Sh. Azmat Saeed, J.
FAYSAL BANK LTD., BRANCH OFFICE, LAHORE--Plaintiff
versus
GENERTECH PAKISTAN LTD. LAHORE and 6 others--Defendants
COS 15 of 2006, decided on 4.2.2009.
Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 9--Provisions of Section 9 are mandatory, secondly two separate duties are cast on the plaintiff in a suit filed under Section 9 of the Ordinance firstly to state in the plaint, the finance availed, the amount paid back and the balance amount outstanding--Plaint must be supported by a statement of accounts which in the case of a financial institution must be duly certified under the Banker's Books Evidence Act, 1891--Such statement of account not only should show each individual transactions separately whereby any amount availed (or otherwise debited) or paid back (or otherwise credited) but also such statement of accounts must support the claim in the plaint--Furthermore, each and every entry credit or debit must be satisfactorily identified not only as to its date but also its mode and manner--Such identification must be sufficient to make the statement of accounts comprehensively to any reasonable person reading the same. [P. 544] A
Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 10(4) & (6)--Non-compliance of--A penalty has been provided for non-compliance of inter-alia the requirements of Section 10(4)--Requirements of Section 10(4) are mandatory in nature--In case of non-compliance of the provisions of Section 10(4) of the Ordinance, no penal consequences would come into effect if sufficient cause for non-compliance is disclosed in the PLA, as has been stated in Section 10(6) of the Ordinance--Rescheduling does not discharge the sureties of their liability. [P. 548] B & C
2003 CLD 702, ref.
Syed Ali Zafar, Advocate for Plaintiff.
Mr. Munawar-ul-Islam, Advocate for Defendant No. 1, 2 and 4 to 7.
Mr. Shahid Ikram Siddiqui, Advocate for Defendant No. 3.
Date of hearing: 5.12.2008.
Judgment
The plaintiff has filed the instant suit for recovery of Rs.66.263 millions as due on 13.12.2005 against Defendants No. 1 to 7 jointly and severally along with cost of funds, liquidated damages and cost of the suit. It is further prayed that the plaintiff be allowed to sell the pledged shares in the open market.
The case of the plaintiff as disclosed in the plaint is that the plaintiff claims to be a financial institution as defined by Section 2(a) of the Financial Institution (Recovery of Finances), Ordinance 2001 which was previously carrying on its business in the name and style of Al-Faisal Investment Bank Ltd. and such name has subsequently been changed, after the fulfilments of due formalities, to Faisal Bank Ltd., the plaintiff in the instant case. The suit has been filed through Sheraz A.Chaudhry and Ahmad Nauman Khan who, it is alleged, are the Principal Officers of the plaintiff-bank, and are duly authorized to file the suit and to sign and verify the plaint on the basis of Power of Attorney, appended with the plaint. Defendant No. 1, it is contended, is a public limited company incorporated under the Companies Ordinance, 1984, while Defendants No. 2 to 7 are the Directors of Defendant No. 1 company and have been impleaded as guarantors, hence it is contended that Defendants No. 1 to 7 are customers as defined u/S. 2(c) of the Ordinance, 2001.
It is the case of the plaintiff-bank that Defendant No. 1 applied for and was granted a finance facility of Rs.60 millions, vide facility letters dated 10.6.2000 and 13.6.2000, which, it is contended, was duly signed on behalf of Defendant No. 1 in token of acceptance of the terms and conditions mentioned therein. It is further alleged that Defendant No. 1 had also passed a resolution dated 10.8.2000 in respect of the said finance facility. It is the case of the plaintiff that Defendant No. 1 executed inter-alia Murabaha Financing Agreement, the Payment Schedule, Agency Agreement, Purchase Order, Disbursement Request, Receipt for a sum of Rs.60 millions, an Undertaking to repay Rs.89.962 millions, a Promissory Note as well as General Financial and Collateral Agreement. Copies of the aforesaid documents have been appended with the plaint. Furthermore, Defendant No. 1, vide its letter dated 21.8.2000, requested for disbursement of finance facility and allegedly the plaintiff-bank, vide its letter dated 22.8.2000, complied with the disbursement request by enclosing a cheque of Rs.60 millions.
It is also contended that Defendants No. 2 to 7 separately executed personal guarantees of Rs.89.962 in respect of repayment of the finance facility, copies of such alleged personal guarantees are also appended with the plaint.
It is the case of the plaintiff that the said Finance Facility was also secured through mortgage of properties by way of deposit of title deeds. The properties mortgaged are described in Paragraph 13 of the plaint and the document of title deed i.e. sale-deed dated 19.7.1990 allegedly stands deposited with the plaintiff-bank. Supporting letters from the other banks including the first charge holder are also referred to and appended with the plaint. It is also the case of the plaintiff-bank that the Finance Facility in question was secured vide hypothecation agreement dated 10.8.2000 and pledge of shares mentioned in Paragraph 17.1 of the plaint and the scripts whereof are allegedly in the custody of the plaintiff-bank. It was also the case of the plaintiff-bank that the liability has been acknowledged by various letters as well as in the balance-sheet of Defendant No. 1 company which are also appended with the plaint. It is further contended in the plaint that the liability under the Finance Agreement was rescheduled by the defendants who failed to repay the amount in accordance with the understanding of rescheduling. In the above perspective, it is contended that a sum of Rs.66.263 millions is allegedly due jointly and severally from the defendants to the plaintiff. The amounts disbursed to the defendant and amounts received from the defendants by the plaintiff-bank are allegedly set forth in the schedule appended with the plaint. In the above perspective, the plaintiff-bank has sought a decree for Rs.66.263 million along with cost of funds, liquidated damages and cost of the suit. Permission to sell the pledged goods is also prayed for.
Pursuant to summons from this Court, two applications for leave to defend the suit have been filed. PLA No. 33-B/2006 has been filed on behalf of Defendants No. 1, 2, 4 to 7 and PLA No. 34-B/2006 has been filed on behalf of Defendant No. 3.
The plaintiff separately filed replies to PLA No. 33-B/2006 and PLA No. 34-B/2006. Along with the said replies, a certificate as well as a further statement of accounts was also filed by the plaintiff.
Counsels for the parties have been heard and record perused.
Mr. Munawar-ul-Islam, Advocate on behalf of Defendants No. 1, 2, 4 to 7 has contended that the mandatory requirements of Section 9 of the Financial Institution (Recovery of Finances) Ordinance 2001 have not been complied with by the plaintiff-bank. It is contended that a plaint must necessarily be supported firstly by statement of accounts and secondly it must also clearly specify the amount of finance availed, the amount repaid and the outstanding amount. It is further contended that the statement of accounts must clearly specify all debt and credit entries as well as the balance at the close of the period. All entries must also be clearly described so as to ascertain from which account the amounts have been withdrawn and in which account the same had been credited. It is contended that the contents of the plaint and the statements of accounts appended therewith do not fulfil the mandatory requirements of Section 9, hence the plaint is Non-Est in law and is liable to be rejected. In support of his contentions, the learned counsel has relied upon the judgments reported as: (i) Bankers Equity Ltd. Vs. Bentonite Pakistan Ltd. (2003 CLD 931), (ii) C.M. Textile Mills Ltd. Vs. Investment Corporation of Pakistan (2004 CLD 587), (iii) United Dairy Farms Pvt. Ltd. Vs. United Bank Ltd. (2005 CLD 569, (iv) Habib-ur-Rehman vs. Judge Banking Court No. IV, Lahore (2006 CLD 217), and (v) judgment of Division Bench of this Court in F.F.A. No. 24/2007 titled "Peco International vs. Allied Bank Ltd.".
The learned counsel has further contended that Annexure-A to the reply to PLA which is a further statement of accounts does not pertain to the relevant period and the entries therein do not support the contentions in the plaint. Without prejudice to the above, it is contended by the learned counsel that the contents of the plaint and the contentions as to rescheduling are self contradictory. Even otherwise, the said rescheduling is not proved on record. In such an eventuality, Defendants No. 1, 2, 4 to 7 are entitled to leave to defend the suit. In support of his contentions, he has further relied upon the judgments reported as: (i) United Bank Ltd. Vs. Ch. Ghulam Hussain (1998 CLC 816), and (ii) Muhammad Mujtaba and 5 others vs. The Bank of Punjab (2004 CLD 712).
The learned counsel has further pointed out that additional documents have been appended with the reply to the PLA which prima facie justify the grant of leave to defend the suit. In support of aforesaid contention, the learned counsel has relied upon the judgments reported as: (i) Nusrat Textile Mills Ltd. and 8 others vs. United Bank Ltd. (2005 CLD 1421) and (ii) AIR 1928 PC 80. The pledge of shares has been denied. It is further contended that no mortgage in law was ever created as only copies of the sale-deed appear to have been given to the plaintiff-bank. In support of his contention, he has relied upon the judgment reported as: Mst. Irshad Bibi vs. Muslim Commercial Bank Ltd. and 3 others (2003 CLD 46). It is also specifically contended that the entire liability has been paid off by the defendant-company. In response to the alleged admission made by the defendant in its Balance Sheets, the learned counsel contends that such admissions are not binding on the defendant as the same is factually incorrect and wrong in law. In support thereof, the learned counsel has relied upon the judgments reported as: (i) United Leather Exports and 4 others vs. National Bank of Pakistan (2005 CLD 1391), (ii) Barkhurdar vs. Muhammad Razzaq and others (PLD 1989 SC 749). The learned counsel has further contended that even otherwise the plaintiff must rely on the strength of its own case rather than the contents of PLAs. In support of his contention, the learned counsel has relied upon the judgments reported as: (i) 1996 MLD 1819, (ii) 1996 CLC 202, (iii) 1992 CLC 2524, (iv) 1996 MLD 1040, and (v) 1971 SCMR 432. It is further contended that in view of rescheduling, Defendants No. 2 to 7, who were guarantors, stand discharged of the liability. In support of his contention, the learned counsel has relied upon the judgments reported as: (i) 2007 CLD 1205, (ii) AIR 1981 Madras 180, and (iii) 2002 CLD 509.
In the light of the above contentions, the learned counsel seeks unconditional leave to defend the suit on behalf of Defendants No. 1, 2, 4 to 7.
Mr. Shahid Ikram Siddiqi, Advocate on behalf of Defendant No. 3 has adopted the arguments advanced on behalf of Defendants No. 1, 2, 4 to 7. In addition thereto, he has further argued that in view of Sections 132 to 135 of the Contract Act, as the original Finance Agreement has been altered without the consent of the guarantor-Defendant No. 3, his liability stands discharged. In support of his contention, he has relied upon the judgments reported as: (i) 2007 CLD 1205, (ii) PLD 1984 Karachi 21, (iii) PLD 1968 SC 83, (iv) NLR 1990 Civil 609, (v) AIR 1963 SC 746, (vi) AIR 1929 Lahore 203, and (vii) AIR 1931 Oudh 426. He has further contended that the suit has not been filed by a duly authorized representative as there is no document on record to show that the President of the plaintiff-bank was authorized to execute the Power of Attorney relied upon by the plaintiff-bank and appended with the plaint. In support of his contention, he has relied upon the judgments reported as: (i) 2005 CLC 731, (ii) 2006 SCMR 437, (iii) 2000 SCMR 472, (iv) 2004 CLD 1356, and (v) PLD 1999 Karachi 260. The learned counsel also contended that the statement of accounts appended with the plaint and relied upon by the plaintiff does not qualify as statement of accounts as required by law and in support of his contention, he has relied upon the judgment reported as: (i) 2006 CLD 217, (ii) 1997 SCMR 943, (iii) 2004 CLD 587(g), (iv) 2004 CLD 1338, (v) 2004 CLD 1356.
The learned counsel adds that the bank has charged mark-up till 18.3.2004 which is beyond the contractual period and is not admissible in law in view of the judgment reported as: Textile Management Pvt. Ltd. vs. N.I.T. (2002 CLD 276). Similarly, prompt payment bonus has not been deducted from the claim which is the requirement of law as laid down in the judgments reported as: (i) PLD 2000 Karachi 246, (ii) M/s State Engineering Corporation Ltd., Islamabad through Manager (Personnel) S.M. Akram Farhat (2004 CLD 1344), and (iii) Textile Management Pvt. Ltd. vs. N.I.T. (2002 CLD 276). In the above context and without prejudiced to his arguments, the learned counsel has contended that at best a sum of rupees which qualifies Rs.45,715,136/- can be due from the defendant.
Syed Ali Zafar, Advocate for the plaintiff-bank has controverted the contentions raised on behalf of the defendants and stated that no plausible defence has been made out and the defendants are not entitled to any leave to defend the suit. He has reiterated that the liability of the plaintiff-bank has been admitted in the balance-sheets which fact alone proves the case of the plaintiff-bank. In support of his contentions, he has relied upon the judgments reported as: (i) Deputy Custodian of Enemy Property vs. KESC (1986 CLC 2808); (ii) HB Ltd. vs. Karim Cotton Mills (1998 CLC 1403), and (iii) Habib Bank Ltd. vs. Orient Rice Mills Ltd. (2004 CLD 1289. In addition thereto, the learned counsel has contended that the mandatory requirements of Section 10(6) have not been complied with by the defendants as no detail of the amount availed and the amount repaid has been spelt out, which fact alone is sufficient for rejection of the applications for leave to defend the suit. In support of his contention, he has relied upon the judgments reported as: (i) NBP vs. EFFEF Industries Ltd. (2002 CLD 1431), (ii) Bolan Bank Ltd. vs. Baig Textile Mills Ltd. and others (2002 CLD 557), (iii) Saudi Pak Industrial and Agricultural Investment Company Ltd. vs. Mohib Textile Mills Ltd. and others (2002 CLD 1170), (iv) Bankers Equity Ltd. vs. Bentonite Pakistan Ltd. and others (2003 CLD 931), (v) Bank of Khyber vs. Spencer Distribution Ltd. and others (2003 CLD 1406), (vi) Allied Bank of Pakistan vs. Mohib Fabrics Industries Ltd. (2004 CLD 716), (vii) Zeeshan Energy Ltd. vs. Faysal Bank Ltd. (2004 CLD 1741), and (viii) Habib Bank Ltd. vs. Sabcos Pvt. Ltd. (2006 CLD 244). Adds that even otherwise, the statement of accounts appended with the plaint is sufficient in law to fulfil the requirement of Section 9 of the Ordinance, 2001. The learned counsel has also relied upon the contents of the guarantee more particularly clauses 4 and 11 thereof and on the basis thereof he contends that the Guarantors-Defendants No. 2 to 7 are not discharged from their liability as a consequence of the aborted rescheduling.
Counsels for the parties have been heard and record perused.
The main thrust of the contentions raised on behalf of the defendants is that the mandatory requirements of Section 9 of the Financial Institution (Recovery of Finances) Ordinance 2001 has not been complied with. The said provision of law reads as under:--
"Procedure of Banking Courts: (1) Where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other office of the financial institution as may be duly authorized in this behalf by power-of-attorney or otherwise.
(2) the plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers' Books Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant document shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy.
(3) The plaint, in the case of a suit for recovery instituted by a financial institution, shall specifically state:--
(a) the amount of finance availed by the defendant from the financial institution;
(b) the amounts paid by the defendant to the financial institution and the dates of payment; and
(c) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit.
(4) .................................
(5) ................................."
"As per settled Banking Practices', every amount/sum advanced or paid to the customer or sum expended/incurred for and on behalf of a customer by a banking company is entered asdebit' in the books of the Bank and the money received from or on behalf of the customer is entered in these books as customers
`credit' to arrive at a credit or debit balance."
In the aforesaid circumstances, the learned Judge in Paragraph 16 of the judgment concluded that the said documents were in fact Certificates of Balance and not a statement of accounts and hence the mandatory requirements of Section 9 of the Ordinance have not been fulfilled and the plaint was rejected. A Division Bench of this Court in the case of "M/s. CM. Textile Mills Pvt. Ltd.", supra, after examining the documents appended with the plaint which too included single entries of principal, mark-up excise duty and total outstanding concluded that the same was not a statement of accounts but was a Certificate of Balance (COB).
In both the aforesaid cases, it was held that the statement of accounts must be a copy of the ledger or book of accounts maintained by the financial institution identifying each and every entry of debit or credit with clarity and further the same must not only be certified under the Bankers' Books Evidence Act, 1891 but also support the claim, set-forth in the plaint before it can be held that the mandatory requirements of Section 9 have been complied with.
In the case of "M/s. United Dairies Farms Pvt. Ltd.", supra, a Division Bench of this Court while interpreting Section 9 of the Ordinance held that not only the provisions of Section 9 are mandatory but also that the individual transactions must be identified in a format comprehensible to any reasonable person reading it in the ordinary course. It must be set out in a mode that clearly describes the nature of the entries and arranges the same in a manner that distinguishes the various categories of amounts so that the evidentiary presumption of the Bankers' Books Evidence Act, 1891 is fulfilled.
In the case of "Habib-ur-Rehman and others vs. Judge Banking Court No. 4", supra, a Division Bench of this Court held that where the entries in a statement of accounts were not decipherable as the ambiguities and the description of the entries could not be explained, there is a triable issue and an application for leave to defend could not be dismissed. In the said case, an appeal against the judgment of the Banking Court was accepted and the case remanded.
In RFA No. 24/2007, supra, a Division Bench of this Court noticed that several debit entries were merely identified as "transfer" suggesting that such amount had been transferred to another account and such transfer could not be identified from the record or explained by the learned counsel for the financial institution. The appeal was accepted and leave to defend the suit granted subject to deposit of the admitted liability.
The upshot of the aforesaid judgments would reveal that the provisions of Section 9 are mandatory, secondly two separate duties are cast on the plaintiff in a suit filed under Section 9 of the Ordinance firstly to state in the plaint, the finance availed, the amount paid back and the balance amount outstanding. In addition thereto, the plaint must be supported by a statement of accounts which in the case of a financial institution must be duly certified under the Bankers' Books Evidence Act, 1891. Such statement of account not only should show each individual transactions separately whereby any amount was availed (or otherwise debited) or paid back (or otherwise credited) but also such statement of accounts must support the claim in the plaint. Furthermore, each and every entry credit or debit must be satisfactorily identified not only as to its date but also its mode and manner. Such identification must be sufficient to make the statement of accounts comprehensively to any reasonable person reading the same. In order to satisfy the minimum requirements of Section 9(2) and to avoid rejection of the plaint, the statement of accounts appended therewith must specifically identify the amounts advanced or paid to the customer or any sum expended or incurred for or on his behalf as a debit entry along with all payments received from the customer or on his behalf as a separate credit entries with the final balance. The deficiency, if any, in the due identification of the individual entries may give rise to triable issue subject to a bona-fide dispute raised by the defendants in respect thereof.
In the instant case, Para 21 purports to comply with the provisions of Section 9(3) of the Ordinance. In the said paragraph, the amount of finance availed by Defendant No. 1 is stated as Rs.60 millions and the amount received from Defendant No. 1 is stated as 37.861 millions "as per schedule attached". In the attached schedule, there is a date of disbursement of the amount of Rs.60 millions and in addition thereto, 34 other entries of re-payment of principal and/or profit are also specifically mentioned along with dates thereof.
Along with the plaint, a statement of accounts is also available at page 200. The said document which appears to be certified under the Bankers' Books Evidence At, 1891, also contains one debit entry of Rs.60 millions along with its date and 34 separate credit entries along with their respective dates with regard to amounts adjusted against principal and/or profit. A separate column of outstanding principal amount also forms part of the said document. Further, it has been noticed that the nature of the transaction is not specified in respect of the entry of disbursement. The mode of disbursement i.e. cheque with its number etc. is absent. Similarly, with reference to the 34 credit entries, the mode of such payment is also absent. There is no mention as to whether such credit entries are the result of deposits by way of cheque, cash, transfer, bank draft etc.
After examining the documents in question in the light of the law as laid down in the judgment of this Court, referred to above, this Court has no hesitation in holding that the same is not a certificate of outstanding or a certificate of balance but a statement of accounts and is sufficient to satisfy the mandatory requirements of Section 9 of the Ordinance inasmuch as individual transactions are set out separately along with dates thereof and the documents is duly certified in accordance with the Bankers' Book Evidence Act, 1891. However, the absence of material particulars with reference to the nature of the individual transactions, must necessarily be examined in context of a bona-fide dispute if any raised by the defendants in respect thereof for which purpose the pleadings of the parties must be examined.
In Para 5 of the plaint, it is contended that the finance facility of Rs.60 millions was applied for by Defendant No. 1 approved by the plaintiff-bank vide facility letter mentioned therein which was signed on behalf of Defendant No. 1 in token of acceptance of the conditions of the said finance facility. In the PLA filed by Defendants No. 1, 2, 4 to 7 in response thereto, after a bald denial it is stated "the finance facility has been fully discharged by Defendant No. 1 and nothing remains due". The application for the finance facility and its approval, the issuance of the facility letters and the signing of the same by Defendant No. 1 in token of acceptance of its terms and conditions has not been denied.
In Para 7 of the plaint, the list of eleven documents has been mentioned with the contentions that the same were executed and accepted by Defendant No. 1 as acknowledgement of and to secure the said finance facility. In the said PLA, in response to Para 7, it is merely stated that its contents are denied and the contents of earlier paragraphs are reiterated. There is no specific denial of the execution of the said documents in the said Paragraph or in the earlier paragraphs.
In Para 8 of the plaint, it is stated that Defendant No. 1 requested for disbursement of the finance facility of Rs.60 millions and in pursuance thereof a cheque was duly signed by Defendant No. 1 in token of having received the disbursement of Rs.60 millions. In response, in Para 8 of the said PLA after a bald denial it is stated, "that all amounts payable under the Finance Facility have been duly paid by Defendant No. 1 and no amount remains due or payable".
In Para 19 of the plaint, it is stated that Defendant No. 1 has neglected to pay the amount due i.e. Rs.66.263 millions comprising of principal and profit receivable which have been identified separately. In response, after a bald denial it is stated "it is averted that Defendant No. 1 has completely and fully performed the terms of the agreement and nothing remains due or payable towards the plaintiff bank". There is no specific denial of the amounts due or payable. In Para 21 of the plaint, the amount of the finance availed by Defendant No. 1 and repayments made along with the outstanding thereafter have been specified. In respect thereof in the said PLA after a bald denial it is stated, "it is averted that Defendant No. 1 has completely and fully performed the terms of the agreement and the amounts claimed are neither due nor payable". In Para 22, the outstanding liability as on 3.12.2005 has been specified including the principal and profit recoverable. In response, in the said PLA after a bald denial it is stated, "it is averted that Defendant No. 1 had completely and fully performed the terms of the agreement and the amounts claimed are neither due nor payable".
In various grounds raised in the PLA it has been specifically pleaded that the liability has been discharged and no amount is due.
A perusal of the contentions of Defendants No. 1, 2, 4 to 7 as disclosed in the PLA makes it clear and obvious that there is no specific denial as to applying for the finance, its approval and subsequent disbursement. The execution of none of the documents sued or relied upon by the plaintiff-bank has been denied.
The statement of accounts must necessarily be examined in the above context. There is only one debit entry of Rs.60 millions. The said entry pertains to the disbursement of the finance in question. Such disbursement has not been denied or disputed. The mode of such disbursement has been clearly identified in Para 8 of the plaint which has not been specifically denied. In the circumstances, the absence of the identification as to the mode of such disbursement in the statement of accounts pales into insignificance. With reference to the credit entries, there is no dispute. It is also not the case of the said defendant that any amount paid and tendered by the defendants is not reflected in the said statement of accounts. No such averment has been made in the PLA nor any document or receipt in support thereof appended therewith. In addition to the above, not only the liability has been acknowledged and accepted by Defendant No. 1 in the various letters appended with the plaint but more significantly also in the audited balance sheet of Defendant No. 1 which is appended with the plaint and not denied by the defendants.
While Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 casts a duty on a plaintiff-financial institution to disclose with clarity the amount of finance disbursed, received back and the current outstanding amount, a similar duty is also cast on the defendant by virtue of Section 10 of the Ordinance. The relevant portion whereof is re-produced hereunder:--
"Leave to defend: (1)...................
(2) .................................
(3) .................................
(4) In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following--
(a) the amount of finance availed by the defendant from the financial institution, the amounts paid by the defendant to the financial institution and the dates of payments;
(b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;
(c) the amounts of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;
(d) the amount if any which the defendant disputes as payable to the financial institution and facts in support thereof;
Explanation: For the purposes of clause (b) any payment made to a financial institution by a customer in respect of a finance shall be appropriated first against other amounts relating to the finance and the balance, if any, against the principal amount of the finance.
(5) The application for leave to defend shall be accompanied by all the documents which, in the opinion of the defendant, support the substantial questions of law or fact raised by him.
(6) An application for leave to defend which does not comply with the requirements of sub-sections (3), (4) where applicable and (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement.
(7) ..................................
(8) ..................................
(9) ..................................
(10) ..................................
(11) ..................................
(12) .................................."
A penalty has been provided for non-compliance of inter-alia the requirements of Section 10(4), hence in view of the aforesaid as well as the context in which it is written, it is clear and obvious that the provisions of Section 10(4) are mandatory in nature as has also been held in the cases of "Bank of Khyber vs. Spencer Distribution Ltd. and others", supra, and "ABL vs. Mohib Fabrics Industries Ltd.", supra. However, it has also been noticed that in case of non-compliance of the provisions of Section 10(4) of the Ordinance, no penal consequences would come into effect if sufficient cause for non-compliance is disclosed in the PLA, as has been stated in Section 10(6) of the Ordinance. In the PLA, filed on behalf of Defendants No. 1, 2, 4 to 7, it has been noticed that the requisite disclosure of the amount disbursed, the amount repaid and the amount outstanding, if any, has not been made at all. Hence, Section 10(4) has not been complied with. It has also been noticed that no explanation, reasons or cause for non-compliance has been stated in the PLA, hence it is not necessary to determine whether such cause or explanation is sufficient or not.
The situation with reference to compliance or otherwise of Section 10(4) of the Ordinance by Defendant No. 3 is very interesting in the PLA filed by the said Defendant No. 3. Para 33 reads as follows:--
"In view of the above in compliance with the provisions of the Section 10(4) Ordinance it is submitted that:
Amount of finance availed by the answering defendant: Nil
Amounts paid by the defendant: Total
Amounts payable upto the date of the suit: Nil
Amount which the answering defendant disputes: Total suit amount."
It is interesting to note that the amount of finance availed is "Nil" and the amount paid back is "Total". If nothing was received, what was paid back? The qualification of the amounts are also conspicuous by their absence. It is difficult to hold that the provisions of Section 10(4) of the Ordinance has been complied with even by Defendant No. 3.
Be that as it may, the main thrust of the arguments of the learned counsel for Defendant No. 3 is that the personal guarantee has been discharged in view of the rescheduling of the original finance. In this regard, it may be noted that Defendants No. 1, 2, 4 to 7 in Para 18 on merits of its PLA have denied the rescheduling. Similarly, Defendant No. 3 in her PLA in reply to Para 18 on merits has also denied rescheduling in the absence of supporting documents. The defendants cannot, on one hand, deny the rescheduling and then attempt to take advantage thereof by pleading discharge of their liability as sureties. Furthermore, in the plaint, in Para 18 of the plaint, it is merely stated that rescheduling was allowed with respect to the profit as payable on 11.6.2003 of Rs.5.7 millions which amount was to be paid separately by monthly instalments to be secured by further charge on the present and future fixed assets of Defendant No. 1. It is nobody's case that such amount was paid in monthly instalments, as allegedly agreed between the parties nor was any further documentation for creating additional charge executed inter-se the parties despite the fact that the requisite permission had been obtained from other financial institutions. Furthermore, Paragraph s 4 & 11 of the guarantee on the record read as under:--
"4. You may as you think fit and without reference to me/us grant to the Customer time or other indulgence to make or accept any arrangement or composition with him in respect of any payment hereby guaranteed and also vary or renew any agreement(s) under or pursuant to which financial and banking facilities were extended or release, realize or in any way deal with any securities or rights now or hereafter held by you in respect of the sums due under the said agreement.
11. This guarantee and your rights hereunder shall not be affected or prejudiced by your holding or taking any other or further securities or by your varying, releasing or omitting or neglecting to enforce any such securities or by you varying or determining any credit to the Customer or by your renewing bills of exchange, promissory notes or other negotiable instruments or giving time for payment or granting any other indulgence to or making any other arrangements with or accepting any composition from the Customer or any person or persons, corporation or corporations liable on any bills of exchange, promissory notes or other negotiable instruments or securities held or to be held by you."
A perusal of the aforesaid provisions of the guarantees makes it clear and obvious that the guarantors i.e. Defendants No. 2 to 7 have given express consent to the variation of the terms of the Finance Agreement or rescheduling of the debt of the principal debtor. In presence of such a blanket provision, rescheduling does not discharge the sureties of their liability as has been held by this Court in a case reported as: Mian Aftab A.Sheikh and two others vs. M/s. Trust Leasing Corporation Ltd. and others (2003 CLD 702).
The learned counsel for Defendant No. 3 has taken the objection that the suit has not been filed or verified by a duly authorized representative on behalf of the plaintiff-bank. The instant suit has been filed through and signed and verified by M/s. Sheraz A. Chaudhry and Ahmad Nauman Khan. Two separate powers of attorney in favour of the above said officers of the bank have been executed by the plaintiff-bank, which are on the record, authorizing them to file the suit and sign and verify the pleadings. Even otherwise, Mr. Sheraz A.Chaudhry is apparently the Branch Manager of the Branch concerned which is obvious from a certificate on the foot of the statement of accounts, appended with the plaint at page 200 thereof. Thus, in view of Section 9(1) of the Ordinance 2001, even if the plaint had been signed by Mr. Sheraz A.Chaudhry alone, it would have been valid in law. An attempt has also be made to raise the issue for some prompt payment bonus, however the learned counsel has been unable to point out any document on the basis whereof the bonus is being claimed.
In view of the above, it is clear and obvious that neither PLA filed on behalf of Defendants No. 1, 2, 4 to 7 nor PLA filed on behalf of Defendant No. 3 fulfils the mandatory requirements of Section 10(4) of the Financial Institution (Recovery of Finances) Ordinance 2001. Even otherwise, no triable issue or plausible defence has been made out by or on behalf of any of the defendants. Consequently, PLA No. 33-B/2006 and PLA No. 34-B/2006 are without any merits and are hereby dismissed.
In the facts and circumstances of the case and as is obvious from the plaint and the documents appended therewith, the plaintiff-bank is entitled to the amount of principal plus profit minus payments made which in the instant case would be as follows:
Principal amount: 60,000,000/-
Profit: 29,962,397/-
Total: 89,962,397/-
Payments made: 37,860,960/-
Remaining amount: 52,101,437/-
(R.A.) PLAs dismissed.
PLJ 2010 Lahore 551 [Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
KHUDA BUKHSH--Petitioner
versus
LAL MUHAMMAD etc.--Respondents
C.R. No. 49-D of 2005, decided on 6.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Appeal was disposed of in view of report of D.D.O.R. with consent of the parties--Order was contrary to the facts or law--Maintainability--First Appellate Court adopted a course/ mode for decision of the appeal with the consent of the parties--Assailed--Validity--Parties to a lis, having agreed to a specific mode/procedure for decision thereof cannot subsequently be allowed to resile there-from and the judgment/order can be passed in accordance--Appellate Court having passed an order by adopting a mode with the consent of the parties, committed no illegality or irregularity--Revision was not maintainable. [P. 552] A
Nemo for Petitioner.
Date of hearing: 6.5.2009.
Order
The petitioner through this revision petition assails judgments and decrees dated 03.12.2002 passed by learned Civil Judge and learned Addl: District Judge, Muzaffargarh dated 17.1.2003.
"06.05.2004.
Present: Parties alongwith their respective counsel who have opted not to file objections upon the report of D.D.O.(R) and instead have desired that the appeal shall be disposed of in terms of the report of D.D.O.(R). Similar statements of the parties were recorded on 25.2.2004 when the mater was referred to D.D.O. (R). Thus, commensurate with the consensus between the parties, the report of the D.D.O. (R) is held exclusive so far as determining possession of the property and ancillary allegation of demolishing. The appeal is disposed of in terms of the report of D.D.O (R), which shall make part of the decree. The parties are left to bear their own costs. Record of the learned trial Court be sent back whereas that of this Court shall be consigned. Announced 6.5.2004, Zulfikar Khan Nasir, Addl: District Judge, Kot Addu."
The impugned order dated 6.5.2004 passed by learned Addl: District Judge is indicative of the facts that the appeal was disposed of in view of report of D.D.O (R.) with the consent of the parties. There is nothing on record to suggest that the observations made in the impugned appellate order are contrary to the facts or law.
I find that the learned Addl: District Judge adopted a course/mode for decision of the appeal with the consent of the parties and by now it is well settled proposition of law that the parties to a lis, having agreed to a specific mode/procedure for decision thereof cannot subsequently be allowed to resile there-from and the judgment/order can be passed in accordance therewith. The learned Addl: District Judge having passed an order by adopting a mode with the consent of the parties, committed no illegality or irregularity. This revision petition, therefore, is not maintainable.
The office report also indicates that the order of this Court dated 7.11.2006 has not been complied with. Bedsides there are concurrent findings of facts and law arrived at by both the learned Courts below, therefore, this revision petition is hereby dismissed for non-prosecution as well as being not maintainable.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 552
Present: Mian Saqib Nisar, J.
INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN, REGIONAL OFFICE LAHORE through Vice-President, I.D.B.P.--Applicant
versus
M/s. CRYSTAL CHEMICALS LTD. REGISTERED OFFICE, LAHORE through its Director and others--Respondents
COS No. 66 of 2000 and C.M. No. 420-B of 2005, decided on 26.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--No distinction between a decree holder and a judgment debtor when it comes to the invocation of jurisdiction of the executing Court--Generally it is a decree holder who comes to the Court for execution of his decree against a judgment debtor--However, there is no bar against a judgment debtor filing an objection petition and initially execution proceedings. [P. 564] A
2003 SCMR 181, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Restriction on filing an objection petition in the absence of an execution application would have placed the judgment debtors in the unenviable position of having no remedy and forum for redressal of their grievance. [P. 564] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Exclusive jurisdiction--Under S. 47, CPC, the executing Court has the exclusive jurisdiction to look into the execution, discharge or satisfaction of the decree and settle all question related thereto. [P. 564] C
1991 SCMR 2457, PLD 1996 (W.P.) Kar. 308, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Question, whether subsequent events, agreements and understandings, if any, arrived at between the parties which result in variation, modification and change in the terms and conditions of a decree can be taken into consideration while executing a decree?--Held: Executing Court under S. 47, CPC can look into events subsequent to the passing of the decree and give effect to agreements arrived at between the decree holder and the judgment debtors, the Court has no doubt that it can look into and implement agreements which have been made by the parties for the satisfaction of the decree subsequent to the passing of the decree. [P. 567] D
AIR 1939 (Privy Council) 80, 1996 CLC 1399 & PLD 2001 SC 131, ref.
Interpretation of the Decree--
----Compromise decree--Execution--Question, can an executing Court execute a decree without determining its intent and import by a process of construction?--Held: Executing Court had not only the authority but was under an obligation to render true and correct interpretation of the compromise decree--Court had to take into consideration all the relevant facts including subsequent events and the understanding and agreements arrived at between the judgment debtors and the decree holder. [P. 569] E
PLD 1987 Lah. 537 & AIR 1921 Oudh. 138, ref.
Mr. Mahmood A. Sheikh and Ms. Sidra F. Sheikh, Advocates for the Applicant/judgment-debtors.
Sardar Mashkoor Ahmad, Advocate for the Respondents/decree holder.
Date of hearing: 26.11.2008.
Order
M/s. Crystal Chemicals Limited etc. (judgment debtors under the compromise decree with IDBP dated 30.03.2004) filed the instant application under Section 47 read with Section 151 CPC in COS No. 66-2000, initially numbered as CM. No. 300-B-2005, subsequently amended to CM No. 420-13-2005. The relief sought by the judgment debtors herein is for this Court to determine the share of the decree holder bank in the forced sale value of the assets of the judgment debtor's project, assets held jointly under its charge with the ICP and in light thereof, to determine whether the said share of the IDBP is limited to 54.6% already paid by the judgment debtors to the decree holder bank, thereby satisfying the compromise decree in full.
The undisputed facts are briefly recounted as follows:
A compromise agreement dated 29.3.2004 was signed between both the parties for a total sum of Rs. 174.040 million to be paid by the judgment debtors in full and final settlement of their total liabilities towards IDBP in terms of the State Bank of Pakistan settlement scheme promulgated through BPD Circular 29 dated 15.10.2002. As per the terms of Paragraph 9 (c) (iii) of the Circular, the total amount due was calculated by IDBP on the basis of forced sale value of the mortgaged properties and project assets under: (1) its exclusive charge and (2) under its joint pari passu charge, shared with Investment Corporation Pakistan (ICP), another creditor of the judgment debtor and a proforma defendant in the suit. The forced sale value of the securities in both the above categories was jointly settled by the parties on the basis of the evaluator's report. The said compromise agreement was given sanction of the Court vide compromise decree dated 30.03.2004.
The mortgaged securities under the exclusive charge of IDBP were evaluated at Rs.76 million for the immovable properties and Rs.2.3 million for the pledged goods. As regards the pledged goods, their value was not included in the initial calculations of the total liability by IDBP, hence the sum of Rs. 2.3 million was to be paid in addition to Rs. 174.04 million.
The forced sale value of the properties (project assets of the judgment debtors) under the joint pari passu charge of IDBP and ICP, was determined at Rs. 114 million. IDBP determined its share of the forced sale value of the jointly held securities as 86%, while it calculated ICP's share to be 14% of the same. The relevant clauses of the compromise decree are reproduced as follows:
H. "That out of the agreed liability the Bank has determined its share at the rate of 86% of the FSV of the project assets being held under the joint charge of the Bank and ICP. In case where the Bank and ICP were to resolve their shares different to 86:14 any differential will be settled by the Bank without any liability on the Borrowers Customers."
Clause 3. "That the Borrowers Customers shall be entirely responsible for the adjustment/settlement of its any other financial liability towards other Bank/DFI/Creditor."
As per the terms of the compromise decree, the judgment debtors admittedly made payment of Rs.78.3 million, the agreed upon value of the assets held exclusively under IDBP's charge. Upon receipt of the same, IDBP lifted its charge, releasing the mortgaged properties and the pledged goods held by it.
Subsequent thereto, a dispute arose between the IDBP and the ICP regarding their respective shares in the project assets held jointly under their pari passu charge. The ICP refuted the IDBP's contention in Clause H of the compromise decree, that its respective share ratio in the jointly held assets was 86%: 14%. According to the ICP, the correct sharing ratio was (IDBP) 54.6%: (ICP) 45.4%. Furthermore, in order to protect its interests, the ICP rejuvenated winding up proceedings filed by it against the judgment debtors, Crystal Chemicals Limited and filed CM No. 356 L of 2004 before this Honourable Court stating that the compromise decree was not binding upon it. The said application was accepted by this Court, confirming the same, as ICP was neither a party to the compromise agreement nor the decree.
As per the above-reproduced terms of the compromise decree (Clause 3), it was agreed between the parties that the judgment debtors were directly responsible for settling other creditors such as the ICP. Therefore the dispute arising between the IDBP and the ICP led the judgment debtors to hold investigations to find out the actual agreed pari passu ratio between IDBP and ICP. It was imperative for the judgment debtors to hold independent investigations to determine the correct position as the differential in the sharing ratio would affect the liability of the judgment debtors towards other creditors, such as the ICP. Furthermore if the IDBP were to obtain or receive a share in FSV beyond its lawful entitlement as per BPD Circular 29, it would also reduce the financial capacity of the judgment debtors to clear their dues towards other creditors.
The judgment debtors commissioned a complete report from the Securities and Exchange Commission of Pakistan, placed on the Court's record, which established that the agreed sharing ratio between IDBP and ICP, as per registered pari passu charge was 54.6% and 45.4%, respectively. Consequently, a new payment arrangement was worked out between the IDBP and the judgment debtors whereby it was agreed that the judgment debtors would pay the undisputed amount of Rs. 62.244 million representing 54.6% of the forced sale value of the project assets, which was reduced to Rs. 54.779 million after a rebate of Rs. 7.465 million for prompt payment.
As a result thereof, an application bearing C.M. No. 231-2004 was filed in COS No. 66-2000, the prayer of which being important, is reproduced below:--
"It is most respectively prayed that the petitioners may be allowed to pay and IDBP be directed to accept a payment of 54.6% of the FSV of the Company's assets under the joint charge of IDBP and ICP subject to a discount of 6% on all the amounts paid to it i.e. on the sum of Rs.58.596 million paid on 29.03.2004 and Rs. 62.244 million to be paid now. In addition, as agreed by IDBP, if any further payment is found due against the petitioners and the same is made within 30 days of its so being found. IDBP will allow the discount of 6% on the such payment if made in lump sum. Further, the petitioners may graciously be allowed to settle independently with the ICP, in accordance with clause 3 of the Consent Decree."
"The learned counsel for the IDBP has appeared and concurred to the petition in hand. It appears that the ICP also has some claims in the amount payable under the decree dated 30.03.2004. Since the petitioner is paying only 54 percent of the undisputed share to IDBP, this petition is allowed subject to just and legal exceptions. This petition is disposed of.
"In compliance of the Court order dated 09.07.2004 the Bank is agreeable to receive its undisputed share of 54.6% in the FSV of the project assets of Rs. 114.000 million worked out by ICP on provisional basis which works out to Rs.62.44 million. Further the amount payable by you after allowing rebate on the payment of Rs. 76.000 million already made by you on 30.03.2004 and proposed to be made (62.244 million) net payable amount works out to Rs. 54,986,824.00 (including per forced charges incurred/to be incurred after 30.09.2002 detailed as under:--
Total value of project assets 114,000,000.00
Total value of collateral 76,000,000.00
IDBP share in project assets (undisputed
54.696) 62,244,000.00
Value of collateral (100%) 76,000,000.00
Total 138,244,000.00
10% down payment not eligible for discount 13,824,400.00
Amount eligible for discount 124,419,600.00
Discount @ 6% 7,465,176.00
Amount payable net of discount including 10% down payment 130,778,824.00
Less amount already remitted by the Borrowers 76,000,000.00
Balance amount payable 54, 778,824.00
Perforce charges incurred to be incurred After 30.09.2002 208,000.00
Total payable 54,986,824,00
The decree holder, IDBP, thus demanded the payment of the undisputed amount of Rs.54,986,824/- from the judgment debtors. The amount was admittedly paid by them and duly received by the IDBP. While accepting payment of the undisputed sum, IDBP sought confirmation that subsequent to resolution of the dispute with the ICP, the judgment debtors would have to make any additional payment in lump sum within 30 days in order to avail 6% rebate on the payment excluding the 10% not eligible for the same. In the event the judgment debtors chose not to pay in lump sum, the IDBP would provide a new schedule of payments to them, on which no rebate would be allowed.
The judgment debtors sent the payment of Rs. 54,986,824 under cover of letter dated 23.07.2004, which provided that:--
"The payment now being made will extinguish all liabilities of the company towards IDBP insofar as its undisputed share is concerned. However, if it is found that IDBP is entitled to any additional share i.e. beyond 54.6% we will make that payment when so determined either in lump sum within 30 days of the final determination subject to 6% discount on 90% of the amount or in installments as per worked out schedule."
At that point in time, that is, until 23.7.2004, the judgment debtors had admittedly paid a total sum of Rs. 133.079 million to the IDBP with a grant of rebate of 7.485 million for lump sum payment. Matters were thus left in a state of flux until final resolution of the question of the share ratio between IDBP and ICP. Subsequent exchanges and communications between the IDBP and the judgment debtors led to a deadlock situation, wherein the judgment debtors claimed that they had extinguished their total liability towards IDBP whereas IDBP refuted their contention, demanding further payment in line with whatever share ratio was determined afresh between the IDBP arid ICP, respectively. Unable to resolve matters amicably, the judgment debtors approached the Court on 15.9.2004 and filed the instant application, originally numbered as. C.M. No. 300-B-2004, later amended and renumbered as C.M. No. 420-B-2005. The IDBP and ICP have both participated in the proceedings and replied to the instant application.
In the meantime, during continuing correspondence between the parties, IDBP set out its final position regarding the new sharing ratio with ICP and corresponding further liability of the judgment debtors. The letter dated 14.02.2005 read as under:
".....you were allowed to pay undisputed share of IDBP in the FSV of the project assets subject to the condition that after settlement of sharing dispute with ICP you will make payment of the balance amount in lump sum within 30 days on which the Bank will allow 6% rebate and in case you remain unable to pay the balance amount in lump sum the Bank will convey repayment schedule for the same without rebate. In this regard we are pleased to inform that dispute regarding sharing ratio has been resolved with ICP and your liability with IDBP under SBP Guideline has been re-determined at Rs. 166.167 million instead of Rs. 174.040 million against which you already have paid Rs. 133.079 million net of rebate of Rs. 7.465 million. At present balance liability of Rs.26.073 million plus, perforce/legal charges of Rs. 0.228 million incurred/to be incurred after 30.09.2002 till settlement of loan liability in full is payable.
Since dispute regarding calculation of sharing ratio has been resolved, you are requested to pay Rs.26.301 million within 30 days hereof in terms of our above referred letter dated 22.07.2004. However, in case you opt to pay this amount in installments, it is submitted that as per compromise, the liability under Circular No. 29 was to be re-paid in 12 quarterly installments w.e.f. 30.06.2004. Since the due date of 3 quarterly installments have passed, therefore, the balance liability of Rs.26.073 million is to be paid in 9 quarterly installments of Rs.2.173 million payable w.e.f. 30.03.2005 and complete the documentation formalities as advised by the Bank's Legal Counsel. You will also pay Rs. 0.228 million legal charges in cash."
The judgment debtors contended that the ratio of the jointly mortgaged property between IDBP and ICP had already been settled at 54.6% and 45.4% respectively, according to which, the agreed liability of the judgment debtors had been fully paid and adjusted. Furthermore, that the IDBP had no right to claim more than its share from the FSV.
While the instant application remained pending, the judgment debtors filed another C.M. No. 244-B-2005 on 28.05.2005 seeking that the applicant/judgment debtors be allowed to deposit a Bank Guarantee for the demanded sum of Rs.26.073 million and charge of IDBP on the project assets be ordered to be released on the furnishing of such Bank Guarantee. The application was allowed, while IDBP was directed to release its charge over the project assets. Consequently, a bank guarantee of Rs. 26.073 million was provided by the judgment debtors to the IDBP and accepted by it, while it released its charge over the project assets. The judgment debtors then substituted the bank guarantee with a cash payment. The said sum of Rs.26.073 million was paid subject to the decision of the Court in the instant application CM. No. 420-B-2005.
Learned counsel for the applicant/judgment debtors has made the following submissions in support of his application:--
(i) The judgment debtors are entitled to make the instant application, as the "Court executing a decree" includes proceedings initiated by the decree holder and the judgment debtor. He has relied on Erusappa Mudallar v. Commercial and Land Mortgage Bank Limited (1899 Madras Series Volume 23.)
(ii) Under Section 47 CPC, the executing Court has the exclusive jurisdiction to look into the execution, discharge and satisfaction of the decree and settle any questions related thereto.
Section 47 (1) provides that:
"All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit."
He has relied on Wali Muhammad and 3 others v. Muhammad Nawaz Khan and another (PLD 1993 (Peshawar) 197), Riaz Hussain v. Muhammad Akbar (2003 SCMR 181), Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991 SCMR 2457) and Muhammad Saeed v. Yasin and another (PLD 1996 Karachi 308) to establish that the provisions of Section 47 must be liberally interpreted in order to avoid the necessity of a fresh suit to adjudicate upon questions relating to execution of the decree so as to accord relief finally, cheaply and speedily to the parties.
(iii) In the alternative, he also relied on Toor Gul v. Mst. Mumtaz Begum (PLD 1972 Supreme Court 9), NWFP Government, Peshawar through Collector Abbottabad and another (PLD 1993 Supreme Court 418), Emirates Bank International Limited v. Adamjee Industries Limited Karachi and 14 others (1993 CLC Karachi 489) and Bajrang Rai and others v. Ismail Mian and others (AIR 1978 Patna 339) to argue that the Court has inherent powers under S. 151 CPC to further the ends of justice and where specific provisions do not meet the requirements of the case, the Court may make such orders as are necessary.
(iv) Agreements arrived at between decree holders and judgment debtors, even subsequent to the decree, are binding and can be duly implemented by the Court executing the decree. Learned counsel for the judgment debtors relied on Oudh Commercial Bank Ltd., Fyzabad v. Thakurain Bind Basni Kaur and others (AIR 1939 (Privy Council) 80) and Allah Diwaya and others v. Allah Diwaya and others (1996 CLC 1399).
(v) In the exercise of its jurisdiction under Section 47 CPC, the Executing Court can take into consideration subsequent events even after passing of the decree. Fakir Abdullah and others v. Government of Sindh (PLD 2001 Supreme Court 131) was relied on in this regard.
(vi) Interpretation of the decree is amongst the powers of the executing Court. Muhammad Inayat v. Ghulam Murtaza (PLD 1987 Lahore 537) was relied on to establish that in exercise of its power of construction, the executing Court may look at the pleadings, documents, evidence on the record, or even fresh evidence in addition to the decree.
(vii) In case of any doubt, the ambiguity is to be resolved in favour of the judgment debtor. Gokaran Singh v. Mangli and others (AIR 1921 Oudh 138) was relied on.
Learned counsel for the judgment debtors argued that Paragraph 9 (iii) (c) of BPD Circular 29 was the basis of the compromise agreement and decree, therefore the same has to be enforced within its parameters. Paragraph 9 (iii) (c) provides that the amount to be paid to a creditor is to be determined on the basis of the forced sale value of the securities under its charge compared to the disbursed loan amount. If the disbursed loan amount is greater than the forced sale value of the assets under the creditor's charge, then the debtor will pay the forced sale value of its assets in full and final settlement of its liabilities. This was precisely the settlement arrived at between the IDBP and the judgment debtors under the Circular, reflected and recorded in the compromise decree. The maximum liability of the judgment debtors was fixed at Rs. 174.04 million, which comprised the forced sale value of the securities under the exclusive charge of IDBP together with its share in the project assets jointly held with ICP. The forced sale value of the assets exclusively under the IDBP's charge has admittedly been paid to the IDBP. In addition, the sharing ratio confirmed and authenticated by the search report from the Securities and Exchange Commission of Pakistan with respect to the joint pari passu registered charge held by IDBP and ICP over the project assets is 54.6%: 45.4%. This ratio of the first and pari passu charge of 54.6.% and 45.4%, respectively, has neither been denied nor questioned by IDBP. A sum of Rs.54,778,824, equivalent to its share of 54.6%, has also been paid by the judgment debtors to IDBP, with its concurrence before the Court. The amount of Rs. 26.073 million demanded in excess thereof is admittedly being so demanded on the basis of disbursements and not as per registered charge, which determination runs contrary to the Circular and the decree. It is proved by. the search report that the securities under the valid charge of the IDBP are limited to 54.6%, after which IDBP issued an NOC in favour of ICP, which thereafter created a pari passu charge in its favour. No other charge was validly registered in favour of IDBP. Therefore; the IDBP is entitled only to the amount of Rs. 133,078,824 already paid to it, which extinguishes the judgment debtor's total liability towards it under the compromise decree.
It was further emphasized that the bonafides of the judgment debtors are evident by their conduct as they have also paid the additional amount of Rs. 26.073 million demanded by the IDBP, albeit subject to the final disposal of the instant application.
The learned counsel for the judgment debtors also contended that the decree holder unilaterally modified the compromise decree. It re-determined the liability of the judgment debtors under BPD Circular No. 29 at Rs. 166.617 million in place of the decretal amount of Rs. 174.040 million and on adjusting payments and rebates, it finally claimed the balance at Rs.26.073 million. Therefore, it is an accepted position that the earlier calculation by IDBP that a share of 86% was due to it in respect of its jointly held assets with ICP was incorrect. The new amount of Rs. 26.073 million, claimed in writing by it (through letter dated 14.2.2005), was described as reflective of the fresh determination of its sharing ratio with ICP, at 77.53% instead of 86%.
The learned counsel for the judgment debtors concluded his arguments by submitting that the fundamental provisions of the compromise decree, that is, the total liability, the balance due and IDBP's 86% share in the forced sale value of the jointly held assets with ICP were unilaterally varied by the IDBP, hence ceased to be binding upon the parties in their original content. In light of subsequent events, correspondence between the parties and position taken before the Court in the current proceedings, it was clear that the decree had been varied and was to be construed accordingly. The final understanding between the parties apparent from the record was that the liability of the judgment debtors towards IDBP under the compromise decree was fully and finally settled and all dues cleared with the last payment of Rs. 54,778,824 made to it as per its confirmed share of 54.6% in the forced sale value of the jointly held assets. Therefore, the total payment of Rs. 133,078,824 to the IDBP extinguished all liabilities under the compromise decree and the IDBP was not entitled to the payment of Rs. 26.073 million made in excess thereof, and may be directed to reimburse the same to the judgment debtors.
The counsel for the judgment debtors as a parting submission made reference to the provisions of S.33B of the Banking Companies Ordinance 1962. He emphasized that BPD Circular 29 under which the settlement between the decree holder bank and the judgment debtor was arrived at, was for the benefit of the borrowers and the customers of the bank. Meaning thereby, that any benefit that could come in the way of the judgment debtor under the Circular ought to be allowed to them. Interpretation of the provisions, of Para 9. (c) (iii) of the Circular when made keeping in mind the said S. 33B, would establish that the decree holder bank could not demand amounts in excess of its share in the value of the security under its valid charge.
The learned counsel for the decree holder bank contended that there was no variation in the compromise decree and/or the sharing ratio between the IDBP and the ICP; the new amount demanded was simply the earlier amount after deduction of rebate at 6% on 90% of the said amount. He elaborated that there had been no re-determination of liability. The amount agreed to be paid between the decree holder and the judgment debtors was Rs. 174.04 million with a discount of 6% against lump sum cash payment on 90% of this amount. The letter dated 14.02.2005 written by the IDBP to the judgment debtors merely deducted the rebate of Rs. 7.465 million out of the agreed liability of Rs. 174.04 million. Accordingly, the balance payable worked out to be Rs. 166.539 million, which is almost the same as the amount of Rs. 166.617 million conveyed through IDBP's letter dated 14.02.2005.
He further submitted that the sharing ratio between the IDBP. and the ICP in respect of the forced sale value of the project assets of the judgment debtors, relates solely to the IDBP and the ICP, the pari passu charge holders and bears no relation to the judgment debtors. Whether IDBP has a share of 86% or less is a matter to be decided between the two charge holders to the exclusion of the judgment debtors. Furthermore, as Rs. 166.617 million, the new sum demanded by the IDBP, remains within the agreed limit of Rs. 174,04 million, IDBP is entitled to receive the same.
26. The learned counsel for the decree holder further contended that the share of IDBP is dependant upon the liability of the judgment debtors based upon disbursements made to them and not upon the registered charge on the assets of the judgment debtor company. Therefore, the instant application is misconceived and merits dismissal.
The Court has heard the arguments and examined the record.
This petition raises interesting and important issues. These may be summarized as follows:--
(a) The locus standi of the Petitioner to file this application.
(b) Jurisdiction of the Executing Court.
a. Effect of the subsequent events understanding/ agreement arrived at between the decree holder and the judgment debtor after the passing of the decree.
b. Interpretation of the Decree.
c. Entitlement of IDBP Under the Decree
Locus Standi of the Petitioner:
Section 47 CPC makes no distinction between a decree holder and a judgment debtor when it comes to the invocation of jurisdiction of the executing Court. Generally it is a decree holder who comes to the Court for execution of his decree against a judgment debtor. However, there is no bar against a judgment debtor filing an objection petition and initiating execution proceedings. Reference in this regard may be made to Riaz Hussain v. Muhammad Akbar (2003 SCMR 181), where it was held that "Object of Legislature is to provide an opportunity to judgment debtor to make an objection petition even if the decree holder withholds the execution petition and gets the decree satisfied through some other mode. A contrary view limits the scope of S.47 CPC and thus militates against the object and intention of the legislature." Restriction on filing an objection petition under S.47 CPC in the absence of an execution application would have placed the judgment debtors in the unenviable position of having no remedy and forum for redressal of their grievance. Similarly in Erusappa Mudallar v. Commercial and Land Mortgage Bank Limited (1899 Madras Series Volume 23), it was held that "Court executing a decree includes proceedings initiated by decree holder and by judgment debtor".
It is thus clear that the petitioner is well within his right in moving the instant application.
Jurisdiction of the Executing Court:--
Under S. 47 CPC, the executing Court has the exclusive jurisdiction to look into the execution, discharge or satisfaction of the decree and settle all question related thereto. S. 47 provides "Questions to be determined by the Court executing decree (i) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit." Therefore, the present application, which seeks determination of the fundamental question that whether after a payment of Rs. 140.564 million, made by the judgment debtors to the decree holder bank, inclusive of rebate of Rs. 7.485 million, calculated at the rate of 6% against 90% of the payment made in lump sum, the decree stands satisfied and the liability of the decree holder is fully extinguished, falls within the exclusive jurisdiction of this Court. The Court, in order to avoid endless litigation between the parties and to provide relief without unnecessary delay and expense would entertain all question requiring determination arising out of the decree. The law is absolutely clear that no technicalities are to stand in the way of meeting the ends of justice. The Court therefore agrees with the submission made by the learned Counsel for the petitioner that under the law this Court is the only forum where all questions raised in the petition which relate to the execution, discharge and satisfaction of the decree may be effectively determined. In Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991 SCMR 2457), the august Supreme Court of Pakistan was pleased to hold that "legislature had empowered Courts executing decrees to determine all questions relating to execution, discharge or satisfaction of decree and not by a separate suit." Similarly, in Wali Muhammad and 3 others v. Muhammad Nawaz Khan and another (PLD 1993 (Peshawar) 197), the honourable Peshawar High Court held that "Provisions of S.47, Civil Procedure Code, 1908, does not bar the remedy but only regulates the forum for enforcement of rights insofar as it channelizes all matters relating to the executing, discharge or satisfaction of the decree to the executing Court and leaves unimpaired the jurisdiction of the Civil Court to entertain suit in relation to matters other than those mentioned in S.47 Civil Procedure Code. Two conditions which are sine qua non for application of Section 47 of the Civil Procedure Code 1908 are; that the question should have arisen between the parties to the suit in which decree was passed or their representatives and the question should relate to the execution, discharge or satisfaction, of the decree." In Muhammad Saeed v. Yasin and another (PLD 1996 (W.P.) Karachi 308), the honourable Court was pleased to hold that "The object of S.47 of the Civil Procedure Code 1908 is to check and avoid endless litigation and with this view it enables the parties to obtain adjudication of questions relating to execution without unnecessary expense or delay with a fresh trial. It deals with the enforcement of judgments and lays down that questions specified in it shall be tried in execution and not by a separate suit. When its object is to accord relief to the parties finally, cheaply and speedily without the necessity of a fresh suit it must be construed as liberally as the language would reasonably admit of." The view taken by this Court to settle questions raised by the applicant judgment debtors in the application under consideration stands fortified by these judgments which have been rendered by the august Supreme Court of Pakistan, The Peshawar and The Sindh High Court.
Effect of the events, understanding, agreement arrived at between the decree holder and the judgment debtors after the passing of the decree:--
The learned counsel for the applicant judgment debtors submitted that this Court may take into consideration events and agreements and understandings arrived at between the decree holder bank and the applicant judgment debtors after the passing of the compromise decree. The Court needs to consider whether subsequent events, agreements and understandings, if any, arrived at between the parties which result in variation, modification and change in the terms and conditions of a decree can be taken into consideration while executing a decree. On this issue the learned counsel for the judgment debtors referred to Oudh Commercial Bank Ltd. Fyzabad v. Thakurain Bind Basni Kaur and others (AIR 1939 (Privy Council) 80), Allah Diwaya and others v. Allah Diwaya and others (1996 CLC 1399), Fakir Abdullah and others v. Government of Sindh (PLD 2001 Supreme Court 131). In Fakir Abdullah's case the august Supreme Court of Pakistan held that "Executing Court in exercise of its jurisdiction Under S. 47 CPC could take into consideration subsequent events even after passing of the decree. Such jurisdiction could be exercised in order to ensure that the process of law might not be abused and the judicial pronouncements should be implemented effectively instead of making them ineffective on account of their inexcusability". In Allah Diwaya and others v. Allah Diwaya aud others supra it was held that "All questions between parties relating to execution, discharge, or satisfaction of decree would be determined by executing Court in terms of S. 47 CPC, while adjustment and satisfaction of decree would be possible under Order XXI, Rule 2 CPC. Parties were thus at liberty to adjust their rights and liabilities accrued under decree or decree holder can discharge judgment debtor of his obligation under decree". In Oudh Commercial Bank Ltd. Fyzabad v. Thakurain Bind Basni Kaur and others "it was laid down that the Code contains no general restriction on the parties' liberty of contract with reference to their rights and obligations under the decree. In the absence of express statutory authority it is not possible to regard, Order XX, R. 10 as excluding any possibility of parties coining to a valid agreement for time to which the Court under S.47 will have regard ....". In the presence of these authorities which clearly lay down that executing Court Under S. 47 CPC can look into events subsequent to the passing of the decree and give effect to agreements arrived at between the decree holder and the judgment debtors, the Court has no doubt that it can look into and implement agreements which have been made by the parties for the satisfaction of the decree subsequent to the passing of the decree.
The fact that CM 231-B/2004 was filed in which IDBP appeared at the motion stage without notice and concurred to the application establishes that what was initially agreed and made the basis of compromise decree dated 30/03/2004 did not remain valid anymore. Furthermore, IDBP accepted the payment of 54.6% of the forced sale value of the jointly held assets and by its letter dated 14/02/2005 confirmed that it had reworked its share which though not 86% of the jointly held assets of the judgment debtors, was more than 54.6%. The demand raised in this letter was for a sum of Rs.166.617 million which represented a share of 77.53% of the value of the jointly held assets in its favour. The purpose of this discussion is to establish that IDBP varied the amount that it had initially fixed and on the basis of which the Compromise Decree dated 30/03/2004 was passed. The contention of the learned counsel for IDBP that IDBP did not alter its share of 86% and did not make determination of any amount different to what appears in the compromise decree dated 30/03/2004 and whatever difference appears in the demand raised through its letter dated 14/02/2005 is reflective of a 6% discount which has been allowed against a lump sum payment is devoid of any substance as it is clearly against facts. In the compromise decree the-total amount claimed by IDBP is Rs. 174.04 million while as per letter dated 14/02/2005 the total amount claimed by it is Rs. 166.617 million. Even if 6% is deducted out of 174.04 million the balance does not come to Rs. 166.617 million. Therefore, the effort made by the learned counsel of IDBP to justify" the fresh demand being no different from what appears in the compromise decree dated 30/03/2004 though imaginative is against facts and without any genuine basis whatsoever at all. From these facts it is clear that parties by their agreement, subsequent to the passing of compromise decree dated 30/03/2004, changed the figure of Rs. 174.04 million, as entitlement of IDBP, the decree holder, to receive and the liability of the judgment debtors to pay.
Interpretation of the Decree;
The learned counsel for the judgment debtors has contended that this Court as an executing Court is under an obligation to render true and correct interpretation of the Compromise Decree dated 30/03/2004. In support of this contention he referred to Muhammad Inayat v. Ghulam Murtaza (PLD 1987 Lahore 537). In this case the Court was pleased to hold that power of execution of decree includes the power to construe the decree in order to determine its true intent. Reference to pleadings, documents and judgment was held to be permissible. This principle holds good notwithstanding the fact that the exercise involves appraisal of evidence on record or even production of fresh evidence especially when a fresh suit is barred under S.47 of the Civil Procedure Code. After all, how can an Executing Court execute a decree without determining its intent and import by a process of construction? Reference has also been made to Gokaran Singh v. Mangli and others (AIR 1921 Oudh 138) to contend that where the language of a judgment is doubtful, the benefit of the doubt ought to go to the judgment debtors. The learned counsel appearing for the respondent decree holder bank did not controvert what had been canvassed by the learned counsel for the applicant judgment debtors, namely, that this Court had not only the authority but was under an obligation to render true and correct interpretation of the compromise decree. In so doing, the Court was to take into consideration all the relevant facts including subsequent events and the understanding and agreements arrived at between the judgment debtors and the decree holder bank. The contentions raised by the learned counsel for the applicant judgment debtors being fully backed by law laid down by the superior judiciary are accepted and this Court will construe the decree in its true perspective.
Entitlement of IDBP Under the Decree
The most significant point raised in this application is the question of how the liability of a judgment debtor is to be determined vis-a-vis a decree holder who is a joint pari passu charge holder over the assets of judgment debtors, when the settlement is arrived at under Paragraph 9(iii)(c) of BPD Circular 29. What is not in dispute between the parties is that the compromise decree dated 30/03/2004 is based upon Para 9(iii)(c) of BPD Circular 29. An interesting feature of this case is that the decree holder has not disputed that its validly registered charge on the jointly held assets between it and ICP (Investment Corporation of Pakistan) is 54.6%. The concurrence to CM 231-B/2004 dated 08/07/2004 which was filed by the judgment debtors before this Court and allowed on 09/02/2004 is not denied by the decree holder bank either. In its letter dated 22/07/2004 which the decree holder bank wrote to the judgment debtors it accepted that out of the jointly held assets, its share in the forced sale value of Rs. 114 million was not 86%, but less. Further, it cannot be lost sight of that there were two assets of the judgment debtors which were under exclusive charge of IDBP, the decree holder. Out of these two assets, one was valued at Rs.76 million and the other was the pledged stock valued at Rs. 2.3 million. The decree holder bank received the full value of these assets from the judgment debtors. The question of what monies were advanced against these assets was not addressed in the decree. There was no division made in the amounts claimed by the decree holder to show which of its loans were being settled against the property valued at Rs.76 million. However, when it came to the jointly held assets, the decree holder bank took the stance before this Court that it was entitled to receive instead of Rs. 174.04 million, the figure which included forced sale value of the exclusively held assets except the pledged stock and the value of the assets held under a joint pari passu charge with ICP, a freshly determined sum of Rs. 166.617 millon. In arriving at this figure of Rs. 166.617 million the bank held itself entitled to Rs.76 million of the exclusively held assets aud to Rs. 90.617 million out of the forced sale value of the jointly held assets. The decree holder bank makes this claim on the basis of the amount of loan that it claims against the judgment debtors, irrespective of its validly created charge against the jointly held properties of the judgment debtors. This contention of the bank is clearly against the provisions of Paragraph 9(iii)(c) of BPD Circular 29 under which the settlement between the parties was arrived at as a result whereof the Compromise Decree dated 30/03/2004 was passed. Paragraph 9(iii)(c) BPD Circular 29 is reproduced:--
"9. While allowing write-off arising as a result of settlement/compromise of cases mentioned at Para `4' above, the following guidelines may be followed:- .....
(III) Category C: Where the outstanding amount exceeds Rs.2,500,000
Criteria
Forced sale value of the security is more than the oustanding amount
Amount to be recovered
75% or more of the oustanding should be recovered in cash.
Forced sale value of the security is less than the outstanding amount
A sum equal to Forced sale value should be recovered in cash.
Where no tangible security is available
Efforts should be made to recover maximum possible amount
Forced sale value should be determined by an independent professional valuer who should be listed on the panel of valuers maintained by the Pakistan Banks' Association (PBA)
From the language of the circular it is absolutely clear that when it says forced sale value of the Security, it is the Security which the bank has under its valid charge. The decree holder bank, when it retained for itself, the sum of Rs.76 million and Rs.2.3 million, without sharing it with the other charge holder, it did so on the simple ground that these securities were under its exclusive charge and it was done without any reference to the amount of loan that was claimed and/or advanced by the bank to the judgment debtors against these securities. The fallacy of the contention raised by the decree holder bank became further evident when the contents of CM 231-B/2004 which was allowed by this Court on 09/07/2004 with concurrence of the decree holder bank are carefully examined, wherein it has been specifically stated that IDBP was to be paid 54.6% of the forced sale value of the assets under its joint charge with ICP. There was no mention whatsoever of loan liability or disbursed amount.
The reference by the judgment debtors in the said application to the payment against the jointly held assets at the rate of 54.6% was based on the validly registered charge of the decree holder bank and not to any disbursements made by it. The decree holder bank accepted its entitlement on the basis of the registered charge and not on the basis of any outstanding loan liability. The bank therefore, by raising the contention that it is entitled to share the forced sale value on the basis of its claim of outstanding loan liability Is blowing hot and cold in the same breath. It wanted and did receive all the amounts representing forced sale value of the assets under its exclusive charge without reference to the outstanding loan liability of the judgment debtors. For no justifiable reason it now demands an additional share out of the forced sale value of the jointly held assets on the ostensible ground of its claim of sums disbursed by way of loan to the judgment debtors.
(M.S.A.) Application allowed.
PLJ 2010 Lahore 573
Present: Ijaz-ul-Ahsan, J.
Sh. MUHAMMAD YOUSAF and another--Petitioners
versus
DISTRICT COLLECTOR/DISTRICT REGISTRAR (DOR), OKARA and 4 others--Respondents
W.P. No. 18402 of 2009, heard on 13.11.2009.
Stamp Act, 1899 (II of 1899)--
----S. 27(A)--General Clauses Act, (X of 1897), S. 24-A--Commercial proprety--Question of official rate for valuation of a property for the purpose of calculation of stamp duty--Notifications of respondents--Challenge to--Held: Orders passed by the respondents ex-facie fall short of the basic standards provided in Section 24-A of the General Clauses Act, which requires public functionaries in exercise of their jurisdiction to pass reasoned orders--Where a valuation table has been notified by the Distt. Registrar and or D.D.O. (Registrar), valuation of property declared in an instrument of sale, provided such valuation is in consonance with the notified rates, has to be accepted by the concerned functionaries--There is no discretion vested in them in this regard. [Pp. 575 & 576] B & C
Statutory Functionaries--
----Interpretation of statute--Statutory functionaries derive their powers from the statute--They are creatures of the statute and are bound to act and exercise only such powers and in such a manner as is envisaged by law--All actions taken and orders passed must be based on the bedrock of law and statute--Petition accepted. [P. 575] A
Mr. Amer Sohail Sh., Advocate for Petitioners.
Rana Shamshad Khan, AAG for Respondents.
Date of hearing: 13.11.2009.
Judgment
This petition assails the orders dated 2.6.2009 and 17.7.2009 passed by Respondents No. 1 and 2, respectively.
The petitioners purchased a commercial property comprising a shop along with roof measuring four Sarsahies and 18 feet situated in "B" Block, Rail Bazar Chowk, Tehsil and District, Okara, for a consideration of Rs.1.5 million. By virtue of its location the shop in question falls in the category of commercial property as per valuation table issued by the District Officer (Revenue) Okara, vide Notification No. HRC/420-28 dated 2.7.2008. The said notification was issued under Section 75 of the Stamp Act, 1899 pursuant to notification issued by the Government of Punjab Bearing No. 67-2004/913-ST(I) dated 20.8.2005 under the Board of Revenue Punjab, Stamps (Yardstick Urban Lands) Rules, 1999. The said rules are still in force.
According to the Yardstick/Valuation Table issued by Respondent No. 1 on 2.7.2008 for District Okara. Rail Bazar Okara, where the shop in question is situated, is a commercial area. The official rate for valuation of a property for the purpose of calculation of stamp duty is Rs.2 million per marla. The property purchased by the petitioners admittedly measures approximately half marla. Therefore, according to the rate notified by the respondents a sum of Rs.one million was to be treated as the relevant valuation for the purposes of calculation of stamp duty. However, in order to be on the safe side, the petitioners valued the property as Rs. 1.5 million. This was apparently done to include the value of the structure existing on the land, which according to the learned counsel was valued at Rs.500,000/-. It is worth mentioning that no criteria is prescribed in or under the Stamp Act for calculating value of the structure existing on the land. It is, however, provided that the value of the building or structure stated in the instrument shall, subject to the provisions contained in the Act, be accepted. Accordingly they paid stamp duty in the sum of Rs.30,000/- calculated at the rate of two percent of the declared value of Rs.1.5 million.
When the sale-deed was submitted for registration, the Deputy District Officer, Okara (Respondent No. 2) raised an objection regarding valuation of the property for the purpose of payment of stamp duty. According to him the "actual" value of the shop in question was Rs.3.5 million. It is not clear how and on the basis of which material did Respondent No. 2 arrive at the figure of Rs.3.5 million. Respondent No. 2 therefore demanded payment of stamp duty on the basis of value determined by him. He submitted a report to that effect on 1.6.2009 to Respondent No. 1 (District Collector). In the said report he also alleged that the petitioners in order to avoid payment of stamp duty had under valued the property and paid deficient stamp duty thereby causing loss to the Government Exchequer. He recommended that stamp duty be recovered against the "actual" value of Rs.3.5 million, at the rate of two percent. This came to a sum of Rs.70,000/-.
Respondent No. 1 on the basis of aforesaid report of Respondent No. 2, vide order dated 17.7.2009 held that the valuation determined by Respondent No. 2 was correct and that the petitioners had intentionally undervalued the property. They had attempted to evade payment of deficient stamp duty to cause loss to the Government Exchequer. He not only proceeded to uphold the order of Respondent No. 2 whereby the value of the property in question was declared as Rs.3.5 million, but also imposed penalty of Rs.40,000/- on the petitioners.
Both the aforesaid orders passed by Respondents No. 1 and 2 are challenged in this petition. It is argued that according to Section 27(A) of the Stamp Act, 1899, the respondents were required to calculate value of the property with reference to the valuation table notified by the concerned Collector, in respect of land, situated in the area or locality concerned. Section 27(A) of the Act provides that the value of land/building/structure stated in the instrument of sale based upon such valuation table shall be accepted for the purpose of payment of stamp duty. This has not been done which constitutes arbitrary and illegal exercise of jurisdiction on the part of the respondents.
I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General. A perusal of the order passed by the respondents reveals that the same are neither supported by any reasons nor has any legal basis been disclosed for passing the aforesaid orders. The respondents have not referred to any provision of the Stamp Act or the rules framed thereunder to support their order. They have arbitrarily, without application of mind and in a mechanical manner fixed a value without reference to any statutory provision, rule, regulation or notification.
Statutory functionaries derive their powers from the Statute. They are creatures of the Statute and are bound to act and exercise only such powers and in such manner as is envisaged by law. All actions taken and orders passed must be based on the bedrock of law and Statute. There is no room for arbitrary, unbridled, whimsical or capricious exercise of power by State functionaries specially so where rights of citizens are involved. Exercise of jurisdiction must indicate transparency, uniformity and use of objective criteria. Discretion, where not specifically granted can neither be presumed nor exercised. It is precisely for this reason that concepts like right of hearing, audi alterm partem and the need for speaking and reasoned orders etc have been emphasized by Superior Courts of our country.
In the first place, the orders passed by the respondents ex-facie fall short of the basic standards provided in Section 24-A of the General Clauses Act which requires public functionaries in exercise of their jurisdiction to pass reasoned orders. Section 24(A) provides as follows:--
24.A Exercise of power under enactments.
(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the power conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially.
In this regard reference may also usefully be made to M/s. Airport Support Services Vs. The Airport Manager Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268).
It is apparent from a perusal of the impugned orders that these not only violate the provisions of Section 27(A) of the Stamp Act, 1899 but also ignore all notifications issued by the Board of Revenue on the subject including the Punjab Stamps (Yardstick Urban Lands) Rules, 1999. Strangely enough, Respondent No. 1 has even ignored his own notification No. HRC/420-28 dated 2.7.2008 through which a valuation table was notified for District Okara.
The rules read with Section 27(A) of the Stamp Act read with the rules framed thereunder provide that where a valuation table has been notified by the District Registrar and or Deputy District Officer (Registration), valuation of property declared in an instrument of sale, provided such valuation is in consonance with the notified rates, has to be accepted by the concerned functionaries. There is no discretion vested in them in this regard. They cannot substitute such valuation on the basis of their own discretionary assessment of the market value of the property. This is clearly not the mandate of the law. Had this been the intention of the legislature, it would have said so in the Statute. Such discretionary power is conspicuous by its absence. Discretionary powers cannot be read into any Statute. Any other interpretation would invariably lead to disastrous results by conferring unbridled discretionary powers on state functionaries which will be exercised with impunity. A well functioning legal system can ill afford the luxury of a carte blanche of this nature.
It is evident from a perusal of the aforesaid orders passed by the respondents that they determined, "actual value of the shop without making any reference to valuation criteria provided in the law, notification and the valuation table". This, in my opinion, constitutes unlawful, arbitrary and colourable exercise of jurisdiction, not vested in the respondents.
Respondent No. 1 affixed his stamp of approval on the recommendations of Respondent No. 2 without due application of mind and recording reasons for the same. He proceeded one step further by imposing penalty of Rs.40,000/- which, in the facts and circumstances of the case was not only illegal but also without jurisdiction.
In view of the above, the orders dated 2.6.2009 and 17.7.2009 passed by Respondents No. 1 and 2 are declared to be illegal, without lawful authority and of no legal effect. These are accordingly set aside. The valuation of the property in accordance with the valuation table issued by Respondent No. 1 on 2.7.2008 for district Okara shall be accepted by the respondents for the purposes of calculation of stamp duty in accordance with the Stamp Act and the rules framed thereunder, including the Punjab Stamp (Yardstick Urban Lands) Rules, 1999. The sale-deed in question shall be registered after fulfillment of necessary legal and procedural formalities and payment of the requisite fees, charges and dues in accordance with law.
Petition accepted.
A copy of this judgment be transmitted to the Board of Revenue, Government of Punjab, for circulation to all concerned and for strict compliance of the laws on the subject.
(M.S.A.) Petition accepted.
PLJ 2010 Lahore 577 [Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
Mian MUHAMMAD KAMRAN YOUNIS--Petitioner
versus
PUNJAB PUBLIC SERVICE COMMISSION--Respondent
W.P. No. 526 of 2009, heard on 16.11.2009.
Punjab Judicial Service Rules, 1994--
----R. 7(1)(a)(ii)--Punjab Bar Council Rules, 1974, Rr. 7.10 & 7.12--Experience of active practice as a lawyer for at least two years preceding the date of advertisement--Punjab Judicial Service Rules, 1994, R. 7(1)(a)(ii)--Period of apprenticeship--Commencement of date for counting period of active practice--Petitioner having been enrolled in the Pb.B.C. as an advocate was entitled to continue his active law practice for upto six months before being enrolled as a member of a bar association--Having thus completed the mandatory period of two years active law practice the petitioner was competent to appear in the examination for and be appointed as a Civil Judge cum Judicial Magistrate provided that he is otherwise found to be qualified for the post--Petition allowed. [P. 581] A
Punjab Bar Council Rules, 1974--
----Rr. 7.10 & 7.12--Advocate can commence his active practice by appearing as an advocate--Posts of civil judges cum judicial magistrate--Eligibility criteria for candidate, inter alia included experience of active practice--Experience certificate was provided without date of membership of the local bar association--Interim relief was granted to allow the petitioner to sit in written examination--Qualified to be appointed as a civil judge--Question of--Whether he fulfills the condition of two years experience of active practice as a lawyers--Validity--Commission misconstrued the import and effect of Rr. 7.10 & 7.12--Advocate can commence his active practice by appearing as an advocate before sub-ordinate Court as soon as he acquires his license from the Bar Council--Period of his practice upto six months following the date of Bar Council enrollment can only regarded as that of active practice--Held: In compliance with Rule 7.12 of Punjab Bar Council Rules, 1974 the petitioner was subsequently enrolled as member of Distt. Bar Association which fell within six months period of enrolment with Pb.B.C. petition was allowed with direction to be appointed as Civil Judge cum Judicial Magistrate if he was found to be qualified to be appointed.
[Pp. 581 & 582] B & C
M/s. Muhammad Ilyas Sheikh, and Salman Javaid Siddiqui, Advocate for Petitioner.
Mr. Rashid Hafeez, AAG with Regional Incharge PPSC for Respondent.
Date of hearing: 16.11.2009.
Judgment
The petitioner, Mian Muhammad Kamran Younis, after undergoing the prescribed period of apprenticeship, was enrolled as an Advocate of the Subordinate Courts by the Punjab Bar Council on 28.7.2006 from which date he also commenced his practice as an Advocate, Thereafter, in August 2006, the petitioner applied for membership of the District Bar Association, Attock, but it is only on 11.10.2006 that he became a member of the said bar association. On 20.9.2008, an advertisement was issued by the Punjab Public Service Commission ("the Commission") inviting candidates to fill the 99 vacant posts of Civil Judges cum Judicial Magistrates with 22.10.2008 as the last date for the submission of applications. As stated in the advertisement, the eligibility criteria for a candidate, inter alia, included the experience of active practice as a lawyer for at least two years preceding the date of advertisement.
Desirous of becoming a Civil Judge, the petitioner on 14.10.2008 submitted his application alongwith all the relevant documents including his Experience Certificate to show that he was practicing as an Advocate since 28.7.2006. As required by the Commission, the said Certificate was signed by President, District Bar Association, Attock and was also countersigned by District & Sessions Judge, Attock. However, the application of the petitioner was rejected by the Commission vide its letter dated 31.1.2009 on the sole ground that the "experience certificate you provided is without date of membership of the concerned local bar association". Thereafter, the petitioner availed the remedy of representation but the same was also rejected by the Commission vide its letter dated 20.3.2009. Soon thereafter, the petitioner filed the present writ and this Court by its interim order dated 25.3.2009 directed the Commission to allow the petitioner to sit in the written examination scheduled on 27.3.2009. Later, vide order dated 31.7.2009, this Court directed the Commission to announce the result of written examination of the petitioner and let him appear in the interview if he had passed the written test. On 02.11.2009, the Law Officer of the Commission informed the Court that the petitioner has passed the written test as well as the interview and is qualified to be appointed as a Civil Judge on merit but has not been appointed as such because of the pending issue as to whether he fulfills the condition of two years' experience of active practice as a lawyer.
Learned counsel for the petitioner has firstly contended that the petitioner is eligible as a candidate as he fulfills the condition of two years' experience of active practice because he was enrolled as an Advocate by the Punjab Bar Council on 28.7.2006 since when he has been practicing as is also evident from the requisite Experience Certificate submitted to the Commission on 14.10.2008. Accordingly, it is contended that the petitioner by reference to the cut-off date of 20.9.2008, given in the Commission's advertisement, had the experience of two years, two months and 24 days of active practice as a lawyer. It was also contended on behalf of the petitioner that the commencement date for counting the period of active practice should be date of enrolment with the Punjab Bar Council and the Commission' view that it is the date of enrolment as a member of the District Bar Association, Attock, which is relevant is based on an erroneous interpretation of Rule 7.10 and Rule 7.12 of Punjab Bar Council Rules, 1974. It is also contended that in all the other examinations held by the Commission, the cut-off date for meeting the eligibility criteria is the closing date of submission of forms instead of the date of advertisement. Learned counsel has also drawn the attention of the Court to the later part of the advertisement which states as under:
"All qualifications and conditions of eligibility must have been completed on or before the closing date of submission of application".
On the other hand, the Commission has filed its parawise comments wherein it has taken the stand that since the petitioner was enrolled as a member of the District Bar Association, Attock on 11.10.2006, his experience of active law practice upto the date of advertisement i.e. 21.9.2008 is one year 11 months and ten days which is short of the requisite two years experience by 20 days.
Supporting the stand of the Commission, the learned AAG has referred to Rule 7.10 and Rule 7.12 of the Punjab Bar Council Rules, 1974, as well as Rule 7 of the Punjab Judicial Service Rules 1994. Reliance has also been placed by the Commission on the judgments dated 6.11.2008 passed by this Court in W. P. Nos. 1563/2008, 1564/2008 and 1694/2008.
I have gone through the record with the assistance of the learned counsel for the parties and have also considered their respective submissions noted above.
According to Rule 7(1)(a)(ii) of the Punjab Judicial Service Rules, 1994, a candidate for the post of Civil Judge cum Judicial Magistrate must have "actively practiced the profession of law or not less than two years after having been enrolled as an Advocate" while Rule 7(l)(b)(ii)(a) ibid states that the candidate has to submit an affidavit in order to prove active practice during the two years preceding the date of advertisement. Thus, under the aforesaid rules the cut-off or the closing date is the date of advertisement by which a candidate must have completed the experience of at least two years' active law practice.
Since the issue raised before this Court appears to be focused less on the cut-off date but more on the commencement date for counting the period of active law practice , it is to Rule 7.10 and Rule 7.12 of the Punjab Bar Council Rules, 1974, one must turn to find the answer. Rule 7.10 of the Punjab Bar Council Rules, 1974, provides that no person shall practice as an Advocate unless he is a member of a recognized Bar Association whereas Rule 7.12 relaxes Rule 7.10 by saying that "it will be sufficient compliance with the requirement of Rule 7.10 if within six months of being enrolled as an Advocate, a person applies for being admitted as a member of such Bar Association and his application has not been dismissed". It can be easily seen that Rule 7.10 read with Rule 7.12 in quite unambiguous terms does allow an Advocate enrolled by the Punjab Bar Council to commence and continue his active law practice for upto six months even without being enrolled as a member of a bar association. Therefore, it cannot be said that an Advocate is not in active practice just because he has not been enrolled as a member of a bar association because Rule 7.12 allows an Advocate to carry on active practice for the maximum of six months whereafter he must get himself enrolled with a bar association otherwise he will not be deemed to be a practicing lawyer. However, the Commission has, in its parawise comments, taken the plea that it is because of Rule 7.10 read with Rule 7.12 of the Punjab Bar Council Rules, 1974, that it cannot accept 28.7.2009 as the date on which the petitioner commenced his law practice. In my view, the Commission has misconstrued the import and effect of Rule 7.10 read with Rule 7.12, which clearly lays down that an Advocate can commence his active practice by appearing as an Advocate before the Subordinate Courts as soon as he acquires his license from the Bar Council. As such, the period of his practice upto six months following the date of his Bar Council enrollment can only regarded as that of active practice. Thus, the petitioner, having obtained his Punjab Bar Council's license or enrolment on 28.7.2006, could commence his active law practice with effect from 28.7.2009 which he did as he was so allowed by Rule 7.10 read with Rule 7.12 of Punjab Bar Council Rules, 1974. In compliance with Rule 7.12, the petitioner was subsequently enrolled as a member of the District Bar Association, Attock, on 11.10.2006 which fell well within the six months period of his enrolment with the Punjab Bar Council. Thus, there is no doubt that by the cut-off date of 20.9.2008, the period of active law practice of the petitioner was more than two years which can be easily seen by reference to his enrolment certificate issued by the Punjab Bar Council coupled with his Experience Certificate signed and countersigned by the President, District Bar Association, Attock, and the District and Sessions Judge, Attock, respectively. I think the Commission misconstrued the aforesaid Rules when it took the view that the commencement date of active law practice had to be the date of enrolment as a member of the bar association and its insistence that the period of active practice of the petitioner is to be reckoned from the date of his membership of the bar association is uncalled for and unwarranted for the reasons given above.
9. I have also had occasion to go through the judgments in W. P. Nos. 1563/2008, 1564/2008 and 1694/2008, wherein, according to the learned AAG, a contrary view has been taken by a learned single judge of this Court. I must say that the said authorities are easily distinguishable as the issue involved therein was only the date of advertisement which was upheld as the cut-off date for calculating the two years period of active law practice about whose commencement date there was no controversy with reference to the date of enrollment as member of the Bar Association as against the date of enrollment by the Punjab Bar Council. However, the present case stands on a different footing as the real issue is not about the cut-off date but is about the commencement date for calculating the two years' period of active law practice.
(A.A.) Writ Petition Allowed.
PLJ 2010 Lahore 582 (DB)
Present: Mian Saqib Nisar & Ali Akbar Qureshi, JJ.
Sh. MUHAMMAD KHALID--Appellant
versus
M/s. MALIK FOOD INDUSTRIES through its Sole Proprietor and 2 others--Respondents
F.A.O. NO. 107 of 2004, decided on 8.5.2009.
Registration Act, 1908 (XVI of 1908)--
----S. 47--A document, which is compulsorily registerable, does not effect any immovable property comprised therein till it has been registered, it takes effect not from the date of the registration but retrospectively from the date of its execution. [P. 584] A
AIR 1924 Cal. 600, AIR 1926 All. 549, AIR 1938, All. 431, AIR 1936 Bom. 94, ref.
Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 23(2)--No retrospective effect at all and shall not cover or effect any transaction, which has been accomplished before its enforcement--Besides, the provisions of Section 23 of the Ordinance, cater for two situations, subsection (1) relates to the properties/assets which are under the charge/lien--Alienation, of any such property by the customer after the publication of notice under Section 9(5) of the Ordinance is void, while under sub-section (2), the judgment debtor is prohibited to transfer, any of his other properties, which are not under the charge without the prior permission of the banking judge after the pronouncement of the decree by the Banking Court including an interim decree and if the transaction is so made, it shall be void. [P. 585] B
Mr. Abdul Razzaq Mirza, Advocate for Appellant.
Mr. Nadeem Saeed, Advocate for Respondents.
Date of hearing: 20.3.2009.
Judgment
Mian Saqib Nisar, J.--The present appeal is initiated against the order dated 17.3.2004 passed by the learned Banking Court-Ill, Lahore, whereby an objection petition filed by the appellant in the execution process, brought by the respondent-Bank for the sale of the property purchased by the appellant vide registered sale-deed dated 23.10.2001, has been dismissed.
Briefly stated the facts of the case are, that respondent-Bank brought a suit for the recovery of Rs.5,65,083/- against Respondents No. 1 and 2, which was decreed on 26.6.2001; in the execution thereof, the decree holder other than the mortgaged properties of the judgment debtors sought the attachment of some properties claiming to be owned by them; pursuant thereto, the learned executing Court vide order dated 20.2.2002 attached the property in question i.e plot measuring 10 Marlas, situated in Bogiwal, purportedly belonging to Respondent No. 2 (hereinafter referred to as the respondent).
Against the said attachment, the appellant moved an objection petition asserting ownership of the property on the basis that the respondent has sold it to him for a consideration of Rs. 1,16,000/- and the sale-deed was executed between the parties (the vendor and the vendee) on 23.8.2001, it was presented before the Sub Registrar for the registration the same day, and was accordingly registered on 22.10.2001. Therefore, as on 20.2.2002, he was the absolute and exclusive owner of the property, it could not be attached as being that of the respondent. This objection petition by applying the provisions of Section 23(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance), has been dismissed by the learned Executing Court, holding that on account of the noted law, the judgment debtor (the respondent) of a case is debarred from alienating any property owned by him after the pronouncement of judgment and decree by the Court without there being prior written permission of the Court in this behalf, which was not obtained in this case. Hence this appeal.
Learned counsel for the appellant states that he had purchased the property by virtue of a sale-deed executed by the respondent in his favour on 23.8.2001, which was presented to the Sub Registrar for the registration purposes that very day; a local commission was appointed to accomplish the registration process, which was finalized on the same date, however, the document was finally registered on 22.10.2001. The instrument in view of Section 47 of the Registration Act, 1908 (the Act), shall take effect from the date of its execution and on that date the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001, were not in force, which Ordinance was promulgated w.e.f 30th of August 2001, accordingly Section 23(2) of the Ordinance ibid has no application to the matter, as it has no retrospective effect and resultantly does not debar the appellant to acquire a valid title to the property, which in law cannot be attached for the satisfaction of a decree passed against the original judgment debtor.
Replying to the above, learned counsel for the respondent states that though the decree was passed on 26.6.2001 but the sale in question was finalized through a registered instrument on 22.10.2001 and before this date the Ordinance had come into force on 30.8.2001. As the sale of immovable property having a value more than Rs.100/- can only be made through a registered document and till the enforcement of the Ordinance, the registration had not taken place, therefore, any transaction effected afterwards shall be squarely hit by the section. It has further been stated that Section 47 of the Act, only applies inter-se the parties to the transaction and not to the third party as the Bank in this case is, therefore, for the purposes of the transfer of the title of the property, it shall only be the date of registration, when it took place and not the execution.
Heard. Section 47 of the Registration Act, 1908 provides:--
"Time from which registered document operates.--A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
The effect of the Section conjunctively readwith Section 49 of the Act, means that a document, which is compulsorily registerable, does not effect any immovable property comprised therein till it has been registered; it takes effect not from the date of the registration but retrospectively from the date of its execution. To support the proposition there are catena of judgments such as (AIR 1924 Cal. 600), (AIR 1926 All. 549) (AIR 1938 All.431) and AIR 1936 Bom.94).
Thus on account of the above, it can be validly held that the sale-deed in this case had taken due legal effect on 23.8.2001 as not controverted by the respondent it was executed and presented for the registration on the said date. Learned counsel for the respondent has failed to cite any provision from the Act or any case law to support his contention that Section 47 of the Act ibid, only applies inter-se the parties to the transaction and qua the third party. In our considered and candid view, once the fact of the execution of the document on a particular date is established and/or is not disputed/controverted or disproved by a third party, the said Section shall squarely attract and apply to the rights of such party as well.
As regards the application of Section 23(2) of the Ordinance is concerned, suffice it to say that it was enforced on 30th of August 2001, whereas the sale-deed in the matter was executed on 28.3.2001, the decree in the suit has been passed on 26.6.2001. The Ordinance has no retrospective effect at all and shall not cover or effect any transaction, which has been accomplished before its enforcement. Besides, the provisions of Section 23 of the Ordinance cater for two situations; sub-section (1) relates to the properties/assets which are under the charge/lien, etc. the alienation, et.c of any such property by the customer after the publication of notice under Section 9(5) of the Ordinance is void; while under sub-section (2), the judgment debtor is prohibited to transfer, etc. any of his other properties, which are not under the charge without the prior permission of the Banking Judge after the pronouncement of the decree by the Banking Court including an interim decree and if the transaction is so made, it shall be void. The expression "after pronouncement of the judgment and decree by the Banking Court including an interim decree under Section 11" undoubtedly means the judgment and decree passed under the Ordinance 2001 and not the judgment and decree, which has been passed under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, or any other repealed law on the subject.
For argument of the learned counsel for the respondent that the sale was bad on account of Section 53 of the Transfer of Property Act, suffice it to say that this plea has not been taken by the respondent in the reply to the objection petition and cannot be allowed to be raised before this Court at this stage. Resultantly, we find that the order passed by the learned Executing/Banking Court is illegal and oblivious of the correct legal position, therefore, it cannot sustain. Thus, by allowing this appeal, the said order is set aside with the result that the objection petition of the appellant stands accepted and the attachment order of the learned Banking Court in favour of the respondent/bank qua the suit property is annulled.
(M.S.A.) Appeal allowed.
PLJ 2010 Lahore 586 [Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
AHMAD BAKHSH--Petitioner
versus
MAKHAN KHAN--Respondent
W.P. No. 116 of 2005, heard on 25.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Specific Relief Act, (I of 1877), S. 9--Closing of evidence--Suit for possession u/S. 9 of Specific Relief Act, decreed by trial Court while closing the evidence--Appeal was also dismissed--Constitutional petition--Concurrent findings--Held: Petitioners despite repeated opportunities failed to produce their evidence, therefore, no option was left with the trial Court except to close the evidence under Order 17 Rule 3, CPC which order is un-exceptionable--Sufficient evidence was available on the record on the basis whereof trial judge rightly proceeded to decree the suit--First Appellate Court by upholding the judgment and decree passed by trial Court proceeded to exercise the authority vested in him under the law--Proceedings conduct demonstrated by the petitioner is indicative of the fact that he wanted to delay disposal--Such conduct by itself dis-entitles him from the discretionary relief--There are concurrent findings of facts of both Courts below, which besides being well reasoned are perfectly in accordance with law and call for no interference in constitutional petition--Petition was dismissed.
[Pp. 588 & 589] A, B & C
Mr. Tahir Iqbal Malik, Advocate for Petitioner.
M/s Mujtaba Aziz and Muhammad Najeeb Safdar, Advocates for Respondents.
Date of hearing: 25.6.2009.
Judgment
Briefly stated facts as those emerge out of this constitutional petition are that Respondent No. 2 Makhan Khan filed a suit for possession under Section 9 of the Specific Relief Act against the petitioner in the Court of learned Civil Judge, Layyah, which was contested by the petitioner by filing written statement. The learned trial Court framed as many as eight issues. Plaintiff produced oral as well as documentary evidence Exh. P.1 to Ex.P.10 whereas the defendant/petitioner produced only documentary evidence Exh.D.1 consisting of four pages and judgment dated 6.10.1997. Since they failed to produce any oral evidence despite having been provided number of opportunities, their evidence was closed under Order XVII, Rule 3 CPC on 7.4.2001 and Vide impugned judgment and decree dated 25.9.2003, the suit filed by the Respondent No. 1 was decreed, where against an appeal was preferred which was dismissed vide the impugned judgment and decree dated 18.12.2003.
It is on the record that initially the learned counsel for the petitioner tried to delay the matter and sought adjournments for arguing the appeal before the learned lower appellate Court and also requested that same may be dismissed for non prosecution, however, the learned Additional District Judge, Layyah proceeded to dismiss the appeal in limine on merits on 28.12.2003, which order was not challenged instead a review application was filed which too was dismissed vide judgment dated 7.2.2004.
Through this constitutional petition all the three orders referred to above passed by the learned Courts below have been assailed.
Mr. Muhammad Tahir Ejaz Joya Advocate learned counsel for the petitioner argues that learned civil Court on erroneous assumptions proceeded to close the evidence of the petitioner under Order XVII, Rule 3 CPC without providing fair opportunity to the petitioner; that learned trial Court despite repeated prayers that if the appeal is not competent the same may be treated as revision proceeded to dismiss the appeal as well as review application without any cogent reasons and that by now it is well settled law that if appeal is not competent in that eventuality appeal could be treated as revision and vice versa and that plaintiff could not prove his case and it was not lawful for the learned trial Court to have decreed the suit of Respondent No. 1. Likewise, the appellate Court has also committed serious illegality by not allowing the appeal filed by the petitioner and subsequently by not allowing the review application vide which it was prayed that if appeal was not competent the same may be treated as revision. In support of his contentions, places reliance on 2004 SCMR 2265, NLR 2004 Civil 177, 2000 CLC 334,1995 CLC 1578,2007 CLC 1754, PLJ 1999 Lahore 53 and PLD Supreme Court of Pakistan 491.
Conversely M/S Mr. Mujtaba Aziz and Muhammad Najeeb Safdar Advocates learned counsels for the respondents vehemently oppose the submissions made at bar by learned counsel for the petitioner and submit that this constitutional petition is not maintainable as before the learned appellate Court Respondent No. 5 Muhammad Ramzan son of Ahmad Bakhsh was the appellant, who has not assailed the orders, therefore, this constitutional petition filed by Ahmad Bakhsh petitioner is not competent; that Muhammad Ramzan appellant before the learned lower Court has not even been arrayed as respondent in this constitutional petition, therefore, the same is not maintainable as it is bad for non joinder of necessary parties; that there are concurrent findings of facts arrived at by both the learned Courts below. Therefore, this petition is not maintainable; that conduct demonstrated by the petitioner is such, which disentitles him to the equitable relief. Initially, the disposal of the suit before the civil Court was delayed and thereafter no evidence was produced, thus there was no option left with the civil Court except to close the evidence of the defendant/petitioner, likewise no appeal was competent before the learned lower Court nor the original order vide which evidence was closed had ever been assailed. The learned Additional District Judge, therefore, rightly proceeded to dismiss the appeal; that no review application under circumstances was maintainable, therefore, that too was rightly rejected; that this petition has been filed with malafide intention and for ulterior motive with the sole purpose to add to the agonies of the respondents and to engage them in protracted frivolous litigation. In support of his contention places reliance upon PLD 1982 S.C 46 to canvass that petition can be dismissed for non joinder of necessary parties. Further relies upon PLD 2006 Lahore 585 and 2007 YLR 1382, 1995 CLC 2020, 2004 SCMR 830 and 2001 SCMR 345.
Arguments heard. Record perused.
I find that petitioners despite repeated opportunities failed to produce their evidence; therefore no option was left with the learned trial Court except to close the evidence under Order XVII Rule 3 CPC which order is un-exceptionable; Sufficient evidence is available on the record on the basis whereof the learned trial Judge rightly proceeded to decree the suit. Likewise, the learned Additional District Judge, by upholding the judgment and decree passed by the learned trial Court proceeded to exercise the authority vested in him under the law. The case law referred to by learned counsel for the petitioner is of no avail to him. On the contrary, the case law relied upon by the learned counsel for the respondents clinches the matter. I may observe here that throughout the proceedings conduct demonstrated by the petitioner is indicative of the fact that he wanted to delay disposal, initially of the suit before learned Trial Court and thereafter the appeal and review application before the learned Additional District Judge, the purpose whereof seems to be to add to the agonies of the respondents. This conduct by itself dis-entitles him from the discretionary relief. There are concurrent findings of facts of both the learned Courts below, which besides being well reasoned are perfectly in accordance with law and call for no interference in constitutional petition. Therefore, this petition being devoid of any merits is hereby dismissed with costs throughout.
(M.S.A.) Petition dismissed.
PLJ 2010 Lahore 589
Present: Hasnat Ahmad Khan, J.
ASHIQ HUSSAIN--Petitioner
versus
STATION HOUSE OFFICER, P.S. SADAR NAROWAL and 6 others--Respondents
W.P. No. 7492 of 2009, decided on 23.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Quashing of FIR--Scope--Question of investigation--Held: It cannot be held in writ jurisdiction that the allegations levelled in the impugned FIR are totally false--Detailed investigation is required, a function which lies squarely within the domain of the police--High Court obviously cannot perform the role of investigator--FIR cannot be quashed simply on the ground that the civil litigation is pending adjudication between the parties--During the pendency of the civil suit on the basis of the document, which according to the complainant is a forged document, there is no bar against the registration of a criminal case--Investigation cannot be throttled at the initial stage. [P. 591] A
2006 SCMR 276 & 2006 SCMR 1957, rel.
PLD 1992 Lah. 178, reliance.
Constitutional Petition--
----Contention of the petitioner that after dismissal of complainants application for registration of case by the Ex-officio Justice of Peace, the police could not register the case, the same is found to be baseless--Petition was dismissed in limine. [P. 591] B
PLD 2007 SC 539, rel.
Mr. Muhammad Akhtar Padda, Advocate for Petitioner.
Date of hearing: 23.4.2009.
Order
Ashiq Hussain, the petitioner, by submitting this constitutional petition, has prayed for the quashing of F.I.R No. 32/08, dated 4-2-2008, registered with P.S.Sadar, Narowal, in respect of the offences under sections 420/468 and 471, P.P.C.
erected in the complainant's land - shifted. She further alleged that after misusing the said stamp papers the petitioner prepared a forged agreement to sell purportedly executed by the complainant in favour of the petitioner. According to the complainant, the said fraud was committed by the petitioner with the active connivance of his co-accused duly named in the F.I.R.
In support of this petition learned counsel for the petitioner has contended that after the murder of his brother who was the husband of the complainant, his entire property was mutated in the name of his legal heirs, including the complainant; that after the murder of her husband the petitioner got a loan worth Rs.5,00,000/- from the petitioner for her father's business and in this regard she executed an agreement to sell her land in favour of the petitioner; that since the complainant's father had failed to return the said amount, therefore, the petitioner filed a suit for specific performance against the complainant; that during the pendency of the civil proceedings the F.I.R could not be lodged; that before the registration of the impugned F.I.R, the complainant had filed an application under Section 22-A(6), Cr.P.C, which was dismissed by the learned Addl. Sessions Judge, but despite the dismissal of her application she managed to get the impugned F.I.R registered against the petitioner.
Heard. Record perused.
Admittedly the petitioner stands named in the F.I.R with a specific allegation of committing fraud and forgery. It is true that after the murder of her husband his property was duly mutated in favour of his legal heirs. However, according to the petitioner an agreement to sell dated 13th of March, 2007 was executed by the complainant in favour of the petitioner. A perusal of the said agreement to sell would reveal that on the asking of the complainant, the petitioner statedly paid an amount of Rs.5,00,000/- to her (complainant's) father as loan and according to the said agreement, it was agreed by the complainant that in case of failure of her father to return the said amount to the petitioner he would be entitled to get her (complainant's) land transferred in his favour through Court. Tentatively speaking, the contents of the said agreement appear to be novel in character, inasmuch as the loan was obtained by the complainant's father but instead of the said loanee, in case of violation of the said agreement, the complainant herself had to reimburse the petitioner in shape of transfer of her land in the petitioner's favour. Furthermore, the contents of the said agreement are vague enough, inasmuch as the land, which was going to be mutated in favour of the petitioner in the eventuality of violation of the said novel agreement, was not specified. The rate on which the land was to be sold to the petitioner is also ridiculously as low as Rs.3,00,000/- per acre. It is also interesting to note, that the said agreement was not signed by the loanee himself. However, the said document was purportedly thumb marked by the complainant, a fact which shows that she is an illiterate and rustic woman. On the basis of the said novel agreement to sell, the petitioner has already filed a suit for specific performance before the learned Civil Judge, Narowal. According to the petitioner the said suit is pending adjudication.
In the said backdrop it cannot be held in the writ jurisdiction that the allegations levelled in the impugned F.I.R are totally false. As a matter of fact, for coming to the said conclusion, a detailed investigation is required, a function which lies squarely within the domain of the police. High Court obviously cannot perform the role of investigator. The F.I.R cannot be quashed simply on the ground that the civil litigation is pending adjudication between the parties. During the pendency of the civil suit on the basis of the document, which according to the complainant is a forged document, there is no bar against the registration of a criminal case. Reliance in this respect is placed on the case of Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178). Further, the investigation cannot be throttled at the initial stage. Reliance in this regard is placed on the cases of Col. Shah Sadiq Vs. Muhammad Ashiq and others (2006 SCMR 276) and Muhammad Salim Bhatti vs. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957). Insofar as the contention of the petitioner that after dismissal of complainant's application for registration of the case by the Ex-Officio Justice of Peace, the police could not register the case against the petitioner is concerned, the same has also been found to be baseless. Reliance in this regard is placed on the case of Muhammad Bashir v. Station House Officer Okara Cantt. and others (PLD 2007 SC 539) where the legal position in this regard stands resolved.
Consequently, the writ petition having been found merit-less is dismissed in limine.
However, before parting with this order, it is observed that the observations made in this order would not prejudice the learned Civil Judge before whom the suit filed by the petitioner is statedly pending adjudication.
(M.S.A.) Petition dismissed.
PLJ 2010 Lahore 592
Present: S. Ali Hassan Rizvi, J.
Mirza MUHAMMAD AZHAR BAIG--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION, RAYYA KHAS, TEH. & DISTT. NAROWAL and 8 other--Respondents
W.P. No. 7543 of 2009, decided on 8.5.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Pakistan Penal Code, (XLV of 1860), S. 365-B--Quashing of FIR--Allegation of abduction for commission of zina--Alleged abductee had in fact entered into marriage with the son of the petitioner and also filed a suit for dissolution of marriage--Abuse of process of Court--Held: Allegation of abduction given in FIR is a volte face from the contents of suit for dissolution of marriage--FIR was lodged after the elapse of more than five months--The person making diametrically contradictory allegation is not to be heard--Police has failed to verify the true and admitted facts and hurriedly submitted the challan--Documentary evidence was available and has not been received and appreciated by the investigating officer--There is no probability of his conviction of any offence or justification for continuance of criminal trial which would amount to abuse the process of law, while invoking the provisions of Section 561, Cr.P.C. and constitutional jurisdiction to secure the ends of justice quash the challan and the proceedings of the trial Court--Petition allowed. [P. 594] A & B
Mr. Nazeer Ahmad Shami, Advocate for Petitioner.
Mrs. Azra Israr, DPG with Tariq Mehmood, SI.
Mr. Shahid Pervez, Advocate for Respondent No. 8.
Date of hearing: 8.5.2009.
Order
Mirza Muhammad Azhar Baig, petitioner through this Constitutional petition seeks quashment of FIR No. 47, registered at Police Station Rayya Khas, District Narowal on 13.04.2009 for an offence under Section 365-B, PPC.
According to the FIR on 23.11.2008 daughter of the complainant, Mst. Aasia Maqbool was taken by Mst. Zahida Bibi and Saadia alongwith them for shopping who did not return and complainant alongwith witnesses come across the PWs and was told that she was seen alongwith the accused persons named in the FIR while boarded on a car. It was also recorded that Mst. Aasia Maqbool had been abducted for commission of zina and her thumb impressions and signatures had been obtained on the plain papers. The police held the petitioner and co-accused to have committed the offence and submitted the challan.
It is argued that the alleged abductee Mst. Aasia Maqbool had in fact entered into marriage with the son of the petitioner, namely, Hafiz Shahzad and also filed a suit for dissolution of marriage while the FIR is based on false fact and no offence is made out; that in order to prevent abuse of process of Court and to secure the ends of justice the FIR be quashed.
Learned DPG assisted by learned counsel for Respondent No. 8 controverted that the petitioner alongwith his son and other family members abducted the daughter of the complainant and by use of force got her thumb marked and signatures on the Nikah Nama. The police in faithful manner has investigated the case and submitted the challan.
Heard. The alleged abductee filed a suit for dissolution of her marriage alleging therein "that her Nikah was solemnized on 24.11.2008 and the dower amount was fixed as Rs.25,000/- with pocket money of Rs.1000/- per month which has not as yet been paid. In Para No. 2 of the plaint it was averred that the respondent Hafiz Shahzad had forced her for marriage and after marriage kept her just for six days in the house and also denied to pay her the dower amount fixed. In the next Para it was deposed that the defendant/accused on 03.12.2008 divorced her which he withdrew later on; that her earlier suit for dissolution of marriage on 19.01.2009 was dismissed as withdrawn by her counsel with the collusive of the counsel for the defendant; that the defendant/accused was extending threat to not give her divorce and also is not ready to let her "abad". She had developed a hatred toward him; that despite her demand for payment of Haq-Mehr he is not ready to pay".
After going through the contents of the suit filed for dissolution of marriage which has been decreed; she/victim had admitted the marriage and also raised demand for payment of dower amount fixed in the Nikah Nama was a litmus proof of the fact that she had conceded the marriage in the suit. The allegation of abduction given in FIR is a volte face from the contents of suit for dissolution of marriage. The FIR was lodged on 13.04.2009 after the elapse of more than five months. The person making diametrically contradictory allegation is not to be heard. The version of respondent is was that Nikah was admitted and decree for dissolution of marriage was sought. The version finds support from the contents of the suit. In the circumstances, this Court should not be reluctant to interfere in exercise of constitutional jurisdiction. The police has failed to verify the true and admitted facts and hurriedly submitted the challan. The documentary evidence was available and has not been received and appreciated by the Investigating Officer. There is no probability of his conviction of any offence or justification for continuance of criminal trial which would amount to abuse the process of law, therefore, I while invoking the provisions of Section 561, Cr.P.C. and Constitutional jurisdiction to secure the ends of justice quash the challan and the proceedings of the learned trial Court. This writ petition is allowed accordingly.
(M.S.A.) Petition allowed.
PLJ 2010 Lahore 594
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD ASIF--Petitioner
versus
SURRYA TABASSAM and 3 others--Respondents
W.P. No. 5720 of 2009, decided on 23.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Decree of family Court--Findings of First Appellate Court were challenged in writ jurisdiction by judgment debtor--Non-mentioning of misreading and non-reading of evidence in writ petition--Effect--Held: In the grounds mentioned in the writ petition, only catch words were used and no misreading and non-reading of any evidence was pointed out--First Appellate Court being superior Court of fact, his findings could not be easily disturbed in writ jurisdiction, when there was no misreading or non-reading any material on record--Alleging perversity to a judgment of a Court of fact without pointing out any misreading or non-reading of evidence or jurisdictional defect, would not at all be in the art of advocacy--Petition was dismissed in limine. [P. 596] A & B
Mr. Muhammad Sohail Bhatti, Advocate for Petitioner.
Date of hearing: 23.4.2009.
Order
Mst. Surraya Tabassam/Respondent No. 1, Muhammad Shahzar Asif (minor) son and Mst. Shanza Asif (minor) daughter, had on 26.02.2007 brought three claims: one for dissolution of marriage, the other for recovery of dowry articles and the third for recovery of maintenance allowance.
"ISSUES:
Whether the plaintiff is entitled to get a decree for dissolution of marriage? OPP
Whether the plaintiff is entitled to recover dowry articles according to list attached with the suit or in lieu there off? OPP
Whether the plaintiff is entitled to recover maintenance allowance from the defendant are what rate and for what period? OPP
3A. Whether this Court has to territorial jurisdiction to try the suit? OPD
Relief."
The suit for dissolution of marriage was decreed, which decree was not challenged by any party. The matter to that extent presented a fait accompli.
As on Issues No. 2 and 3 the learned trial Judge relied on list Ex.D1 as produced by the defendant/petitioner in preference to Ex. P1, which list was produced by the plaintiffs/respondents. In regard to two claims forming subject matter of Issues Nos. 2 and 3, the learned Judge, Family Court decreed the same to the extent of dowry articles as per list Ex. D1 and granted maintenance allowance @ Rs.1000/- per head per month from the date of filing of the suit till the "legal limitation" with 25% increase after every three years vide judgment and decree dated 23.01.2008.
The writ petitioner did not file any appeal. However, the plaintiffs/decree-holders/Respondents No. 1 to 3 filed an appeal on 04.03.2008 against the judgment and decree dated 23.01.2008. The learned appellate Judge modified the findings on Issues No. 2 and 3. While recording findings on Issues No. 2 the learned appellate Judge held that the dowry articles as mentioned in Ex.P1, were to be given preference over Ex. D1. He also brought into consideration the other evidence on record.
Under Issue No. 2 the Plaintiff/Respondent No. 1 was held entitled to recovery of Rs. 15,000/- as expenses incurred on delivery charges on the basis of certificate Ex. P8 issued by the relevant hospital.
The rate of maintenance was enhanced from Rs.1000/- per month each to Rs.2000/- per month each with 10% annual increase till the minors attained the age of majority.
While modifying the findings of the learned trial Court on Issues No. 2 and 3, the learned appellate Judge accepted the appeal partly as aforementioned and directed a decree to follow accordingly.
The defendant/judgment debtor Muhammad Asif has filed the present writ petition challenging the validity of the judgment and decree of the appellate Court dated 26.06.2008 on the ground that the same was against law and facts of the case; that the learned appellate Court had misdirected himself while placing explicit reliance on the evidence produced by the plaintiffs/respondents and that the judgment and decree rendered by him offended against the principle of justice, equity and fair play.
After hearing learned counsel for the petitioner and perusing the record, I find that the petitioner had not challenged the judgment/decree dated 23.01.2008 rendered by the learned Judge, Family Court, Faisalabad. The appeal was filed by the other side. He had, therefore, conceptually accepted the judgment/decree dated 23.01.2008. In appeal, findings on Issues No. 2 and 3 were modified by the learned appellate Court vide judgment and decree dated 26.06.2008. In the grounds mentioned in the writ petition, only catch words were used and no misreading or non-reading of any evidence was pointed out. The learned Additional District Judge, Faisalabad being superior Court of fact, his findings could not be easily disturbed in writ jurisdiction, a fortiori when there was no misreading or non-reading any material on record. The writ petition if I could say, was not drafted in a temperate language. In ground (vi) of Para 11 of the writ petition, it was claimed that the judgment and decree passed by the learned first appellate Court was "perverse" and "fanciful". Alleging perversity to a judgment of a Court of fact without pointing out any misreading or non-reading of evidence or jurisdictional defect, would not at all be in the art of advocacy.
The judgment/decree rendered by the first appellate Court are based on evidence. No interference is called for in writ jurisdiction. It is dismissed in-limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 597 [Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
MUHAMMAD YOUNIS--Appellant
versus
JEEWNI BEGUM and another--Respondents
R.S.A No. 7 of 2009, heard on 14.4.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 14--Contract Act, (IX of 1872), S. 17--Fraud--limitation--Validity--In cases of fraud limitation starts from the date of knowledge and not from the date when it was committed--Fraud remains fraud from its inception till its discovery. [P. ]599 A
Contract Act, 1872 (IX of 1872)--
----S. 17--Transactions made within few months from death of deceased--Such proceedings are to be seen with suspicion particularly when genuineness thereof is disputed by legal heir. [Pp. 599 & 600] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1--Gift transaction--Onus of proof--Onus of proof of gift transaction lay heavily on the beneficiary--Petition was dismissed. [P. 601] C
PLJ 2006 Lah. 177; 2008 SCMR 855 and 2007 SCMR 368 rel.
Mian Anwer Mobeen, Advocate for Appellant.
Rana Asif Saeed, Advocate for Respondent No. 1.
Mian Abbas Ahmed, Addl. A.G. for State.
Date of hearing: 14.4.2009.
Judgment
This petition is formally admitted to regular hearing and with the concurrence of the learned counsel for the parties this petition is being decided as an admitted case.
Through this regular second appeal, the appellant assails the judgments and decrees passed by the learned Civil. Judge dated 21.11.2006 and the learned Additional District Judge Vehari dated 06.02.2009.
Briefly stated facts as those emerge out of this appeal are that the Respondent No. 1/plaintiff filed a suit tor declaration to the effect that she is entitled to inherit property of Wali Muhammad alias Balia her real father as per share in accordance with Islamic law of inheritance being her legal heir and that mutation of alleged gift deed bearing No. 1188 dated 29.1.1985, was a result of fraud having been entered in the revenue records with malafide intention and for ulterior motives, to deprive her from the legal share, which was resisted by the appellant by filing written statement. The learned trial Court framed as many as ten issues, whereafter, the parties led their respective evidence. The learned civil judge vide judgment and decree dated 21.11.2007 set aside Tamleeq Mutation No. 1158 dated 29.01.1985 by holding it as null and void and against law, with a direction to the plaintiff to affix the Court fee of Rs. 15,000/-. The suit filed by the Respondent No. 1 was decreed where against an appeal was preferred which met with the same fate and the learned Additional District Judge Vehari, Vide the impugned judgment and decree dated 06.02.2009, upheld the judgment and decree passed by the learned civil Court, which are being assailed through this appeal.
The learned counsel for the petitioner vehemently contends that it was a case of Tamleeq and not of inheritance thus both the Courts below proceeded to pass the impugned judgments and decrees upon erroneous assumptions; that the learned Courts below have also failed to note vitally important facts of the matter that under Section 91 of the Limitation Act, such suit could only be filed within a period of three years, whereas admittedly the suit was filed by Respondent No. 1 after four years, winch was hopelessly barred by time and that the impugned judgments and decrees are result of misreading and non-reading; that the deceased father of the Petitioner/Respondent No. 1 voluntarily transferred the property in question in favour of his son, in presence of witnesses.
Rana Asif Saeed, the learned counsel for Respondent No. 1, while controverting the submissions made at bar by learned counsel for the petitioner submits that petitioner, who is real brother of Respondent No. 1 has fraudulently deprived his real sister from her share of inherited property and that the limitation in such like cases starts to run from the date of knowledge and that the suit was within time; further contends that the father of the Petitioner and Respondent No. 1 was 80 years old and after execution of alleged Tamleeq he died within a period of ten months, was an old and ailing man and not in senses. The alleged Tamleeq mutation, therefore, cannot be considered as voluntary and with free-will. Further submits that unfortunately practice has developed in our society that male members endeavour to deprive the female members of the family of their due share, and that there are concurrent findings of facts by both the learned Courts below, which ordinarily are not to be interfered with in second appeal. Relies upon 2006 SCMR 1304, PLJ 2006 Lahore 177, 2008 SCMR 855, 2007 SCMR 368. Further submits that regular second appeal is preferred under Section 100 of the CPC and there is very limited scope of interference by this Court and that too upon a question of law.
In rebuttal the learned counsel for the petitioner insists that it was not a case of inheritance rather it was a case of Tamleeq and it should be seen in that perspective.
The learned Additional Advocate General submitted that it is primarily dispute between the private parties, therefore, he has not to say much on the issue.
Arguments heard. Record perused.
Admittedly the appellant and Respondent No. 3 are son and daughter of deceased Wali Muhammad. Under the Islamic Law of inheritance they are entitled to inherent the property of their deceased father Wali. Muhammad alias Balia. However, the petitioner claims that since the entire property had been alienated to him by his late father during his life time by way of gift, therefore, his real sister Mst. Jeewni Begum was not entitled to get any share for the simple reason that deceased father Wali Muhammad did not leave behind any property as he did not own single inch of property at the time of death. The learned counsel for the petitioner with vehemence submits that it was not a case of inheritance and in fact a case of Tamleeq/gift and should have been viewed from that aspect and that both the learned Court's below have proceeded to pass the impugned judgments and decrees on erroneous assumptions that it is a case of misreading as well as of non-reading of evidence on record besides involved interpretation of question of law.
I deal with the first objection of the learned counsel for the petitioner that the suit filed by Mst. Jeewni Begum was hopelessly barred by time. By now it is well established law that the limitation in such like cases run from the date of knowledge and viewed from that angle; both the learned Courts below have arrived at a just conclusion that the suit filed by Mst. Jeewni Begum respondent was within time. I also find that main ground on which the impugned mutations were challenged is the fraud committed by the petitioner with her. I am of the considered view that fraud remains fraud from its inception till its discovery and is actionable in law whenever detected, therefore, no limitation starts to run against an order based on fraud, being ab-initio void. The suit, therefore, filed by the petitioner has rightly been held by the learned Court's below as within time.
Since admittedly she is real daughter of deceased Wali Muhammad alias, Balia, therefore, to claim share from inherited property is justifiable, thus the suit filed by her is maintainable. Coming to the third point agitated by the learned counsel for the petitioner that it was not a case of inheritance rather Tamleeq/gift and should have been considered from that angle alone. I am unable to agree with the learned counsel for the petitioner for simple reason that transactions made during preceding few months of the death of deceased are ordinarily to be seen with suspicion particularly when genuineness thereof is disputed by legal heir. Submissions made by the learned counsel for the respondent with vehemence that just after few months of alleged mutation deceased Wali Muhammad died and he had lost his sight, was bed ridden and almost senseless, have been found true by both the learned Courts below, which are borne from the record therefore, even if some documents contained his thumb impressions still those have rightly been found by both the Courts below as a result of fraud. I may observe here that in our society which is primarily of male dominance we come across, almost daily, with serious complaints that male members, including blood relations endeavour to deprive the female segment from their valuable share/right in the inherited property by resorting to the play and by practicing fraud, which growing, tendency has to be curbed with iron hand.
10-A. Adverting to the case law cited at bar 2006 SCMR 1304. The petitioner in this case, aggrieved of dismissal of their civil revision petition against concurrent findings of fact of the Courts below, filed a petition seeking leave to appeal before the Honourable Supreme Court of Pakistan on the ground of excess of jurisdiction failure to exercise of jurisdiction and illegal exercise of jurisdiction. It was observed by their lordship that:
"the High Court cannot disturb concurrent findings of fact arrived at by the Courts below and the Power vested in High Court in exercise of revisional jurisdiction is very limited. High Court cannot upset findings of fact, however, erroneous such findings is, on reappraisal of evidence and take a different view of evidence, and that such finding of fact can only be interfered with by High Court, If the Court below had either misread evidence on record or while assessing or evaluating the evidence had omitted from consideration some important piece of evidence and even in second appeal the High Court has very limited power and it was observed that.
"even in regular second appeal jurisdiction of the High Court is limited to the extent of interference on a question of law and not on facts." PLJ 2006 Lah. 177 Liaqat Ali vs. Province of Punjab through D.C.O Gujrat and 6 others. This Court while examining the authenticity of oral gift observed.
"that what is really required by Muslim law is that there should be satisfactory evidence that donor did in fact part with possession of the subject-matter of his gift either physically or constructively and that the person who is beneficiary of gift the donee has to establish by cogent and sufficient evidence."
2008 SCMR 855 Muhammad Iqbal and another vs. Mukhtar Ahmed through L.Rs.
"in this case this Court in some what similar circumstances proceeded to upset the concurrent finding of fact arrived at by both the Courts below which was assailed before the Honourable Supreme Court of Pakistan. The judgment of this Court which was set aside by observing that perfectly sound conclusion arrived at by both the Courts below should have not been interfered with by the High Court in exercise of its second appellate jurisdiction and that in case where a mutation is challenged the beneficiary has to fall and prove the original transaction."
2007 SCMR 368 Shafi Muhammad and others vs. Khanzada Gul and others.
"The same principle has been emphasized therein that normally concurrent findings arrived at are not to he interfered with."
The onus of proof of gift transaction heavily lies upon the beneficiary, which admittedly in this case is the petitioner who has hopelessly failed to discharge the burden of proof. The conclusions arrived at by both the Learned Courts below that the mutations in question, in favour of the petitioner were, a result of fraud, are unexceptional and are upheld. I am, therefore, not inclined to interfere in the impugned judgments and decrees, which are concurrent in nature well-reasoned and perfectly in accordance with Law. This petition, therefore, being devoid of any merits is hereby dismissed through out costs.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 601 [Multan Bench Multan]
Present: Syed Shabbar Raza Rizvi, J.
MUHAMMAD IFTIKHAR--Petitioner
versus
TMA and others--Respondents
W.P. No. 5461 of 2009, decided on 17.7.2009.
Auctioning of Collection Rights Rules, 2003--
----Rr. 11 & 13--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Subsequent bidder--Where subsequent bidder's bid was substantially higher than the one offered by the prior bidder, the matter having been considered by the local council, referred to it by relevant authority, action of acceptance of the subsequent bid could not be considered to have been an action of the council in an arbitrary manner--Petition dismissed. [P. 604] A
Mirza Aziz Akbar Baig, Advocate for Petitioner.
Rana Asif Saeed, Advocate for Respondent No. 5.
Mian Muhammad Khalid, Advocate for Respondents No. 3 & 4.
Date of hearing: 17.7.2009.
Order
The learned counsel has filed this writ petition on behalf of the petitioner whereby he has challenged impugned resolution dated 18.6.2009 passed by Tehsil Council, Mailsi. Through the said resolution, the highest bid offered by the petitioner in auction for levying tax on transfer of immovable property was rejected declaring the bid amount as a reserve price, directed to re-auction the contract.
According to the learned counsel for the petitioner, under Condition No. 7 of Conditions for auctions of tax on transfer of property TMA, Mailsi, Year 2009-2010, the bid of petitioner required, only acceptance of the Nazim; Under Rule 8, the respondents were required to award contract to the petitioner being the highest bidder; Under Rule 11 neither Nazim nor the Council could refuse acceptance and confirmation. According to him, Annex-B of the writ petition which is application of Respondent No. 5, Muhammad Abid shows that he did not participate in the open auction and subsequently gave the application offering rupees four lacs more than the highest bid of the petitioner on a lame excuse. He also referred to Annex-A proceedings of Session of Tehsil Council, Mailsi, dated 18.6.2009. Refering to Item No. 35 which demonstrate that Tehsil Municipal Officer informed the house that Respondent No. 5 made offer of Rs.1,52,00,000/-, four lacs more than the offer of the petitioner. In the same resolution, it is further pointed out that Respondent No. 5 had deposited 8 lacs as call deposit No. 2031905/UBL. According to the learned counsel for the petitioner, said resolution is illegal and without jurisdiction. The learned counsel for the petitioner referred to decisions delivered in Writ Petition No. 9460/04, C.P.No. 2170-L/2004 and 2009 SLC 180.
The learned counsel for the respondents referred to Rule 11(2) to contend that it was a prerogative of the House to accept or reject the bid. The learned counsel appearing on behalf of the learned counsel for Respondents No. 3 and 4 presented amendment in Rule 11 whereby sub-rule (5) has been amended and sub-rule (6) has been added to Rule 11 (Auctioning of Collection Rights), Rules, 2003.
I have considered the above contentions, the record referred to and relied by the learned counsel and the Rules, 2003. The judgments referred to by the learned counsel for the petitioner, in my view, are on different facts than the instant writ petition. For example, according to the facts of Saeed Ahmad Vs. TMA, 2009 CLC 180, one member of the Council informed the House that some contractor (not specifically named) had informed him that he was ready to give bid higher than the one offered by the petitioner. According to the learned Judge, it was on the basis of this sole statement that the House decided to reject the bid in favour of the petitioner and have re-auction of the collection rights for forming an opinion that there was chance of collection of more tax on transfer of immovable property. In the instant case, it is the Tehsil Municipal Officer who informed the Full House that Respondent No. 5 had not only made offer, he also deposited Rs.800,000/- as call deposit. So in the instant case, the offer was more definite, express and the House was informed formally by an officer of the Administration. It was not from one member who had been informed by some contractor without any name, etc. It is further pointed out in para-7 of the precedent judgment that--
"When questioned about how much increase in the tax was detected during this process, he after consulting the record prepared a rough table and pointed out that in fact from 1st of July to 11th of August, 2008 there was a shortfall of Rs.3,17,444/- which means that actually the respondent T.M.A has suffered loss. In view of this tabulation, the sole ground which weighed with the House to reject the earlier bid i.e. expectation of increase, is also no more available to the Council."
Obviously, the facts stated in the preceding Para show that the situation is different in the instant writ petition. The T.M.A. is not likely to suffer any loss in case the offer of Respondent No. 5 or anybody else is accepted and contract is re-auctioned. The decision in the Writ Petition No. 9460/04 was challenged in the Hon'ble Supreme Court in Civil Petition No. 2170-L of 2004, therefore, discussion on Writ Petition No. 9460/04 is not necessary. The facts of the said case are that an open auction was held on 9.4.2004. The bid was approved by the Council; and Council recommended the same for acceptance. The Tehsil Municipal Administration also encashed deposit-at-call submitted by the successful bidder prior to the auction. On 12.5.2004, one Muhammad Yousaf submitted an application before the Tehsil Nazim on 12.5.2004 (Auction was held on 9.4.2004) that means nearly after more than a month that he was not registered at the time of auction and thus could not participate in the auction proceedings and now he had obtained registration, he was willing to offer a sum of Rs.5,12,00,000/- against amount of successful bidder Rs.4,87,00,000/-. The Hon'ble Supreme Court observed that said Muhammad Yousaf was not even qualified to participate in the auction proceedings as he was not a registered contactor at the time of auction, therefore, he had no locus standi. Moreover, the Hon'ble Supreme Court observed that the Council rejected the bid of the successful bidder on intervention of Muhammad Yousaf, malafidly who was not even qualified to participate in the auction proceedings. Obviously that is not the case in the instant writ petition.
Coming back to the recent judgment relied upon heavily by the learned counsel for the petitioner, Saeed Ahmad Vs. TMA, Mian Channu, 2009 CLC 180. The learned Single Bench held that the petitioner no doubt was the highest bidder and under Rule 8 read with Rule 11, his bid had to be approved by the Auctioning Committee and then accepted by the Nazim, which in fact was done. The learned Single Bench further held, "in view of the above admitted position, the House cannot be allowed to frustrate a lawful process in arbitrary manner merely on the pretext that some one had showed willingness to give highest bid."
As stated in the preceding para, in the instant case, it was not some one or some contractor who had approached the one member of the House with a better offer. The House was informed of offer by relevant authority which was duly considered by the House, therefore, in my opinion the council did not act in an arbitrary manner, etc.
In a recent judgment of this Court delivered by a Division Bench, I.C.A. No. 201/2009, dated 27.5.2009, it has been held that the highest bid equal to reserve price or above shall be accepted by the respective Nazim and placed before the Council concerned, within 10 days of receipt of bid for confirmation; provided that bid so received was reasonable and there was no scope of its further enhancement. It may be pointed out that, in my view, acceptance of Nazim and confirmation by the Council is followed by a proviso which provides two conditions i.e. reasonableness of the bid and no scope of its further enhancement. It is further pointed out that colon between words "confirmation" and "provided" show that conditions are mentioned in the same sentence. Grammatically a sentence is completed or broken from other sentence with a "full stop" and not by a colon. Therefore, the power of Nazim or Council is subject to these two conditions. The same judgment has also held that Rule 11 gives full power to the Council to accept or reject the bid duly recommended by the Auction Committee for the reasons to be recorded in writing. Enhancement of bid exist in the instant case as offered by Respondent No. 5.
According to the same judgment, Rule 11 requires that once the offer or bid is accepted by the Council, it shall not be repudiated after entering into agreement. No such power is expressly or impliedly conferred upon the Nazim. According to Rule 13, which is not referred to by the learned counsel for the petitioner or respondents, as soon as the confirmation from the council about the acceptance of bid is received, the Local Government Administration shall communicate the acceptance of the bid to the contractor. It is hinted at that the Local Government has not been bound in the similar way by acceptance of the Nazim, the way it has been bound by confirmation of the council. In the light of the above discussion, it is further held that a bid accepted after first attempt or third attempt is not complete unless the procedure given under Rules 11 and 13 is completed. Briefly, the procedure given in the above discussed rules can be summarized. Chapter-3 provides legal basis for different stages of procedure of awarding contracts. The whole procedure given in Chapter-3 is essential to complete a process for granting of any valid contract. Once the procedure under Rule 10 is completed, offer of the highest bid equal to reserve price or above, the matter is referred to the respective Nazim to place it before the Council concerned within 10 days of receipt of bid for confirmation. According to sub-rule (2) of Rule 11, even there is a restriction on the Council to confirm the bid, it can only confirm the bid if it is reasonable and there was no scope of its further enhancement. Sub-rule (3) of Rule 11 further clarifies the situation while mentioning that council shall have full powers to accept or reject the bid duly recommended by the local government administration for the reasons to be recorded in writing.
The language of Rule 13 further strengthens the above view which reads as under:--
"As soon as the confirmation from the council about the acceptance of bid or offer is received, the local government administration shall communicate the acceptance of bid or offer to the contractor immediately by a letter through special messenger."
The learned counsel for the petitioner was, probably not aware that through Notification No. SOV(LG)5-23/2003, dated 3.6.2008, amendment has been made in sub-rule (5). And new sub-rule (6) has been added. Now according to sub-rule (5), if the Council accepts, an offer or bid of a contract and enters into an agreement with the contractor, it shall not repudiate the agreement. In sub-rule (6) it has been provided that if the Government is satisfied that the auction has not been conducted in accordance with the rules or in a transparent manner, it may repudiate the agreement and the responsible officer may be proceeded against under the law. The reading of these two sub-rules shows that Council cannot repudiate the agreement once Council accepts an offer or bid of contract and enters into an agreement with the contractor. It does not mention any role in the above context of a Nazim. Moreover, under sub-rule (6) Government has been empowered to repudiate the agreement even after acceptance of offer or bid by the Council and entering into an agreement with the contractor. Again no mention is made of Nazim in context of the authority, competent to accord final acceptance/ approval or repudiation of the agreement.
"We are, therefore, of the view that by merely participating in the auction and giving the highest bid the appellants did not acquire any vested right to get their bid accepted as the highest bid in the auction was subject to the approval of Zila Council which at the relevant time was not functioning and the highest bid send to she Government for approval was rejected by the Minister for Local Government for cogent reasons directing re-auction of the lease right." (Javed Iqbal Abbasi Vs. Government of Punjab, 1998 SCMR 1433).
In my humble view, the above referred judgment of the Hon'ble Supreme Court clinch the proposition that merely by participation in an auction and giving the highest bid, one does not acquire any vested right.
As a result of above discussion, reasons/grounds, this writ petition is dismissed.
(A.A.) Petition dismissed.
PLJ 2010 Lahore 607
Present: Ijaz ul Ahsan, J.
ABDUL RASHEED--Petitioner
versus
ABDUL LATEEF--Respondent
C.R. No 1985 of 2009, decided on 5.11.2009.
Transfer of Property Act, 1882 (V of 1882)--
----S. 54--Sale deed--Validity--Where the sale-deed had not been challenged for a long time the same fact would go against the petitioner's stance. [P. 610] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 2(e)--Facts corroborated by documentary evidence could not be rebutted. [P. 610] B
Contract Act, 1872 (IX of 1872)--
----S. 17--Fraudulent transaction--Plea of--Prove--Where the petitioner could neither prove that the funds used to purchase the suit property were provided by/belonged to him nor could he explain the retention of title documents of the property by the respondent without any challenge or protest of any nature by him for a long period of time the plea of fraudulent transaction could not be supported. [P. 610 & 611] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1--Issues not claimed during trial--Such issues could not be raised in appeal. [P. 611] D
Administration of Justice--
----Where no misreading or non-reading of evidence could be demonstrated before the Court that could have materially affected the outcome of the case, no interference in the findings of the lower Courts could be done--Petition was dismissed. [P. 611] E
Ch. Muhammad Iqbal, Advocate for Petitioner.
M/s. Muzammal Akhtar Shabbir and Kh. Nasir Mahmood Butt, Advocates for the Respondent.
Date of hearing: 5.11.2009.
Order
The petitioner assails judgment and decree dated 09.10.2008 passed by the learned Civil Judge, Wazir Abad through which the suit for possession filed by the respondent was decreed in his favour. The said judgment and decree was assailed in appeal, but the same was dismissed on 14.09.2009.
Facts leading to the filing of the suit have elaborately been set out in the judgment of the learned trial Court and may not be reproduced in extenso in this judgment. However, by way of a brief background the important facts are being given for appreciation of the background of the controversy. The parties are real brothers. They had migrated from India at the time of partition and were allotted property measuring 18 Acres in Sheikhupura. The property in question was sold in 1968 and the parties moved to Ali Pur Chattha. The respondent purchased House No. 686/H at Ali Pur Chattha and started residing there. Apparently parties were living together till then. According to the case of the Respondent H. No. 686/H proved to be inadequate for the two families. Therefore, the petitioner was allowed to move with his family to House No. 859 situated at Ali Pur Chattha, which had been purchased by the respondent on 26.07.1974 through a duly registered sale-deed. There is divergence in the claims of the parties as to when the petitioner shifted to H.No. 859. While the petitioner claims that he has been in possession since 1980, the respondent's claim is that the house in question was given for temporary use to the petitioner about 10/12 years before filing of the suit. The respondent subsequently asked the petitioner to vacate House No. 859, which request was refused. This led the respondent to file the aforesaid suit against the petitioner.
The defence taken by the petitioner was that the house belonged to him because both the properties i.e. H.No.686-H and H.No.859 were purchased with the money received from the sale of the property in Sheikhupura. Although the property was in the name of the respondent, it was a benami transaction because he was the real owner. He further took the stance that on account of a family settlement, it was agreed that H.No.686-H would be retained by the respondent and H.No. 859 would be given to the petitioner. The petitioner accordingly took possession of the same. The petitioner alleges that the family settlement took place in 1980.
It has been argued on behalf of the petitioner that no independent witness was produced by the respondent before the trial Court in support of his claim. He further submits that the witnesses produced by the petitioner as well as the respondent directly or indirectly admitted the fact of a family settlement. He further submits that while the learned subordinate Courts gave findings regarding the question of limitation and issue of the petitioner holding the property as a licensee, no issue was framed in this regard. He, therefore, submits that to such extent the findings of the learned subordinate Courts are illegal and are liable to be set aside. The learned counsel for the petitioner has also drawn my attention to the evidence of DW2 Riaz Hussain to argue that although he specifically stated that the family settlement had taken place in his presence, he was not specifically cross examined on the point which had the consequence of admission of the said fact on the part of the respondent. It was further pointed out that the respondent had not at any stage disclosed any source of income on the basis of which the property in question could have been acquired by them.
5. On the legal plane the learned counsel relied upon Shaukat Nawaz Vs. Mansab Dad and another (1988 SCMR 851), Jan Muhammad Khan Vs. Shah Mir Hussain and others (1985 SCMR 2029) and Nazir Ahmad and another Vs. M. Muzaffar Hussain (2008 SCMR 1639) to submit that concurrent findings of fact can be interfered with in exercise of revisional jurisdiction where there is misreading of evidence or the learned subordinate Courts have arrived at wrong conclusions on the basis of misreading of documents on record.
The learned counsel for the respondent on the other hand has pointed out that even according to the version of the petitioner, the joint property was sold in 1968. It is evident from the record that the suit property was purchased on 26.07.1974. He argued that there was nothing on record to show why the petitioner let the money stay with the respondent for six years without asking for it. It is further argued that the most important, material and pivotal question to support the defence of the petitioner was proof of family settlement. He submitted that the petitioner alleged a family settlement and based his claim on the suit property on such family settlement. Yet he did not appear in the witness box to testify about the same. He referred to Article 129 of Qanun-e-Shahadat Order 1984 to assert that where the best evidence is withheld an adverse presumption can be drawn against a person withholding such evidence.
The learned counsel added that the plea of Benami transaction had no real basis. The petitioner neither alleged nor produced any original document relating to the suit property. As per requirement of proof of Benami transactions the petitioner did not produce any proof of having provided the funds which were used to purchase the aforesaid property. No explanation was given as to why he did not claim title documents of the property or his share of sale proceeds of Sheikhupura property. The learned counsel finally argued that the petitioner was in occupation of the suit property as licensee of the respondent and when he was asked to vacate the property, as an after thought, he raised the plea of a family settlement after a lapse of 30 years. He finally submitted that duly registered sale-deed dated 26.07.1974 in favour of the respondent had not been challenged before any forum to date.
I have heard the learned counsel for the parties at length. The most material issues in the matter were Issues No. 1 and 2. Onus to prove Issue No. 1 was on the respondent and it related to the question whether the respondent was owner of the suit property and possession of the same by the petitioner was in the capacity of a licensee. The onus to prove Issue No. 2 was on the petitioner, who was required to establish that he was actually owner of the suit property and the respondent was merely an ostensible owner of the same. I have perused the evidence produced by the parties with the assistance of the learned counsel for the parties. The respondent produced evidence to show that he had purchased the suit property from Imam Din on 26.07.1974. He got the property vacated from Mst. Ghafooran Bibi and had let the petitioner use the same on temporary basis till such time that he constructed his own house. The said statement was supported by the documents including copy of registered sale-deed Ex.P4, documents relating to ejectment petition Ex.P5 to Ex.P8 and mark A.
The petitioner was required to prove that the sale price of 18 Acres of land in Sheikhupura was retained by the respondent and that both the aforesaid properties including the suit property were purchased with the said funds. He was further required to establish that there was a family settlement through which H.No. 859 was by mutual consent given to the petitioner. A perusal of evidence shows that no affirmative evidence was produced by the petitioner in support of the aforesaid two propositions. Admittedly, the suit property is registered in the name of the respondent since 1974 and knowledge of this fact has nowhere been denied by the petitioner. There is no explanation forthcoming to the question why the petitioner kept quiet regarding his share in the sale proceeds of Sheikhupura property or the fact that the sale-deed had been registered in favour of the respondent. The fact that the sale-deed has not been challenged, also goes against the petitioner's stance, who has failed to challenge the validity of the sale-deed for about 35 years.
The learned counsel for the petitioner tried to find support from the evidence of DW-1 relating to the fact of private partition on account of failure on the part of the respondent to cross-examine the witness on that issue. However, in my opinion the said omission is not enough to dislodge the case based upon documentary and affirmative evidence produced by the respondent in his favour. Further the petitioner did not succeed in substantiating his assertion that the whole amount relating to sale of agricultural land situated at Sheikhupura was received by the respondent and the same was utilized for the purchase of the suit property. Likewise the petitioner could not support his plea that the respondent had fraudulently got transferred the suit property in his name and that his title deed represented only Benami transaction. The petitioner was neither successful in proving that the funds used to purchase the suit property were provided by/belonged to him nor could he explain retention of title documents of the said property by the respondent without any challenge or protest of any nature against such retention on his part for about 35 years.
As far as the question of failure on the part of the trial Court to frame issue regarding questions of limitation, Benami transaction and family settlement are concerned, these do not vitiate the proceedings specially so where the petitioner all along had the opportunity to seek framing of additional issues. Such opportunity was never availed. This plea cannot in my opinion be raised at this belated stage under the facts and circumstances of the present case.
In view of the above discussion and on the basis of preponderance of oral and documentary evidence in favour of the respondent, I am not persuaded to interfere in the findings of the lower Courts. No misreading or non-reading of evidence has been demonstrated before me that could have materially affected the outcome of the suit. I find that there is no illegality or material irregularity in the findings of the learned subordinate Courts. Therefore, this petition fails and is accordingly dismissed.
(A.A.) Petition dismissed.
PLJ 2010 Lahore 611 [Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
EX. PSS LIEUT COLONEL MASUD MAHMUD--Petitioner
versus
FEDERATION OF PAKISTAN, FEDERAL GOVERNMENT through Secretary Ministry of Defence Rawalpindi Cantt.--Respondent
W.P. No. 1419 of 2008, heard on 16.7.2009.
Pakistan Air-Force Act, 1953--
----S. 121(2)--Contitution of Pakistan, 1973, Art. 199(1)(A)(ii)--Constitutional petition--Punishment of a person for an offence committed by him under PAF Act--Petitioner while serving as a major in Pakistan Army was seconded to PAF and was reverted to Pakistan Army--Validity--A person would not be tried for such an offence unless his trial commences within six months of the date he ceases to be subject to PAF Act--After expiry of six months from the first reversion of his client from PAF to Pakistan Army the bar contained in S. 121 (2) would become operative and notwithstanding the fact that he was subject to PAF Act--When the trial commenced the bar would remain effective--A person would either be subject to PAF Act, when he is tried for an offence committed under the Act or six months had not elapsed since his ceasing to be so subject to PAF Act--Petition was dismissed. [Pp. 613 & 614] A & B
Col. (Retd.) Muhammad Akram, Advocate for Petitioners.
Mr. Babar Ali, Standing Counsel, with M. Junaid Cheema, Flying Officer, AHQ, Peshawar for Respondents.
Date of hearing: 16.7.2009.
Judgment
The petitioner while performing his duties as a Wing Commander in the Medical Administrative Wing of PAF Base, Lahore, was charged with several offences mentioned in charge sheet dated 30.1.2002. The charges were formally read over to the petitioner on 6.2.2002 by a Field General Court Martial convened to try the petitioner. The trial accordingly commenced and ultimately the petitioner was found guilty of the second and, third charges and was sentenced to simple imprisonment for two months as also dismissal from service. An appeal filed, against the said conviction and sentence was dismissed by the Court of Appeals.
Learned counsel for the petitioner contends that the offences are stated to have been committed during the period January to June, 2000 while he was on secondment to PAF. He was, however, reverted to Pakistan Army w.e.f. 18.9.2000 vide Annex-B whereas the trial commenced against him on 6.2.2002. The precise contention is that he could not have been tried by the FGCM in view of the bar contained in Section 121(2) of the Pakistan Air Force Act, 1953, after six months of his reversion to the Army. Also refers to Section 2(e) read with Section 3 of the said Act of 1953. Learned Standing Counsel for Pakistan, on the other hand, draws my attention to Annex-C to the writ petition by which order the petitioner who by then had been promoted as a Lt. Colonel in the Pakistan Army was again posted to the PAF Base, Lahore, w.e.f. 9.11.2001. His contention is that when the trial commenced the petitioner was subject to the provisions of PAF Act, 1953 and the trial the conviction and the sentence recorded are with jurisdiction.
I have given some thought to the respective contentions of the learned counsel and the learned Law Officer and have examined the file in the light of the said provisions of law being relied upon by the learned counsel for the petitioner The petitioner while serving as a Major in the Pakistan Army was seconded to PAF in the corresponding rank of Squadro Leader vide Annex-B. He was reverted back to Pakistan Army w.e.f. 25.9.2000. Vide Annex-A he was promoted as a Lt. Colonel w.e.f. 6.10.2000. Vide Annex-C he was again seconded PAF at PAF Base, Lahore w.e.f. 12.11.2001. The trial, as noted above, commenced before the FGCM on 6.2.2002.
The precise contention of the learned counsel for the petitioner is that under Section 2(e) of the PAF Act, 1953, the petitioner upon secondment was a person subject to PAF Act, 1953. However, the application of the said Act of 1953, terminated on 25.9.2000 when he was sent back to the Pakistan Army and according to the learned counsel in terms of Section 121(2) of the said Act, the petitioner could not have been tried for an offence after six months of the said date.
The learned Standing Counsel, on the other hand, is of the opinion that since the petitioner was, in fact, subject to PAF Act, 1953, on the date when the trial commenced, the bar contained in Section 121(2) of PAF Act, 1953, would not be applicable.
I deem it appropriate to reproduce hereunder the relevant sub-sections (1) and (2) of the said Section 121:--
"121. Liability of offender who ceases to be subject to Act.--(1) Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in Air Force custody, and tried and punished for such offence as if he had continued to be so subject.
(2) Except as provided by sub-sections (3) and (4) any such person shall not be tried for an offence, unless his trial commences within six months after he has ceased to be subject to this Act."
It will be seen that sub-section (1) is an enabling provision inasmuch as it enables the respondent to take into custody and try and punish a person for an offence committed by him under the said Act while he was subject to the Act at a point of time he ceases to be so subject. Sub-section (2) lays down the limitation i.e. that such a person shall not be tried for such an offence unless his trial commences within six months of the date he ceases to be subject to the said Act. According to the learned counsel for the petitioner, after the expiry of six months from the first reversion of his client from PAF to Pakistan Army, the bar contained in Section 121(2) shall become operative and notwithstanding the fact that he was subject to the PAF Act, 1953, when the trial commenced the bar would remain effective.
I am unable to agree with the learned counsel. On a proper interpretation what is required is that a person should either be subject to the PAF Act, 1953, when he is tried for an offence committed under the Act or six months had not elapsed since his ceasing to be so subject to the said Act.
This is the natural consequence flowing from the fact that it is necessary that the offence must have been committed by the person committing the same while he was subject to the Act. Consequently according to the facts of the present case, there is no denial that the petitioner was subject to PAF Act, 1953 when the offences he was charged with were alleged to be committed and the same was the position when the trial commenced. The writ petition accordingly is dismissed but without any orders as to costs.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 614
Present: Ali Akbar Qureshi, J.
SALEEM-UR-REHMAN, ASSISTANT OFFICE OF THE CHIEF ENGINEER (NDP/CENTRAL), WAPDA, LAHORE--Petitioner
versus
WAPDA through its Chairman, Lahore and another--Respondents
W.P. No 14735 of 2003, heard on 7.5.2009.
Pakistan WAPDA Employees Medical Attendance Rules, 1979--
----R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Direction to provide necessary funds for treatment petitioner's son in abroad to Pakistan--Suggested treatment was not available in Pakistan--Entitlement for treatment abroad--Ward of employees--Age restriction--Where the son of the petitioner, a WAPDA employee, was injured when he was only about 18 or 19 years of age and eligible for medical treatment as per WAPDA Rule 17, the mere delay caused by litigation resulting in child becoming overage not cause enough to deny him the treatment--Petition was allowed. [P. 625] A
Mr. Shahzeb Masud, Advocate for Petitioner.
Mr. Khurshid Alam Ramay, Advocate for WAPDA.
Mr. M. Nasim Kashmiri, DAG for Pakistan for Respondent.
Date of hearing: 7.5.2009.
Judgment
The petitioner through this Constitutional petition is praying that the respondent (WAPDA) Authorities be directed to provide the necessary funds for the treatment of the petitioner's son in abroad because of the reason that the treatment as suggested by the medical experts is not available in Pakistan.
(i) Diffuse Head Injury /Compound Depressed Fracture.
(ii) Aspiration Pnenmonia
(iii) Hydrocephalus
(iv) Urinary Tract infection
The petitioner's son as diagnosed and observed by the Doctors of different hospitals, is unable to walk on his own, has a speak disorder and is on liquid diet since the year 2000. The petitioner's son remained admitted in different hospital for long time and ultimately it was advised by the Doctors, that the treatment of the petitioner's son is only available in abroad and if such facility is provided, the petitioner's son would be able to become independent and net contributor to the society.
Because of the above reason, the petitioner who is presently performing his duty as Assistant in the WAPDA Administration, filed an application under WAPDA Employees Medial Attendance Rules 1979 wherein it was prayed after making reference of the diagnosis of the Doctors; that petitioner's son is entitled to be medically treated in abroad at the expense of the WAPDA because of the reason that the treatment is not available as suggested by the doctor in Pakistan, The application of the petitioner was rejected by the WAPDA Authorities on the grounds that the medical treatment abroad is ban at public expenses since 1996, therefore, this facility cannot be extended to the petitioner's son. Although, the petitioner thereafter filed different applications being the father of a young child having age of 18/19 years but all in vain. As a last hope the petitioner filed the instant Constitutional petition on the basis of the medical rules applicable in such like cases. In response of the notice, the comments were filed wherein only one ground was urged that the Government has imposed ban, therefore, WAPDA authorities are unable to extend any help to the petitioner.
This Constitutional petition is pending before this Court since 2003, although it should have been decided on priority basis. Anyhow, in the month of March 2008, the respondent was directed to constitute a Board to ascertain fresh report from. Agha Khan Hospital, Karachi to decide the fate of the petitioner's son. The respondent, although, not in the time stipulated for the said purpose, obtained report, but anyhow, all the medical examination reports which would be subsequently referred while recording the findings, has advised, that the petitioner's son can only be medically treated in abroad.
Learned counsel for the petitioner contended that in view of the WAPDA employees Attendance Rules, 1979, the WAPDA employees and their children are entitled for medical treatment within the country and in abroad; the petitioner's son has been advised by many doctors and renowned Laboratories like Agha Khan Hospital that the treatment is only available in abroad; the petitioner has been denied the said facility simply on the ground of ban imposed by the Federal Government; the Federal Government as well as the WAPDA Authorities has extended this facility during the pendency of the ban to different bureaucrats, politicians and other high ups which is on the face of it is discrimination, therefore, the petitioner's son in any case is entitled for the facility prayed by the petitioner.
Contrary to the arguments advanced by the learned counsel for the petitioner, the learned counsel for WAPDA Mr.Khurshid Alam Ramay, Advocate, submitted that the instant Constitutional petition is not maintainable as the respondent-WAPDA has no statutory rules, the principle of master and servant is applicable; the petitioner's son has crossed the age of 25 years, therefore, is not entitled for the facility asked for; the WAPDA employees Medical Rules do not allow to the WAPDA Authorities to grant permission to treat medically abroad but in special cases and lastly that the medical expert has opined, that in any case, the petitioner's son would not be able to walk or to spent a normal life even after getting medical treatment in abroad, therefore, there would be no use to spend a huge amount on the treatment of the petitioner's son. Reliance is placed on Chairman, WAPDA and 2 others v. Syed Jamil Ahmed (1993 SCMR 346) and Pakistan Red Crescent Society and another v. Syed Nazir Gillian (PLD 2005 SC 806).
Heard. Record perused.
It is necessary to refer the medical history of the petitioner's son who is still on the bed since the year 2000, got medically examined by different doctors and on their advice by renowned laboratories to finalize the claim of the petitioner. On the direction of this Court, a medical board was constituted who ultimately referred the petitioner for test and report to the Agha Khan Hospital, Karachi to ascertain, whether the treatment of the petitioner's son is available in Pakistan. The petitioner's son underwent serious test including C.T. scan, MRI, etc by the Agha Khan Hospital in the year 2002 when it was prescribed which is as under:--
Treatment
He underwent a physical therapy assessment and has been advised about the exercises to do. He has been advised to gait training, co-ordination and balancing exercises as well as muscle strengthening exercises. Occupational therapists have advised on certain activities as well.
He had an ENT (otolaryngology) opinion. He underwent a full assessment including a fiberoptic endoscopic examination of his nose, naso-pharynx, oropharynx, and hypopharynx. He was found to have some edema of the arytenoids with the left vocal cord paralysed in the paramedian position. The right cord moves normally. There seemed to be excessive pooling of salive in the hypopharynx. The otolaryngology opinion was that there was enough glottic function for speech and the impediment was neurological.
He has been seen by a speech therapist/pathologist who has advised a training programme for him.
He also underwent barium swallow with video recording. (The X-Ray films are with him but the video is not.) He was seen by a cardio-thoracic surgeon along with the radiologist for this and it has been found that he has not strictures or physical blocks in the esophagus. Rather "neuromuscular incoordination" is the problem.
All of the above has been discussed with Shahzad and his parents.
Recommendations:
Shahzad has made a remarkable recovery due to his own will power and his parents' devotion and persistence who have not spared any expense to obtain the best treatment available for their son.
At present he had reached a level where any further improvement needs specialist facilities and treatments currently not available in Pakistan. These are as follows:--
(i) Speech therapy which may require electronic aids and possibly surgery to help the vocal cords and larynx to phonate better.
(ii) Botulinum toxin injections to treat the esophageal dyssynergia. (The injection itself is available locally but the expertise to carry out this procedure is not.)
(iii) A complete package of treatment by physical and occupational therapists to set him on the road to a fuller recovery of his hemiparesis.
I have impressed on the parents the fact that Shahzad has a very good potential for further improvement especially in his speech and swallowing. He will therefore is likely to benefit greatly if he is taken to a centre abroad dealing with such problems. They have already spent a lot of resources on him but he is one of those patients--young, intellectually bright and with the will to do better--who have the potential to become independent and a net contributor to society if they get the right treatment. Therefore, he should be given the opportunity to abroad for the above-mentioned specialist treatments.
Sub: TREATMENT ABROAD--LAHORE HIGH COURT ORDERS DATED 24.10.2008
Ref: Your Letter No. GM (C)W/Admn/PF-1204/5914-15 dated 20.12.2008 addressed to Director General (MS) Wapda Hospital Complex Lahore with copy to General Manager (C&M) Water.
In this regard copy of Director General (MS) Wapda Hospital Complex Lahore letter dated 5.1.2009 sent to this office directly in response to your letter under reference is enclosed herewith for comments.
It may be intimated that keeping in view comments of Director General (MS) Wapda, arrangements of funds has to be made by our office from the Authority by initiating the case at priority. Your recommendations for demand keeping in view cost effectiveness may be sent to this office at top priority so that the same could be forwarded to Ministry of Water and Power for further action please."
"4. Mr. Shehzad Saleem S/o Saleem-ur-Rehman, Sr.Superintendent.
DG MS informed that the above named patient has been receiving cost of special diet from the Authority since 1.4.2003 to 31.3.2006 and from 1.4.2006 onward from EMBF on yearly basis, Previously, the Managing Committee had observed that the provision of special diet is not a curative measure and the funds utilised on it may better be diverted to nay other patient who may have a fair chance of recovery. The Managing Committee had, however, approved financial assistance for further nine (9) months upto 31.12.2008.
As regard recommendations of G.M. (C&M) Water regarding treatment abroad at approximate cost of Rs.7.94 million from EMBE, the Managing Committee did not agree to extend any financial assistance in such cases where there are no chances of recovery, but the treatment is only to improve quality of life of die patient.
"Item-10: Treatment Abroad in respect of Mr. Shahzad Saleem s/o Saleem-ur-Rehman, Senior Superintendent -- Lahore High Court Orders dated 25.3.2009.
(GM(C&M)W/D(A)/ME/2008/E-II/2994-95 dt 31.3.2009)
Discussion
10.1. The Authority was apprised that Lahore High Court had directed to place the case of Mr.Shahzad Saleem before the Authority for consideration and grant the funds to the petitioner's son for his medical treatment abroad, 10.2. The Authority was further informed that the case is not covered under the Pakistan WAPDA Employees Medial Attendance Rules, 1979, Authority has earlier refused even the cases of liver transplant due to financial constraints and ban imposed by the Federal Government on treatment abroad. On the earlier direction of Lahore High Court dated 24.10.2008, the matter has already been referred to the Ministry of Water and Power for seeking approval of the President of Pakistan as per laid down procedure. In response Ministry of Water and Power has enquired that who will bear the expenses i.e. WAPDA or the individual.
10.3. Director General (Medical Services) WAPDA explained the case and indicated that the estimated expenditure for the treatment of patient at Charing Cross Hospital London, U.K including Air Fair, lodging and dairy allowance etc. would be Rs.7,944,316. He also explained that as per recommendations of the Consultants, Agha Khan University Hospital Karachi, the treatment of deep brain stimulation may only prove helpful in improving the quality of life whereas it is not curative procedure.
Decision
10.4. The authority considered the case and decided as under:--
a. The age of patient has exceeded 25 years and is not covered in the definition of the "family" under the Pakistan WAPDA Employees (Medical Attendance) Rules 1979. The views of the consultants of Agha Khan University Hospital Karachi do not support the treatment abroad.
b. Several cases of liver transplant etc. have been refused by WAPDA due to ban imposed by the Federal Government. However, on the Court direction and receipt of approved from the President of Pakistan, the arrangement of funds could be considered by the Authority. The Ministry of Water and Power and the Honourable Lahore High Court be apprised accordingly.
"I am directed to refer to the WAPDA's Letter No. GM(C&M)W/DG(CM)B/ME-2008/6272, dated 9th April 2009 on the above subject and to say that the applicant is a WAPDA employee, not a federal government employee. Therefore, WAPDA may find a way out to help their employee since they have WAPDA Foundation and so many other arrangements.
This issues with the approval of Additional Secretary, W&P.
Firstly, I would like to comment upon the medical reports of the renowned and well reputed hospital/laboratories of the country. All the report which annexed with this petition and also available with the petitioner as well as the respondent, confirm that the petitioner's son can only be medically treated in abroad as no such facility is available within the country and further if the said facility is given to the patient, he will definitely improve his health and would be able to become independent. The petitioner, as submitted by the learned counsel for the petitioner is on the bed since the year 2000, and his physical condition deteriorating day by day, his arm and hands are molding and twisting and if he was given the medical treatment as required, the life of the patient will definitely be improved, therefore, from all above, it is proved that the treatment of the petitioner's son is not available within the country.
The respondent while filing the parawise comments, has taken only one stance that the facility to treat medically abroad cannot be extended to the petitioner's son because the Federal Government has imposed ban as the WAPDA is the Government Department cannot violate the direction given by the Federal Government. On the direction of this Court, the matter was referred by the respondent to the Federal Government to place the case of the petitioner before the President of Pakistan for approval, the Ministry of Water and Power simply inquired from the respondent-Authority that who will bear the expenditures of the treatment, meaning thereby that the Federal Government is intended to relax the ban in the case of the petitioner's son. Thereafter the respondent, conducted two meetings, one of the Managing Committee Employees Medical Benevolent Fund and second the Authority meeting wherein the case of the patient was placed and finally decided as under:--
"that the respondent-Authority is ready to consider for the arrangement of funds if a direction is given by this Court or the Federal Government given any approval."
It is very strange rather deplorable to observe that the Authority of the respondent, who is Incharge of all the affair of this big organization could not comprehend firstly the physical condition of a young boy who met with the accident in the age of hardly seventeen years when he was student of FSc, is still on the bed since the year 2000, taking liquid food being provided by the WAPDA and the father of the patient who is an old employee of the WAPDA has filed the instant Constitutional petition in the year 2003, is bagging the life of his son from the WAPDA as well as this Court with the prayer to send his son abroad at the department's expenditure for treatment and lastly the Federal Government, in response of the letter written by the WAPDA-authority has not refused to lift the ban in the case of the petitioner's son, therefore, it was sufficient for the WAPDA-Authority to understand the urgency involved in this matter. The WAPDA-authority in the lastly meeting held on 8.4.2009, instead of allowing funds, put the burden on the shoulder of the Court as well as on the Federal Government. In fact, the respondent-authority by this way has refused to perform its statutory duty required by law which is in any case is not appreciable. The WAPDA-authority should have taken this credit, which was also permitted by law.
As regard the discrimination, the petitioner has placed on record the clipping of an English daily newspaper "DAWN" and Urdu newspaper daily "KHABRAIN" which shows that, the Federal Government during the pendency of the ban, allowed many persons obviously not a poor man, to get medical treatment abroad on the State expenses, which clippings are reproduced hereunder:--
"DAWN" Monday, October 29, 2007 Healthcare for all
The health of the nation may be dismal but the health of around 18 parliamentarians and government officials is stable thanks to the prime minister using his discretionary powers and lifting the ban on certain public officials' medical treatment abroad. As a result of this, the government spent Rs. 65 m on treating 18 `bigwigs' in foreign medial institutions, Granted some of the procedures are unavailable in the public sector hospitals in the country but most of the medical treatment could have taken place in private hospitals in Pakistan. That this was not good enough speaks volumes about the officials' faith in the health sector here. One minister's heart surgery in the UK was approved for 25,000 pounds while another minister was allocated a whopping 100,000 pounds for one-year treatment in Britain. A parliamentary secretary's son's treatment was allocated 50,000 pound while three children of a deceased secretary of the privatization commission are being treated in Saudi Arabia for multiple injuries caused in a road accident, for whatever costs. Meanwhile the public per capita health expenditure is a partly Rs. 360. Something is terribly wrong with this picture.
How can the prime minister approve huge sums to treat a few individuals when hundreds of millions of people do not have access to the most basic of healthcare in the country? It is said that the sum of Rs 65m could have run a tertiary care hospital for one year Statistics on maternal and child morality are grim; children should not be dying of diarrhoeal diseases that can be prevented if there is access to clean drinking water. Basic health care units in the rural centers are barely equipped to deal with emergencies, let alone treat any one for complicated ailments. The ban was a good thing and should stay, exceptions being rare rather than the norm. To do so otherwise would be criminal. The government should be increasing its budgetary allocation to health, not curing a few individuals."
"KHABRAIN" Wednesday, August 14, 2008
When this was confronted to the Deputy Attorney General, appealing on behalf of the Federal Government, who could not rebut the same but submitted that in case, the WAPDA Authority bears the expenses of treatment, the Federal Government would have no objection to consider sympathetically the case of the petitioner. The aforesaid instances of discrimination are sufficient to conclude, that had the petitioner be a big gun of the Department or the influential person of the country, would have get the permission along with the expenditure but unluckily, the patient is son of the clerk and has no say in the Department or in another quarters of the Federal Government. The discrimination is not being only meted out by the Federal Government but also by the Department who borne expenditure of few officers who were treated medically abroad. As regard the maintainability of the instant Constitutional petition, it is suffice to observe that the petitioner who is an employee of the WAPDA, has filed this Constitutional petition for the implementation of the medical rules applicable in this case. Even otherwise, in such like cases, where the discrimination is being meted out by the Department, with the poor patient and further admittedly the WAPDA is creation of an Act duly passed by the Parliament, therefore, the rules framed under the WAPDA Act, 1850, had a legal backing and force behind it, therefore, the Constitutional jurisdiction can be exercised thus the petition is maintainable.
"\\\ 17 Permanently and totally incapacitated/crippled children of serving, retired and deceased Wapda Employees, who are not able to earn their living, will be allowed medical treatment irrespective of their age. The treatment will be limited to whatever is available in Wapda Hospitals/Dispensaries where the patient is registered. However, the patient may be referred to nearest Wapda Hospital for hospitalization, if needed. The disability will be certified by Wapda Central Medial Board."
As regards, the treatment in abroad, the WAPDA has framed rules known as "The Wapda Employees (Treatment of Chronically Sick Persons) Rules, 1967 wherein a complete procedure has been given to sent abroad of a patient for treatment. The petitioner's son, who has already undergone many test and examination and has also been referred by the renowned specialist of the country, that the treatment of the petitioner's son is only possible in abroad. Certainly, this is the reason, the WAPDA in its Authority meeting keeping, in view all the Rules mentioned above, has finally concluded that the respondent-WAPDA will consider to arrange fund for treatment of the petitioner's son, if the Federal Government allows or this Court pass any direction.
The Deputy Attorney General for Pakistan Mr. M. Nasim Kashmiri, on Court's call appeared, filed his reply and also assisted the Court after obtaining instructions from the concerned quarter and filially submitted, that if the respondent-WAPDA bears the expenditure, as inquired by the Federal Government in a letter dated 1.12.2008, the case of the patient to lift the ban will sympathetically considered, therefore, it appears that the Federal Government would have no objection to lift the ban, if still in field, in the case of the petitioner's son.
As the instant case is related to son of the WAPDA employee who is on the bed from the last seven or eight years and taking liquid feed, therefore, it would be beneficial to be guided and fortified by a judgment given by my Lord, the Chief Justice of Pakistan while dealing a human rights case No. 3404/2006. In the said case, my Lord taken suo moto action in a case relating to a minor whose both arms had amputated due to electric shock. In the said case, the Chief Executive FESCO appeared and stated "that WAPDA Authority, if needed, shall arrange the treatment of the minor in abroad at the expense of the WAPDA Authority, In the present case, the patient is the son of a WAPDA employee who is otherwise entitled to be medically treated in abroad.
As regard, the discrimination on the part of the respondent-WAPDA and the Federal Government, numerous instances have been quoted and those are sufficient to prove the discriminatory treatment being meted out with the petitioner's son, On this point, suffice to refer Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under:--
"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 alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
Further, this proposition has finally been settled in plethora of judgments that no body should be treated discriminatory.
(A.A.) Petition allowed.
PLJ 2010 Lahore 627
Present: Syed Asghar Haider, J.
Ch. IFTIKHAR AHMAD and another--Petitioners
versus
Ch. BABAR ALI and 4 others--Respondents
W.P. No. 698 of 2007, heard on 13.4.2009.
Punjab Local Government Election Rules, 2005--
----R. 67(2)(i)--Constitution of Pakistan, 1973, Art. 199--Disqualification was notorious--Preponderance of evidence to establish that petitioners did not declare their correct assets--Challenged the validity of the election by filing an election petition--Evidence of highest quality should have been produced--Validity--No credible or even tangible evidence to establish and disqualification of the petitioners was notorious--Distinction has to be clearly drawn, concealment of assets that doctrine of throw away votes are distinguishable acts and thus are required to be proved independently--Matter that most important aspect was neither considered nor discussed--No direct evidence to establish notoriety resulting into invoking doctrine of throw away votes, there is also no reference to precedents--Controversy was not appreciated properly--No witness of respondent deposed on these lines--Clear error of law was committed by tribunal, which cannot sustain--Petition was allowed. [P. 629] A & B
2007 SCMR 1044, 2006 SCMR 1495, PLJ 2003 SC 456, 2004 SCMR 1084 & PLD 2006 78, ref.
M/s Khalid Jamil and Mr. Aurangzeb Chaudhry, Advocates for Petitioner.
Mr. Muhammad Ilyas Sh., Advocate for Respondents No. 1 and 2.
Date of hearing: 13.4.2009.
Judgment
The petitioners contested the election of Nazim and Naib Nazim for Union Council No. 13 Rawal Town, Rawalpindi and were declared successful, a notification was accordingly issued. The respondents No. 1 and 2 challenged the validity of the said election by filing an election petition, it also was prayed therein that they be declared as returned candidates, the petitioners contested the election petition denying the assertions, of the divergent pleadings of the parties, following issues were framed:--
Issues:-
Whether the election petition is liable to be dismissed in view of preliminary objection No. 1?OPR.
Whether the election of the returned candidates (respondents No. 1 and 2) is liable to be declared as void on the grounds mentioned in the petition? OPP.
Whether the petitioners are entitled to be declared as elected candidates to Union Council No. 13 Rawalpindi? OPP.
Relief.
The parties were put to trial and thereafter the Election Tribunal accepted the election petition, disqualified the petitioners and went further to declare the respondents No. 1 and 2 as elected Nazim and Naib Nazim of the constituency, aggrieved thereof, the present petition.
Shaukat Ali and another Vs. District Returning Officer and another (PLD 2006 SC 78)
Sh. Amjad Aziz Vs. Haroon Akhtar Khan and 10 others (2004 SCMR 1484)
Ellahi Bakhsh Vs. District and Sessions Judge, Rajanpur and others (PLJ 2003 SC 456)
Muhammad Saeed Awan and another Vs. District Returning Officer, Attock and others (2006 SCMR 1495), Sardar Muhammad Amir Khan Vs. Nadeem Akhtar and others (2007 SCMR 1044).
Conversely, the learned counsel for the respondents contended that the impugned judgment is in consonance with law and evidence tendered, issues were framed in presence of the parties, they led evidence and there is irrefutable evidence on record to establish doctrine of notoriety and throw away votes to the respondents' advantage, the petitioners concealed their assets and were therefore rightly disqualified.
Heard.
There is preponderance of evidence to establish that the petitioners did not declare their correct assets, the evidence of PW1, record keeper Excise and Taxation Department alone is sufficient in this context, thus the election of the petitioners was rightly nullified by the Election Tribunal, therefore, the same warrants no interference. However, as far as the exercise of power as contained in Rule 67(2)(i) of the Punjab Local Government Election Rules declaring the respondents No. 1 and 2 as elected Nazim and Naib Nazim is concerned, this power has not been properly exercised.
The sine qua non for the declaration in terms of the provisions contained above, is, that the same should be established by positive, incontrovertible and direct evidence that the disqualification is notorious, therefore evidence of highest quality should have been produced in this context by the respondents. Perusal of evidence tendered and deposition made as contained in the contents of the impugned order do not match this benchmark. There is no credible or even tangible evidence to establish that disqualification of the petitioners was notorious. A distinction in this context has to be clearly drawn, concealment of assets and the doctrine of throw away votes are distinguishable acts, and thus are required to be proved independently, in the present matter this most important aspect was neither considered not discussed. Reference Muhammad Amin Khan vs. Nadeem Akhtar and others (2007 SCMR 1044). Thus, it is unfortunate that while deciding this question, the Tribunal did not advert either to the evidence or law on the subject. Appraisal of the impugned judgment reflects that there is no direct evidence to establish notoriety resulting into invoking doctrine of throw away votes, there also is no reference to the precedents referred to (supra), thus the controversy was not appreciated properly. Additionally, no witness of the respondents deposed on these lines, in these circumstances, a clear error of law was committed by the Tribunal, which cannot sustain.
Resultantly, this petition is partly allowed, while upholding the disqualification of the petitioners, the election of respondents No. 1 and 2 is set aside and the election is declared void, as a whole.
(R.A.) Petition allowed.
PLJ 2010 Lahore 630 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
Mst. RIZWANA KAUSAR--Petitioner
versus
ADDITIONAL DISTRICT JUDGE MULTAN and 2 others--Respondents
W.P. No. 9431 of 2009, decided on 17.5.2010.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for restitution of conjugal rights, dismissal of--Challenge to--First Appellate Court reversed the findings of Family Court--Petitioner did not prove by producing cogent evidence--Produced sufficient evidence to prove that no divorce was ever given by plaintiff and agricultural land was given in Haq Mehr--Validity--High Court did not find any infirmity in judgment and decree which was based on cogent reasons--Findings of the Court of competent jurisdiction cannot be disturbed by High Court in writ jurisdiction--Petition was dismissed. [P. 632] A
PLD 1986 Quetta 290.
Mr. S.M. Tahir Jamal, Advocate for Petitioner.
Mr. Muhammad Arif Alvi, Advocate for Respondents.
Date of hearing: 10.5.2010.
Order
Through this Constitutional petition petitioner Mst. Rizwana Kausar, wife of Mian Muhammad Ismail, seeks setting aside of the judgment and decree dated 30.10.2009 passed by the learned Additional District Judge accepting the appeal of the respondent, filed against the judgment and decree dated 28.07.2009, whereby the learned Judge, Family Court, Multan had dismissed the suit of the respondent for restitution of conjugal rights. The petitioner further prayed for restoration of the judgment and decree of the learned trial Court.
Brief facts of the case are that Respondent No. 3 Mian Muhammad Ismaeel brought a suit for restitution of conjugal rights against the petitioner on 27.10.2008 in the Family Court, Multan. The petitioner lady contested the suit by filing her written reply raising certain preliminary objections. She also took the plea that she had been divorced by the respondent and she was no more wife of the respondent-plaintiff. She also controverted the other facts.
Out of the divergent pleadings of the parties, the learned trial Court framed the following issues:--
Whether the plaintiff is entitled to get a decree for restitution of conjugal rights? OPP.
Whether the plaintiff has divorced the defendant? OPD
Whether the suit is liable to be dismissed in view of preliminary objection No. 3? OPD
Relief.
The respondent-plaintiff himself appeared as PW-1 in evidence and also produced one Abdul Hassan as PW-2, Shahzad Haider as PW-3 and Ahmad Rabani as PW-4. They placed on the record their affidavits as Exh.P.1 to Exh.P.4 Marriage invitation card of Fatima Ismail (daughter of the plaintiff and the defendant) as Exh.P5, telephone bill as Exh.P.6, attested copy of suit titled Muhammad Ismail vs. Rizwana Kausar filed in the Court of Mr. Khuram Shahzad, Civil Judge, Multan, as Exh.P.7, photocopy of Mutation No. 1103 in favour of the petitioner-defendant lady as Mark-A, photo copy of plaint titled as Fatima Ismail vs. Rizwana Kausar as Mark-B and written statement in the suit as Mark-C. To rebut the claim of the plaintiff-respondent, Mst. Rizwana Kausar, petitioner-defendant appeared as DW-1. In documentary evidence she placed her affidavit on the record as Exh. D-1. The learned Judge, Family Court dismissed the suit of the respondent for conjugal rights vide judgment and decree dated 28.07.2009.
Learned trial Court decided Issue No. 1 against the plaintiff-respondent by observing that the defendant-petitioner has stated on oath that she had been divorced by the plaintiff-respondent in August 2007. Learned trial Court further observed that she being Muslim her simple statement to this effect is enough for presumption of dissolution of marriage between the couple. Issue No. 2 was decided in favour of the defendant by observing that statement of the defendant lady is sufficient to establish the divorce in her favour. In appeal filed by the respondent against the said judgment and decree of the Family Court, the learned Additional District Judge vide judgment and decree dated 30.10.2009, reversed the findings of the learned trial Court on Issues Nos. 1 and 2 by observing that:--
"The marriage of the parties was coupled with lot of monitory benefits, which are still with the respondent-defendant and simple statement on the part of respondent that she was divorced is not sufficient. She has not brought on record any other independent witness which could corroborate her statement while the evidence of the appellant-plaintiff is sufficient to conclude that plaintiff did not divorce the respondent and she is still wife of the appellant."
On Issue No. 3, the learned first appellate Court reversed the finding of the learned trial Court by observing that the learned trial Court erred in evaluating the evidence of the respondent-defendant, and that the suit for restitution of conjugal rights was very much competent.
Learned counsel for the petitioner-defendant lady fully supported the judgment and decree passed by the learned Judge, Family Court dismissing the suit of Respondent No. 3.
Learned counsel for the respondent-plaintiff contended that the petitioner-defendant to grab the property given in Haq Mehr has put forth the plea of divorce; that no divorce was given by the respondent to the petitioner and she could not prove by producing independent evidence that she had been divorced. Places reliance on the cases reported as Allah Dad vs. Mukhtar and another (1992 SCMR 1273).
I have heard the learned counsel for the parties and perused the file. The learned Additional District Judge has rightly reversed the findings of the learned Judge Family Court on Issues Nos. 1 and 2. The petitioner-defendant did not prove by producing cogent evidence that she was divorced by the respondent. She did not produce any other evidence to corroborate her statement made by her as DW-1. On the other hand, the respondent-plaintiff has produced sufficient evidence to prove that no divorce was ever given by the respondent-plaintiff to the petitioner-defendant and agricultural land was given to her in Haq Mehr which is still in her name. Therefore, I do not see any infirmity in the judgment; and decree of the learned Additional District Judge which is based on cogent reasons. The well reasoned findings of the Court of competent jurisdiction cannot be disturbed by this Court' in writ jurisdiction. Reliance is placed on a Division Bench judgment reported as Mst. Zulekhan vs. Noor Muhammad and another (PLD 1986 Quetta 290), wherein it is held that. "High Court would not resolve in Constitutional jurisdiction, controversial question of fact nor in such capacity it would disturb inference drawn by competent Court/Tribunal having jurisdiction, and based on some evidence, such matters were not amenable to writ jurisdiction of High Court." Learned Division Bench relied on the following reported cases:--
Aali vs. Additional District Judge, Quetta and others (1986 CLC 27), Muhammad Saeed Khan v. Election Tribunal and 11 others (1986 CLC 735) and Mst. Seema Ashfaq vs. Additional District Judge and others (1985 CLC 878).
(R.A.) Petition dismissed
PLJ 2010 Lahore 633 [Multan Bench Multan]
Present: Tariq Javaid, J.
MANSOOR ALI QURESHI--Petitioner
versus
SHO etc.--Respondents
W.P. No. 6639 of 2010, decided on 28.6.2010.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 195(1)(c) & 22-A--Constitutional petition--Order passed by Justice of Peace was unexceptionable to extent of offence complained of relating to forgery--Application u/S. 22-A, Cr.P.C. was rejected on the ground that civil litigation was pending between the parties and u/S. 195(1)(c), Cr.P.C. a forged document was presented was vested with the power to register a case--While petitioner was abroad his signatures were forged and an agreement to sell was made--Document was examined by Forensic Science Laboratory as well as by handwriting expert and signatures were found to be forged--Validity--Justice of Peace failed to notice another aspect of the case--Complainant had not only made grievance of offences as enumerated in S. 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case u/S. 419, 420 of PPC--Offence u/Sections are distinct from the offence of forgery--These offences do not fall within purview of S. 195(1)(c) Cr.P.C.--Order passed by Justice of Peace impugned was not sustainable to this extent--Offence complained of u/S. 419 & 420 of PPC being distinct offence from the offence of forgery--Justice of Peace was not justified in passing the impugned order. [Pp. 637 & 638] A & B
Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.
Date of hearing: 28.6.2010.
Order
This writ petition is directed against order dated 22.6.2010 passed by the learned Justice of Peace, Sahiwal whereby application filed by the petitioner under Section 22-A Cr.P.C. was rejected on the ground that a civil litigation is pending between the parties and under Section 195(1)(c) Cr.P.C., only the Court before whom a forged document is presented was vested with the power to register a case against the accused.
The brief facts of the case are that the petitioner has claimed that while he was abroad his signatures were forged and an agreement to sell was made by the respondents. The document was examined by the Forensic Science Laboratory as well as by the handwriting expert and his signatures were found to be forged. Hence, he filed application for registration of case. The learned Justice of Peace came to the conclusion that since the civil litigation is pending, the trial Court under Section 195(1)(c) was empowered to get the case registered as such application under Section 22-A Cr.P.C. was dismissed.
The learned counsel for the petitioner has relied upon the case of Muhammad Shafi versus Deputy Superintendent of Police (PLD 1992 Lahore 178) and maintained that since the forgery was committed before initiation of the civil litigation, the civil and criminal proceedings could continue at the same time. The Full Court at Page 197 observed as under:--
"As the two interpretations of clause (c) of sub-section (1) of Section 195 of the Cr.P.C. are so evenly balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the right of redress must be adopted. On that view of the matter also, the view that clause (c) of sub-section (1) of Section 195 of the Cr. P. C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should, in my opinion, be preferred."
However, the above view has though been followed in number of cases, yet it appears to be distinguishable as an attempt appears to have been made to make an inroad to circumvent the statutory provision which otherwise requires to be interpreted on the established principles of statutory interpretations. Moreover, the reasoning given in para 21 of the judgment also suffers from legal infirmity. The Full Bench in para 21 of the judgment held as follows:--
"21. Now can it be said that the offence of forgery was against the administration of justice in a case in which the offence was committed, say, ten to twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The forger must have, before the suit, used the forged document on a number of occasions in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would, then, on the view contended for by the petitioner, be able to say: `Well, I have produced the document in the Civil Court; you have to wait till that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under Section 195'. Unfortunately, civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in Section 463 of the P.P.C., was committed. The commission of that offence was not only intended to deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice; nor did it, then, in any way sully the proceedings of the Court, for none were pending."
"8. We have also dealt with the provisions as contained in Section 195, Cr.P.C., to see that up to what extent it does constitute a bar in such-like cases and whether appellant was competent to file the complaint against respondents who all were Government officials. The general rule is that any person irrespective of the fact whether he is aggrieved or not and his interest is at stake or otherwise having knowledge about the commission of any offence may set the law in motion but the provisions as contained in sections 195 Cr.P.C. to 198, Cr.P.C. contain exceptions to the said general rule from taking cognizance of certain offences unless the functionary concerned institutes a complaint. It is well-settled by now that "provision of Section 190 Cr. P. C. lays down the general rule that any person can set the criminal law in motion but Section 195, Cr.P.C. is one of the exceptions to that rule Provision of Section 195, Cr.P.C. provides that, in case offence under Section 195, Cr.P.C. only the public authority concerned and Court has the right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no Criminal Court shall take cognizance of these offences--Every offence mentioned in Section 195, Cr.P.C. though affects a private person, yet he stands deprived of his general vested right to have recourse to the criminal law. The purpose of enacting Section 195, Cr.P.C. has long been well-identified. It may at the best be considered in the context of sections 190, 476 and 476-A of the Code. Section 190 lays down the general rule that any person can set the criminal law in motion and Section 195 is one of the exceptions to that rule. The latter says that in the category of cases mentioned in its clause (a), only the public authority concerned and in the category of case mentioned in clauses (b) and (c) only the Court concerned has right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no criminal Court shall take cognizance of these offences. Thus, though every offence mentioned in Section 195 must necessarily affect private person, yet he stands deprived of his general vested right to have recourse to the criminal law. One must naturally ask--what is the reason for so depriving him? To deprive a person of his right to redress is a strong thing and there must needs be strong reasons or legislative purpose behind it. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realized. As the purity of the proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complainant against the guilty party." There is no cavil to the proposition "it seems to follow inexorably that clause (c) of Section 195 (1) will fail in its object if the literal construction contended for by the petitioner' counsel is adopted. The adoption of that construction will inevitably result in extending the application for clause (c) to cases to which it was not, and could not be intended to apply. The purposive approach to the interpretation of clause (c) of Section 195 (1) on the other hand leads and leads ineluctably, to the construction that clause applies to only those offences that have a "close nexus between the offence and the proceedings"; in other words, it "contemplates cases of tampering with the documents on the record of a Court or cases of previously forged documents being used as genuine in certain proceedings." This view is reinforced by the following observation of the Select Committee who drafted this clause in 1923:--
"In short, Section 195 now deals with limitations that exist to the cognizance of offences by a Court. While if a Court before whom (the underlining is mine) an offence mentioned in Section 195 is committed wants to take action against the delinquent, it can only proceed under Section 476."
AIR 1928 Lah. 759) and after taking over Mr. Nasrullah Khan alone was competent to do the needful and not the complainant."
The dictum laid down by the Hon'ble Supreme Court shows that the distinction drawn by the Full Bench in PLD 1992 Lah. 178 was of little significance. Following the dictum laid down by the Hon'ble Supreme Court, it appears that the order passed by the learned Justice of Peace was unexceptionable, to the extent of offence complained of relating to forgery.
However, the learned Justice of Peace failed to notice another aspect of this case. The complainant had not only made grievance of offences as enumerated in Section 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case under Sections 419 and 420 of the PPC. Offences under the said sections are distinct from the offence of forgery. These offences do not fall within the purview of Section 195(1)(c) Cr.P.C. In Amin Ahmad Khan vs. The State (NLR 1987 Criminal 732) it was held that offences under Sections 419 and 420 being distinct offence the proceedings could continue and the bar contained in Section 195 (1) (c) Cr.P.C. was not applicable. Similarly in Bashir Ahmad vs. State (1999 YLR 2386) it was held that the bar contained in Section 195(1)(c) was not operative in case of offences under Sections 419 and 420 of the PPC.
The resume of the above said judgments amply shows that the order passed by the learned Justice of Peace, impugned herein is not sustainable to this extent. The offence complained of under Sections 419 and 420 of the PPC being distinct offence from the offence of forgery, the learned Justice of Peace was not justified in passing the impugned order. Therefore, the Respondent No. 1 is directed to receive the complaint of the petitioner and if a cognizable offence is made out he shall register a case against the delinquents. With this direction this, petition is disposed of.
(R.A.) Petition disposed of.
PLJ 2010 Lahore 638 [Rawalpindi Bench Rawalpindi]
Present: Rauf Ahmad Sheikh, J.
Chaudhary PARVEZ ELAHI--Petitioner
versus
MUHAMMAD FAIZ TAMMAN and 2 others--Respondents
E.P. No. 140 of 2008, decided on 9.6.2010.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 39(3)--Election Rules, 1977, R. 26(2)--Election petition--Ballot papers were rejected by presiding officer and excluded from count were not checked at time of consolidation of results--Gross miscarriage of justice--Validity--Recount cannot be ordered in routine and it must be proved as a fact that the rejected votes were not checked at the time of consolidation--Without recording the evidence, no order can be passed--Petition was dismissed. [P. 639] A
PLD 1986 SC 483, 2006 CLC 1407, PLJ 2002 Lah. 913, 2004 CLC 631, PLJ 2006 Lah. 209 & 2000 MLD 746, rel.
Ch. Farooq Haider, Advocate for Petitioner.
Malik Muhammad Kabir, Advocate for Respondent No. 1.
Date of hearing: 9.6.2010.
Order
The learned counsel for the petitioner has contended that ballot papers rejected by Presiding Officer and excluded from count were not checked at the time of consolidation of results by Returning Officer as provide under Section 39(3) of the Representation of People Act, 1976 and Rule 26(2) of the Election Rules, 1977 and as such result, was materially effected and gross miscarriage of justice was caused so recount is imperative. In support of the contention raised reliance is placed on Sahibzada Muhammad Nazeer Sultan vs. Saima Akhtar Bharwana and others (PLD 2007 Lahore 141), Muhammad Sarwar and another vs. Election Commission of Pakistan through Secretary and 17 others (2006 CYLR 502), and Muhammad Tariq Zakhmi and another vs Election Tribunal/District & Sessions Judge Hafizabad and 13 others (2002 MLD 284).
The learned counsel for the returned candidate (Respondent No. 1) has contended that the consolidation was conducted in accordance with law and the rejected votes were duly checked as is reflected in the statement under Form-XVI. It is contended that the contesting candidates and their election agents were present at the time so no ground is available to recount the ballot papers.
The recount cannot be ordered in routine and it must be proved as a fact that the rejected votes were not checked at the time of consolidation. Without recording the evidence in this regard no order can be passed. In this respect reliance is placed on Kanwar and 2 others vs. Irshad Ali and 2 others (PLD 1986 SC 483), Pervaiz Bashir Waraich and another vs. Election Tribunal/District & Sessions Judge Hafizabad and 4 others (2006 CLC 1407), Rai Asghar Ali Khan vs. District & Sessions Judge Kasur and 2 others (PLJ 2002 Lahore 913), Muhammad Saeed Qazi and another vs. Election Tribunal/Additional District & Sessions Judge Lahore and 16 others (2004 CLC 631), Nadeem Ahmad Wains and another vs. Election Tribunal and 5 others (PLJ 2006 Lahore 209) and Zulfiqar Ali vs. Election Tribunal/Civil Judge 1st Class Khanpur and 5 others (2000 MLD 746). The civil Miscellaneous is without merits and the same is hereby dismissed. An issue has already been framed in this regard and the matter would be decided after recording the evidence.
Raja Saim-ul-Haq Satti, Advocate High Court is appointed as Local Commission for recording the evidence of the parties. His fee would be Rs. 25,000/- to be paid by the parties equally. The parties would appear before him on 14.6.2010. He will give suitable date to the parties, record the evidence and submit the file within three weeks.
(R.A.) Misc. dismissed.
PLJ 2010 Lahore 640 (DB)
Present: Kh. Muhammad Sharif, C.J. and Waqar Hassan Mir, J.
MUHAMMAD AMIN KHAN etc.--Petitioners
versus
NATIONAL ACCOUNTABILITY BUREAU etc.--Respondents
W.P. No. 3411 of 2010, decided on 4.8.2010.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Proceedings were held in abeyance under provisions of NRO--Reference stood terminated as withdrawn--NRO 2007 was declared to be illegal and without lawful authority--Reference was filed against the petitioners alongwith others in Accountability Court--Proceedings in the Reference were challenged by petitioners by filing separate applications u/S. 265-K, Cr.P.C. seeking their acquittal--Applications were dismissed--Challenged the order of dismissal of application u/S. 265-K, Cr.P.C.--NRO was declared to be illegal and without lawful authority and all the cases which had been terminated by virtue of the Ordinance stood revived, the petitioners were again summoned to face trial--Validity--During the course of proceedings applications u/S. 265-K, Cr.P.C. for acquittal were filed which were dismissed upon which, writ petition was preferred before High Court and in writ petition, the order impugned were not set aside but it was ordered that final judgment would not be passed by High Court--Proceedings before Accountability Court were held in abeyance--NRO was promulgated and the petitioners too were benefited but temporarily until the judgment declared the NRO as ultra vires of the Constitution--Reference as well as proceedings were revived not by fiction of law but by a clear pronouncement made by Apex Court--Held: In a case where trial of an accused person is already at its last stages or is already knocking at its final stage, invocation of S. 265-K, Cr.P.C. for seeking a premature acquittal appears to be incentive, incompatible--At such a stage of the trial the spirit of S. 265-K, Cr.P.C. i.e. to save an accused from the rigors of a full trial, is not attracted--It is not only inappropriate for an accused person to file an application u/S. 265-K, Cr.P.C. at such an advanced stage of the trial but also quite justified for a trial Court not to entertain or decide the same on merits of the case--Petition was dismissed. [Pp. 643, 644, 647 & 654] A, B, C & K
Double Jeopardy--
----Principle of "autrefois acquit"--Not applicable--Principle of double jeopardy is also not attracted as it was not an acquittal stricto senso but termination of proceedings which are alien and remote of criminal jurisprudence. [P. 647] D
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 249-A, 265-K, 342 & 561-A--Acquittal after complete trial--Acquittal on hyper technical ground--Acquittal after complete trial, adducing of evidence, cross-examination, making statement u/S. 342, Cr.P.C. and addressing the arguments is quite different to that of acquittal on hyper technical ground such as under Ss. 249-A, 265-K, or 561-A of Cr.P.C.--Equating termination of reference with that of acquittal and that too u/Ss. 249-A, 265-K or 561-A Cr.P.C. cannot be allowed and treated as an acquittal after full-dressed trial. [P. 647] E
Principle of Double Jeopardy--
----Criminal jurisdiction--Principle of double jeopardy vexing twice is not attracted in instant case as it was not an acquittal stricto senso but termination of proceedings which are alien and remote of criminal jurisprudence. [P. 653] F
General Clauses Act, 1897--
----S. 26--No bar on simultaneous prosecution and prohibited only is duplicate punishment and not the trial--Validity--An inquiry cannot restrict the scope of investigation--Inquiry does not settle criminal liability and even commission of a cognizable offence necessarily is followed by investigation and not inquiry. [P. 653] G
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 249-A & 265-K--No bar for an accused person to file application u/Ss. 249-A or 265-K, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage--Special or peculiar facts of prosecution case may not warrant filing of an application at a stage when the entire PW had been recorded and case was fixed for recording of statement of the accused u/S. 342, Cr.P.C. that usually a criminal case should be allowed to be disposed of on merits after recording of the evidence--Held: An application u/Ss. 249-A or 265-K, Cr.P.C. can be moved at any stage of proceedings, but such application has to be dealt with strictly on merits in light of provision of law. [P. 653] H & I
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 240-A, 265-K & 561-A--To interrupt or divert course of criminal procedure--Procedural statutes--Power u/Ss. 249-A, 265-K and S. 561-A, Cr.P.C. are to be exercised sparingly and in extraordinary circumstances--It cannot be utilized to divert the ordinary course of Cr.P.C. and the provisions are not meant to stifle the prosecution case--So as to interrupt or divert course of Criminal Procedure. [P. 653] J
2005 SCMR 1544, 1995 SCMR 626, PLD 1965 Lah. 461 & PLD 1965 Kar. 541, ref.
Ch. Mushtaq Ahmad Khan, Advocate for Petitioners.
Rana Abdul Shakoor Khan, Legal Expert for NAB, Rawalpindi.
Date of hearing: 4.8.2010.
Order
Brief story as highlighted in this writ petition is that Petitioner No.1 had been working as Director Enforcement, CDA, Islamabad, and during the period relevant for the present case, for a short period of about five months, in the year 1990, he worked as DC, CDA within the meaning of CDA Ordinance, 1960. Petitioner No.2 was posted as pre-audit officer, CDA with effect from 1988 to December, 1991 only to check the calculation of acquaintance rolls prepared by revenue branch but nothing to do with the assessment of payment of compensation or with the allotment of plots by the authority. Petitioner No. 3 served in Directorate of Land, CDA, as Assistant Director Technical during the period with effect from 29.12.1988 to 05.03.1989. During the period 1980-1985, CDA acquired land and built up houses in the village "Bheka Syedan". The awards for the aforesaid land were announced by the then DC, CDA, on three different dates i.e. 23.07.1980, 05.07.1982 and 01.10.1982. In the appeals filed by the affectees/land owners against the last award, the Commissioner CDA vide his order dated 18.03.1986 set aside the award and remanded the case to DC, CDA directing that fresh measurement be carried out, exact area, classification and age structure be determined and technical staff of the CDA should associate an experienced Engineer from some other organization besides associating Engineers of the affectees who have been nominated by them in the Court of the Commissioner. Accordingly, a three members committee was constituted including Muhammad Ilyas, Assistant Engineer, Building Directorate, CDA; fresh measurement of houses was carried out and a detailed report including list of owners and Register of measurement was prepared and signed by all the committee members. On the basis of this report, Deputy Commissioner, CDA passed fresh orders subject to final approval by the Board of Directors. Petitioner No. 1 was working as DC, CDA in the year 1990 hence, in his capacity as such dealt with some of the cases remanded by the Commissioner, CDA. Petitioner No. 1, as DC, CDA exercised statutory powers under the CDA Ordinance as Petitioner No. 1 was a Court for the purpose of Sections 480 and 482, Cr.P.C and proceedings before him were judicial proceedings within the meaning of Sections 193 and 228 of Pakistan Penal Code and the CDA or any other person aggrieved of the order could also file an appeal. The appeals were filed by both the parties against the review order passed by Petitioner No.1, which orders have been upheld by the appellate authority. CDA filed Review Petition on 10.06.2010, which was also dismissed by the Commissioner, CDA and the said order having not been challenged by any person, hence attained finality.
That a departmental enquiry was held against the petitioners wherein some allegations were the same which are subject matter of the Reference in question, in which Petitioner No. 1 was terminated from service vide order dated 14.05.1991, whereas other two petitioners were exonerated; the said order was challenged before the Federal Service Tribunal and the Tribunal vide order dated 18.07.2000 accepted the appeal and set aside the order of petitioner's termination holding that allegations are absolutely false and frivolous and the petitioner has performed his duties honestly and diligently in accordance with law, therefore, his services could not have been terminated. Civil Appeal No. 1166/2000 was filed before the Honourable Supreme Court of Pakistan by the CDA, which was dismissed vide order dated 4.2.2002. Civil Review Petition No. 49/2002 was also dismissed vide order dated 9.4.2004, therefore, the Petitioner No. 1 stood exonerated for all intents and purposes from the allegations which have been leveled against him.
That FIR No. 6/97 was registered on 22.04.1997 with the FIA Crime Circle, Rawalpindi on the complaint of a local resident of village Bheka Syedan namely Tazeem Hussain Shah and not the CDA, under Sections 419, 420, 467, 468, 471, 409, 201, 204 and 109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 wherein the petitioners alongwith other certain officials of CDA were cited as accused persons. In pursuance of the FIR referred to above, Reference No.40008680 of 2003 was filed against the petitioners alongwith others in the Accountability Court No. III (Respondent No. 3), wherein the prosecution evidence has been recorded. The proceedings in the above said Reference were challenged by the petitioners by filing separate applications under Section 265-K Cr.P.C seeking their acquittal. The applications filed by Petitioners No. 1 and 2 were dismissed vide orders dated 17.11.2003 and 10.02.2005 whereas application filed by Petitioner No.3 remained undecided. Being aggrieved of the orders of dismissal of applications, Petitioner No. 1 filed Writ Petition No.3263/2003 before the Rawalpindi Bench of this Court, wherein on 09.03.2004, the following order was passed:--
"The comments have been filed and seen. The writ petition is admitted to regular hearing. Sardar Asmat Ullah Khan, ADPGA accepts notice. Now the writ petition be listed for hearing after three weeks.
Whereas, Petitioner No.2 challenged the order of dismissal of application under Section 265-K Cr.P.C in Crl. Misc. No. 19-Q/2005, which was ultimately clubbed with Writ Petition No.3263/2003 filed by Petitioner No. 1. In pursuance of the stay order passed by this Court, proceedings before Respondent No. 3 were held in abeyance when on 05.10.2007 under the provisions of National Reconciliation Ordinance, 2007, the Reference stood terminated as withdrawn. However, on the basis of the judgment rendered by the Honourable Supreme Court of Pakistan dated 16.12.2009 whereby National Reconciliation Ordinance was declared to be illegal and without lawful authority and all the cases which had been terminated by virtue of said Ordinance stood revived, the petitioners were again summoned to face the trial before Respondent No.3 in which Court the petitioners are appearing as accused persons and next date of hearing is for recording of their statement under Section 342 Cr.P.C.
Learned counsel for the petitioners submits that the petitioners are entitled to acquittal as per the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 read with the concept of "autrefois acquit" as contained in the provisions of Section 403 Cr.P.C and General Clauses Act based upon the principle that nobody should be vexed twice for the same cause; that all the petitioners have been exonerated in the proceedings held earlier on the basis of the same cause of action whereupon the present Reference has been filed upto the level of Honourable Superior Courts. Further submits that the petitioners have performed their functions honestly, diligently and bonafidely; Petitioner No. 1 has performed his judicial junctions in a bona fide manner; the orders passed by the petitioners or reports submitted by them have been approved by the Board of Directors of CDA and were upheld as lawful by the Honourable Superior Courts and none of the member of Board of Directors has been cited as an accused person in the Reference, therefore, the petitioners are entitled to be acquitted as per law declared in judgments reported as Shafi Muhammad Shahwani vs. The State (2004 SCMR 1178) and M.A. Rehman vs. Federation of Pakistan (1988 SCMR 691); that the total prosecution evidence has since been recorded, not an iota of incriminating material has been brought on record against the petitioners on the basis whereof there may be any possibility of their conviction, hence further continuation of trial is abuse of process of law and wastage of public time at the cost of public exchequers.
Learned counsel for the petitioners also submits that the Reference in question and proceedings there-under being still borne are liable to be buried in their inceptions and at any rate at this stage when nothing has been brought against the petitioners so far, further continuation of the trial before the learned trial Court is patently without lawful authority as being violative of fundamental rights contained in Articles 2-A, 4, 9, 12 and 13 amongst others; that Petitioners No.1 and 2 have already retired from service after having exemplary service record and Petitioner No.3 is at the fag end of his career; they have neither been involved in any criminal case earlier nor convicted and sentenced and in the departmental enquiry proceedings they have been given a clean chit, therefore, facing of agony of trial before the learned Accountability Court is liable to be quashed in the interest of justice; that the orders passed by the learned trial Court dismissing that application under Section 265-K Cr.P.C are patently illegal as the same are based upon conjectures and surmises and are violative of the law declared by the Superior Courts; that neither there is any evidence of commission of any offence nor mens rea in the bona fide performance of duties by the petitioners, therefore, they are entitled to be set a liberty without taking further time as required by the constitutionally guaranteed fundamental rights. Further submits that after taking into consideration aforementioned circumstances when this Court was approached earlier, the proceedings before the learned trial Court were stayed as there was a strong prima facie case in their favour; that now the petitioners had already earned an acquittal, which of course has been recalled by the Honourable Supreme Court of Pakistan in pursuance of general law declared by the said Honourable Court, but the fact remains that the petitioners are facing protracted trial since 2003 and there is no reasonable ground on the basis whereof the trial could be allowed to continue; that continuation of the trial is clear abuse of process and the petitioners are entitled to indulgence by this Court to save them from the excesses committed by the executive authorities who have involved them in this false Reference, may be on account of their own tainted and mala fide considerations.
It is further submitted that the FIR was included in the paper book of Civil Appeal No.1166/2002 and learned counsel for the CDA agitated the charges mentioned in the FIR before the Honourable Supreme Court during the course of hearing, but the Honourable Bench did not accept the charges as they were of executive nature and Petitioner No. 1 was working as a judicial officer in the capacity of Deputy Commissioner, CDA; the CDA appeared before the Court as a party because the functions of the authority did not fall within the jurisdiction of judicial officer and as par Capital Development Authority Ordinance, 1960 being a statutory post the Deputy Commissioner did not fall in the establishment of CDA and also was not authorized to carry out the executive functions of the authority as mentioned in the FIR referred to above; that the Honourable Supreme Court in its judgment concluded that "regarding the loss caused to the CDA by the announcement of awards, the enquiry officer determined that Respondent No.1 attempted to cause loss to the Authority in collusion with the awardees. However, this determination losses all its force in view of the fact that the appeals filed by the CDA against these awards were dismissed by the appellate authority. This factum was conceded by the appellate authority during the course of hearing before the Tribunal." Learned counsel submits that duties of Petitioner No.3 and mode of payment of compensation as contained in Para No.449 (i) of Chapter IX of Land Directorate Manual were "Acquaintance Rolls and Supplementary Rolls prepared by the Revenue section of Land Directorate on the basis of Awards made by the D.C, CDA and decision given by the Commissioner, CDA Rawalpindi on the appeals filed by the oustees against the order passed by the D.C. CDA are received in this Cell for pre-audit and payment. Pre-audit of the said Acquaintance Rolls is carried out by the Patwaries posted to their office and the test check of `Pre-audit' is exercised by the Senior Accountant Grade-I. The requisite pre-audit made by the D.C, CDA, the revenue records (viz-village Field Book, Statements No. 1, II &. III etc., prepared by the Revenue Section of Lands Directorate and the decision given by the Property and tress is conducted with reference to the assessments made by the Assistant Director Technical (Lands) and Horticulture Directorate, CDA respectively. The acquaintance rolls after having been pre-audited test checked and bearing payment order of Accounts Officer (Lands) are passed on to the Acquaintance Rolls/payment clerk for record and payment". Therefore, it is quite clear that none of the petitioners had final authority to assess or pay the compensation to allot any plot possessed by the CDA.
On the other hand, Rana Abdul Shakoor Khan, Legal Expert for the NAB submits that the petitioners have filed the instant writ petition with malice and have not come in the Court with clean hands; that the petitioners have cooked up baseless, concocted and fabricated grounds for the instant writ petition. Further submits that though the petitioners have mentioned and defined their duties but have not performed the same in letter and spirit and have committed the offence by exercising their powers beyond their authority; that the petitioners by misusing their authority after the review cases have made fake entries and compensated the bogus affectees and the matter pertaining to the inclusion of bogus affectees is pending adjudication in the Accountability Court No.III, Rawalpindi and is fixed for proceedings under Section 342 Cr.P.C. Further submits that facts of the subject Reference are different than that of mentioned in Para-5 of the writ petition and that the petitioners in connivance with the other officials of CDA awarded compensation to the bogus affectees; that the orders are rightly passed by the competent forum as the petitioners have committed the offence of corruption and corrupt practices by preparing bogus award list and further compensated the bogus affectees; that the Reference pending in the Accountability Court has ample evidence of criminality and the Court is about to decide the matter as the case is fixed for recording the statement under Section 342 Cr.P.C.; that the departmental inquiry proceedings cannot be equated with that of investigation, therefore, any pleadings and inquiry proceedings do not affect or even recede the mens rea and criminality of the petitioners. Finally submits that this petition is not maintainable as the trial is at the stage of recording the statement under Section 342 Cr.P.C and is about to be concluded.
Heard. Record perused.
The Reference is originated from the FIR lodged with the FIA and on account of the material collected by them, under Section 16-A of NAO, 1999, the same on receipt by the NAB was converted into Reference No.80/03 and the proceedings were undertaken. During the course of proceedings, applications under Section 265-K Cr.P.C for acquittal were filed which were dismissed upon which, writ petition was preferred before this Court and in the writ petition, the orders impugned in fact were not set aside but it was ordered that final judgment shall not be passed by the learned trial Court and in pursuance of the stay order passed by this Court, proceedings before the Accountability Court were held in abeyance. In the meantime, National Reconciliation Ordinance was promulgated and the petitioners too were benefited but temporarily until the Apex Court vide its judgment declared the NRO as ultra vires of the Constitution and the Reference as well as proceedings thereof were revived not by fiction of law but by a clear pronouncement made by the Apex Court, therefore, by virtue of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 the principle of "autrefois acquit" was not applicable on the one hand and on the other the principle of double jeopardy is also not attracted as it was not an acquittal stricto senso but termination of proceedings which are alien and remote of Criminal Jurisprudence. Even otherwise, the acquittal after complete trial i.e. adducing of evidence, cross-examination, making statement under Section 342 Cr.P.C. and addressing the arguments is quite different to that of acquittal on hyper technical ground such as under Section 249-A Cr.P.C., Section 265-K Cr.P.C. or Section 561-A Cr.P.C. The acquittal in the latter provision does not abhor retrial, therefore, equating termination of Reference with that of acquittal and that too under Section 249-A Cr.P.C, Section 265-K Cr.P.C. or Section 561-A Cr.P.C cannot be allowed and treated as an acquittal after full-dressed trial. Even otherwise, the trial is at the stage of recording the statement under Section 342 Cr.P.C, therefore, a discourse cannot be made in law and the trial cannot be circumvented by way of entertaining the application under Section 265-K Cr.P.C at this stage. Moreover, at this stage of proceedings all that is necessary to see in terms of Section 265-K Cr.P.C. was, whether the charge was groundless or whether there was no probability of the accused being convicted. These two, however, are preconditions for invoking the power under Section 265-K Cr.P.C.
The law laid down in judgment reported as Bashir Ahmad vs. Zafar-ul-Islam and others (PLD 2004 SC 298) is that:
"According to the scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused person is a serious business which commences with a pre-trial exercise to be judicially carried out by a competent Magistrate under Section 190 of the Cr.P.C. If these allegations levelled and the evidence collected are found worth a trial, then cognizance is taken of the case and the accused is summoned to face the trial. Chapters XX and XXII-A of the Cr.P.C. then prescribe a detailed inquiry and a thorough prode into the matter where the prosecution has the fullest right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution where the accused then has the right to explain different pieces of evidence offered against him by the prosecution; where the accused can make a statement on oath in disproof of the allegations levelled against him and finally where he can produce his own evidence to discredit the prosecution case against him. What could, therefore, be at stake at a criminal trial are, on the one hand the invaluable rights of life, liberty, freedom and even of property of an accused person and on the other hand the demand of the society to be rid, permanently or temporarily, of a person who is a threat and a menace to it. The law commands a detailed inquiry as envisaged by the above mentioned Chapters XX and XXII-A of the Cr.P.C. so that a correct decision is reached by the trial Court after due consideration of the totality of facts and circumstances brought out before it. This is then the normal procedure prescribed by law for the purposes of finding out whether the person accused of the commission of a crime was or was not guilty of the same.
............................................................................................... ............................................................................................... ...............................................................................................
"As against this, when a Court decides to proceed under Section 249-A Cr.P.C. Section 265-K Cr.P.C. and Section 561-A Cr.P.C., the parties get divested of their right to adduce evidence; of their right to cross-examine the witnesses produced by the other side and of their right to discredit the evidence offered to the Court. The result is that the normal course of law is disrupted; the parties get deprived of the precious and valuable rights vesting in them; the trial Court gets deprived of the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full-fledged trial is decided in more than summary manner and thereby depriving the Court of the opportunity to determine the issue in the light of proper material."
In Muhammad Sharif vs. The State (PLD 1999 SC 1063), it has been held that:
"---Ss. 249-A & 265-K Cr.P.C.--Acquittal of accused at any stage--Same sanctity cannot be accorded to acquittals at intermediary stages such as under Section 249-A or 265-K Cr.P.C. in appellate or revisional proceedings as available for those recorded and based on full-fledged evidence."
The dictum enunciated in the judgment reported as The State through Advocate General, Sindh High Court of Karachi vs. Raja Abdul Rehman (2005 SCMR 1544) is that:
"The principle laid down by this Court while dealing with the powers of the Courts under Section 249-A Cr.P.C., Section 265-K Cr.P.C. and Section 561-A Cr.P.C. in quashing criminal proceedings pending before the Court is that when the law provides a detailed inquiry into offences for which an accused has been sent up for trial then ordinarily and normally the procedure prescribed by law for deciding the fate of criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes."
In the present case, as learned counsel for the petitioners has brought into his arguments Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as well as Section 403 Cr.P.C. claiming that the petitioners were being vexed twice, therefore, it was found incumbent by us to have fully addressed the proposition involved of two principles i.e. "autrefois acquit" and "autrefois convict".
Article 13(a) of the Constitution and Section 403(1) of Cr.P.C read as under":--
"13. No person--
(a) shall he prosecuted or punished for the same offence more than once;"--
"403. Persons once convicted or acquitted not to be tried for the same offence.--(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237."
But the rule involved is of "autrefois acquit" and "autrefois convict" for which, we are well advised to look into the case law.
In Ashutosh Tokdar vs. The State (PLD 1963 Dacca 719) it has been held that:
"Acquittal of accused in previous trial is no bar to his subsequent prosecution in respect of greater number of articles. though these might have been received at same time as those in question in previous trial." (Underlining is ours)
In Madad Ali vs. The State (PLD 1965 (W.P.) Karachi 541), it has been provided that:
"Bar of trial under S. 403--Limited to offence for which different charge might have been made under S. 236 or for which conviction might have been recorded under S. 237--Person discharged at previous trial, not in jeopardy, of being convicted of offence for which he is subsequently tried--Evidence identical to that given at previous trial may be led in support of charge at subsequent trial." (Underlining is ours)
It has been held in Muhammad Ikram and others vs. The State (PLD 1965 (W.P.) Lahore 461):
"Offence, for which accused tried subsequently, neither part of offence alleged at previous trial nor in any manner connected with facts alleged at earlier trial--Whether provisions of section attracted--"Same" and "similar" facts--District--Autrefois acquit and autrefois convict--Principles how far and to what extent applicable in cases not falling within purview of S. 403 Cr.P.C.
Section 403, has no application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial; nor is this section attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial. Apart from the offence for which the accused may have already been tried and convicted or acquitted at the previous trial, the protection contained in sub-section (1) of Section 403 extends to an offence for which a charge different from the one made against the accused at the previous trial might have been made on the same facts under Section 236 Cr.P.C., and also in respect of an offence for which he might have been convicted at the previous trial under Section 237 Cr.P.C.; but the protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. A distinction has to be made here between "same" and "similar" facts."
(Underlining is ours)
Muhammad Ashraf and others vs. The State (1995 SCMR 626) provides that :
"Maxim: "Nemo bis puniture aut vexatur pro eodum delicto" (no one is to be twice vexed for one and the same offence)--Rule that no man shall be vexed twice for the same offence--Application--Rule of "autrefois acquit" and rule of "autrefois convict"--Protection given by Art. 13(a), Constitution of Pakistan (1973) is against prosecution and double punishment--Constitutional guarantee is available only if the accused is convicted and punished and if the first prosecution results in acquittal, the second prosecution is not prohibited. Rule of double jeopardy, however, is found in S. 403(1), Cr.P.C., which prohibits the second trial for an offence during course of existence of conviction or acquittal of a person as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction--Rule against autrefois acquit finds place in S. 403(1), Cr.P.C. and the counterpart of the said rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Art. 13(a), Constitution of Pakistan (1973)--If one trial ends in conviction and punishment and in the second case accused is acquitted, and the two judgments are placed in juxtaposition and it becomes evident that the judgment of conviction in point of time is rendered first, judgment of conviction will hold the field--Subsequent acquittal of accused thus cannot reflect upon his conviction and sentence awarded to him on the basis of the trial. Provisions of S. 26, General Clauses Act, 1897, does not debar the simultaneous prosecution but prohibits duplicate punishment and not the trial.
The rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis puniture aut vexatur pro eodum delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of Criminal Law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence. This doctrine is enshrined deeply in the legal system of the countries following Anglo-American jurisprudence. It is incorporated in one form or another in the statutory law, or as a econstitutional guarantee in the constitutions of some of the countries.
In Constitution of Pakistan (1973), this rule is enacted in Article 13(a).
The protection given by this Article 13(a) of the Constitution is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment. If as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned the second prosecution is not prohibited. It is, however, open to the Legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13(a). Such extension of rule of double jeopardy is to be found in Section 403(1) of the Criminal Procedure Code.
The Constitutional guarantee is confined only to duplicate punishment and is silent insofar as acquittal is concerned, Section 403(1) however prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the same may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against "autrefois acquit" finds place in section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a). (Underlining is ours)
In the light of above, we are of the considered view that the principle of double jeopardy/vexing twice is not attracted in this case as it was not an acquittal stricto senso but termination of proceedings which are alien and remote of Criminal Jurisprudence. Had it not been so, even under Section 26 of General Clauses Act, 1897, there is no bar on the simultaneous prosecution, and prohibited only is the duplicate punishment and not the trial. Suffice it to say that an inquiry cannot restrict one scope of investigation. As far as the Criminal Jurisprudence is concerned, inquiry does not settle criminal liability and even otherwise commission of a cognizable offence necessarily is followed by investigation and not inquiry.
It is settled law, as laid down in the judgment reported as The State through Advocate, General, Sindh High Court of Karachi vs. Raja Abdul Rehman (2005 SCMR 1544), that though there is no bar for an accused person to file application under Section 249-A Cr.P.C. or Section 265-K Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under Section 342 Cr.P.C.; that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under Section 342 Cr.P.C., recording of statement of accused under Section 340(2) Cr.P.C., if so desired by the accused person and hearing the arguments of the counsel of the parties and that the provisions of Section 249-A, Section 265-K and Section 561-A Cr.P.C should not normally be pressed into action for decision of fate of a criminal case.
It may be observed that there is no cavil to the proposition that an application under Section 249-A or Section 265-K Cr.P.C. can be moved at any stage of proceedings, but such application has to be dealt with strictly on merits in the light of relevant provisions of law. Time and again, it has been held by the Honourable Apex Court that powers under Section 249-A, Section 265-K and Section 561-A Cr.P.C are to be exercised sparingly and in extraordinarily circumstances. It cannot be utilized to divert the ordinary course of Criminal Procedure Code and the provisions are not meant to stifle the prosecution case, so as to interrupt or divert course or Criminal Procedure, as laid down in the Procedural Statutes.
Moreover, in a case where the trial of an accused person is already at its last stages or is already knocking at its final stage, invocation of Section 265-K Cr.P.C. for seeking a premature acquittal appears to be incentive-incompatible. At such a stage of the trial the spirit of Section 265-K Cr.P.C. i.e. to save an accused from the rigors of a full trial, is not attracted. therefore, it is not only inappropriate for an accused person to file an application under Section 265-K Cr.P.C. at such an advanced stage of the trial but also quite justified for a trial Court not to entertain or decide the same on the merits of the case. In this case, the trial is at the stage of recording the statement under Section 342 Cr.P.C. and thus, the prosecution cannot be repelled at disadvantageous position by circumvention at this stage.
For what has been discussed above, we do not find any merit in this writ petition, which is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 654 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
ALLAH DITTA and 2 others--Petitioners
versus
RAB NAWAZ SAJID and 3 others--Respondents
C.R. No. 562 of 2010, decided on 7.5.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Temporary injunction was dismissed by Courts below--Concurrent finding--Petitioners could not produce any documentary proof of family partition--Co-sharers--Joint property--Validity--Both the parties were joint owners of the property in question and petitioners were demanding injunction against their co-sharers as every co-sharer had possession on each and every inch of the joint property--If the petitioners wanted to get any interim injunction, first of all they would move an application for partition in accordance with law--Since both the parties were co-sharers in the suit property--No temporary injunction can be granted against the co-owners--Revision was dismissed. [Pp. 655 & 656] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXXIX, Rr. 1 & 2--Civil revision--Petitioner was in possession of more than his entitlement in joint property--Temporary injunction was dismissed by Courts below--Concurrent findings--Jurisdictional defect--No proof of family partition distribution of the property had been brought on file--When there are concurrent findings with regard to facts and law--Unless jurisdictional defect in the order passed by Courts below--High Court cannot interfere in concurrent findings in exercise of power u/S. 115, CPC--Revision was dismissed. [P. 656] B
Malik Abdul Khaliq, Advocate for Petitioners.
Date of hearing: 7.5.2010.
Order
In a suit for permanent injunction that the petitioners-plaintiffs are owner in possession of the suit property under partition since the last 31 years, the application of the petitioners under Order XXXIX Rules 1 and 2, CPC seeking temporary injunction was dismissed by the learned Civil Judge, Multan vide order dated 5.12.2005. Against the said order, the appeal filed by the petitioners was also dismissed, by the learned Additional District Judge, Multan vide order dated 20.3.2010. The instant civil revision under Section 115, CPC, is directed against the said concurrent orders of both the Courts below.
The respondents-defendants contested the suit as well as the application under Order XXXIX Rules 1 and 2, CPC by filing replies.
In support of the application filed under Order XXXIX Rules 1 and 2, CPC, the learned counsel for the petitioners contended that the petitioners are in possession of the suit property since long, Khasra, Girdawari is also in their names; they are owners of the suit property but the respondents are adamant to illegally dispossess them from the said property; that they have prima facie a fit arguable case in their favour as they are owners under private partition over the suit property. Further contends that the report of the Local Commission is also in favour of the plaintiffs-petitioners, that both the Courts have committed illegality and irregularity in dismissing the application of the petitioners filed under Order XXXIX Rules 1 and 2 CPC; both the Courts did not peruse the documentary evidence appended with the plaint hence the orders of both the Courts are based on misreading and non-reading of the documents on the record.
I have heard the learned counsel for the petitioners at length. There are concurrent findings of the two Courts below with regard to the land in dispute that the petitioners could not produce any documentary proof of family partition of the land in dispute. Both the Courts rightly observed that both the parties are joint owners of the property in dispute and the petitioners-plaintiffs are demanding injunction against their co-sharers as every co-sharer has possession on each and every inch of the joint property. If the petitioners-plaintiffs want to get any interim injunction, first of all they should move an application for partition in accordance with law. Since both the parties are co-sharers in the suit property, therefore, no temporary injunction can be granted against the co-owners. The case of the respondents is that petitioner/plaintiff is in possession of more than his entitlement in joint property, which stance is taken in the written statement and reply to the application. No proof of family partition/distribution of the property has been brought on the file. Further, when there are concurrent findings with regard to facts and law, unless there is jurisdictional defect in the orders passed by the two Courts below, the High Court cannot interfere in the said concurrent findings in exercise of power under Section 115, CPC. There is no jurisdictional defect in the orders of both the Courts below. The findings of both the Courts are based on cogent reasons. There is also no illegality or irregularity in the said impugned orders.
For the reasons discussed above, I find no merit in the civil revision, which is dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2010 Lahore 656 [Multan Bench Multan]
Present: Raja Muhammad Shafqat Khan Abbasi, J.
WAQAS ZAFAR--Petitioner
versus
BAHA-UD-DIN ZAKRIYA UNIVERSITY, MULTAN through its Vice Chancellor and 2 others--Respondents
W.P. No. 1031 of 2009, decided on 13.5.2009.
Uniform Semester Systems Rules--
----R. 11(v)--Dropping of students from University--Where the appellant was dropped from the course due to lack of obtaining the requisite GPA/CGPA, the matter was required to be decided according to the rules framed by the university authorities--Court could just interpret the rules rather than giving opinions merely on sympathetic considerations--Petition was dismissed. [P. 658] A
Mr. Muhammad Bilal Gormani, Advocate for Petitioner.
Malik Muhammad Tariq Rijwana, Advocate for Respondents.
Date of hearing: 28.4.2009.
Judgment
Brief facts giving rise to the present petition are that the petitioner had got admission in the Respondent No. 1/Bahauddin Zakariya University, Multan (here-in-after called as BZU, Multan) in M.Sc. Physics (semester system) at Self-Finance basis on 15.9.2006; that the petitioner dropped from the University in December, 2006 due to lack of GP whereupon he got re-admission in the first semester which was held in August 2007; that the petitioner qualified his 1st and 2nd semester in December, 2007 and May, 2008 by obtaining 2.26, 2.0 GP out of 4.0 respectively. He was promoted in third semester in May 2008 with GP 2.00 out of 4.00 with one compartment of electronics; that in August 2008 he was again dropped in third semester examination due to less GP.
"However, if a student fails to comply with any of the conditions in fifth and subsequent semester in four years program and third in subsequent semesters in two years programs, he will be detained in that semester and he will repeat the semester. He will be promoted to the next semester on attaining a CGPA of 2.00. The students will have to complete their courses within the stipulated time for completion of degree, which is two additional semesters for two years programs and four additional semester for four years programs. However, hostel facility shall not be extended to such students."
Learned counsel for the respondents has raised certain legal and factual objections in their comments; that petitioner could not secured the requisite CGPA from 2.00 as he got obtained 1.02 GPA and 1.63 CGPA at the end of third semester therefore, he was dropped from the role of department in terms of regulations 11 (V) of the Uniform Semester System Rules; that he was allowed to complete the degree within the stipulated time (six semester to be count first semester as two years programs); that the petitioner was re-admitted by the Semester Implementation Committee on 18.4.2006 in first semester. He was re-admitted on the condition the period of completion degree requirement shall not exceed of time limit provided in the statutes. Learned counsel for the respondents has placed reliance on Baha-ud-Din Zakariya University through Vice Chancellor vs. Muhammad Ilyas (2004 YLR 2638). Munir Mohsin and others vs. Vice Chancellor Baha-ud-Din Zakariya University (2002 MLD 1329).
I have heard the arguments of both the parties and perused the report/parawise comments/record.
Whether the petitioner will be governed by the Regulations 11 (V) of the Uniform Semester Rules or Rules mentioned in the above Para No. 2, in order to understand the controversy involved in the matter, it will be appropriate to go through relevant Regulation 11(V) of the Uniform Semester Rules notified on 14.4.2004 which reads as under:--
"Likewise at the end of each semester, a student must obtained a minimum cumulative grade point average (CGPA) of 2.0 and must also pass at least 50% of the courses taken by him in order to be promoted in the next semester. If any of the proceeding two conditions is not complied with by a student, he shall be removed from the rolls of the department."
"Rules and regulations framed by the University Authorities for the purpose of conducting/regularizing its examination etc, were required to be interpreted by the University Authorities itself and Courts should avoid to interpret the same unless a case of grave injustice was made out, otherwise it would be difficult for the University administration to run its internal affairs relating to examination, etc."
The case of the petitioner was exactly similar to the case of Muhammad Ilyas supra in which the name of the student was removed/dropped in the third semester. No interference was made by the Apex Court. The impugned action of dropping the petitioner from the rule of department is neither illegal nor discriminating or harsh and same has been taken accordingly to the rules and regulations of the University. The petitioner is bound by these regulations, who has failed to make out his case of discrimination or unequal treatment by the University Authorities.
(A.A.) Petition dismissed.
PLJ 2010 Lahore 659 (DB)
Present: Kh. Muhammad Sharif, C.J. and Waqar Hassan Mir, J.
STATE--Petitioner
versus
I.G. PUNJAB and 2 others--Respondents
W.P. No. 9728 of 2010, heard on 12.5.2010.
Constitution of Pakistan, 1973--
----Art. 199(1)(c)--Suo moto notice was taken while treating news item--Appointment of CCPO Lahore that Police Officer who had been held responsible for the acts of commission and omission by Tribunal--Suo moto petition had been accepted and notification issued by Secretary Services and General Administration Government appointing as CCPO had been declared to be without lawful authority and of no legal effect with direction to relinquish the charge today without fail. [P. 662] A
Fundamental Rights--
----Interpretation--Power of High Court for enforcement of fundamental rights guaranteed under the Constitution are wide and in terms of Art. 199 of Constitution, it can pass any order which would be appropriate in facts and circumstances of a case. [P. 663] B
Fundamental Rights--
----Object of--Fundamental rights guaranteed in the Constitution are not more a pious enunciation of the principles on which the Constitution is based but are made specifically justiciable in clause under reference. [P. 663] C
Constitution of Pakistan, 1973--
----Art. 199(1)(c)--Suo moto notice--Authority while issuing Notification as CCPO Lahore had not considered that aspect of the matter that in tragic incident wherein number of Christian lost their lives and their houses were burnt--Responsible for the acts of commission and omission by Tribunal--Validity--Where there is clear abuse of powers/authority, High Court is under Constitutional duty to ensure that the people were dealt with in accordance with law--Held: Instead of taking any action against him, he had been awarded the premium of his commission and omissions and posted as a CCPO which was the most important assignment given to an officer of his rank--An officer who had been held to be negligent in performance of his duties as R.P.O. by Tribunal of a Judge of High Court, how can be expected and required to act in the way of assignment now given to him--Further held: If statutory provisions had been violated in making the appointment of such a person against whom certain recommendations had been made and if that being so, the Court could not close its eyes and had every Constitutional powers to declare such appointment to be without lawful authority and of no legal consequences. [Pp. 663, 664 & 665] D, E, F & I
Constitution of Pakistan, 1973--
----Art. 199(1)(b)(ii)--Suo moto proceedings--Constitutional jurisdiction--Holder of public office--High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority the police officer is holding office (CCPO) in view of recommendations rendered against him by tribunal--Petition was accepted. [P. 664] G
Writ of Quo Warranto--
----Holding the office under order of competent authority--Claim to retain such office--Question of--Whether he is legally qualified to hold the office or to remain in the office. [P. 664] H
Constitution of Pakistan, 1973--
----Art. 199--Scope of--Constitutional petition--To control executive actions--Violation of laws--Effect of legal action--Art. 199 of the Constitution is intended to enable High Court to control executive actions so as to bring it in conformity with law--Whenever the executive acts in violation of the law, an appropriate order can be passed which will relieve the citizen of the effects of illegal action. [P. 665] J
Constitution of Pakistan, 1973--
----Art. 199(1)(A)(ii)--Power to issue a declaration--Territorial jurisdiction--No legal effect--Suo moto notice was taken on a news items--Posted as CCPO Lahore had not considered aspect of matter that in tragic incident--Tribunal recommendations against him--Validity--High Court under Art. 199(1)(a)(ii) of Constitution has the power to issue a declaration in respect of any act done or proceeding taken within its territorial jurisdiction by a person performing functions in connection with affairs of Federation, a Province or a local authority to be without lawful authority or of no legal effect--Petition was accepted. [P. 665] K
Khawaja Haris Ahmad, A.G.P. assisted by Mr. Muhammad Hanif Khatana, Addl. A.G. for Respondents.
Mr. Nadeem Hassan Asif, Home Secretary Punjab.
Mr. Tariq Saleem, I.G. Punjab.
Mr. Sikandar Raja, Secretary Service Punjab.
Date of hearing: 12.5.2010.
Judgment
Waqar Hassan Mir, J.--Through the following short order of even date, this petition has been accepted:--
"For the reasons to be recorded later on, this Suo Motu Writ Petition No. 9728 of 2010 is accepted and the notification issued by the Secretary Services and General Administration Government of the Punjab appointing Ahmad Raza Tahir as Capital City Police Officer is declared to be without lawful authority and of no legal effect. It is further directed that he shall relinquish the charge today without fail.
So far as matter of contempt is concerned, we are exercising judicial restraint and do not think it fit in this case to dilate upon the matter as also in view of the order passed above.
The present petition has arisen out of a suo motu notice dated 11.5.2010 taken on a news item appeared in a section of the press wherein it has been mentioned that after the retirement of Mr. Pervaiz Rathor, DIG, Ahmad Raza Tahir has been posted as Capital City Officer, Lahore and thus while treating such news item as a petition under Article 199 (1) (c) of the Constitution of Islamic Republic of Pakistan, 1973, the Inspector General of Police, Punjab, the Home Secretary and the Secretary Service and General Administration, Government of Punjab, Lahore were directed to appear on the even date at 1.15 p.m. and thus when the case was taken up, the following order was passed:--
"Tanveer Ahmad Additional Inspector General of Police, Punjab present in Court submits that Inspector General of Police, Punjab has gone to Sambrial with Chief Minister, Punjab while Home Secretary, Government of Punjab is at Islamabad, but in what connection he does not know. The Secretary Service and General Administration, Government of Punjab is also not present despite the direction given by this Court.
I have told in clear terms to learned Addl. Advocate General, Punjab that Ahmad Raza Tahir, Capital City Police Officer, Lahore who has taken the charge today, is the same officer, who was held responsible for the acts of commission and omission in the incident of Gojra as a result of inquiry, which was held by a learned Judge of this Court on the asking of Provincial Government.
I am today exercising judicial restrain and hope that the Government will consider the matter with the seriousness it deserves and take action accordingly. To come up tomorrow i.e. 12.05.2010."
Today as stated above, after hearing all the concerns, this petition has been accepted and the Notification issued by the Secretary Services and General Administration Government of the Punjab appointing Ahmad Raza Tahir as CCPO has been declared to be without lawful authority and of no legal effect with the direction to relinquish the charge today without fail.
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
"Regional Officer of Police being a field officer is obliged to lead from the front but it has come on the record that Ahmad Raza Tahir RPO Faisalabad during the whole episode failed to perform his functions in efficient and diligent manner particularly, in the matters of requisitioning the Platoons of Punjab Constabulary personnel, moving and utilizing the resources under his own control. He preferred to wait for a VIP instead of coming in the arena. He is held responsible for the following commissions and omissions:--
. He has failed to assess gravity of like situation and did not advise or guide his subordinate property.
. He kept himself away from troubling area falling within the jurisdiction.
. He through letter W-514/A dated 31.07.2009 did not put forward a demand to requisition sufficient number of PC Platoons for their deployment on the fateful day and also upon receipt of the placement order W-573/C of PC Platoons for 31.7.2009 only he did not react well in time to take up the matter with the concerned authorities to get extended the time and thus failed in getting resolved the matter within proper time.
. He despite having sufficient police personnel at his own disposal as mentioned in letter No.14440 dated 04.09.2009 sent by him in pursuance of the directions of this Tribunal of Inquiry failed to provide re-enforcement to the then DPO T.T. Singh despite making of repeated demands in this regard as voiced by the then DPO (Witness # 512) on the day of occurrence i.e. 01.08.2009.
. He despite having knowledge of the deteriorating situation at the site of incident opted to wait for and accompany a VIP instead of focusing his attention to get controlled the situation.
. He kept on painting a picture of all fine before PPO and the Government against the facts prevailing at the site."
It appears that instead of taking any action against him, he has been awarded the premium of his commission and omissions and posted as a Capital City Police Officer which is the most important assignment given to an officer of his rank. An officer who has been held to be negligent in performance of his duties as Regional Police Officer by the Tribunal of a learned Judge of the High Court, how can be expected and required to act in the way of the assignment now given to him. Suo motu proceedings are corrective measures and thus in the circumstances, we observe that under Article 199(1) (b) (ii), this Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority he (Mr. Ahmad Raza Tahir) is holding the said office (Capital City Police Officer), particularly in view of the above recommendations rendered against him by the learned Tribunal consisting of Mr. Justice Iqbal Hameed-ur-Rehman, constituted on the asking of the Provincial Government itself. The writ of quo warranto as is the present case, in its nature is an information laying against person who claimed to retain such office. The Court is not only to see that the incumbent is holding the office under the order of a Competent Authority but it goes behind that and see as to whether he is legally qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment of such a person against whom certain recommendations have been made and if that being so, the Court, cannot close its eyes and has every Constitutional powers to declare such appointment to be without lawful authority and of no legal consequences. The Article 199 is intended to enable this Court to control executive actions so as to bring it in conformity with the law. Whenever the Executive acts in violation of the law, an appropriate order can. be passed which will relieve the citizen of the effects of illegal action. This Court under Article 1991(a)(ii) of the Constitution of Pakistan has the power to issue a declaration in respect of any act done or proceeding taken within its territorial jurisdiction by a person performing functions in connection with affairs of the Federation, a Province or a local authority to be without lawful authority or of no legal effect.
As regard the contention of learned Advocate General Punjab that in view of the judgment reported as State vs. Zulifqar Ali Bhutto and others (PLD 1978 Lahore 523), the report submitted by the Tribunal cannot be held a judgment is concerned, suffice it to say that in the said judgment, certain guiding principles have been specified for investigation of a murder case and that no recommendations coupled with the statement of allegations have been sent to the Government but in the present case, it is otherwise. In this case, report of the Tribunal has been forwarded to the Federal Government alongwith statement of allegations for initiating proceedings, which are yet to be taken and in the meanwhile his posting to the prime post is unjustified. It is unfortunate that besides Ahmad Raza Tahir, there is no other suitable candidate available with the Government to be posted as Capital City Police Officer.
As far as the contention of learned Advocate General Punjab that before any action could be taken by the Federal Government on the recommendations of the Tribunal, Ahmad Raza Tahir should be allowed to work as Capital City Police Officer. We are afraid that such contention has no force because if he is ultimately found to be responsible for the commissions and omissions highlighted above, then how can he be allowed to work during the interregnum period, when he is not qualified for such post
In the light of what has been discussed above, this writ petition is accepted and the notification issued by the Secretary Services and General Administration Government of the Punjab appointing Ahmad Raza Tahir as Capital City Police Officer Lahore is declared to be without lawful authority and of no legal effect with the direction to him to relinquish the charge today without fail
As far as matter of contempt is concerned, as we are exercising judicial restraint, therefore, we are not inclined to proceed further in the contempt and do not think it fit to dilate upon the matter.
(R.A.) Petition accepted.
PLJ 2010 Lahore 666 [Multan Bench Multan]
Present: Hafiz Abdul Rehman Ansari, J.
Mst. HALEEMA MAI--Petitioner
versus
Mst. BEGUM MAI and 4 others--Respondents
C.R. No. 520-D of 2010, decided on 29.4.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, 1908, S. 29(2)--Limitation for filing of revision petition--Applicability of S. 29(2) of Limitation Act--Determination of period of limitation--Since the period of limitation had been prescribed in S. 115, CPC, for filing of revision petition, which is 90 days, same being a special law, provisions of S. 29(2) of Limitation Act, 1908 would be applicable and for the determination of period of limitation, all the provisions except Sections, 4, 9, to 18 & 22 would not apply. [P. 669] C
Concurrent findings--
----Civil revision--Concurrent findings cannot be disturbed in the civil revision unless there is some jurisdictional error pointed out. [P. 669 A
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Time barred for about seven months--Delay in filing the revision petition cannot be condoned--Revisional jurisdiction--Application u/S. 5 of Limitation Act, was appended with civil revision for condonation delay of near about seventh months--Delay in filing the revision petition cannot be condoned by exercising jurisdiction u/S. 5 of Limitation Act or by suo motu exercise in revisional jurisdiction as S. 5 of Limitation Act is not made applicable in S. 115 of CPC, in which special limitation of 90 days is prescribed for filing a civil revision--Held: Delay in filing the revision petition beyond the period of 90 days prescribed u/S. 115, CPC cannot be condoned u/S. 5 of Limitation Act as the operation of S. 5 was expressly excluded by S. 29(2) of Limitation Act. [P. 669] B & D
2001 SCMR 286, 2004 SCMR 1630 & 2006 SCMR 676, rel.
Mr. Muhammad Saqib Naeem, Adv., for Petitioner.
Date of hearing: 29.4.2010.
Order
Mst. Haleema Mai, daughter of Zohran Mai, petitioner through the instant Civil Revision petition calls in question the judgments and decrees dated 12.0.9.2008 and 09.06.2009, respectively passed by the learned Civil Judge, Lodhran, and the learned Additional District Judge, Lodhran.
Brief facts of the case are that Mst. Haleema Mai filed a suit for declaration against Mst. Begum Mai, Muhammad Tufail, Khurshid Ahmad, Rashid Ahmad, Abdul Hameed by alleging that she is owner in possession of the property mentioned in Khewat No. 421, 12 Kanals to the extent of five Marlas according to the record of rights for the year 1991-92, Dakhli Mouza Thadha Thaheem, Tehsil Lodhran. She further alleged in the plaint that Mutation No. 1891 dated 31.08.1994 was against law and facts, which creates no right upon the rights of petitioner-plaintiff. She prayed that Mutation No. 1891 be set aside and decree be passed in her favour. She in her plaint attacked upon the Mutation No. 1891 on various grounds that she did not appear before the Revenue Officer and the property in dispute was not alienated by her to any one. Possession was not delivered. The respondents-defendants resisted the suit by filing written statement.
From the divergent pleadings of the parties the learned trial Court framed the following issues:--
Whether the Mutation No. 1891 dated 31.8.1994 is illegal, against facts, void, result of fraud impersonation and ineffective upon the rights of the plaintiff? OPP..
If the above mentioned issue is answered in affirmative, then whether the plaintiff is entitled to get decree for declaration as prayed for?OPP.
Whether the plaintiff has got no cause of action and locus-standi to file the instant suit?OPD
Whether the plaintiff is estopped by her words and conduct from filing the suit?OPD
Whether the suit has not improperly been valued for the purpose of Court fee and jurisdiction? OPD
Whether the description of the suit property has not been given correctly and the suit is liable to be dismissed? OPD
Whether the defendant has filed the instant suit mala fide and the defendant is entitled to recover special costs under Section 35-A CPC?OPD
Relief.
Both the parties produced their evidence before the learned trial Court. Mst. Haleema Mai appeared as PW-1 and produced Mutation No. 1891 dated 31.08.1994 Exh.P.1, Khasra Girdawari Exh.P.2. The defendants-respondents produced Mst. Begum Mai as DW-1 and closed the evidence of the defendants.
The learned Civil Judge after hearing the parties and perusing the evidence dismissed the suit of the petitioner vide judgment and decree dated 12.09.2008. The petitioner-plaintiff filed an appeal before the learned District Judge, Lodhran, on 23.09.2008, and the learned Additional District Judge vide judgment and decree dated 09.06.2009 dismissed the same.
I have heard the learned counsel for the petitioner and perused the file. The learned trial Court rightly decided Issue No. 1, which is pivotal one, against the plaintiff by observing that:--
"The onus of this issue was on the plaintiff. As per her version the impugned mutation is result of fraud, but the detail of fraud are neither mentioned in the plaint nor in her statement. Nikah between Abdul Sattar and defendant is an admitted fact. Presence of Abdul Ghafoor, i.e. husband of the plaintiff at the time of Nikah and his thumb impression on Nikahnama Exh.PD-1 is also an admitted fact. Talaq between Abdul Sattar i.e. son of the plaintiff and Begum, Mai defendant is also an admitted fact. Further-more, she did not challenge the entries of Nikahnama. The defendant has proved that suit land was transferred by the plaintiff as dower to her. The plaintiff failed to discharge the onus by producing cogent evidence."
The other Issues Nos. 2, 3 and 4 were also decided against the plaintiff and in favour of the defendant-respondents by the learned trial Court, and Issues Nos.5 and 6 were disposed of. The learned First Appellate Court has upheld the findings of the learned Civil Judge on all the issues by giving cogent reasons.
There are concurrent findings of both the Courts below with regard to law and facts. Both the Courts have given cogent reasons for deciding the lis against the petitioner-plaintiff.
Concurrent findings cannot be disturbed in the civil revision unless there is some jurisdictional error pointed out. In spite of that, without dilating upon the merits of the case, this civil revision is hopelessly time barred for about seven months, which should have been filed within ninety days. Application under Section 5 of the Limitation Act is appended with the civil revision for condonation of delay of near about 07 months. Delay in filing the revision petition cannot be condoned by exercising jurisdiction under Section 5 of the Limitation Act or by suo motu exercise in revisional jurisdiction as Section 5 of the Limitation Act is not made applicable in Section 115 CPC, in which special limitation of 90 days is prescribed for filing a civil revision. Since the period of limitation has been prescribed in Section 115, CPC, for filing of revision petition, which is 90 days, same being a special law, provisions of Section 29(2) of the Limitation Act, 1908 would be applicable and for the determination of period of limitation, all the provisions (except Sections 4, 9 to 18 and 22) would not apply. Section 5 of the Limitation Act, 1908, in circumstances would not apply to civil revisions. Delay in filing the revision petition beyond the period of 90 days prescribed under Section 115, CPC cannot be condoned under Section 5 of the Limitation Act as the operation of said section was expressly excluded by Section 29(2) of the Limitation Act. Reliance is placed on the case reported as Allah Pino vs. Muhammad Shah (2001 SCMR 286) and Haji Ahmad vs. Noor Muhammad (2004 SCMR 1630) and City District Government vs. Muhammad Saeed Amin (2006 SCMR 676) of is excluded. Therefore, this revision petition is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 669
Present: Muhammad Farrukh Irfan Khan, J.
MUHAMMAD MUMTAZ--Petitioner
versus
STATION HOUSE OFFICER, P.S. SHAHPUR, DISTT. SARGODHA and 11 others--Respondents
WP No. 8268 of 2010, decided on 23.6.2010.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 157--Constitution of Pakistan, 1973, Art. 199--Scope of--Constitutional petition--Power vesting in SHO to refuse to record on FIR--No provision exists in Cr.P.C. or any other law which permits a SHO to refuse to record an FIR provided the information conveyed to him disclose the commission of a cognizable offence--Provisions of S. 157, Cr.P.C. equip a police officer only with a discretion to refuse to investigate a case and no where do these provisions, even remotely indicate any power vesting in SHO to refuse to record an FIR if information conveyed to him discloses commission of cognizable offence--Rules are always subordinate to statutory provisions and no rule can permit what was not allowed by a statutory provision. [P. 671 & 672] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Registration of a criminal case--Application for registration of an FIR was moved before SHO--No action was taken--Justice of Peace did not apply its mind--Challenge to--Ex-office Justice of Peace had failed to apply his judicial mind to consider the information placed before him and to examine whether the information in application did not disclose something resulting in commission of a cognizable offence--If answer was in affirmative, then it was incumbent upon the Justice of Peace to issue directions to SHO to record an FIR without going into varacity of the information--If answer was in negative then it was imperative for Addl. Sessions Judge to pass a speaking order with reasons in writing--Petition was allowed. [P. 672] C & D
Police Official--
----Statutory duty as a pubic servant--If police officials fail to incorporate in register a complaint so made, that amount to failure on the part of SHO to perform the statutory duty as a public servant. [P. 672] B
Mr. Muhammad Waheed Akhtar, Advocate for Petitioner.
Mr. Shahid Mubeen, Addl. Advocate General for Respondents.
Date of hearing: 23.6.2010.
Order
Through this Constitutional petition the petitioner seeks direction for Respondent No. 1 for registration of a criminal case under the provision of Section 154 Cr.P.C. in accordance with law.
Briefly the facts of the case are that on 26.11.2008 at about 10:00 p.m. Respondent Nos.2 to 10 trespassed into the house of the petitioner while armed with deadly weapons, abducted the petitioner and subjected him to tortue, and gave severe beating to him to put pressure on the petitioner to sale out the land measuring 167-Kanals 10-Marlas situated in village Chowkia, Tehsil Sahiwal. District Sargodha in favour of Respondent No. 2 who is ex-MNA and landlord of the area. The petitioner moved applications before Respondent No. 1 and before DPO Sargodha for registration of an F.I.R. but no action was taken on these applications. Thereafter, the petitioner approached the learned Justice of Peace through an application on 04.02.2010. The learned Justice of Peace instead of applying its mind to the petition and directing the respondent SHO to lodge a criminal case dismissed the petitioner's application through the impugned order dated 17.02.2010 to the effect that, "police has reported that no such occurrence took place. Admittedly there is land dispute between the parties pending in Court. Petitioner has failed to produce any MLC. Petition has been filed just to put more pressure on the respondents. The same is dismissed".
On the strength of case reported as Muhammad Bashir versus Station House Officer, Jhang Cantt., and others (PLD 2007 S.C. 539) learned counsel for the petitioner contends that from the contents of the applications submitted by the petitioner before the respondent SHO and DPO Sargodha, prima facie, a cognizable offence is made out. That the respondent S.H.O. was duty bound to lodge an F.I.R. as no authority vests with an officer Incharge of a police station or with anyone else to refuse to record an F.I.R. where the information conveyed, discloses commission of a cognizable offence. Adds that the impugned order dated 17.02.2010 passed by learned Addl. Sessions Judge, Sargodha Camp at Shahpur Saddar is not a speaking order, lacks application of mind, without jurisdiction and thus not sustainable under law. That the learned Addl. Sessions Judge, has fell in error while passing the order dated 17.02.2010.
Learned A.A.G. states that during the pendency of the applications by the petitioner before the Respondent No.1 DPO Sargodha, the petitioner approached the learned Justice of peace seeking direction for respondent SHO to register a criminal case against the accused-persons. Therefore, in the circumstances, the learned Addl. Sessions Judge, Sargodha has rightly dismissed the petitioner's application on the ground that some land dispute between the parties is pending in the Court.
Arguments heard. Record perused. Bare perusal of the applications by the petitioner before Respondent No. 1 and DPO Sargodha reveals that, prima facie, a cognizable offence is made out. The petitioner approached the police hierarchy for registration of a criminal case against the accused persons. Thereafter, the petitioner approached the learned Addl. Sessions Judge for directions to respondents for the said purpose which has been dismissed through the impugned order.
No provision exists in the Code of Criminal Procedure or any other law which permits a S.H.O. to refuse to record an F.I.R. provided the information conveyed to him discloses the commission of a cognizable offence. Provisions of Section 157 Cr.P.C. equip a police officer only with a discretion to refuse to investigate a case and no where do these provisions, even remotely indicate, any power vesting in the S.H.O. to refuse to record an F.I.R. if the information conveyed to him discloses commission of a cognizable offence. Needless to add that, rules are always subordinate to the statutory provisions and no rule can permit what was not allowed by a statutory provision.
This Court is fortified while forming its opinion from the judgment of Hon'ble Supreme Court of Pakistan in case of Muhammad Bashir versus Station House Officer, Jhanq Cantt., and others (PLD 2007 S.C. 539). Despite this responsibility falling upon the shoulder of Respondent No. 1 he failed to exercise the responsibility which was incumbent upon him under Section 154 Cr.P.C. to register a case and then to investigate the same in accordance with law. If police officials fail to incorporate in the register a complaint so made, this amounts to failure on the part of the respondent to perform the statutory duty as a public servant. The information mentioned in Section 154 Cr.P.C. appears to be something in the nature of a complaint or accusation or at least information of a crime with the object to putting the criminal law into motion. There should remain no doubt in the mind of the SHO that in case of commission of a cognizable offence, an F.I.R. should have been registered.
The learned Additional Sessions Judge has failed to apply his judicial mind to consider the information placed before him and to examine whether the information contained in the application of the petitioner did or did not disclose something resulting in commission of a cognizable offence. If the answer was in the affirmative, then it was incumbent upon the learned Justice of Peace to issue directions to the SHO to record an FIR without going into the veracity of the said information. If the answer was in the negative then it was imperative for the learned Addl. Sessions Judge to pass a speaking order with reasons in writing.
For what has been discussed above, this writ petition is allowed. A copy of this order be sent to Respondent No. 1 who shall proceed under Section 154 Cr.P.C. on the application of the petitioner under intimation to the Deputy Registrar (Judl.) of this Court.
Disposed of.
(R.A.) Petition allowed.
PLJ 2010 Lahore 673
Present: Iqbal Hameed-ur-Rehman, J.
ABIDA YASMIN--Petitioner
versus
GOVERNMENT OF PUNJAB through Secretary Education (Punjab), and another--Respondents
W.P. No. 17682 of 2009, decided on 29.6.2010.
Punjab ESTACODE Rules--
----R. 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Educational institution--Claimed 10 additional marks--Applied for post of ESE--Father of petitioner being PTC teacher was declared medically unfit and was removed from his service--Petitioner being the only child of her father claimed 10 additional marks for applied post under Rule 17-A of Punjab ESTACODE but had been refused on the ground that petitioner being married was not entitled to grant of 10 additional marks--Challenge to--Held: No bar attached that on marriage it disentited the child from claiming 10 additional marks--Petition was allowed. [P. 674] A
Mian Muhammad Waheed Akhter, Advocate for Petitioner.
Mr. Muhammad Azeem Malik, Addl. Advocate General for Respondent.
Date of hearing: 29.6.2010.
Order
Through the instant writ petition the petitioner has made the following prayer:
"It is most respectfully prayed that respondents be directed to give additional 10 marks to the petitioner, in the light of Rule 17-A of Punjab ESTACODE, for the appointment of the petitioner as Senior Elementary School Educator (Arts)."
Brief facts of the case are that the petitioner applied for the post of Senior Elementary School Educator (Arts) (SESE, Arts) and submitted an application before Respondent No.2 in response to the advertisement in the daily newspaper "Express" dated 29.04.2009 stating therein that the father of the petitioner being a PTC teacher was declared medically unfit w.e.f. 18.12.2005 and was removed from his service as such the petitioner being the only child of her father claimed 10 additional marks for the applied post under Rule 17-A of Punjab ESTACODE but the same had been refused by the respondents on the ground that the petitioner being married is not entitled to the grant of 10 additional marks, hence the instant writ petition.
It is contended by learned counsel for the petitioner that for allowing 10 additional marks in the aggregate as per Rule 17-A of the Punjab ESTACODE there is no condition that on marriage the same shall not be allowed and the same issue has been decided by this Court in Writ Petition No. 2671 of 2009 titled Samia Iqbal vs. The Executive District Officer (Edu.) Chakwal and an other as well as in Writ Petition No.941 of 2009 titled Nazia Naeem vs. Edo Bhawalpur etc. wherein it has been held that marital status of the petitioner does not debar her from the grant of 10 additional marks under Rule 17-A of the Punjab ESTACODE. Further contends that Rule 17-A of the Punjab ESTACODE also does not impose any condition as well.
On the other hand learned Addl. Advocate General controverts the same.
Arguments heard.
From the bare perusal of Rule 17-A of the Punjab ESTACODE, I find that there is no bar attached that on marriage it disentitles the child from claiming 10 additional marks and I am fortified in my view in the judgments of this Court passed in Writ Petitions No.2671 of 2009 and Writ Petition No.941 of 2009.
In view of the above perspective and relying upon the above mentioned judgments the instant Writ Petition is allowed as prayed for.
(R.A.) Petition allowed.
PLJ 2010 Lahore 674 (DB)
Present: Sh. Azmat Saeed and Muhammad Farrukh Irfan Khan, JJ.
MUHAMMAD ASLAM--Appellant
versus
ADIL GHAFOOR--Respondent
RFA No. 470 of 2009, decided on 18.5.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery on basis of a pronote--Failure to produce evidence--Right to produce evidence was closed--Jurisdiction--No estoppel against the statute--Jurisdiction can not be vested by consent of parties and failure of the appellant to raise objection cannot be construed as to vest jurisdiction upon trial Court under Order 37 of CPC and even there is no estoppel against the statute. [P. 676] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery on the basis of pronote, decreed--Necessary for adjudication of lis--Divergent pleadings--Document was attested by two witnesses--Question as to whether the document is a negotiable instrument or not, has not been adjudication upon--Real matter in controvery has escaped adjudication--Case was remanded for its decision afresh including as to the question of jurisdiction and whether the document sued upon was negotiable instrument or not. [P. 676] B
PLJ 2007 Lah. 134, rel.
Mr. Khalid Jamil, Advocate for Appellant.
Mr. Shahid Shaukat, Advocate for Respondent.
Date of hearing: 18.5.2010.
Order
This appeal is directed against the judgment and decree dated 26.8.2009, whereby the suit filed by the respondent in terms of Order XXXVII of CPC on the basis of an alleged pronote was decreed.
Brief facts necessary for adjudication of the lis at hand are that the respondent filed a suit for recovery on the basis of a pronote allegedly executed by the present appellant. Apparently, leave to appear and defend the suit was granted to the present appellant. On the divergent pleadings of the parties, issues were framed whereafter the respondent led evidence. Subsequently, upon the failure of the appellant to produce his evidence, his right to produce evidence was closed, whereafter the trial Court, seized of the matter, vide the impugned judgment and decree dated 26.8.2009, decreed the suit in favour of the respondent.
Counsels for the parties have been heard and record requisitioned from the trial Court has been perused.
It is contended by the learned counsel that the document, on the basis whereof the suit had been filed, was attested by two witnesses and, therefore, it became a bond and not a pronote and as the document sued upon was not a negotiable instrument, hence no suit under Order XXXVII of the CPC could have been filed and the trial Court had no jurisdiction to adjudicate upon the matter in terms of Order XXXVII of the CPC. In support of his contentions, the learned counsel has placed reliance on the case reported as Abdul Rauf vs. Farooq Ahmad and another (PLJ 2007 Lahore 134(DB)). The learned counsel for the respondent has controverted the contentions raised on behalf of the appellant and further stated that no objection qua jurisdiction was raised before the trial Court.
In rebuttal, the learned counsel for the appellant has contended that jurisdiction cannot be vested by consent of parties and the failure of the appellant to raise objection cannot be construed as to vest jurisdiction upon the trial Court under Order XXXVII of the CPC and even otherwise there is no estoppel against the statute.
With the help of the learned counsels, we have examined the record and the document in question which is attested by two witnesses. In the above perspective, it is clear and obvious that the question as to whether the document is a negotiable instrument or not, has not been adjudicated upon. The real matter in controversy has escaped adjudication. Consequently, the impugned judgment and decree dated 26.8.2009 is hereby set aside and the case is remanded to the trial Court for its decision afresh including as to the question of jurisdiction and whether the document sued upon is a negotiable instrument or not. The appellant if so advised may seek amendment in the written statement and an additional issue if claimed by the parties in this behalf be framed.
Appeal accepted. Case remanded with no order as to costs. The record of the trial Court be remitted back forthwith.
(R.A.) Appeal accepted.
PLJ 2010 Lahore 676 [Multan Bench Multan]
Present: Hassan Raza Pasha, J.
SAKINA BIBI and another--Petitioners
versus
STATION HOUSE OFFICER, P.S., CHOWK AZAM DISTRICT LAYYAH and 7 others--Respondents
W.P. No. 4003-Q of 2010, heard on 29.6.2010.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365-B--Constitutional petition--Quashing of FIR--Allegation of abduction--Copy of Nikahnama--Statement u/S. 164, Cr.P.C. was available--Marriage was contracted with her free will and consent--Neither abducted nor subject to any illicit intercourse--No document regarding lesser age of petitioner had been brought on record--Validity--Being sui juris had contracted marriage with co-petitioner which did not constitute any offence--No chance of conviction of accused persons of impugned FIR--Star witness of the case alleged abductee had denied the allegation of abduction--Petitioner was not abducted by any other rather she willfully contracted marriage--FIR was quashed. [P. 678] A
Haji Muhammad Tariq Aziz, Advocate for Petitioners.
Mr. Tahir Mehmood, Advocate for Respondent No. 2.
Mehr Nazar Abbas Chawan AAG for State.
Date of hearing: 29.6.2010.
Judgment
The petitioners seek quashment of FIR No.290 dated 27.04.2010 u/S. 365-B PPC registered at P.S Chowk Azam District Layyah.
Allegedly the Petitioner No. 2 alongwith his co-accused abducted Petitioner No. 1 daughter of complainant with the intention to commit Zina with her.
Learned counsel for the petitioners contends that petitioner No. 1 was never abducted by anyone rather she is legally wedded wife of petitioner, therefore, allegations leveled in the FIR are quite false, frivolous, against facts and concocted. It is also contended that Respondent No. 2 was well within the knowledge of marriage of petitioners. The Petitioner No.1 also got recorded her statement u/S. 164 Cr.P.C. in which she denied her previous marriage and alleged abduction.
Learned AAG as well as learned counsel for the complainant have opposed the instant petition on the grounds that the question whether the petitioners contracted valid marriage or not is factual in nature, which will be determined after recording evidence. The Petitioner No.2 forcibly abducted Petitioner No.1 aged about 14/15 years and compelled her for marriage and the same disclosed a cognizable offence so the consent, if any, is of no value and instant petition is liable to be dismissed
Arguments heard. Record perused.
Perusal of copy of Nikah Nama reveals that age of Petitioner No. 1 is 19 years. Copy of statement of Petitioner No. 1 u/S. 164 Cr.P.C. is also available on record in which she categorically stated that she contracted marriage with Petitioner No. 2 with her free will and consent. She further stated that she was neither abducted nor subjected to any illicit intercourse. No document regarding lesser age of Petitioner No. 1 has been brought on record. The Petitioner No. 1 being sui juris has contracted marriage with Petitioner No. 2 which does not constitute any offence. Moreover there is no chance of conviction of accused persons of impugned FIR, as star witness of the case i.e. alleged abductee has denied the allegation of abduction. In these circumstances it is clear that Petitioner No. 1 was not abducted by anyone rather she willfully contracted marriage with Petitioner No. 2. Therefore instant writ petition is accepted and impugned FIR No. 290 dated 27.4.2010 u/S. 365-B PPC registered at P.S Chowk Azam District Layyah is hereby quashed.
(R.A.) Petition accepted.
PLJ 2010 Lahore 678
Present: Muhammad Khalid Alvi, J.
PROVINCE OF PUNJAB through Executive Engineer, Lahore and 2 others--Appellants
versus
M/s. AMMICO CONSTRUCTION (PVT.) LTD. through its Chief Executive Engineer and 2 others--Respondents
F.A.O. No. 91 of 1997, decided on 5.5.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 158--Arbitration Act, (X of 1940), Ss. 14 & 17--Date of filing of award to raise objection--Limitation to raise any objection--Award was not challenged by appellant--Art. 158 of Limitation Act, provides 30 days time to the parties from the date of filing of award to raise objection, if any--After the period of 30 days, no party can be allowed to raise any objection with regard to award--No provision of law requires a Court to fix a date inviting objections from either party--It is the choice of the parties within prescribed period of limitation to raise any objection or not--Appeal was dismissed. [P. 679] A
Mr. Rafey Ahmed Khan, A.A.G. for Appellants.
Chaudhry Inayat Ullah, Advocate for Respondents.
Date of hearing: 5.5.2009.
Judgment
Brief facts of the case are that Respondent No. 1 was awarded a contract for construction of Second Bridge over River Ravi near Sagian on 11.3.1993 in consideration of Rs. 112.257 millions, which was to be completed within a period of 12 months. After completion of work Respondent No. 1 raised certain claims against appellant before the nominated arbitrators (Respondents No. 2 & 3) according to agreement. Both arbitrators unanimously resolved on 31.10.1996 that Respondent No. 1 is entitled to recover a sum of Rs. 1,69,75900/-. This Award was not challenged by appellants before the Court, however, respondent filed an application under Section 14 read with Section 17 of the Arbitration Act before learned Civil Court on 14.11.1996 with a prayer to make the Award Rule of Court. Learned Civil Court issued notices on the same day for 28.11.1996. On the said date Malik Abdul Waheed, SDO appeared and filed the Award in Court. Notices to the other appellants were also issued for 7.1.1996 with a specific notice to the effect to show-cause as to why Award be not made Rule of Court. On 1.12.1996, learned counsel for the parties appeared along with a representative of the appellants and fact that Award has been filed in Court was also recorded. On 10.12.1996, Syed Anwaar Hasnat, Executive Engineer of the appellants appeared and stated that he has no objection with regard to making the Award Rule of Court in accordance with law. Thereafter, matter remained pending till 12.3.1997, when the Award was finally made Rule of Court. This order is being assailed through the instant appeal.
Before learned counsel for the appellants could open his case on merits, a preliminary objection has been raised by learned counsel for the respondent to the effect that after filing of Award in Court on 28.11.1996 and particularly in the presence of learned counsel and the representative of the appellants on 1.12.1996 appellants could file objection, if any, within a period of 30 days from the said date under Article 158 of the Limitation Act. Since no objection was filed, therefore, appellants are estopped to challenge the Award.
Learned counsel for the appellants, however, maintains that learned trial Court should have fixed a specific date inviting objections from the appellants. In the absence of any such specific date case of the appellants has been prejudiced. It is further submitted that reply to the application was also not invited. Such a reply was prepared and was presented to the Court but the same was not entertained.
I have considered arguments of learned counsel for the parties.
Article 158 of the Limitation Act provides 30 days time to the parties from the date of filing of Award to raise objection, if any. After said period no party can be allowed to raise any objection with regard to Award. No provision of law requires a Court to fix a particular date inviting objections from either party. It is choice of the parties within the prescribed period of limitation to raise any objection or not.
Apart from this Syed Anwaar Hasnat, Executive Engineer appeared before the Court on 10.12.1996 and made a specific statement that he has no objection to the effect that Award may be made Rule of Court. It is also to be noted that appellants had been continuously represented till the last date of the impugned order and they never bothered to raise any objection with regard to Award.
For what has been stated above, I find no merit in this appeal, same is accordingly dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 Lahore 680
Present: Muhammad Khalid Alvi, J.
MUHAMMAD IRSHAD and 2 others--Petitioners
versus
DEPARTMENT OF HOUSING & PHYSICAL PLANNING DIVISION FAISALABAD through Secretary Housing--Respondents
C.R. No. 1467 of 2007, heard on 4.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Right of lead evidence was closed--Challenge to--Over a period of about one year six adjournments on the request of the petitioners were granted but they failed to adduce their evidence in support of their case--No case for interference was made out--Petition was dismissed. [P. 681] A
Mr. Amir Abdullah Khan Niazi, Advocate for Petitioners.
Mr. Rafey Ahmed Khan, AAG for Respondent.
Date of hearing: 4.6.2009.
Judgment
(C.M. No. 487-C-2009) Documents being sought to be produced on record are not part of the file of learned trial Court, therefore, same cannot be allowed while exercising powers under Section 151 CPC. This application is accordingly dismissed.
MAIN CASE
With the concurrence of learned counsel for the parties this case is being treated as a "Pacca" Case.
Brief facts of the case are that petitioners filed a declaratory suit against respondent claiming to be owner in possession of the property detailed in the plaint and also submitted that 30/35 years before the institution of the suit their property was included by the respondent in a Housing Scheme and 12 plots were carved out. Petitioners are in possession of all those plots and those plots also include some of the area of respondent. It was pleaded that petitioners are ready to make payment with regard to excess land in their possession. Respondent was proceeded against exparte. Petitioners led their exparte evidence. After considering the same, learned trial Court vide judgment & decree dated 26.5.2005 dismissed the suit. An appeal was preferred by the petitioners, which was allowed on 26.9.2005 and the case was remanded, allowing the petitioners to lead further evidence in support of their case. Six opportunities were given to petitioners for leading their evidence and ultimately on 12.10.2006 by applying Order XVII, Rule 3 CPC right of the Petitioners to lead evidence was closed and suit was dismissed. It was challenged through an appeal, which also stands dismissed vide judgment & decree dated 22.5.2007.
It is contended that petitioners had inadvertently noted the date as 27.10.2006, which actually was 12.10.2006. In support of his this contention he had placed on record a Diary and affidavit of the learned counsel. Relies on 1968 SCMR 817.
On the other hand, learned counsel for respondent has opposed the arguments advanced by learned counsel for the petitioners.
I have considered arguments of learned counsel for the parties.
Order sheet of the learned trial Court indicates that from 8.10.2005 till 12.10.2006 i.e. over a period of about one year six adjournments on the request of the petitioners were granted to them but they failed to adduce their evidence in support of their case. Judgment cited by learned counsel for the petitioners in support of his case is not relevant, inasmuch as, it relates to restoration of certain proceedings, while in the instant case law applicable would be 2004 SCMR 964, according to which Court proceedings are to be given preference over an affidavit filed by a learned counsel. In this view of the matter, no case for interference is made out. This revision petition is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 682
Present: Muhammad Khalid Alvi, J.
PARVAIZ AHMED--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION OKARA through Nazim and another--Respondents
C.R. No. 49 of 2009, heard on 18.5.2009.
Punjab Private Site Development Schemes (Regulations) Rules, 2005--
----R. 8(7)--Private Scheme--Restraining private developers to offer plots for sale--Developer was not authorized to offer sale of plots, unless scheme was duly sanctioned in accordance with law--Contractor of collection of tax on transfer of property--Order for restriction on registration of sale deed/mutations of unapproved private housing colonies--Application for interim relief seeking suspension of operation of the impunged order was filed--Dismissal of the application by Courts below--Question of--Civil suit was not maintainable--Validity--General direction issued by DCO relating to all such private developers which had not yet obtained sanction from competent authority--Authority was competent to give effect to the provisions of rules by restraining private developers to offer plots for sale which scheme had not yet been duly approved--Petition was dismissed. [P. 683] A
PLD 2008 Lah. 337 & PLD 2007 Lah. 689, ref.
Khawaja Saeed-uz-Zafar, Advocate for Petitioner.
Mian Subah Sadiq Kalasson, Advocate for Respondent No. 1.
Mr. Rafey Ahmed Khan, A.A.G. for Respondent No. 2.
Date of hearing: 18.5.2009.
Judgment
Brief facts of the case are that petitioner is a Contractor of collection of tax on transfer of property under Respondent No. 1/TMA and challenged through suit, the order dated 16.6.2008 passed by DCO/Respondent No. 2 whereby he placed restriction on the registration of sale-deeds/mutations of unapproved private housing colonies in District Okara. Along with the suit an application for interim relief seeking suspension of the operation of said order was also filed. Suit and application was contested by the respondents. Learned trial Court vide order dated 16.9.2008 dismissed the application. Petitioner's appeal also failed on 22.10.2008. Both these orders are being assailed through the instant civil revision.
It is contended by learned counsel for the petitioner with reference to PLD 2007 Lahore 689 and PLD 2008 Lahore 337 read with Rule 135 of the Registration Rules, 1929 that registration authorities have no jurisdiction whatsoever to go beyond the identity of the executant and confirmation by such executant with regard to contents of document. Registration authority cannot examine the correctness, falsity, fraudulent element or for that matter any other eventuality with regard to the document except the true identity of the executant. It is also added that on account of bar imposed by the DCO petitioner is suffering irreparable loss. On the other hand, if petitioner is allowed to collect tax on the sale-deeds/mutations, same can be calculated with exact amount, therefore, irreparable loss if any is likely to occur to petitioner and not to respondents.
On the other hand, learned counsel for Respondent No. 1 contends that there is an arbitration clause in the agreement, therefore, a civil suit is not maintainable. He has also submitted that an appeal is provided under the Local Government Ordinance against the order passed by the DCO.
Learned A.A.G. with reference to Rule 8(7) of the Punjab Private Site Development Schemes (Regulation) Rules, 2005 contends that in any private scheme, a developer is not authorized to offer sale of plots/houses unless his scheme is duly sanctioned in accordance with law. It is thus contended that restriction imposed through the impugned letter dated 16.6.2008 is in accordance with law.
I have considered arguments of learned counsel for the parties.
Judgments cited by the learned counsel for the petitioner reported as PLD 2008 Lhr 337 is on some what different subject, inasmuch as in the said case an order was passed refusing issuance of some revenue record while case reported as PLD 2007 Lhr 689 pertains to an individual matter. The instant case relates to a general direction issued by the DCO relating to all such private developers which have not yet obtained sanction from the competent authority, therefore, the ruling cited by the learned counsel is not fully attracted to the facts and circumstances of the case. The authority is competent to give effect to the provisions of rules by restraining private developers to offer plots for sale which scheme has not yet been duly approved.
For what has been stated above, I find no merit in this petition, which is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 684
Present: Nasim Sikandar, J.
MUHAMMAD AFZAL--Petitioner
versus
EXECUTION DEPARTMENT OF DISTRICT SHEIKHUPURA through Executive District Officer (Education) and 3 others--Respondents
C.R. No. 1479 of 2007, decided on 3.3.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O.XXXIX, R. 2 & 3--Civil revision--Revisional jurisdiction--Decling to issue an injunctive order--Land was reserved for Asaish Deh in consolidation proceedings held for village--Mutation of change of ownership--Validity--High Court did not inclined to interfere in revisional jurisdiction that petitioner had failed to bring home that First Appellate Court by way of the order exercised jurisdiction which was not vested in it by law or had failed to exercise a jurisdiction so vested or had acted in exercise of his jurisdiction illegality or with material irregularity, land was reserved as Asaish Deh with consent of land owner, land in-question having been mutated some 22 years earlier to filing of suit, plaint was clearly barred by limitation and land reserved as Asaish Deh being earmarked for construction of a public school--No question of grant of injunction against the proposed project--No possible exception to the same can be taken in revisional jurisdiction--Petition was dismissed. [P. 685] A
Mr. Muhammad Sarwar Awan, Advocate for Petitioner.
Mr. Rafey Ahmad Khan, AAG & Mr. Pervaiz Mahmood, OSD (Litigation) EDO, Education for Respondents.
Date of hearing: 30.3.2009.
Order
This Civil Revision under Section 115 of the CPC seeks to challenge an order of Addl. District Judge, Sheikhupura dated 13.07.2007 whereby he maintained the order of the trial Court dated 27.06.2007 passed by Civil Judge 1st Class, Sheikhupura declining to issue interim injunction.
On 23.05.2007 the present petitioner as plaintiff filed a suit for declaration and permanent injunction alleging that part of the suit land belonging to his grand father was slashed away and reserved for Asaish Deh in the consolidation proceedings held for the village in the year 1983. The mutation of change of ownership No. 715 dated 17.08.1983 was sought to be declared illegal, malafide and without lawful authority. A permanent injunction was also sought against further transfer of the land in question.
The learned trial Court declined to issue an injunctive order after it was informed that the suit land had further been transferred in favour of Respondent No. 1, the Education Department for construction of a public high school in the village. As noted earlier, the order of the trial Court was maintained by the First Appellate Court.
After hearing the learned counsel for the petitioner as also the learned Assistant Advocate General I am not inclined to interfere in the revisional jurisdiction. Following being the reasons:--
(i) The counsel for the petitioner has failed to bring home that the learned First Appellate Court by way of the impugned order exercised a jurisdiction which was not vested in it by law or had failed to exercise a jurisdiction so vested or had acted in exercise of his jurisdiction illegally or with material irregularity.
(ii) According to the concurrent findings recorded by the forums below during consolidation proceedings a particular piece of land was reserved as Asaish Deh with the consent of the land owners of the village. That being so, the petitioner as successor-in-interest of his grand father cannot be heard in complaint against the creation of Asaish Deh.
(iii) The piece of land in question having been mutated some 22 years earlier to the filing of the suit, the plaint was clearly barred by limitation. All the more so, when not a single assertion was made in the plaint to explain the same. Mere statement in para-5 of the plaint that on going through the revenue record the plaintiff came to know of the impugned mutation only one month before the filing of the suit was too fabulous to be believed. And, (iv) The land in issue reserved as Asaish Deh being earmarked for construction of a public school by the Education Department from public funds, there was no question of grant of injunction against the proposed project. The findings of the trial Court as well as the learned First Appellate Court being well within law, the procedure and in the interest of public, no possible exception to the same can be taken in revisional jurisdiction.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 686
Present: Muhammad Khalid Alvi, J.
Sh. MUHAMMAD BASHIR--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION MALIKWAL through Tehsil Municipal Officer, District Mandi Bahauddin and 4 others--Respondents
W.P. No. 8275 of 2009, decided on 21.5.2009.
Punjab Local Government (Auctioning of Collection Rights) Rules, 2003--
----R. 16--Constitution of Pakistan, 1973, Art. 1973--Constitutional petition--Auction for cattle market was challenged--No locus standi to challenge such an auction--Deposit of 2% of reserve price but it does not disclose the mode--May be deposited through a call deposit, bank guarantee--Validity--Earnest money had to be deposited through call deposit before participation in auction--Any call deposit was got prepared or furnished by the petitioner with auctioning authorities before start of auction--Held: Petitioner was not a participant of the auction, he was not holding any locus standi to challenge such an auction--Petition was dismissed. [P. 687] A & B
PLJ 2006 Lah. 921, ref.
Rana Muhammad Arif, Advocate for Petitioner.
Mr. Rafey Ahmad Khan, AAG for Respondents No. 1 to 3.
Mr. Naveed Ahmad Khawaja, Advocate for Respondent No. 4.
Date of hearing: 21.5.2009.
Order
Brief facts of the case are that petitioner through the instant petition has challenged auction held on 21.4.2009 for the Cattle Market, Gojra which has finally been confirmed in favour of Respondent No. 2 for a consideration of Rs. 18,05,000/-.
It is contended by learned counsel for the petitioner that publication in the Press does not contain reserve price as required by Rule 5(v) of Auctioning of Collection Rights Rules, 2003. It is further added that under Rule 10 at least three attempts should have been made. It is further added that petitioner is ready to pay an amount of Rs. 4,00,000/- over and above the accepted amount.
On the other hand, learned counsel for Respondent No. 4 contends that petitioner did not participate in the auction, therefore, he has no locus standi to challenge the same. In support he has submitted that according to publication every participant was required to furnish a call deposit of the earnest money before participation in the auction. With reference to PLJ 2006 Lahore 921 it is contended that a person who has not participated in the auction is left with no locus standi to challenge the auction.
In response learned counsel for the petitioner contends that requirement of Rule 16 is that earnest money is to be deposited in cash and not through a call deposit.
Rule 16 merely requires deposit of 2% of reserve price but it does not disclose the mode in which it is to be deposited i.e. it may be cash, it may be through a Call Deposit, bank guarantee or any other mode which ever may be decided by the local council. In the instant case, it was clearly publicized through Press that earnest money has to be deposited through call deposit before participation in the auction. Learned counsel for the petitioner has failed to show me any evidence by way of which it could be ascertained that any call deposit was got prepared or furnished by the petitioner with the auctioning authorities before the start of auction. In this view of the matter, since petitioner was not a participant of the auction, he is not holding any locus standi to challenge such an auction.
For what has been stated above, I find no merit in this petition, same is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 687
Present: Muhammad Khalid Alvi, J.
ASGHAR ALI--Petitioner
versus
PROVINCE OF PUNJAB through Collector District Sargodha and 2 others--Respondents
C.R. No. 1594 of 2007, heard on 4.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Right for leading evidence was closed--Adjournments were granted for producing his evidence with cost and with warning but despite that petitioner failed to produce his evidence--Memorandum of appeal--Validity--It took almost three years and 38 adjournments and numerous on the request of the petitioner and particularly last three with cost and warning, petitioner did not care to adduce his evidence--No ground for interference was made out--Petition was dismissed. [P. 689] A
Mr. Tariq Bashir Dogar, Advocate for Petitioner.
Mr. Rafey Ahmed Khan, AAG for Respondents.
Date of hearing: 4.6.2009.
Judgment
Brief facts of the case are that petitioner filed a suit for declaration claiming o be owner in possession of property detailed in the head-note of the plaint on the basis of being a legal heir of deceased Mst. Sardaran. An other case was also filed by one Allah Dad respondent that he is legal heir of said Mst. Sardaran. Both the suits were consolidated and proceedings were carried on in the suit filed by present petitioner. Consolidated issues were framed by learned trial Court on 21.2.2004 and petitioner was called upon to lead his evidence. From the date of framing of issues till the last date i.e. 23.11.2006 when by application of provisions of Order XVII Rule 3 CPC right of petitioner for leading evidence was closed, total 38 dates were fixed. On majority of the said dates case had to be adjourned on the request of petitioner for producing his evidence. At least on three previous dates i.e. 3.7.2006, 27.7.2006 and 3.10.2006 adjournments were granted on the request of petitioner for producing his evidence with cost and also with warning but despite that petitioner failed to produce his evidence and ultimately his suit was also dismissed on 23.11.2006. It was assailed by the petitioner through an appeal, which also stands dismissed on 31.5.2007. Both these judgments & decrees are being assailed through the instant civil revision.
It is contended that on 23.11.2006 petitioner was hospitalized on account of a road accident, therefore, could not manage to get in touch with his learned counsel. It is further submitted that on the preceding date i.e. 3.10.2006 request was not made on behalf of the present petitioner, therefore, penal action should not have been taken on the next date of hearing.
On the other hand, learned AAG has opposed the arguments advanced by learned counsel for the petitioner.
I have considered arguments of learned counsel for the parties.
Ground being urged by learned counsel for the petitioner that he had met a road accident, is not in line with Para 6 of the memorandum of appeal filed by the petitioner before learned lower Court, in which it is submitted that he was sick and was hospitalized. No mention of any accident is on record. Apart from this, it took almost three years and 38 adjournments and numerous on the request of the petitioner and particularly last three with cost and warning, petitioner did not care to adduce his evidence, therefore, for reasons stated above, no ground for interference is made out. This petition has not merit and is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2010 Lahore 693
Present: Syed Mansoor Ali Shah, J.
WAJID ALI--Petitioner
versus
RENT REGISTRAR/SPECIAL JUDGE RENT, LAHORE
and another--Respondents
W.P. No. 8993 of 2010, heard on 14.6.2010.
Punjab Rented Premises Act, 2009 (VII of 2009)--
----S. 2(m)--Scope of--Tenancy agreement--Land lord lets out premises to a tenant--Validity--A tenancy agreement is an executed contract which means that it has been duly executed between the parties i.e. landlord and tenant. [P. 695] A
Punjab Rented Premises Act, 2009 (VII of 2009)--
----S. 5(3)(4) & (4)--Tenancy agreement between the parties--Rent Registrar is to affix his seal on tenancy agreement--S. 5(4) states that tenancy agreement can be registered under law relating to registration of documents--Under Registration Act, 1908, an agreement has to be executed by the parties before it is registered.
[P. 695] B
Punjab Rented Premises Act, 2009 (VII of 2009)--
----S. 5(6)--Registration of a proposed rent agreement--Tenancy agreement--Where a tenancy agreement can be executed subsequent to enforcement of the act and then presented to Rent Registrar--An executed tenancy agreement can be placed for registration before the Rent Registrar. [P. 695] C
Punjab Rented Premises Act, 2009 (VII of 2009)--
----S. 5(2)--Tenancy agreement can be registered without notice to tenant--Question of--Determination--Landlord would present the tenancy agreement before Rent Registrar--Entire process of registration of the tenancy agreement had to be completed at the back of tenant through an ex-parte proceeding. [P. 696] D
Punjab Rented Premises Act, 2009 (VII of 2009)--
----S. 5-Constitution of Pakistan, 1973, Arts. 4, 10-A & 199--Constitutional petition--Registration of a proposed rent agreement--Registration of tenancy agreement--Fundamental rights--Fair trial--Validity--Registration of tenancy agreement creates obligation on the tenant and therefore, the tenant must be put on notice and heard before any such registration takes place--Art. 10-A of Constitution is a new fundamental right that equips the petitioner with a right to fair trial and due process--Civil rights and obligations cannot be determined without fair trial and due process--Failure to issue notice to a tenant and to proceed for registration of the rent deed in absence of tenant is violative of Arts. 4 & 10-A of Constitution--Fundament right of fair trial and due process has to be read into every statute--Petition was allowed. [P. 696] E
Mr. Azmatullah Chaudhry, Advocate for Petitioner.
Ch. Muhammad Iqbal, Advocate for Respondent No. 2.
Date of hearing: 14.6.2010.
Judgment
Brief facts of the case are that Respondent No. 2 (land lord) moved an application under Section 5 of the Rented Premises Act, 2009 (Act) praying for registration of a proposed rent agreement between the said respondent and the petitioner. Alongwith said application, Respondent No. 2 attached the proposed written tenancy agreement. Learned Special Judge Rent, Lahore without issuing notice to the petitioner registered the said proposed rent agreement. The petitioner has impugned the same on the ground that he has been tenant of Respondent No. 2 on the basis of oral tenancy and the terms written in the proposed tenancy agreement are not the same as agreed in the oral tenancy.
Learned counsel for the petitioner submits that the learned Special Judge Rent, Lahore has no jurisdiction under the law to register an agreement, which has not been executed by the petitioner.
Learned counsel for the respondents submits that under the Punjab Rented Premises Act, 2009, the existing tenancy to be brought into conformity with the law and the same has to be recorded in writing and duly registered and therefore, the impugned order is in compliance of Section 5 of the said Act.
Arguments heard, record perused.
Section 5 of the Rented Premises Act 2009 simply states that:--
Agreement between landlord and tenant:
(1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.
(2) A landlord shall present the tenancy agreement before the Rent Registrar.
(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.
(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.
(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.
(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in sub-Section (2).
(emphasis supplied)
Tenancy Agreement is defined in Section 2(m) of the Act to mean an agreement in writing by which a landlord lets out premises to a tenant. Needless to say that a tenancy agreement is an executed contract which means that it has been duly executed between the parties (i.e., landlord and tenant)
Under Section 5(2) of the Act, a Rent Register is to simply register a Tenancy Agreement. Therefore, registration pre-supposes that there exists a duly executed Tenancy Agreement between the parties. Similarly under Section 5(3) the Rent Registrar is to affix his seal on the Tenancy Agreement. Section 5(4) states that the Tenancy Agreement can also be registered under the law relating to registration of documents. Even under the Registration Act, 1908, an agreement has to be executed by the parties before it is registered.
Section 5(6) of the Act provides for a situation where a Tenancy Agreement can be executed subsequent to the enforcement of the Act and then presented to the Rent Registrar. This also makes it clear that an executed Tenancy Agreement can be placed for registration before the Rent Registrar. In the present case the application submitted by Respondent No. 2 under Section 5 of the Act clearly states that there is a "proposed tenancy agreement" between the parties. Application under Section 5 can only be initiated if there is an executed Tenancy Agreement. This aspect of the matter was totally over looked by the learned Rent Registrar in the impugned order.
The next question is a Tenancy Agreement can be registered without notice to the tenant. Section 5(2) provides that the landlord shall present the Tenancy Agreement before the Rent Registrar. This does not mean that the entire process of registration of the Tenancy Agreement has to be completed at the back of the tenant through an ex-parte proceedings. The registration of the Tenancy Agreement creates obligation on the tenant and therefore the tenant must be put on notice and heard before any such registration takes place. Article 10-A of the Constitution is a new fundamental right that equips the petitioner with a right to fair trial and due process. Civil rights and obligations cannot be determined without fair trial and due process. Failure to issue notice to a tenant and to proceed for registration of the rent deed in the absence of the tenant is violative of Articles 4 and 10-A of the Constitution. Fundamental right of fair trial and due process has to be read into every statute. Therefore, impugned order dated 6.4.2010 is without lawful authority.
For the above reasons, this petition is allowed, and impugned order dated 6.4.2010 passed by Special Judge Rent, Lahore is set aside.
(R.A.) Petition allowed.
PLJ 2010 Lahore 696
Present: Ch. Muhammad Tariq, J.
AMANAT MASIH--Petitioner
versus
Mst. NAJMA BIBI and 2 others--Respondents
W.P. No. 14770 of 2009, decided on 28.4.2010.
Pleadings--
----Scope--Question of jurisdiction--Objection was not raised before appellate Court--Cannot go beyond his pleadings--Validity--Petitioner had not raised any such ground before Appellate Court while filing an appeal and even the petitioner had failed to incorporate such ground in the petition--Petitioner cannot go beyond his pleadings--All the matter shall be decided within four corners of the pleadings--Question of jurisdiction could be raised at the earliest--An objection was tenable. [P. 697] A
Ch. Sameed Ahmed Wains, Advocate for Petitioner.
Date of hearing: 28.4.2010.
Order
CM. No. 1858/2010
The instant application has been filed for restoration of the main writ petition dismissed for non-prosecution on 27.04.2010. The application is supported by an affidavit of the learned Counsel. For the reasons stated therein, this CM is allowed and the main petition is restored to its original number. CM stands disposed of.
MAIN CASE
Brief facts of the case are that about 5 years ago, the petitioner was married with Respondent No. 1. Out of this wedlock, no child was born. After some time, Respondent No. 1 filed a suit for the recovery of maintenance which was decreed on 13.04.2009 by Mr. Saqib Farooq Awan, learned Family Judge who fixed Rs.2000/- per month as maintenance of Respondent No. 1 with effect from 03.07.2006 on account of past maintenance and also future maintenance at the same rate. The petitioner filed an appeal which was dismissed by Syed Hamid Hussain, learned District Judge, Sargodha on 17.06.2009. Hence this writ petition.
Learned counsel for the petitioner has emphasized more on a sole point that since the petitioner is Christian by religion so Family Courts have no jurisdiction to pass an order against the petitioner, therefore, this writ petition be allowed, impugned judgment and decree dated 17.06.2009 passed by learned District Judge, Sargodha as well as judgment and decree dated 13.04.2009 passed by the learned Judge, Family Court be set aside and the suit for the recovery of maintenance of the Respondent No. 1 be dismissed. In support of his contentions, the learned counsel has referred the law laid down in PLD 1978 Karachi 336.
Arguments heard. Record perused.
This Court has examined the written statement filed by the petitioner but the question of jurisdiction has never been raised by the petitioner. Similarly, the petitioner has not raised any such ground before the appellate Court while filing an appeal and even the petitioner has failed to incorporate this ground in the instant petition. The petitioner cannot go beyond his pleadings. All the matters shall be decided within four corners of the pleadings. The question of jurisdiction could be raised at the earliest. Such an objection is not tenable. The law laid down in "PLD 1978 Karachi 336" referred by the petitioner's counsel in favour of his contentions is not applicable because this law is in respect of divorce amongst the Christians and has no nexus with the present case. Even otherwise, the provisions of West Pakistan Family Court Act, 1964 would apply in the instant case. The relevant provisions of the ibid Act are given as under:
"5. Section 3(3) of Divorce Act, 1869, has defined the Court of Civil Judge, which reads as under:
"Section 3(2): "Court of Civil Judge" means in the case of any petition under this Act, the Court of the Civil Judge within the local limits of whose ordinary jurisdiction the husband and wife resided or last resided together."
From the above provisions of law, it clearly means that the petition can be filed in the Court of Civil Judge, where the spouses resided or had been residing together.
Schedule under Section 5 of the West Pakistan Family Courts Act, 1964 provided the following suits triable by the Judge, Family Court:--
(1) Dissolution of marriage including Khula.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
(8) Dower.
(9) Personal property and belongings of a wife.
"Rule-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 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."
"Section 5.--Subject to the provisions of the Muslim Family laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the schedule."
(R.A.) Order accordingly.
PLJ 2010 Lahore 699
Present: Muhammad Khalid Mehmood Khan, J.
ABBAS ALI--Petitioner
versus
MEMBER BOARD OF REVENUE, PUNJAB, LAHORE
and 2 others--Respondents
W.P. No. 3788 of 2010, decided on 22.4.2010.
Land Revenue Rules, 1968--
----R. 17(1)--Notification No. 81-2006/50-C(v)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Allotment of land is a right of lumberdar which cannot be withdrawn once allotted--Being lumberdar is entitlement for allotment of land--Petitioner being lumberdar applied to DOR for allotment of land u/Notification No. 81-2006/50-C(v)--Land was allotted to the petitioner under lumberdari grant--Possession was delivered--Respondent filed an application claiming that allotted land was leased out to him--Allotment of land was cancelled--Revision petition was also dismissed--Challenge to--Validity--Petitioner was a lumberdar and he was also entitled to 12 acres land under lumberdari grant scheme--Allotment of the land to the petitioner was not disputed--Dispute was only that the land was not situated in the village of appointment of lumberdar nor was situated in a physically joined village and the land was not in an adjoining village--Held: Villages has a large scope which denotes that the land could be allotted to the lumberdar in any other village but should not be out of the administrative control of the Tehsil of lumberdar--Allotment of land to the petitioner was declared in accordance with law. [Pp. 703 & 704] A & I
Allotment of Land to Lumberdar--
----Scope--Idea for allotment--Government wanted to compensate the lumberdar for the services which he was rendering to the Government free of costs. [P. 703] B
Lumberdar--
----In the revenue set-up the lumberdar although is an important person but he is not on the pay role of the Government. [P. 703] C
Notification--
----Clause-8--Amendment--Notification No. 1762--2007/1263-CV dated 22.10.2007--Importance of lumberdar--Scheme was prepared for compensating the lumberdar and it was firstly decided that land allotted should be in the village of the lumberdar, but when the Govt. came to know that in most of the villages the state land is not available and the land was not allotted to lumberdar he may refuse to act as lumberdar and in absence of lumberdar in the village the interest of Govt. will be at stake--Keeping in view of the importance of lumberedar, Notification was amended. [P. 703] D
Notification--
----Clause 8(a)--No. 1762-2007/1263, CV dated 22.10.2007--Word adjoining villages--Amendment--The word adjoining villages has been added--The word physically joining village shows that in case the land is not available in the village of lumberdar, he may be provided state land in village which is physically joining village with the village of lumberdar and if the land is not available in physically joining village then it can be allotted in adjoining village--The word villages has been intentionally mentioned in the amended notification permitting the authorized officer to allot the land to lumberdar in any village but under one tehsil if the land is not available is physically joined village the land can be allotted adjoining villages and not village--If this was not the intention of the author of the amended Notification there was no need to add the word adjoining villages--If the intention of the author of Notification was that land can be allotted only in physically joining village/adjoining village, there was no need to mention the word "villages"--The word villages denotes the longer scope of word village. [Pp. 703 & 704] E & F
Interpretation of Statute--
----Interpretation should be constructive and the destructive. [P. 704] G
Lumberdar Grant Scheme--
----Scope of--Purpose of notification/scheme is to give incentive to lumberdar to support the Govt. managing the affair of land and to recover the Govt. fees and revenue without any financial burden on Govt. exchequer. [P. 704] H
Rana Khalil Ahmad, Advocate for Petitioner.
Mian Abdul Rasheed, Advocate for Respondents.
Date of hearing: 7.4.2010.
Judgment
Through this constitutional petition the petitioner has assailed the order dated 01.12.2009 passed by the Member Board of Revenue Punjab and order dated 27.3.2009 passed by the E.D.O (R) Nankana Sahib.
2-A. On the application of Respondent No. 2, the allotment of the petitioner was cancelled vide order dated 28.10.2009 holding that the petitioner is not entitled for the allotment of land out of his village under the notification dated 17.1.2006 and subsequently amended on 22.10.2007.
The petitioner assailed the said order through the revision petition before the Board of Revenue. The Member Board of Revenue vide order dated 01.12.2009 dismissed the revision petition. Hence, this constitutional petition.
Notices were issued to the respondents who submitted their parawise comments and supported the impugned orders.
All the learned counsel requests that the writ petition may be decided as PACCA case on the basis of available record and as such this writ petition is being decided as PACCA case.
Learned counsel for the petitioner submits that petitioner being Lumberdar is entitled for allotment of land measuring 100 Kanals under a lumberdari grant scheme. The scheme provides that the Lumberdar appointed Under Rule 17(i) of the land Revenue rules shall be provided state land not exceeding to 12 acres provided land is available in Mouza/Chak where the Lumberdar is appointed. The said notification was further amended vide Amendment No. 1762-2007/1263-C dated 22.10.2007 and under Clause-8-A the petitioner is entitled for the allotment of land even other village and as such the land was rightly allotted to him. The allotment is a right of Lumberdar which can not be withdrawn once allotted. He further submits that the possession has been handed over to the petitioner, he has invested huge amounts and his crops are available on the land.
Learned counsel for Respondent No. 1, on whose application the land allotted to the petitioner was cancelled/withdrawn, submits that the land was leased to him under respondent's policy for five years. He is in possession of the land and is cultivating the same. The suit between Respondent No. 3 and one Nazir Ahmad and Govt. of Punjab is pending disposal before the learned civil Court. He further submits that the Respondents No. 2 and 3 have no authority to declare him an unauthorized occupant of the land. When asked whether he assailed the order dated 28.10.2009, his answer was in negative. So the order against him attained finality and as such he is no more in the field.
Learned Assistant Advocate General submits that no doubt the notification has been amended but the amendment shows that the land allotted to the Lumberdar should be physically joining village/adjoining villages. He submits that the land allotted to the petitioner is not in the petitioner's village nor the suit land is in physically joining village/adjoining villages and as such the order passed by the learned Courts below are in accordance with law.
Heard. Record perused.
The Notification (policy) dated 17.1.2006 is read as under:
"Clause-8 of the grant "Lumberdar appointed Under Rule 17 (1) of the Land Revenue Rules shall be provided state land not acceding 12 acres provided land is available in Mouza/Chak where the Lumberdar is appointed."
"(a) In case estate land is not available in the village of Lumberdar he may be provided state land in physically joining village/adjoining villages.
It is an admitted fact between the parties that "petitioner is a Lumberdar and he is also entitled to 12 acres land under the Luberdari grant scheme. Allotment of said land to the petitioner is not disputed. The dispute is only that said land is not situated in the village of appointment of Lumberdar nor is situated in a physically joined village and the land is not in an adjoining village.
"8-SIZE OF THE GRANT:
"The Lumberdar appointed under Rule 17(i) of the Land Revenue Rules shall be provided state land not exceeding to 12 acres, provided the land is available in the "Mauza"/"Chak" where the Lumberdar is appointed.
An amendment made in the policy vide Notification No. 1762-2007/1263-CV dated 22.10.2007 reads as under:
Clause 8(a)
"In case state land is not available in village of Lamberdar he may be provided state land in physically joining village/adjoining villages."
Learned Assistant Advocate General under instructions admits that the land allotted to petitioner situates in the village which is under the administrative control of the Tehsil.
The above said factual position shows that the word villages has been intentionally mentioned in the amended notification permitting the authorized officer to allot the land to the Lumberdar in any village but under one Tehsil if the land is not available is physically joined village the land can be allotted adjoining villages and not village. If this was not the intention of the author of the amended Notification there was no need to add the word /adjoining villages. The word villages denotes the bundle of villages, hence it is clear that land can be allotted in any village of Tehsil of Lumberdar provided the land is not available in the village of Lumberdar or in physically joining village or even adjoining village. If the intention of the author of the Notification was that land can be allotted only in physically joining village/adjoining village, there was no need to mention the word "villages". The word villages denotes the longer scope of word village. It is an establish principle of interpretation of statute that interpretation should be constructive and not the destructive. If we construe the word adjoining villages in singular form the very purpose of grant of land to Lumberdar will fail. The purpose of the Notification/Scheme is to give incentive to Lumberdar to support the Government in managing the affairs of the land and to recover the Government fees and revenue etc. without any financial burden on Government's exchequer. It is no one case that land was available in the physically joining village or adjoining village but the case of respondent is that land allotted is situated far away from the village of Lumberdar.
In view of the above, in my humble view word villages has a large scope which denotes that the land could be allotted to the Lumberdar in any other village but should not be out of the administrative control of the Tehsil of Lumberdar. Hence, in these circumstances, I have no option except to declare the two impugned orders dated 27.3.2009 and 01.12.2009 illegal and without lawful authority. The result is that two impugned orders are hereby set-aside and the allotment of land to the petitioner is declared in accordance with law.
(R.A.) Petition accepted.
PLJ 2010 Peshawar 1 (DB)
[Abbottabad Bench]
Present: Ghulam Mohyud Din Malik and Zia-ud-Din, JJ.
ABDUR RAHIM SATHI--Petitioner
versus
GHULAM SARWAR and 11 others--Respondents
W.P. No. 178 of 2008, decided on 7.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 35-A--Constitution of Pakistan, 1973--Art. 199--Discretion of Court in awarding costs--Constitutional petition--Application for setting aside ex-parte proceedings was accepted on payment of cost of Rs. 30,000/- Applicability--Validity--Costs u/S. 35-A, CPC are compensatory in nature and u/S. 35, CPC, the actual expenses incurred by successful party in litigation are awarded by Court, to secure the expenses incurred by it as costs are not given by way of compensation or benefit--Held: No proof of expenses incurred by respondents in matter therefore S. 35, CPC was not applicable--High Court reduced the amount of--Petition was disposed of. [P. 3] A & E
Civil Procedure Code, 1908 (V of 1908)--
----S. 35-A(2)--Compensatory costs--Awarding heavy cost of Rs. 30,000/- to respondents--Validity--According to S. 35-A(2), CPC, the maximum prescribed limit for compensatory costs shall not exceed Rs. 25,000/- whereas the appellate Court has awarded of Rs. 30,000/- as compensation to the respondents by exceeding the maximum limit fixed by the law--Awarded amount of costs of Rs. 3000/- was reduced.
[P. 3] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 35-A & O. XLI, R. 33--Compensatory costs to successful party against defeated party--Appellate Court is stave off granting compensatory costs to successful party--Legality--If the claim or defence is found false, vexatious and successful party has taken the plea at earliest stage of suit--Held: Court of appeal was not legally competent to award punitive or compensatory costs u/S. 35-A & O.XLI, R. 33 of CPC. [P. 3] C
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 7--Remedy against ex-parte proceedings--Ex-parte proceedings can be set aside, on nominal costs--Order 9, Rule 7 of CPC provides the remedy against ex-parte proceedings as the defendant who has been proceeded against ex-parte, no doubt remains a party to the proceedings, as he cannot be relegated to the petition, he would have occupied had been appeared--Held: Ex-parte proceeding can be set aside, on nominal costs. [P. 3] D
Mr. Shakeel Ahmad Khan Jadoom, Advocate for Petitioner.
Mr. Muhammad Asif Qazi, Advocate for Respondents.
Date of hearing: 7.4.2009.
Judgment
Ghulam Mohy-ud-Din Malik, J.--This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed in respect of order dated 28.7.2008 passed by learned A.D.J.-V, Abbottabad whereby application of the petitioner for setting aside ex-parte proceedings was accepted but on payment of cost of Rs.30,000/-.
Arguments of learned counsel for the parties heard at some length, they by concluding their arguments stated at the bar that the amount of cost may reasonably be reduced so that the matter is taken for decision on merits to the trial Court.
We observe that normally discretion of Court in awarding costs is subject to the provisions of Section 35, 35-A, and Order 9 C.P.C. in civil cases. It is well settled proposition of law that costs under Section 35-A CPC are compensatory in nature and under Section 35 of the Code, the actual expenses incurred by the successful party in the litigation are awarded by the Court, to secure the expenses incurred by it as these costs are not given by way of compensation or benefit. In the instant case there is no proof of expenses incurred by the respondents in the matter under discussion, therefore, Section 35 C.P.C. is not applicable.
With regard to compensatory costs, it appears from the language of impugned order that learned lower Court has acted under Section 35-A, C.P.C. in awarding heavy cost to respondents. It is mentioned that according to Section 35-A sub-section (2) CPC the maximum prescribed limit for compensatory costs shall not exceed twenty five thousand rupees whereas the learned appellate Court has awarded thirty thousand rupees as compensation to the respondents, by exceeding the maximum limit fixed by the law.
Apart from the above, as contemplated in Section 35-A read with Order XLI Rule 33 CPC under its proviso, appellate Court is stave off granting compensatory costs to successful party, therefore, the impugned order to that effect is patently illegal and against the spirit of Section 35-A of the Code. Actually said section of law empowers the trial Court alone to give compensatory costs to the successful party against the defeated party, if the claim or defence is found false, vexatious and the successful party has taken the plea at earliest stage of suit. On the subject case law reported in 2001 SCMR 1680 and 2003 CLC 1428 can be referred, wherein it was held that Court of appeal is not legally competent to award punitive or compensatory costs under Section 35-A read with Order XLI, Rule 33 C.P.C.
In our view, Order LX, Rule 7 C.P.C. provides the remedy against ex-parte proceedings as the defendant who has been proceeded against ex-parte, no doubt remains a party to the proceedings, as he cannot be relegated to the position, he would have occupied had he appeared. Therefore, in view of his position, on cause being shown, ex-parte proceedings can be set aside, on nominal costs.
With these observations and by keeping in view the consenting statement of learned counsel for the parties, coupled with the fact that the petitioner has been found Negligent in attending his case, we partially allow this writ petition and reduce the amount of cost to Rs.3000/- only payable before the trial Court.
This writ petition stands disposed of accordingly.
(R.A.) Petition disposed of.
PLJ 2010 Peshawar 4
Present: Muhammad Alam Khan, J.
NAWABZADA TAHIR BINYAMIN etc.--Appellants
versus
WAPDA through Chairman and 4 others--Respondents
RFA No. 45 of 2006, decided on 27.4.2009.
Land Acquisition Act, 1894 (I of 1894)--
----S. 23--Respondents acquired land of the appellants for public purposes--Appellants did not accept the award and filed a reference petition before the Referee Court--Award enhanced to some extent--Order assailed through Regular First Appeal--Held: Referee Court failed to frame proper issues and that is why no proper relief could be granted to the appellants--Acquired chunk of land was situated on the main road adjacent to the abadi and was highly potential in value for which the land Acquisition Collector ought to had appointed an independent Local Commissioner in order to determine the location of the land. [P. 6] A
Land Acquisition Act, 1894 (I of 1894)--
----S. 23--Case was remanded to the trial Court for decision afresh after appointing a local commissioner to inspect the spot and submit a detailed report to the trial Court keeping in view the criteria laid down in Section 23 of the Land Acquisition Act, 1894--Appeal allowed. [P. 6] B
1998 SCMR 730, 2003 SCMR 480, 1998 MLD 1075, PLD 1996 Pesh 22 & PLD 1995 Pesh. 78, ref.
Mr. Khuda Bakhsh Khan Baloch, Advocate for Appellants.
Mr. Mazhar Alam Khan Mian Khel, Advocate for Respondents.
Date of hearing: 27.4.2009.
Judgment
Nawabzada Tahir Bin-e-Yameen and others have preferred the instant Regular First Appeal against the judgment and decree of the learned Senior Civil Judge/Referee Court through which the reference Petition No. 12/04 of 1996 decided on 10/6/2006 of the expropriated land owners was partly accepted and the compensation of the acquired land of the appellants was enhanced from Rs. 4939.87 per kanal to Rs. 12,000/- per kanal alongwith 15% compulsory acquisition charges and six percent simple interest from the date of possession till final recovery of the amount minus the amount if any already paid to the appellants. However, the claim of the appellants regarding five percent of severance charges was turned down leaving the parties to bear their own costs. The appellants, i.e. The expropriated land owners, being partly aggrieved have filed the instant regular first appeal.
Briefly narrated the facts of the case are that the Government of NWFP for a public purpose, namely, construction of Minor Drain-7 CRBC Project WAPDA D.I.Khan, was in need of some land for the acquiring department i.e. The respondents, and in this connection the land of the appellants was selected and consequently it was acquired.
The appellants did not accept the award and filed a reference petition wherein it was specifically averred that the Land Acquisition Collector has neither provided them a chance of hearing, but in their absence has fixed very meager compensation. It was also averred that the acquired piece of land is situated on main Dera-road. On this road, the SDA has acquired some land to , which the land of the ex-propriated land owners is adjacent. It was also averred that the acquired piece of land is situated in the proximity of Pakistan Radio Station and Mufti Mehmood Hospital. Thus, it was prayed that the land of the appellants was highly potential in valued amidst the Abadi situated on the road side and thus the compensation per kanal was under no circumstances less than Rs. 30,000/- per kanal.
On summoning the defendants filed written statement wherein the allegations contained in the reference petition were hotly contested. The learned Referee Court out of the pleadings of the parties framed as many as four issues including the relief. Thereafter, the parties were afforded opportunity to lead pro and contra evidence and the learned trial Court after hearing the parties and their learned counsel and considering the data available on the record enhanced the compensation of the acquired land from Rs. 4939.87 to Rs. 12,000/- per kanal as aforesaid and hence the present regular first appeal.
Mr. Khuda Bakhsh Baluch, learned counsel for the appellants, submitted that the land was highly potential in value, situated on the main road, was in fact building site and commercial in nature. The learned Referee Court has not taken these aspects of the case into consideration. It was also averred that the appellants had claimed the relief of five percent for severance of their land from the other land of chunk of the appellants which too has not been granted. Reliance was placed on the case of Province of Punjab through the Secretary Irrigation and Power Department Lahore and 2 others Vs. Syed Muqarab Ali and 4 others (2008 SCMR 572).
Mr. Mazhar Alam Khan Mian Khel, learned counsel for the respondents, submitted that the one year average was in fact lesser than the market value but as the learned Land Acquisition Collector has personally visited the spot and had Kept in view the location of the land fixed the compensation at Rs. 12,000/- per kanal. The learned counsel, however, conceded that the appellants are entitled to five percent severance charges which has been denied to them.
I have considered the arguments of the learned counsel for the parties and have gone through record of the case.
Perusal of the reference petition reveals that the appellants had claimed Rs. 30,000/- per kanal and had categorically put challenges to the Award of the Land Acquisition Collector. Perusal of the written statement reveals that there was evasive denial but the learned referee Court failed to frame proper issues and that is why no proper relief could be granted to the appellants. This is on the record that the acquired chunk of land is situated on the main road adjacent to the Abadi and was highly potential in value for which the Land Acquisition Collector ought to have appointed an independent Local Commissioner in order to determine the location of the land, the fact of its situation amidst Abadi and its commercial nature keeping in view the dictum handed down in the cases of Sarhad Development Authority through Chairman Peshawar Vs. Land Aequisition Collector/Deputy Commissioner Abbottabad and 19 others (1998 SCMR 730), Tanveer Mehboob and another vs. Haroon and others (2003 SCMR 480), Muhammad Iqbal Khan and others Vs. Government of NWFP and others (1998 MLD 1075), Muhammad Saeed and 78 others Vs. Collector Land Acquisition Mansehra and 3 others (PLD 1996 Peshawar 22) and Collector Land Acquisition Peshawar and others Vs. Rokhan and others (PLD 1995 Peshawar 78).
In this view of the matter, the instant appeal is accepted, the impugned judgment and decree of the learned Referee Court is set aside and the case is remanded to the trial Court for decision afresh after appointing a Local Commissioner to inspect the spot and submit a detailed report to the trial Court keeping in view the criteria laid down in Section 23 of the Land Acquisition Act 1894. After receipt of the report of the Local Commissioner, the learned trial Court will give a chance of leading pro and contra evidence if the parties wished to adduce and thereafter will decide the lis afresh. As this is a matter fiscal in nature on which six percent simple interest on public exchequer will be accumulated, it will be highly appreciated if the learned trial Court take up this matter on priority basis. Parties are directed to appear before the trial Court on 16/5/2009.
(M.S.A.) Appeal accepted.
PLJ 2010 Peshawar 7 (DB)
[D.I. Khan Bench]
Present: Syed Yahya Zahid Gilani and M. Alam Khan, JJ.
MUHAMMAD ASLAM & another--Petitioners
versus
ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and others--Respondents
W.P. No. 50 of 2007, decided on 26.5.2009.
N.W.F.P. Local Government (Conduct of Elections) Rules, 2005--
----Rr. 61(2) & 68(1)--Election petition--Dismissal of petition for not accompanying the receipt of deposited amount in favour of election commissioner--Discretionary power is bestowed upon a tribunal--Election Tribunal dismissed election petition of petitioners under Rule 61(2) for not accompanying the receipt of fee for the petitioner--Constitutional petition--Interpretation--Dismissal of petition is not the absolute and solitary option--Rule 61(2) reveals that the word `may' has been used in the empowerment which connotes discretionary power and whenever a discretionary power is bestowed upon a tribunal, that has to be exercised judicially, keeping in view the general guiding principles of law attracted in the case. [P. 8 & 9] A
N.W.F.P. Local Government (Conduct of Elections) Rules, 2005--
----Rr. 61(2) & 68(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Object of--It is a matter of payment of fee for the benefit of Election Commission and the primary object of Rule 61(2) is to collect revenue for Election Commission, therefore, before applying the penal clause contained in Rule 68(1), the relevant general principles governing the payment and recovery of Court fees should have been followed. [P. 9] B
N.W.F.P. Local Government (Conduct of Elections) Rules, 2005--
----R. 68(1)--Election petition--Discretionary power--Before exercising discretionary jurisdiction apply penal clause and dismiss the election petition under Rule 68(1)--Rule of propriety demanded that a notice of caution should have been given by the election tribunal to petitioners to make good the Court fee within a fixed reasonable time and in case of non-compliance, the penal clause could have appropriately been applied--Application of penal clause, without scrutiny by the Court staff at the time of receipt of election petition to detect the fault of non-deposit of fee and without notice of caution by the tribunal to make good the deficiency, was not at all justified because due to un-objected admission of election petition by the functionaries of the tribunal gave an official impression to petitioners that their petition was properly filed--None should suffer for act of Court which also includes the act of functionaries of Court--Case remanded. [P. 10] C
1989 SCMR 1040, 1994 SCMR 222, PLD 1967 SC 486, 2004 SCMR 602 & PLJ 2008 Pesh. 1 rel.
Sh. Iftikhar-ul-Haq, Advocate for Petitioners.
Mr. Jamal Abdul Nasir, Advocate for Respondents.
Date of hearing: 26.5.2009.
Judgment
Syed Yahya Zahid Gilani, J.--Background of the case in brief is that Muhammad Aslam and Malik Sakhi Noor filed an Election Petition before the District Judge, D.I.Khan empowered as Election Tribunal for District Tank who vide his impugned order dated 04.12.2006 dismissed their petition for not accompanying the receipt showing that they had deposited in the scheduled Bank in favour of the Chief Election Commissioner a sum of Rs.3000/- as fee for the petition under Rule 61(2) of the NWFP Local Government (Conduct of Election) Rules, 2005.
The aforesaid order has been impugned in the instant constitutional petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the penal clause applied against the petitioners was not interpreted in accordance with law and hence, neither the law has been correctly applied nor the jurisdiction has been properly exercised. It has been prayed that the impugned order may be declared beyond the lawful authority and ineffective upon the rights of the petitioners and the election petition may be directed to be decided on merits.
We have listened arguments of learned counsel for the parties and have gone through the record as well as the relevant law.
True, that under the Rule 61(2) (ibid) there is a legal requirement of deposit of Rs. 3000/- fee and accompanying its receipt with the Election Petition. It is also true and correct that the Tribunal has power to dismiss an Election Petition under Rule 68(1) (ibid) for non-compliance of Rule 61(2) (ibid), but we see that the dismissal of petition is not the absolute and solitary option. Plain reading of rule 61(2) (ibid) reveals that the word "may" has been used in the aforesaid empowerment which connotes discretionary power and whenever a discretionary power is bestowed upon a Tribunal, that has to be exercised judicially, keeping in view the general guiding principles of law attracted in the case.
We have contemplated and concluded that since actually and without any ambiguity it is a matter of payment of fee for the benefit of Election Commission of Pakistan and the primary object of Rule 61(2) (ibid) is to collect revenue for Election Commission, therefore, before applying the penal clause contained in Rule 68(1) (ibid), the relevant general principles governing the payment and recovery of Court fees should have been followed. In the leading judgment delivered by Honourable the Apex Court in the case of Akbar Ali and 4 others. Vs. The Province of Punjab (1989 SCMR 1040), wherein memorandum of appeal was not properly stamped, it was held that it was duty of the functionaries of the Court to have scrutinized the document with a view to ascertain that the same was properly stamped, and it was also duty of the counsel filing the appeal, to inform his client about deficiency of Court fee on the memorandum of appeal. It has further been observed in the same respectful judgment that the litigating party had not wilfully defaulted in payment of Court fee, to justify dismissal of its application for extension of time. The case was thus remanded for allowing the party to make good the deficiency of Court fee within fifteen days.
In another leading judgment delivered in the case of Muhammad Mohibullah. Vs. Seth Chaman Lal (1994 SCMR 222(a)), it has been laid down by the Honourable Apex Court that dismissal of appeal, without giving opportunity to make good balance Court fee, was not proper.
In an old dictum of Honourable Apex Court handed down in the case of S.M. Ayub. Vs. Syed Yousaf Shah (PLD 1967 SC 486) a single technical defect was not considered sufficient to throw out an Election Petition. Similarly, in another case titled Abdul Nasir Vs. Election Tribunal (2004 SCMR 602), Honourable Apex Court has again reiterated that technical defect like non-verification of Election Petition and its annexures would not render the Election Petition not maintainable. These trite principles highlighted in both these decisions have been applied by a Division Bench of this Court in the case of Haji Amirzada Vs. Chief Election Commissioner of Pakistan PLJ 2008 Peshawar 1), to hold that non-compliance of Rules 61, 62 and 63 of NWFP Local Government (Conduct of Election) Rules, 2005 cannot render the Election Petition unmaintainable.
We, therefore, conclude that before exercising discretionary jurisdiction apply penal clause and dismiss the Election Petition under Rule 68(1) (ibid), the rule of propriety demanded that a notice of caution should have been given by the Election Tribunal to petitioners to make good the Court fee within a fixed reasonable time and in case of non-compliance, the penal clause could have appropriately been applied. The application of penal clause, without scrutiny by the Court staff at the time of receipt of Election Petition to detect the fault of non-deposit of fee and without notice of caution by the Tribunal to make good the deficiency, was not at all justified because due to un-objected admission of the Election Petition by the functionaries of the Tribunal gave an official impression to petitioners that their Petition was properly filed. Here, we must recall that the law requires that none should suffer for act of the Court which also includes the act of functionaries of the Court.
For all these reasons, we hold that learned Tribunal has applied the Rule 68(i)(ibid) in violation of relevant principles of law and natural justice, hence, the impugned order is thus held to be infirm, in arbitrary exercise of discretionary jurisdiction and consequently bereft of lawful authority. The petition is, therefore, accepted, the impugned order is set-aside and the case is remanded to learned Tribunal with the directions to decide the same on merits. The petitioners are directed to deposit Rs.3000/- as fee according to the relevant rule and submit receipt to the Tribunal within three months, failing which, this writ petition shall be deemed to have been dismissed. Learned Tribunal shall summon the parties after receipt of record from this Court.
(M.S.A.) Case remanded.
PLJ 2010 Peshawar 10
Present: Liaqat Ali Shah, J.
ASIF RASHEED KHAN DURRANI--Petitioner
versus
Haji HAZRAT GUL etc.--Respondents
C.R. No. 187 of 2009, decided on 26.10.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--NWFP Pre-emption Act, 1987, S. 13--Revision petition--Talb-e-muwathibat was not proved and consequently the judgment reversed--Suit for exercising his superior right of pre-emption--Question of--Sentence was either a clerical mistake on part of official who had recorded the statement or a slip of tongue on part of prosecution witness--Held: Single sentence is either slip of tongue or a clerical mistake and plaintiff has proved the making of talb-e-muwathibat through evidence which is consistent and confidence inspiring. [P. 15] A
NWFP Pre-emption Act, 1987--
----S. 13--Civil Procedure Code, (V of 1908)--S. 115--Civil revision--First Appellate Court reversed the judgment by holding that the petitioner had failed to establish the performance of talb-e-muwathibat--Performance of talb-e-ishhad was inconsequential in nature having get no value in eyes of law--Validity--When talb-e-muwathibat is not proved performance of talb-e-ishhad is inconsequential having got no value in the eyes of law. [P. 15] B
NWFP Pre-emption Act, 1987--
----S. 13--Suit for exercising the superior right of pre-emption--Performance of talb-e-muwathibat was not proved and consequently the judgment of trial Court was reversed--Receipt of notice by son of respondent not established--Challenged the legality of the judgment and decree--Validity--Notice was prepared and sent by the son of defendant but the receipt by the son does not stand established--Held: A preemptor is required to establish that notice was prepared and sent to defendant in accordance with law--Pre-emptor is not required to prove that the same were received by defendant.
[P. 15] C & D
2009 CLC 223, 2006 SCMR 4 & 2008 MLD 307 (Lah.) ref.
Mr. Abdul Sattar Khan, Advocate for Petitioner.
Mr. Faqir Muhammad Khan and Mr. Aminul Haq, Advocates for Respondents.
Date of hearing: 14.9.2009.
Judgment
Through this petition under Section 115 CPC, the petitioner has challenged the legality of the judgment and decree dated 19.1.2009 of the learned Additional District Judge, Charsadda vide which the appeal of the respondent-defendant, against the judgment and decree of Civil Judge-VII dated 10.7.2008, was allowed. It was held that the petitioner-plaintiff had not proved the performance of Talb-e-muwathibat and consequently the judgment/decree of the learned trial Court was reversed.
Brief facts of the case are that Asif Rashid petitioner-plaintiff filed suit against the respondent-defendant exercising his superior right of pre-emption with regard to Mutation No. 1698 attested on 26.4.2006 through which an area of 15 kanals in Khata No. 125/327 to 338 measuring 793 kanals and 1 marla situated in village Aziz Abad, Tehsil and District Charsadda was sold by the vendor to the defendant-respondent. It is averred by the petitioner-plaintiff that the transaction had been made secretly for the sum of Rs.500,000/- but in order to defeat the pre-emption right of the plaintiff, an exaggerated amount of Rs. 1000,000/- was entered in the mutation. It is further stated in the plaint, that the petitioner-plaintiff came to know about the sale in question on 8.7.2006 at 02.00 p.m. in his hujra at village Shpano when Murad Ali Son of Ashraf-ud-Din (PW-7), in presence of Khalid son of Lal Zamin (PW-6) and Mir Nawaz son of Multan (PW-5), informed him about the sale of the property in dispute and he declared Talb-e-Muwathibat in their presence at the same time. It has been further stated that on 15.7.2008 he sent registered notice of Talb-e-Ishhad in the name of the defendant-respondent with acknowledgement due.
The suit was contested by the respondent-defendant by filing written statement wherein various legal and factual pleas were raised. From the pleadings of the parties, the following issues were framed:--
Whether the plaintiff has got a cause of action?
Whether plaintiff is estopped to sue?
Whether suit is time barred?
Whether plaintiff has fulfilled the pre requisite condition of Talabs?
Whether plaintiff has got superior right of pre-emption?
What is the market value of the land in dispute?
Whether in case of decree defendant would be entitled for expenditure incurred on the land in dispute?
Whether plaintiff is entitled to the decree as prayed for ?
Relief.
After recording pro and contra evidence of the parties and hearing rival arguments, the learned trial Court decreed the suit vide judgment and decree dated 10.7.2008.
The defendant-respondent preferred an appeal before the appellate Court. The learned Additional District Judge, Charsadda vide judgment dated 19.1.2009 reversed the judgment/decree dated 10.7.2008 by holding that the petitioner-plaintiff has failed to establish the performance of Talb-e-Muwathibat. About Talb-e-Ishhad, the learned appellate Court has observed that "receipt of notice by the son of the respondent does not stand established. However, as observed in 2006 SCMR page 4 and 2008 MLD 307 (Lahore), receipt of the notice is immaterial. It is to be noted that when as in the present case Talb-e-muwathibat is not proved, performance of Talb-e-Ishhad is inconsequential in nature having got no value in the eyes of law. The findings of the learned trial Court on Issue No. 4 are liable to be reversed in the circumstances". In Para 15, the learned appellate Court has observed that "in light of what has been discussed above, the appeal in hand is partially accepted to the extent that the respondent has not performed the Talb-e-muwathibat and Talb-e-Ishhad. The impugned judgment/decree is modified accordingly".
I have heard arguments from both sides, considered the same and perused the record with the valuable assistance of the learned counsel for the parties.
The learned counsel for the petitioner contended that the first appellate Court has materially erred by holding that the petitioner/ plaintiff has failed to establish the performance of Talb-e-muwathibat and that the evidence has not been appreciated according to the principles laid down for appreciation of evidence in the civil cases. It was further contended that the evidence in the case was pursued and evaluated by the learned appellate Court against the principle of appreciation of evidence and as such committed material irregularity; that the appellate Court has erred by picking a single sentence from the statement of PW-4 (petitioner) wherein it is so recorded that
that the sentence can either be a slip of tongue or typographic mistake as the entire evidence is consistent on all material points including that the plaintiff was informed about the sale by Murad Ali; that the petitioner has established his right of pre-emption, cause of action and has complied with all the formalities required under Section 13 of the NWFP Pre-emption Act 1987.
On the other hand, the learned counsel for the respondent-defendant submitted that the revisional Court, on re-appraisal of evidence, is not required to disturb the finding on a question of fact recorded by the appellate Court. Further that the same cannot be interfered with by the revisional Court under Section 115 CPC merely because on re-appraisal the revisional Court forms a different opinion about the evidence and that such finding could only be set aside if the same had proceeded upon on mis-apprehension or had suffered from mis-reading or non-reading of material piece of evidence on record. The learned counsel further argued that the judgment of the appellate Court is based on proper appreciation of evidence and the suit of the petitioner/plaintiff has rightly been dismissed. However, he was not happy with the finding of the learned appellate Court about Talb-e-Ishhad.
It is the case of the petitioner in plaint as well as in his statement in Court that he was informed by Murad Ali PW-7 at about 2 P.M about the sale in question in presence of PW-6 Khalid and Amir Nawaz PW-5. The said Khalid and Amir Nawaz also appeared in the Court at PW-5 and PW-6 while Murad Ali informant appeared as PW-7. All the three P.Ws supported the stance of the plaintiff on every material aspects. It was only a sentence in the cross-examination of PW-4-petitioner/plaintiff which has been reproduced in the preceding Paras, that led the appellate Court to the conclusion that if the informant had not met the plaintiff on 8.7.2006, how could the plaintiff allege that he was informed by the said informer and consequent upon such information he performed Talb-e-Muwathibat. While holding so, the learned appellate Court has altogether ignored the consistent evidence of the three witnesses, thoroughly cross-examined by the other side but nothing contradictory could be brought from them and such evidence could not have been discarded on the basis of a single sentence more particularly when the sentence is totally inconsistent with the evidence produced by the petitioner/plaintiff in this case.
On going through the entire cross-examination of the plaintiff/PW-4 including the sentence under discussion, the submission of the learned counsel for the petitioner seems to be convincing one. This sentence is either a clerical mistake on part of the official who was recording the statement or a slip of tongue on part of PW-4. In 2007 PLR 768 at page 771 in Para 7, it has been observed that the standard of appraisal of evidence in civil cases is different from that applied in criminal cases as both the laws have laid different standard of proof. Similarly in 2009 CLC 223, it was observed by the Hon'ble High Court:
"After perusal of evidence of PW-2, PW-3 and PW-4 as a whole, the mentioning of date by PW-3 as 10.8.2000 can be termed as a slip of tongue and the same could not be made basis for outright rejection of the claim of the petitioner."
After taking into consideration the evidence of the P.Ws as a whole, I hold that the single sentence is either slip of tongue or a clerical mistake and the plaintiff has proved the making of Talb-e-Muwathibat through evidence which is consistent and confidence inspiring.
So far Talb-e-Ishhad is concerned, the learned appellate Court in Para 13 of its judgment has held that when Talb-e-Muwathibat is not proved, performance of Talb-e-Ishhad is inconsequential having got no value in the eyes of law. It has been mentioned in the plaint and established in the evidence, and admitted by the appellate Court that notice was prepared and sent by the plaintiff to the defendant but the receipt thereof, by the son of the defendant does not stand established. At the same time, the learned appellate Court has observed, with reference to case law that receipt of the notice by the defendant is immaterial. The finding of the learned appellate Court that "to establish the receipt of notice by defendant is not material" is based on proper appreciation of law as under the law, a pre-emptor is required to establish that notice was prepared and sent to the defendant in accordance with law. A pre-emptor is not required to prove that the same were received by the defendant.
The upshot of the above discussion is that the finding of the learned appellate Court on the relevant issue is not based on proper appreciation of evidence, as such I accept this petition, set aside the impugned judgment/decree of the learned appellate Court and restore that of the learned trial Court with no order as to cost.
(R.A.) Petition accepted.
PLJ 2010 Peshawar 16 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ.
SHAH NAWAZ--Petitioner
versus
Mst. SURIYA BIBI and 2 others--Respondents
W.P. No. 243 of 2008, decided on 13.5.2009.
Bridal Gifts Act, 1976--
----Scope of--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage on the basis of Khula, decreed--Entitlement to remaining dower though same was converted into bridle gift--Appellate Court directed the respondent to forgo the 5 kanal land received by her as dower but has held her entitlement to 10 tolas of golden ornaments though the same was converted into bridal gift--Validity--Once the parties enter into a wedlock, execute the deed and reside in the husbands house as husband and wife, the husband is duty bound to pay the same and no penal provision under the Bridal Gift Act, would be applicable in the case--Petition dismissed. [P. 18] A
Mr. Muhammad Yousaf Khan, Advocate for Petitioner.
Date of hearing: 13.5.2009.
Order
Muhammad Alam Khan, J.--Shah Nawaz petitioner has filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 against the judgment and decree dated 11/9/2008 passed by the learned Additional District Judge-V D.I.Khan in favour of the respondent Mst. Suria Bibi.
Facts of the case are that Mst. Suria Bibi filed a suit for recovery of Rs.72,000/- as maintenance at the rate of Rs. 2000/- per month for prior three years of filing of the suit and dower articles as per the list attached with the plaint, suit for partition of a house equal to ¬ share and golden ornaments weighing ten tolas which have been transferred by way of dower deed dated 18/2/2003. She had also claimed decree for dissolution of marriage. The learned trial Court after calling the petitioner who submitted detailed written statement denying the allegation contained in the plaint. It was submitted that the plaintiff has gone to parents house of her own free will and she is not entitled to the dower amount claimed by her. It was also submitted that the petitioner has maintained the wife, but the plaintiff Suria Bibi being a strong head lady is not residing with him. It was also submitted that the plaintiff has raised this objection in order to pave her way for the dissolution of marriage. The petitioner also claimed as a counter claim decree for restitution of conjugal rights in his favour. The learned Trial Court after framing necessary issues and affording opportunity to the parties to lead pro and contra evidence vide judgment and decree Suit No. 353/3 of 2006, decided on 12.12.2007 granted a decree for recovery of 10-toal Golden ornaments as well as decree for restitution of conjugal rights in favour of the husband and Rs. 2000/- per month from the date of decree till the satisfaction of the decree for conjugal rights was also passed in favour of Mst. Suria Bibi.
Mst. Suria Bibi respondent feeling aggrieved filed a Family Court appeal, which was entrusted to the Court of learned ADJ-V, who vide the judgment and decree dated 11.09.2008, partially accepted the appeal of the respondent's wife and passed a decree for dissolution of marriage on the basis of Khulla in her favour. However, in consideration of Khulla respondent was directed to forgo her dower including 5-kanal landed property, mentioned in the deed Ex:PW-2/1, while relief of respondent for conjugal rights in favour of the petitioner was also declined, and decree to that extent was set-aside. Learned appellant Court also maintained the decree for golden ornaments in favour of respondent's wife, but modified the same to bridal gift instead of dower. The decree for dower was modified and also the decree for maintenance @ Rs.2000/-P.M. for Iddat period was passed in favour of the respondent, hence the present writ petition.
It was submitted by the learned counsel for the petitioner that the respondent was not entitled to the decree for dissolution of marriage and for the recovery of dower and golden ornaments as well as maintenance allowance. It was submitted that the learned trial Court has granted the decree for the recovery of golden ornaments of 10 tola to that of bridal gift, which under the Bridal Gift Act, 1976, was not permissible. It was also argued that the respondent was seeking dissolution in order to contract the 2nd marriage and thus she was not entitled either to the maintenance or to the decree for dissolution of marriage.
We have gone through the record of the case and found that as far as the dissolution on the basis of Khulla is concerned the learned appellate Court has directed the respondent to forgo the 5-kanal land mentioned in the deed referred to above, but has held her entitlement to the remaining dower though the same was converted into bridle gift. The contention of the learned counsel for the petitioner that 10 toals golden ornaments was violative of the provision of Bridle Gift Act 1976 is also not in accordance with law, as once the parties enter into a wedlock, execute the deed and reside in the husband's house as husband and wife, the husband is duty bound to pay the same and no penal provision under the Bridal Gift Act would be applicable in the case in view of the dicta handed down in the case of Mst. Nasim Sharif Vs. Imtiaz Ali Khan and 2 others (2006 CLC 1393) and in the case of Muhammad Tazeel Vs. Mst. Khair-un-Nisa (1995 SCMR page 885).
The judgments of the two Courts below are strictly in accordance with law, justice, equity, and warrants no interference by this Court in exercise of its extra ordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973.
In view of the facts and circumstances of the case narrated above, then is no force in this writ petition which is dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2010 Peshawar 18
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MUHAMMAD WAZIR--Appellant
versus
EHSAN ULLAH--Respondent
RFA No. 44 of 2006, decided on 30.3.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2(ii)--Suit for recovery on the basis of pronote and receipt, decreed--To prove the genuineness of the pronote--Regular First Appeal--Claim of the plaintiff was based on the execution of pronote, to prove the genuineness of the pronote the plaintiff examined petition writer further affirmed by the marginal witnesses--Held: Defendant had failed to rebut by any cogent and substantial evidence the execution of the pronote and the receipt of the suit money from the plaintiff and thus the plaintiff had successfully proved his case by examining and producing the scribe and marginal witnesses of the pronote--Trial judge has rightly appreciated the evidence brought on record and rightly decreed the suit of the plaintiff/respondent--Appeal dismissed. [P. 20] A
2006 MLD 599 & 2006 MLD 219, rel.
Mr. Muhammad Anwar Awan, Advocate for Appellant.
Mr. Abdur Rashid Khan, Advocate for Respondent.
Date of hearing: 27.3.2009.
Judgment
This is regular first appeal filed by Muhammad Wazir appellant is directed against the judgment and decree dated 20.7.2006 passed by the learned Additional District Judge-II, D.I.Khan, whereby suit of Ihsanullah plaintiff-respondent was decreed.
Briefly narrated facts of the case are that Ihsanullah Khan had filed a suit against Muhammad Wazir for the recovery of Rs. 2,00,000/- (Rupees two lacs) on the basis of pronote and receipt dated 18.6.2004 alongwith interest at the Bank rate till the payment of the said amount as envisaged under Order XXXVII Rule 1 C.P.C. According to the averments made in the plaint, the parties were at friendly terms with each other and Muhammad Wazir defendant had demanded Rs. 2,00,000/- as "Qarz-e-Hasna" from the plaintiff Ihsanullah, who paid it to him in presence of witnesses and pronote alongwith receipt dated 18.6.2004 was scribed in this behalf. When demanded, the defendant showed his reluctance to pay the said advanced loan and finally refused, hence the suit.
At first instance, the defendant attended the Court but then disappeared and thus on 07.9.2004, the learned Additional District Judge-II, D.I.Khan decreed the suit of the plaintiff in view of the provisions contained under sub-clause (2) of sub-section (2) of Order XXXVII C.P.C.
Feeling aggrieved, the defendant filed an appeal in this Court which was accepted and remanded to the trial Court for decision afresh on the application for leave to defend of the defendant which was consequently allowed. Thereafter, the defendant filed written statement by raising legal and factual objections. From the divergent pleadings of the parties, the learned trial Court framed eight issues including the relief whereafter the parties produced their evidence which they wished to adduce and hearing arguments pro and contra, decreed the suit of the plaintiff as prayed for, vide judgment referred above. Hence, this appeal.
I have heard learned counsel for the parties and perused the record.
The claim of the plaintiff was based on the execution of pronote dated 16.6.2004 (Ex. PW- 1/1). To prove the genuineness of the pronote, the plaintiff examined Muhammad Ayaz Baloch Petition Writer, D.I.Khan as PW--1, who exhibited the copy of pronote Ex. PW- 1/1 and copy of relevant page of his register as Ex. PW- 1/2, and affirmed that the defendant had thumb impressed the pronote in his presence and that Allah Nawaz marginal witness i.e. PW--3 had also signed the same before him. He stated that defendant obtained Rs. 2,00,000/- from the plaintiff in his presence and he had taken the thumb impression and the signature of defendant as well as of the marginal witnesses upon receipt of the said pronote and that the contents of the pronote were incorporated by him in his register. The execution of the pronote and the receipt of payment was further affirmed by the marginal witnesses i.e. PW--3 Allah Nawaz and PW--4 Rehmatullah in their statements. Plaintiff Ihsanullah when appeared and examined as PW--2 also supported the contents of his suit and stated that 3-4 times earlier too, the defendant and his brother had obtained Qarz-e-Hasna from him and had returned the same but this time the defendant refused to pay back the suit money. On the other hand, the defendant had failed to rebut by any cogent and substantial evidence the execution of the pronote and the receipt of the suit money from the plaintiff and thus the plaintiff had successfully proved his case by examining and producing the scribe and marginal witnesses of the pronote. Learned trial Judge has thus, correctly appreciated the evidence brought on record and lightly decreed the suit of the plaintiff-respondent, in view of the dicta handed down in the cases of Muhammad Aslam vs. Muhammad Aslam (2006 MLD-599) and Muhammad Younis Rehman vs. Ghulam Mustafa (2006 MLD-219).
Learned counsel for the appellant failed to point out any illegality, irregularity, perversity, misreading or non-reading of material evidence available on record so as to call for interference by this Court through this appeal.
Consequently, I find no substance in the instant appeal which is accordingly dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2010 Peshawar 21 (DB)
Present: Hamid Farooq Durrani and Dost Muhammad Khan, JJ.
MUNIR AHMAD--Petitioner
versus
THE SEMESTER COORDINATOR, BBA SECTION, INSTITUTE OF MANAGEMENT SCIENCES, PHASE-VII, HAYATABAD, PESHAWAR and 2 others--Respondents
W.P. No. 159 of 2009, decided on 9.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Monthly examination semester of (BBA Honars) was missed due to demise of his parents in a road accident--Applied to institute for arranging examination for him which was missed due to the tragic happening--Remained unsuccessful--Held: It is not conceivable for a prudent mind that a student missing his examination due to sudden demise of his parent could be dubbed to have deliberately abstained from appearing in test on the notified dates--An educational institution is meant not only to impart formal education to the students admitted therein but is alongside expected to facilitate the building up career potentials for the pupils--Rules of discipline/business chalked out for the purpose of carrying out daily chores of institution are, therefore, not to be construed in the strictest possible scene so that a case of total hardship, like the one in hand, is also pushed against the wall--Respondents are required to arrange the requisite re-test of petitioner within 20 days from today--Petition allowed. [P. 23] A & B
Mr. Isaac Ali Qazi, Advocate for Petitioner.
Syed Mabood Gul Kakakhel, Project Director, Institute of Management Sciences on behalf of Respondents.
Date of hearing: 9.4.2009.
Order
Hamid Farooq Durrani, J.--The petitioner is a student of Bachelors in Business Administration (BBA Honors) at the Institute of Management Sciences/Respondent No. 2. His third monthly examination of 6th semester was scheduled to commence on 27.10.2008 while the parents of petitioner met a road accident on the preceding day. Resultantly, his mother lost her life while the father sustained serious injuries. In the wake of said incident, the petitioner could not appear on the stipulated date to take the requisite papers. Subsequently, on 6.1.2008, he applied to the Institute/Respondent No. 2 for arranging examination for him which was missed due to the tragic happening. The said request of petitioner was, however, not acceded to which necessitated a legal notice on the part of petitioner. The same was accordingly sent on 4.12.2008. The notice so issued remained un-responded, therefore, the petitioner moved this Court in constitutional jurisdiction for the purpose.
The petition in hand has been preferred mainly on the grounds that petitioner had been denied the opportunity of taking his examination which remained un-attended due to act of God and the reason therefor was beyond the control of petitioner. It is also noted therein that the inaction on the part of respondents had culminated into denial of right of petitioner in competing with his class-mates as the passing of requisite exam/test, in parts, shall have obvious adverse effects on his grade point average.
The respondents were put on notice through order dated 10.2.2009 in pursuance whereof Syed Mabood Gul Kakakhel, Project Director of Respondent No. 2 made his appearance, besides, furnishing Para wise comments to the writ petition.
We have heard today learned counsel for petitioner as well as the representative of respondents who mainly relied on the fact that the petitioner could have conveniently attended the remaining part of examination after `Qul' of his mother on 27.10.2008 and thereafter. It was also reiterated that there was no provision in the rules for granting permission or arranging re-examination of a student, therefore, the request of petitioner could not be acceded to. It was also pressed into service that the petitioner previously missed examination for three courses in the first monthly examination and one course in the second monthly examination. The 'rules and regulations' of the respondent/institute were also referred to, wherein, it is, inter alia, noted that no make up examination will be allowed in any course in any circumstances'.
We have gone through the available record including the portion of rules referred to by representative of respondents as well as the reply to the rejoinder provided today by Mr.Kakakhel. We observe that in response to allegation of petitioner regarding discriminatory treatment having been meted out to him, at least three cases of re-examination/ re-test were explained through the said reply. In respect of one case pertaining to Lawangeen Wali, it was noted that initially he was debarred from appearing in the examination on account of short attendance in two courses while in pursuance to a representation by the student, rechecking of relevant record was carried out. The said re-examination divulged that the requisite attendance level was met by him, therefore, he was allowed to appear in re-examination for the courses. Similarly, in respect of student Muhammad Asim Khan, it was explained that the student was to appear before ISSB at Kohat from 18.2.2006 to 21.2.2006, therefore, he was allowed to appear in the evening alongwith other examinees for two papers which he could not attend due to ISSB test.
It is the last mentioned case of Muhammad Asim Khan which prompts us to hold that the petitioner was extended discriminatory treatment by the respondents although his case for re-test was at much stronger footings than that of Muhammad Asim Khan. It is not conceivable for a prudent mind that a student missing his examination due to sudden demise of his parent could be dubbed to have deliberately abstained from appearing in test on the notified dates.
We also deem it necessary to mention here that an educational institution is meant not only to impart formal education to the students admitted therein but is alongside expected to facilitate the building up career potentials for the pupils. The rules of discipline/ business chalked out for the purpose of carrying out daily chores of Institution are, therefore, not to be construed in the strictest possible sense so that a case of total hardship, like the one in hand, is also pushed against the wall. Needless to state that the representative of respondents frankly conceded the casting of adverse effects on the G.P.A. of petitioner in case requisite re-examination was disallowed to him.
In the above view of the matter and also owing to the fact that the respondent/institute is a creature of Statute (Institute of Management Sciences Ordinance, 2002) we, not only entertain the petition in hand but admit and allow the same hereby. Resultantly, the respondents are required to arrange the requisite re-test of petitioner within 20 days from today.
(M.S.A.) Petition allowed.
PLJ 2010 Peshawar 24
Present: Syed Musadiq Hussain Gilani, J.
MUHAMMAD HANIF and others--Petitioners
versus
MUHAMMAD YOUNAS and another--Respondents
C.R. No. 1502 of 2005, decided on 15.12.2008.
Specific Relief Act, 1877--
----Ss. 42 & 39--Civil Procedure Code, (V of 1908)--Suit for declaration and cancellation--Gift deed--Challenge to--During the Maraz-ul-Maut, the property was transferred through a fictitious registered gift deed--Validity--Either the gift deed was executed during Maraz-ul-maut--Question of--Main cause of death of deceased was ischemic heart disease and the heart attack had occurred half an hour before death--Primary cause of death was malignant brain tumer--Secondary was heart attack--Non-examination of sub registration-serious effect--Held: Gift by donor was not gift during maraz-ul-maut and it was a simpliciter, the essential requirements of which were duly fulfilled. [Pp. 27 & 28] A & B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings--In appraising evidence, which resulted in material illegality and irregularity--Held: Findings of the Courts below being not sustainable and liable to be set aside. [P. 28] C & D
Mr. Imtiaz Ali, Advocate for Petitioner.
Mr. Muzammil Khan, Advocate for Respondent No. 1.
M/s. Mazullah Barkandi, Amin-ul-Haq and Mr. Javed A. Khan, Advocate for Respondents No. 2.
Date of hearing: 15.12.2008.
Judgment
This is a civil revision against judgment dated 14.3.2005, of the learned Civil Judge-V, and judgment in appeal dated 16.11.2005, of the learned Additional District Judge, Mardan. Initially, Muhammad Younas, Respondent No. 1, instituted suit against his brothers Muhammad Ayub etc: and mother Mst. Bashiran, for declaration to the effect that he was owner in possession of one market, Property No. 965-BC, Survey No. 269/68, measuring 590 square feet, to the extent of 14/146 shares, being legal heir of his father Muhammad Yousaf, and registered gift deed dated 7.11.2001, regarding this property, in favour of petitioners 2, 4, and 7, was wrong, illegal and fictitious, and liable to be cancelled. He also prayed for possession by partition of 14/146 shares, in the suit property. According to him, common ancestor of the parties, namely, Muhammad Yousaf was owner of the suit property, who died on 28.4.2001, due to Cancer. The petitioners, mentioned above, during his `Maraz-ul-Maut', got the suit property transferred in their names, through a fictitious registered gift deed. Muhammad Yousaf, due to severe illness, was not in a position to understand the nature of transaction. Hence, the suit.
The suit was contested by the petitioners. However, Mst. Shama Mubin, Respondent No. 2, admitted the claim of her husband in her written statement.
The pleadings of the parties were reduced to the following issues, framed by the learned Civil Judge-V, Nowshera, on 12.6.2002:--
Whether the plaintiff has got a cause of action?
Whether suit of the plaintiff maintainable in its present form?
Whether suit is instituted with malafide intention?
Whether defedt: Nos. 1 to 10 had made improvements in suit property and they are entitled to recover the same in case suit is decreed?
Whether suit is properly valued for the purposes of Court fee and jurisdiction?
Whether father of the parties decd Muhammad Yousaf died by cancer?
Whether father of the parties has transferred suit property vide registered gift deed to Defendant Nos. 3, 5, and 8?
Whether the dower deed executed by the plaintiff in favour of Defendant No. 11 is based on fraud and collusion?
Whether suit property is in joint ownership of the parties?
Whether shop in question is ownership of Defendants No. 1 to 10?
Whether plaintiff is entitled to the decree for declaration as prayed for in Para "Alif" of the plaint?
Whether the plaintiff is entitled to the decree for possession as prayed for in Para "B" of the plaint?
Relief.
The evidence of both the parties, which they wished to adduced, was duly recorded, and after hearing the learned counsel for the parties, the learned Civil Judge held that the gift being made during `Maraz-ul-maut', was invalid. Accordingly, suit was decreed, vide judgment date 14.3.2005. Against the said judgment and decree, appeal of the petitioners was also dismissed by the learned Additional District Judge, Nowshera on 16.11.2005.
Having felt aggrieved, the petitioners have filed instant revision petition to this Court.
I have heard learned counsel for the parties, and perused the record.
Learned counsel for the petitioners argued that Muhammad Yousaf was the common ancestor of the parties who died, leaving behind eight sons, two daughters and a widow. He had gifted the suit property to his two sons Muhammad Akram, and Muhammad Alam, and daughter Muhammad Saeeda, petitioners. The gift-deed was duly registered, and witnessed by two other sons of the donor. There was framed no issue on the question of Maraz-ul-maut', and no evidence in this regard was produced.
Learned counsel for the petitioner next argued that gift question was not made duringMaraz-ul-maut', as is evident from the statement of PW-. 4 Dr. Muhammad
Umer, and after death of donor, all the other sons, daughters and widow of the donor had accepted the gift, except Respondent No. 1. The essential ingredients required for completion of gift were duly completed, and possession was with the donees. Learned counsel for the petitioners argued that both the Courts below, on the basis of conjectures or surmises, decreed the suit without appreciating the evidence in minute details. In support of arguments, he relied on PLD 1977 SC 28(G), and PLD 1994 SC 650.
On the other hand, learned counsel for Respondent No. 1 supported the findings of the Courts blow, and stated that non-framing of specific issue regarding gift-during
Maraz-ul-maut' was inconsequential, because the issues, already framed, cover the disputed question in entirety. He further stated that the gift-deed executed twenty one days prior to the death of donor duringMaraz-ul-maut', was invalid. In support of arguments, he relied on 1993 SCMR 2018. Likewise, learned counsel for Respondent No. 2, who happens to be wife of Respondent No.
1, stated that a portion of the suit property was given to Respondent No. 2, by her father-in-law Muhammad Yousaf in dower, regarding which suit was pending in the competent Court, and her rights in this regard were protected.
The perusal of record would show that Muhammad Yousaf, common ancestor of the parties was suffering from Cancer, who died on 28.11.2001, due to Ischaemic, heart disease. PW- Dr. Muhammad Umer Khan, Medical Officer stated that the main cause of death of Muhammad Yousaf was Ischaemic, heart disease, and the heart attack had occurred half an hour before death. He clarified that the primary cause of death was malignant brain tumer, and the secondary cause was heart attack. This witness was not cross-examined to the effect that Muhammad Yousaf donor before his death on 28.4.2001, was not in a position to understand the nature of transaction, or that he was completely incapacitated. The question whether donor suffered from a disease, which was his immediate cause of death at the time of gift, is a mixed question of fact and law, and the best evidence in this regard is the evidence of the doctor, who treated the donor, and the Sub-Registrar, who attested the gift-deed. The Sub-Registrar was not produced as a witness by respondents in the Court. It was also not noted by Sub-Registrar in the recital of the deed that the donor was incapacitated and under immense pressure of the sense of death. The non-examination of Sub-Registrar is a serious set back in the case of respondents. The factors which should be considered for conclusion that the transaction was made under pressure of `Maraz-ul-maut', are as under:--
(i) Was the donor suffering at the time of gift from a disease which was the immediate cause of his death?
(ii) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death?
(iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations, a circumstance which might create in the mind of the sufferer an apprehension of death?
(iv) Had the illness continued for such length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady.
In the present case donor was suffering from Cancer, which was not the immediate cause of his death, and it was not brought on record that he was completely incapacitated, or unable to pursue his ordinary work. In the circumstances, gift by donor in favour of his sons and daughter, was not gift-during `Maraz-ul-maut', and it was a gift simpliciter, the essential requirements of which were duly fulfilled. In view of the matter, both the Courts below had misinterpreted the evidence and law on the subject, and ignored the settled principles in appraising evidence, which resulted in material illegality and irregularity.
It is important to note that Respondent No. 2 has also claimed a portion of the suit property, alleged to be given to her in lieu of dower by her father-in-law Muhammad Yousaf, donor. However, in this regard, respondents produced no evidence in the trial Court, and this question was left undecided. However, a suit regarding this dispute of dower is stated to be pending in the Court. In case of success of Respondent No. 2, in the suit, her share shall be excluded from the gift of the suit property, but by no means the gift shall be considered as void, because a gift of the property capable of partition is deemed as invalid, but it may be perfected and rendered valid by subsequent partition. For the above reasons, the findings of the Courts below, being not sustainable, are set aside, and the suit of the Respondent No. 1 is dismissed, leaving the parties to bear their own costs.
(W.I.B.) Suit dismissed.
PLJ 2010 Peshawar 28
Present: Shah Jehan Khan Yousafzai, J.
ZAIN-UL-ABBIDIN & others--Petitioners
versus
MUHAMMAD ISHAQ & others--Respondents
Civil Revision No. 292 of 2001, decided on 22.12.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 42 & 54--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration and permanent injunction-Share in legacy--Principle--Dispute regarding share in the legacy of common predecessor--No defense of adverse possession or limitation could be raised nor the female can be deprived her due shari share on the basis of gift-deed whereby lesser area than her due share was accepted by the female heir. [P. 31] A
1998 SCMR 996 & PLD 1984 SC 394, ref.
Mr. Asghar Khan Kundi, Advocate for Petitioners.
Mr. Abdul Sattar Khan, Advocate for Respondents.
Date of hearing: 24.11.2008.
Judgment
This revision petition is directed against the concurrent findings of the two Courts below whereby the suit of the Plaintiffs/Respondents No. 1 & 2 was decreed against the defendants/petitioners with no order as to costs.
Brief facts of the case are that Plaintiffs/Respondents No. 1 and 2 brought a suit against the defendants/petitioners for declaration regarding the land detail whereof was attached to the plaint with a prayer of partition between the parties in accordance with their shari shares and also prayed for perpetual injunction. It was averred in the body of the plaint that the subject-matter of the dispute is the ancestral property of the common predecessor of the parties namely Mujtaba. On the death of Mujtaba the mother of the Plaintiffs/Respondents No. 1 and 2 happened to be daughter of Mujtaba and the father of Defendants/ Petitioners No. 1 and 2 namely Fazal Mahbood is the son of Mujtaba. The pedegreetable appended with the plaint reveals that Mujtaba was survived by five daughters namely Bibi Zarin, Bibi Asal, Kahay Bibi, Zarbakht Bibi and Bibi Amina and one son namely Fazal Mahbood out of whom Mst. Bibi Zarin was the mother of the Plaintiffs/Respondents No. 1 and 2 and Fazal Mabood father of Defendants/Petitioners No. 1 and 2. It was further averred in the amended plaint that the mother of the Plaintiffs/Respondents No. 1 and 2 was married to Qazi Hazratullah resident of a different village namely Baroze and she used to get her shari share in kind from her brother the father of Defendants/Petitioners No. 1 and 2 till his life time. On the death of father of Defendants/Petitioners No. 1 and 2 his successors denied the share of their mother and claimed exclusive ownership of the property left by their common predecessor namely Mujtaba. The Plaintiffs/Respondents No. 1 and 2 brought a suit in the year 1992 under PATA Special Regulation (Civil) 1994 which was extended and was subsequently amended with due permission of the Court. The cause of action accrued to the Plaintiffs/Respondents No. 1 and 2 originally on the death of their grand father Mujtaba and subsequently on the death of Fazal Mahbood and denial of acknowledgment of the shares of their mother by Defendants/Petitioners No. 1 and 2.
The suit was contested by the Defendants/Petitioners and ultimately on the repeal of the aforesaid Special Regulation the matter was tried by the Civil Judge/Illaqa Qazi. Issues were framed in view of the pleadings of the parties and after recording pro and contra evidence of the parties and hearing the arguments of their learned counsel, the trial Court decreed the suit in favour of Plaintiffs/Respondents No. 1 and 2 which was also upheld in appeal before the Appellate Court.
Learned counsel for the Defendants/Petitioners mainly contended that Mujtaba died in the year 1905 and by then Rewaj was holding the field and Shariat Laws were neither enacted nor applied in that area. The mother of the Plaintiffs/Respondents No. 1 and 2 never claimed any share in the legacy of her father namely Mujtaba during her life time and the entire holding of Mujtaba devolved upon Fazal Mahbood father of defendant/petitioners No. 1 and 2 exclusively and he used to enjoy its usufruct till his life time. During his life time Fazal Mahbood partitioned the ancestral property amongst his sons and daughters through deed dated 8/12/1966. Neither at the time of death of Mujtaba nor at the execution of partition deed the mother of Plaintiffs/Respondents No. 1 and 2 agitated any right and never brought any suit for her share in the legacy of her father. The Shariah Laws were enacted for the first time in the year 1935 which was subsequently repealed and through different enactments the womenfolk were held entitled shares in the legacy of their predecessor and the Act, 1935 was not given retrospective effect. In these circumstances in his opinion the two Courts below have erred in granting decree which are impugned herein. He placed reliance on 1998 SCMR 996, PLD 1974 Supreme Court 207, 1975 SCMR 487 and PLD 1984 Supreme Court 394.
On the other hand learned counsel for the contestant respondents submitted that undisputedly the mother of Plaintiffs/ Respondents No. 1 and 2 and father of Defendants/Petitioners No. 1 and 2 were the daughter and son of Mujtaba who died in 1905. The mother of Plaintiffs/Respondents No. 1 and 2 used to get her shari share in kind from his brother who was in cultivating possession of the disputed property and this practice continued till his death. The partition deed relied upon by the Defendants/Petitioners was a family arrangement and mother of Plaintiffs/Respondents No. 1 and 2 used to get her shari share in kind continuously. The cause of action arose to them when the successors of Fazal Mahbood denied their shares in the legacy of their forefather namely Mujtaba. The Shariat Act, 1935 and all subsequent enactments in this regard have been held of retrospective effect if the parties are Muslim. He relied on 2005 SCMR 1217, 1996 SCMR 901, 1998 SCMR 996 and 1983 SCMR 626.
I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also gone through the record of the case with their able assistance. I have also gone through the various judgments cited at the bar.
A pure legal question is agitated through the instant revision petition and both the parties have relied upon a number of reported judgments of the Apex Court wherein both the parties have also relied upon 1998 SCMR 996 "Abdul Hanan and 10 others Vs. Ahmad and 30 others" Para 19 of the said judgment will resolve the matter which is reproduced as below :--
"So, in the case of a co-sharer and specially females, mere attestation of a mutation excluding a co-sharer or a female co-sharer cannot be made basis for holding that the limitation will run against her from the date of attestation of mutation. It was for this reason that learned Judge in Chambers held that in the case of Mst. Sahibzada the question of limitation does not assume importance as her exclusion had not been established, the land was mostly Banjar Qadim and Sailaba and even the question of estoppel does not arise as entry in the `Roznamcha Waqiati' would not show that valid gift of the land had been made and that the said gift had been accepted by Mst. Sahibzada, the sister in relinquishment of her right to claim due share in the land. It was in this context that learned Judge of the High Court opined that this was a contrivance or a handiwork of the brother to deprive the sister of her due share but neither any gift of 20 Kanals, 10 Marlas of land legally was created nor it was accepted. Moreover, the plea of adverse possession if not raised in specific form in the written statement cannot be allowed to be raised nor could any weight be given to it."
The aforesaid passage reveals that in case of dispute regarding share in the legacy of common predecessor no defence of adverse possession or limitation could be raised nor the female heir can be deprived her due shari share on the basis of gift-deed whereby lesser area than her due share was accepted by the female heir.
The issue was discussed in detail by Bench of the Honourable Supreme Court of Pakistan in a case "Muzaffar Khan Vs. Mst. Roshan Jan and others" reported as (PLD 1984 Supreme Court 394) wherein effect of N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 enacted on 6th December, 1935 and its repealing Act West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the following conclusion was drawn:--
"Thus, as soon as the decision of this Court took effect i.e. as from 30.6.1983, the words underlined in Section 2 of the Act of 1962, namely, `subject to the provisions of any enactment from the time being in force' ceased to have effect. Consequently, even if it was found that after the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the repeal of the N.W.F.P. Muslim Personal Law (Shariat) Application, 1935, the present case fell to be decided on the basis of the interpretation placed on the provisions of Section 2 of the aforesaid Act of 1962 by this Court in the case of Mst. Khatun v. Mulla, namely, that the Shariat Acts neither enhanced nor diminished the powers of alienating of the holder under custom and a person taking property as ancestral property under custom continued to be governed by agricultural custom and his powers of alienation were limited, the position of Muhammad Aslam Khan would not now be affected even though he had succeeded to the property before the promulgation of the 1935 Act, when the customary law was in force because, after the above-mentioned change in the law, the appellant would not have any right to challenge the alienation made by Muhammad Aslam Khan in favour of his sisters, as there is now no doubt left that the N.W.F.P. Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to the succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death had taken place before the coming into force of the N.W.F.P. Muslim Personal Law (Shariat) Application Act of 1935".
(W.I.B) C.R. dismissed.
PLJ 2010 Peshawar 33 (DB)
Present: Dost Muhammad Khan and Jahanzaib Rahim, JJ.
Dr. FAKHR-UD-DIN--Petitioner
versus
Mst. KAUSAR TAKREEM and another--Respondents
W.P. No. 1797 of 2007, decided on 21.5.2009.
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----Object--Entire scheme of the law, the sole object and intent of the legislature is to ensure the expeditious disposal of such disputes--The time frame fixed by legislature for disposal cases lends iron clad support to that view. [P. 42] L
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4) & Proviso--Historical perspective--Under the unamended scheme of the Act, the Family Courts could not adhere to the requirements of law to adopt summary procedure--The Courts used to indulge in holding full dress trial--In majority of cases, proceedings were to consume many years--The decrees so granted in such cases had become worthless for the wives as by then they were no more within the marriageable age--To suppress this mischief, the legislature with obvious intention has added the proviso to Section 10 of the Act so that quick relief of dissolution of marriage on the basis of "Khulla" may be granted to the wife at a pre-trial stage. [P. 41] G
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4) & Proviso--Interpretation--The terms/words "Haq Mahr received by the wife in consideration of marriage at the time of marriage are of considerable importance--The word "received" means that the payment of dower has either been established or its payment has been admitted by the wife at the time of granting such a decree--Family Court has to simultaneously direct the restoration of dower to the husband--Now the question the Court is confronted with is as to what kind of procedure the Family Court has to adopt in case the payment of dower to wife becomes a contested issue--Whether the Family Court has to defer the grant of decree till the time such issue is resolved/determined after holding full dress trial forcing the spouses to live in hateful union crossing the limits ordained by Almighty Allah or it may grant a conditional decree--The obvious object and intent of the legislature would thus be defeated and family life of the spouses would remain detestable ensuing devastating effects on the society like a hell fire--Such a course would be in derogation of the injunctions of Islam--The impossible could not be made possible. [P. 41] H & I
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 10(4) & Proviso--Meaning and scope--Reconciliation efforts--Family Court may grant decree for dissolution of marriage on the basis of "Khula" when pre-trial reconciliation efforts fail--However, the Court while granting decree for dissolution of marriage on the basis of "Khulla" shall record sound and cogent reasons in support thereof and shall also state that after holding trial if the wife is found liable to pay back the considerations determined by the Court which she had received, the same are to be returned to the husband--However, the Family Court cannot defer the grant of decree on the basis of "Khulla" for disruption of marriage because the parties are not in agreement on the payment or non-payment of dower and the decree of "Khulla" shall remain effective from the date on which it is pronounced. [P. 43] Q
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 10(4) & Proviso--Procedural cautions--Manner of investigation--Reconciliation effort--Obligations of Family Courts/Qazis while exercising powers under the proviso to Section 10 (4) of the Family Court Act have now been increased manifold--They shall have to make all-out efforts to conduct the proceedings in a professional investigative manner while probing the subject matter and shall strive to discover the truth as to who amongst the spouses is at fault and that meaningful attempts must be made, to preserve the marriage because in an Islamic welfare state, a family is a primary unit, any sort of disturbance therein or its frequent break-up would destabilize the society as a whole--Peaceful and happy union between spouses would serve as a linchpin for the peaceful and healthy society, as a whole--The reconciliation efforts now to be conducted must bear fruits--Careless dispensation and casual approach on the part of the Family Court Judges in such regard would increase the incidents of dissolution of marriage on the basis of "Khulla" which would be counter-conducive and detrimental to the society at large and many evils would surge out there from--The trial Judge has not reproduced the different steps taken in the course of pre-trial reconciliation proceeding nor has stated as to what type of efforts she had made before pronouncing the short order--Type of approach is absolutely unwarranted in law and is disapproved with a warning note. [P. 47 & 48] X & Y
Dower--
----Scope--Nature--Liability--Dower is a consideration for marriage contract, on its dissolution, the contract stands rescinded and then the considerition paid remains undischarged debt liability but would be subject to proof, the burden of which is undeniably on the husband to discharge by adducing evidence to that effect unless it is shown to have been paid either in the dower deed or in the "Nikah Nama"--If the Family Court defers the grant of decree, because the payment of dower is a point of contest, it has to revert back to the old fashion of trial where both the parties would lead evidence, such process, in all probabilities, would consume sufficient time--Thus the purpose intended to be achieved through the proviso would be defeated. [P. 42] J & K
Dower--
----Return of dower or Khula--Court has the powers to refuse the return of the dower to the husband or to release him from the liability of its payment to the wife where cruel treatment given to the wife by the husband is established and decree for dissolution on basis of "Khulla" is to be allowed. [P. 44] R
PLD 2003 Pesh. 146, ref.
Dower--
----Liability to return dower on Khula--Quranic perspective--If the commandment of the Allah Almighty was to the effect that the wife has to return all that which she had received from the husband, then of course, no room was left to deviate there from but the verse of the Holy Quran has reduced the burden on the wife by commanding to return some consideration to the husband, therefore, the same in no manner places the wife under obligation to return each and every thing whether in cash or kind she has received from her husband at the time of her release from the wedlock on the basis of "KhuIIa".
[P. 45] S
Dower--
----Liability to return dower on Khula--Islamic History of liability--The first case in the Islamic history is that of Sabit Bin Qais (R.A.), who was having unattractive complexion and short stature, therefore, his wife Jameela Bin Abi Bin Salul (R.A) made supplication to the Holy Prophet (peace be upon him) to release her from the marital bond--On hearing these words, the Holy Prophet (peace be upon him) asked her as to whether she is ready to return the orchard which she has received from her husband to which she expressed willingness and then the Holy Prophet (peace be upon him) directed the husband to receive back the orchard and release his wife from the wedlock--The second precedent on the issue also relate to Hazrat Sabit Bin Qais (R.A.) where his second wife got herself released from the wedlock in the same way. [P. 45] T
Dower--
----Dissolution of marriage on the basis of khulla--Liability to return dower on Khula--Extent/quantum of dower to be returned--Wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of "Khulla"--Entire consideration/benefits/Haq Mehr received by the wife has to be repaid, therefore, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/ consideration as a whole is not to be repaid by the wife but a part of it--Similarly, it can also determine as to what extent the husband can be relieved form the payment of dower to the wife if not already paid. [P. 45] U
Dower--
----Liability to return dower on Khula--Quantum of dower to be returned--Determining factor--The religion of Islam unlike other religions has given considerable rights to females--Only obligation of Muslim woman is to be faithful and obedient towards her husband and to do domestic work--She is not required to do labour/work for earning bread because that responsibility is exclusively of the husband--Family Courts/Qazis while determining the quantum of dower or part of it, the wife has to return to the husband while seeking decree for dissolution of marriage on the basis of "Khulla" shall always keep in mind the principle in mind and be given deep thought and consideration. [P. 47] V
Dower--
----Liability to return dower on Khula--Forcing to return dower--Possible consequence--If the Family Court after due satisfaction is of the view that the divorced wife has no means to repay the dower as a whole or part of it and it genuinely apprehends that the wife would opt to live immoral life to arrange money for payment of the dower then it has to refuse to grant the same so that the Judges/Courts who are supposed to do substantial justice may not be blamed to be contributories in such a detestable acts. [P. 47] W
Family Courts (Amendment) Ordinance, 2002 (LV of 2002)--
----Scope & object--When the scheme of law providing speedy disposal of matrimonial disputes failed to achieve the desired object, the legislature was constrained to introduce more efficacious and speedy remedial measures curtailing the life of litigation in such disputes--Family Courts (Amendment) Ordinance, LV of 2002 was promulgated--The new law has brought about radical changes in the original text of the various provisions of the Act including Ss. 7, 8, 9, 10. [P. 40] D
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----S. 12-A--Object--Intent of the legislature is further reflected in the newly added Section 12-A which has made it mandatory for the Family Court to decide matrimonial disputes including" cases for dissolution of marriage within a period of six months from the date of institution--In case of its failure, the matter has to be reported to the High Court through a written complaint. [P. 40] E
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----Sched.--To firmly ensure reduction of delay in disposal of matrimonial disputes, the spouses have been given right to put a counter claim once a rights but to claim it in his written statement--Similarly, in a suit filed by the husband for restoration of conjugal rights, the wife has to claim her dower, dowry, maintenance in her written statement--The old procedure resulting into multiplicity of litigation causing delay in the disposal of matrimonial disputes has been completely replaced by the new scheme of law--Primary object behind such amendments obviously is to ensure quick disposal of such cases--The schedule appended to the Act has also been amended and other matters relating to matrimonial disputes have been included therein investing jurisdiction in Family Courts to decide the same but expeditiously and within the given time frame.
[P. 41] F
Interpretation of Statutes--
----Principle of construction of Statute is that ordinarily the Courts are to interpret the Statute to discover the intent of the legislature giving full effect to it in its letter and spirit--It has no powers to legislate by adding to a Statute what is expressly omitted there from or to delete what is expressly mentioned therein--This principle, which is consistently followed, is not open to any debate--However, the principle is subject to exception that while interpreting a Statute, Court has to supply the obvious omission in it whether accidental or inadvertent so that, the principal object for which it has been enacted is achieved and the true intent of the legislature is given effect--The Court in some cases may also recommend to the legislature to supply such omission through legislation so that the error, ambiguity or absurdity therein may be removed and the object sought to be achieved is not defeated. [P. 40] A & B
Interpretation of Statutes--
----Proviso--Principle on the construction of Statutes is that proviso always serves as an exception and exemption to the main provision of law limiting, extending its scope or making the main provision subject to it--In the case of absurdity; it is permissible for the Courts to make attempts to seek the second meaning making the statute to operate and supply the obvious omission by modifying the meaning of the word and even the structure of the sentence, or rejecting some words or by interpolating other words--Obligation of Courts in some exceptional cases becomes imperative to adopt such course.
[P. 42] M & N
PLD 1965 SC 434, ref.
Interpretation of Statute--
----Absurdity--The course of construction while clarifying absurdity in a Statute, Courts are supposed to suppress mischief and to advance the cause for the achievement of that it was enacted--However, while doing so it has not to result in disproportionate counter mischief--If construing the Statute in its ordinary sense leads to no reasonable result, then some other interpretation of the Statute is permissible.
[Pp. 42 & 43] O & P
1982 PSC 416 and PLJ 1981 SC 431, ref.
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----S. 17--Civil Procedure Code, (V of 1908), Ss. 10 & 11--Mode of trial--Disposal of matrimonial disputes--For achieving the object of expeditious disposal of matrimonial disputes, through the provision of Section 17 of the Act, the provisions of the Code of Civil Procedure and the Evidence Act (replaced by Qanun-e-Shahadat Order 1984) have been made inapplicable except S. 10 and 11 of the Code--The mode of trial under the scheme of the Act is summary in nature--However, in the past, the disposal of such cases have had to consume considerable time like regular civil suits because various factors were the cause for the delay. [P. 40] C
Conciliation Proceedings--
----Procedure--Held: Reconciliation efforts must be separately recorded with reasonable details, be read over to the parties or their agents/counsels and the signature/thumb impressions of the parties be obtained thereon so that High Court or Court of appeal is in a position to ascertain the nature of the efforts made by the Family Court during reconciliation proceedings and to see as to what were the respective stances of the parties. [Pp. 48 & 49] Z
Mr. Amin-ur-Rehman, Advocate for Petitioner.
Mr. Riaz Ahmad Khan, Advocate for Respondents.
Date of hearing: 23.2.2009.
Judgment
Dost Muhammad Khan, J.--The Full Bench has been constituted to resolve the controversy arising out of the divergent opinions expressed by the two learned Division Benches of this Court with regard to the meaning of the proviso appended to Section 10 of the Family Courts Act, 1964.
(i) Whether under Section 10(4) of the Family Court Act, the Judge is not competent to grant a decree on the basis of "Khula" at pre-trial stage irrespective of the fact as to whether the dower was paid or not?
(ii) Whether the Family Court is under legal obligation to postpone/defer the grant of decree on the basis of "Khula" if the question of payment or non-payment of dower is disputed and shall try both the issues in a full dress trial?
(iii) Whether the injunctions of Islam and "Sunnah" debar Judge/Qazi from exercising, powers/jurisdiction that the dower/other benefits received by the wife are not returnable in full or in part to the husband, keeping in view, the duration of marital bond and such other factors which would cause hardship to the wife in her future life keeping in view her social and financial status?
Arguments heard and record perused.
"Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."
The pivot of controversy is the omission on the part of the legislature as to what procedure the Family Court shall adopt where the payment of dower is a point of contest between the parties.
The proviso has conferred authority on the Family Court to dissolve the marriage if reconciliation fails and shall direct the wife to return the dower she has admittedly received.
The cardinal principle of construction of Statute is that ordinarily the Courts are to interpret the Statute to discover the intent of the legislature giving full effect to it in its letter and spirit. It has no powers to legislate by adding to a Statute what is expressly omitted there from or to delete what is expressly mentioned therein. This principle, which is consistently followed, is not open to any debate.
However, the said principle is subject to exception that while interpreting a Statute, Court has to supply the obvious omission in it whether accidental or inadvertent so that, the principal object for which it has been enacted is achieved and the true intent of the legislature is given effect. The Court in some cases may also recommend to the legislature to supply such omission through legislation so that the error, ambiguity or absurdity therein may be removed and the object sought to be achieved is not defeated.
To discover the object and true intent of the legislature behind enacting the proviso, the Court has to go through the entire scheme of the law on the subject including the amendments incorporated into it through Family Courts (Amendment) Ordinance LV of 2002. For carrying out such exercise, the preamble of the Act has to be attended first which is to the following effect.
"Preamble. Where it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith;
It is hereby enacted as follows:"
For achieving the object of expeditious disposal of matrimonial disputes, through the provision of Section 17 of the Act, the provisions of the Code of Civil Procedure and the Evidence Act (replaced by Qanun-e-Shahadat Order, 1984) have been made inapplicable except Ss. 10 and 11 of the Code. The mode of trial under the scheme of the Act is summary in nature. However, in the past, the disposal of such cases have had to consume considerable time like regular civil suits because various factors were the cause for the delay.
When the above scheme of law providing speedy disposal of matrimonial disputes failed to achieve the desired object, the legislature was constrained to introduce more efficacious and speedy remedial measures curtailing the life of litigation in such disputes. For this purpose, the Family Courts (Amendment) Ordinance, LV of 2002 was promulgated. The new law has brought about radical changes in the original text of the various provisions of the Act including Ss. 7, 8, 9, 10. The intent of the legislature is further reflected in the newly added Section 12-A which has made it mandatory for the Family Court to decide matrimonial disputes including cases for dissolution of marriage within a period of six months from the date of institution. In case of its failure, the matter has to be reported to the High Court through a written complaint.
To firmly ensure reduction of delay in disposal of matrimonial disputes, the spouses have been given right to put a counter claim once a rights but to claim it in his written statement. Similarly, in a suit filed by the husband for restoration of conjugal rights, the wife has to claim her dower, dowry, maintenance etc. in her written statement. In this way the old procedure resulting into multiplicity of litigation causing delay in the disposal of matrimonial disputes has been completely replaced by the new scheme of law. The primary object behind such amendments obviously is to ensure quick disposal of such cases. Besides the said amendments, the schedule appended to the Act has also been amended and other matters relating to matrimonial disputes have been included therein investing jurisdiction in Family Courts to decide the same but expeditiously and within the given time frame.
Under the unamended scheme of the Act, the Family Courts could not adhere to the requirements of law to adopt summary procedure. The Courts used to indulge in holding full dress trial. In majority of cases, proceedings were to consume many years. The decrees so granted in such cases had become worthless for the wives as by then they were no more within the marriageable age.
To suppress this mischief, the legislature with obvious intention has added the proviso to Section 10 of the Act so that quick relief of dissolution of marriage on the basis of "Khulla" may be granted to the wife at a pre-trial stage.
The terms/words "Haq Mahr received by the wife in consideration of marriage at the time of marriage" are of considerable importance. The word "received" means that the payment of dower has either been established or its payment has been admitted by the wife at the time of granting such a decree. Only in that case, the Family Court has to simultaneously direct the restoration of dower to the husband. This condition, no doubt, is mandatory but is subject to proof. Now the question the Court is confronted with is as to what kind of procedure the Family Court has to adopt in case the payment of dower to wife becomes a contested issue. Whether the Family Court has to defer the grant of decree till the time such issue is resolved/determined after holding full dress trial forcing the spouses to live in hateful union crossing the limits ordained by Almighty Allah or it may grant a conditional decree.
In our view, much restricted interpretation of the proviso would certainly render it ineffective and of no utility. The obvious object and intent of the legislature would thus be defeated and family life of the spouses would remain detestable ensuing devastating effects on the society like a hell fire. Such a course would be in derogation of the injunctions of Islam. The impossible could not be made possible.
Dower is a consideration for marriage contract, on its dissolution, the contract stands rescinded and then the consideration paid remains un-discharged debt liability but would be subject to proof, the burden of which is undeniably on the husband to discharge by adducing evidence to that effect unless it is shown to have been paid either in the dower deed or in the "Nikah Nama". If the Family Court defers the grant of decree because the payment of dower is a point of contest, it has to revert back to the old fashion of trial where both the parties would lead evidence, such process, in all probabilities, would consume sufficient time. Thus the purpose intended to be achieved through the proviso would be defeated.
Keeping in view the entire scheme of the law, the sole object and intent of the legislature is to ensure the expeditious disposal of such disputes. The time frame fixed by legislature for disposal of cases lends iron clad support to this view. Thus the ambiguity or absurdity in the proviso how to deal with the present eventuality needs to be clarified and efforts have to be made to make the same effective and meaningful so that the object of the legislature is achieved fairly and squarely.
The consistently followed principle on the construction of Statutes is that proviso always serves as an exception and exemption to the main provision of law limiting, extending its scope or making the main provision subject to it. This view was held by the Honourable Supreme Court in the case Pramatha Nath Chowdhury and 17 others vs. Kamir Mondal (PLD 1965 Supreme Court 434).
In the case of absurdity, it is permissible for the Courts to make attempts to seek the second meaning making the Statute to operate and supply the obvious omission by modifying the meaning of the word and even the structure of the sentence, or rejecting some words or by interpolating other words. The obligation of Courts in some exceptional cases becomes imperative to adopt such a course. In this regard, guidance may be sought from Maxwell on "Interpretation of Statutes" 4th Edition, Page-344. Similarly Bennion on "Statute Law" 3rd Edition Page-168 to 172 has expressed that the Court to seek to avoid construction of an enactment which produces an unworkable or impracticable, irrational end illogical consequences. It has further been laid down that in the course of construction while clarifying absurdity in a Statute, Courts are supposed to suppress mischief and to advance the cause for the achievement of that it was enacted. However, while doing so it has not to result in disproportionate counter mischief. In the case of Haji Kadir Bux vs. Province of Sindh and another (1982 FSC 416) and in the case Mehar Khan vs. Yaqub Khan and another (PLJ 1981 Supreme Court 431), it was held that if construing the Statute in its ordinary sense leads to no reasonable result, then some other interpretation of the Statute is permissible.
Lord Reid a Jurist on the subject has set more appropriate rule on this issue in the following terms:
"It is always proper to construe an ambiguous word or phrase in the light of the mischief which the provision is obviously designed to prevent and in the light of reasonableness and the consequences which follow from giving it a particular construction." (Craies on "Statute Law" 7th Edition, Page 97.)
Under the provision of Section 319 of Mahomedan Law by D.F. Mulla, Fifteenth Edition, the marriage on the basis of "Khulla" can be dissolved and the wife has to return such benefits/consideration agreed upon. While interpreting this provision in the case of Monshee Buzul-ul-Raheem vs. Luteefutoon-Nissa (1861) 8 M.I.A. 379, 395; Saddan vs. Faiz Bakhsh (1929) 1 Lah. 402, 55 I.C. 184; Umar Bibi vs. Muhammad Din (1944) Lah. 542, 220 I.C. 9, (45) A.L. 51. (1861) 8 M.I.A. 379, 397-398, supra; (1861) 8 M.I.A. 379, 396, supra., it was held that failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce though the husband may sue the wife for its recovery and that it cannot be postponed until the execution of the "khulanama" (deed of "khula").
On the basis of the above principles, therefore, it has become imperative, to give the proviso in question that meaning, the legislature wanted to give i.e. timely dissolution of marriage. Accordingly it is held that the Family Court may grant decree for dissolution of marriage on the basis of "Khula" when pre-trial reconciliation efforts fail. However, the Court while granting decree for dissolution of marriage on the basis of "Khulla" shall record sound and cogent reasons in support thereof and shall also state that after holding trial if the wife is found liable to pay back the considerations determined by the Court which she had received, the same are to be returned to the husband. However, the Family Court cannot defer the grant of decree on the basis of "Khula" for disruption of marriage because the parties are not in agreement on the payment or non-payment of dower and the decree of "Khula" shall remain effective from the date on which it is pronounced.
Now coming to the last point that under the injunctions of Islam", whether a Judge/Qazi is debarred from exercising his jurisdiction to declare that the "Haq Mehr" received by the wife in peculiar circumstances is not returnable in full or a part of it to the husband.
The question poses great deal of intricacy, however, guidance may be sought from the injunctions of Islam. The peculiar social circumstances of the society would also be the determining factors.
In the case of Karimullah vs. Shabana and 2 others (PLD 2003 Peshawar 146), view was held that Court has the powers to refuse the return of the dower to the husband or to release him from the liability of its payment to the wife where cruel treatment given to the wife by the husband is established and decree for dissolution on basis of "Khulla" is to be allowed. We have no reason to take a different view.
Keeping in view the command of Almighty Allah given in Verse No. 229, "'Surah Aal-Baqarah" the Divine ordainment is in the following terms:--
One cannot dare to deviate from the command of Allah given in the Holy Quran. However, the translation of Verse 229 of Surah Aal-Baqarah made by Hazrat Maulana Mahmood-ul-Hassan is to the following effect:-
Hazrat Maulana Abul Aala Maudodi in "Tafheem-ul-Quran" has translated the above verse in the following words:
Hazrat Maulana Mahmood-ul-Hassan and Hazrat Maulana Abul Aala Maudodi both have given the same translation to the above verse. However, while interpreting and construing the true import of the verse somewhat liberal approach has been, adopted in the matter of determining the consideration to be returned by the wife.
The words used "some consideration" is of paramount importance because if the commandment of the Allah Almighty was to the effect that the wife has to return all that which she had received from the husband, then of course, no room was left to deviate there from but the verse of the Holy Quran has reduced the burden on the wife by commanding to return some consideration to the husband, therefore, the same in no manner places the wife under obligation to return each and every thing whether in cash or kind she has received from her husband at the time of her release from the wedlock on the basis of "Khulla". Even the word "Kaq Mehr" has not been used in this verse nor all benefits received by the wife have been referred to. In this view of the matter, some discretion is left to the Judge to determine the consideration which is to be returned by the wife to the husband.
The first case in the Islamic history is that of Sabit Bin Qais (R.A.), who was having unattractive complexion and short stature, therefore, his wife Jameela Bin Abi Bin Salul (R.A.) made supplication to the Holy Prophet (peace be upon him) to release her from the marital bond. On hearing these words, the Holy Prophet (peace be upon him) asked her as to whether she is ready to return the orchard which she has received from her husband to which she expressed willingness and then the Holy Prophet (peace be upon him) directed the husband to receive back the orchard and release his wife from the wedlock. The second precedent on the issue also relate to Hazrat Sabit Bin Qais (R.A.) where his second wife got herself released from the wedlock in the same way.
In the above two cases, it is not clear as to at what stage divorce on the basis of "Khulla" was sought by the two wives of Hazrat Sabit Bin Qais (R.A.). No details are available as to whether by then they were blessed with a child or not, the deducible inference would thus be that the marriage was dissolved probably at the initial stage, on the personal dislike of the wife.
The cited verse of the Holy Quran would suggest that the wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of "Khulla". It does not command in express words and clear terms that the entire consideration/benefits/ Haq Mehr received by the wife has to be repaid, therefore, in our view, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideratton as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved form the payment of dower to the wife if not already paid.
While exercising such discretion in this regard, the Judge while dissolving marriage on the ground of "Khula", amongst others, may take into consideration the following conditions and circumstances:
(i) If it is proved before it that the wife was neither disobedient nor was a major contributory or a cause for the hateful and strained relations, rather the fault on this account is attributable to the husband.
(ii) In a case where "Khula" is sought by an orphan lady who has no resources or insufficient financial means to pay back the compensation/consideration or part of it, in such a situation, she has not to be forced to return the whole or part of the same as any strict view in that regard would force the lady to live a sinful life to arrange money for payment. Such a course would be in disregard of the injunctions of Islam being a detestable act.
(iii) In case where the husband has taken some steps for contracting a second marriage without the required permission although it has not been solemnized by then and the fault of crossing the limits of Allah Almighty is well attributable to him;
(iv) In case where the wife has spent the full blooming, the blossom full and peak of her life with the husband and at the fag-end of her life when her youth and beauty both have faded and is unable to remarry after divorce/"KhuIIa". The same shall be taken into consideration;
(v) If the wife is a destitute and after divorce/"Khula", she is left with no shelter to live a graceful life and after considering all the surrounding circumstances, it is evident that she is unable to repay the dower or part of it; and
(vi) The Judges of the Family Courts shall give deep thought to the facts and circumstances of each case so that the above concession based on the interpretation/construction of Islamic injunctions are not extensively misused.
The Judge may also consider other similar circumstances so that the wife is not forced to live impious life for arranging money to repay in full or part of the consideration to the husband. Similarly, the husband is not to be let off from the payment or part payment of the dower if still outstanding enabling the divorced wife to live a pious life with grace and dignity.
During the past about 40 years both through legislative enactments or judicial decisions, the lot of Muslim woman has been improved to a reasonable extent. In Syria, Tunisia, Egypt, Jordon, Turkey and Iran radical changes have been introduced in the family laws limiting and curtailing the right of man to divorce his wife at his whims and also with regard to the break-up of marriage on the basis "Khula". In our judicial history, the cases of Mst. Balqis Fatima vs. Najam-ul-Ikram Qureshi (PLD 1959 (W.P.) Lahore 566) and that of Khurshid Bibi's case (PLD 1967 S.C. 97) are the leading judgments on the subject wherein fair attempts have been made to neutralize and dilute the right of divorce by the husband and has paved way for the wife to seek dissolution of marriage on the basis of "Khulla".
It must be kept in mind that the religion of Islam unlike other religions has given considerable rights to females. They have to get share in the property of parents, children and husband. The only obligation of Muslim woman is to be faithful and obedient towards her husband and to do domestic work. She is not required to do labour/work for earning bread because that responsibility is exclusively of the husband. The entire scheme of the injunctions of Islam is aimed at establishing a welfare state, the last sermon delivered by the Holy Prophet (peace be upon him) is a complete charter of human rights based on equity and equal treatment. Therefore, Family Courts/Qazis while determining the quantum of dower or part of it, the wife has to return to the husband while seeking decree for dissolution of marriage on the basis of "Khulla" shall always keep in mind the above principle in mind and be given deep thought and consideration.
As discussed above, forcing a financially weak or destitute wife to return the entire dower may push her to prostitution or other antisocial activities for earning money to satisfy the decree. This would be highly prejudicial to the society and the State as well. Thus if the Family Court after due satisfaction is of the view that the divorced wife has no means to repay the dower as a whole or part of it and it genuinely apprehends that the wife would opt to live immoral life to arrange money for payment of the dower, then it has to refuse to grant the same so that the Judges/Courts who are supposed to do substantial justice may not be blamed to be contributories in such a detestable acts.
Before parting with this judgment, we deem it essential to hold that the obligations of Family Courts/Qazis while exercising powers under the proviso to Section 10(4) of the Family Court Act have now been increased manifold. They shall have to make all-out efforts to conduct the proceedings in a professional investigative manner while probing the subject matter and shall strive to discover the truth as to who amongst the spouses is at fault and that meaningful attempts must be made to preserve the marriage because in an Islamic welfare state, a family is a primary unit, any sort of disturbance therein or its frequent break up would destabilize the society as a whole. Peaceful and happy union between spouses would serve as a linchpin for the peaceful and healthy society as a whole. In view of the radical changes introduced through the proviso, the reconciliation efforts now to be conducted must bear fruits. Careless dispensation and casual approach on the part of the Family Court Judges in this regard would increase the incidents of dissolution of marriage on the basis of "Khulla" which would be counter-conducive and detrimental to the society at large and many evils would surge out there from.
Almost similar observations were made and directions were given by a Division Bench at Abbottabad in W.P.No. 93 of 2004 decided on 23.2.2005 entitled Muhammad Irshad vs. Judge Family Court and others to which we fully subscribe.
In the instant case, the Family Court Judge Miss Hina Mehwesh dissolved the marriage on the strength of provise to sub-section (4) of Section 10 of the Family Court Act but in a very slipshod manner. The trial Judge has not reproduced the different steps taken in the course of pre-trial reconciliation proceedings nor has stated as to what type of efforts she had made before pronouncing the short order. This type of approach is absolutely unwarranted in law and is disapproved with a warning note. Notwithstanding the impugned order being cryptic, non-speaking and infirm, as the marriage has been dissolved on 29.9.2007 and the wife has already completed the period of "Iddat" therefore, after more than a period of one and a half year, it would neither be appropriate nor the ends of justice would be secured if the impugned order is set at naught. Therefore, in view of the peculiar facts, the impugned order is maintained with a note of discard.
So far the contested issue relating to the payment or non-payment of dower and maintenance is concerned, that must be decided expeditiously and shall be subject to the guidelines laid down above albeit in his written statement, the petitioner has not stated anything about the payment of dower but that issue is left to the trial Court to decide.
After promulgation of the proviso to Section 10(4) of the Family Courts Act 1964, much water has flowed down the bridge, therefore, the cases in which such decrees on the basis of "Khulla" have attained finality on the expiry of "Iddat" cannot be reopened and the same shall be deemed to have been validly dissolved as the wife/decree holder cannot be punished for the act of the Court.
It is emphatically directed that minutes of the reconciliation efforts must be separately recorded with reasonable details, be read over to the parties or their agents/counsel and the signatures/thumb impressions of the parties be obtained thereon so that this Court or Court of appeal is in a position to ascertain the nature of the efforts made by the Family Court during reconciliation proceedings and to see as to what were the respective stances of the parties.
All the three law points/questions formulated are hereby determined in the above manner. The office is directed to relist both the Writ Petition No. 1797 of 2007 Dr. Fakhruddin vs. Mst. Kausar Takreem and Writ Petition No. 1729 of 2008 Qazi Muhammad Ashraf vs. Rahat Yasmin before a Division Bench for disposal accordingly.
(Sh.K.A.) Order accordingly.
PLJ 2010 Peshawar 49 (DB)
Present: Abdul Aziz Kundi and Miftan ud Din Khan, JJ.
MUHAMMAD GHAFFAR--Petitioner
versus
Mst. IRUM and others--Respondents
W.P. No. 372 of 2007, decided on 21.10.2009.
NWFP Pre-emption Act, 1987--
----S. 24--Suit for pre-emption--Statutory requirement of deposit of 1/3rd of sale consideration--Held: Section 24 makes it obligatary for the Court to direct the plaintiff/respondent to deposit in such Court 1/3 rd of the sale consideration and if no sale price is mentioned in the sale-deed, then to order deposit 1/3rd of the probable value of the property--When the defendant-respondent introduced sale consideration of Rs. 4,06,000/- as against the one alleged by plaintiff-petitioner, the proper, appropriate and legal course for the trial Court was to have directed the plaintiff-pre-emptor to make up the deficiency in the said amount by a specific dated. [P. 51] A & B
1994 SCMR 845, 1993 SCMR 2325 and 2001 SCMR 543, ref.
Limitation--
----Question of--Being mixed question of law and facts, more particularly when the sale mutation was subject to review and there are a number of cutting and over-writing in it. [P. 51] C
2004 SCMR 535, ref.
Mr. Muhammad Taif, Advocate for Petitioner.
Mr. Afridi Khan and Aziz-ur-Rehman, Advocates for Respondents.
Date of hearing: 21.10.2009.
Judgment
Abdul Aziz Kundi, J.--In a suit for possession through pre-emption and permanent injunction in respect of land measuring 3 kanals 8 marlas comprising Khasras No. 1139, 1142 Khata Khatooni No. 1565/2132 situate in Mauza Charbagh, Tehsil Charbagh, Districi Swat, Mst.Irum Mahal defendant-Respondent No. 1 (vendee) alongwith her written statement filed an application for rejection of the plaint on the twin grounds of non-deposit of 1/3rd of Rs.4,06,000/-, the price entered in the sale mutation and limitation.
The application filed on 22.3.2005 was duly contested by Muhammad Ghaffar plaintiff-petitioner and ultimately dismissed by trial Court vide order dated 25.1.2006 holding that determination of sale consideration entered in the sale mutation is subject to proof and similarly question of limitation was held to be a mixed question of law and facts, thus requiring evidence.
The order of the trial Court passed on 25.1.2006 was assailed by defendants-Respondent No. 1 before District Judge/Zilla Qazi, Swat through Civil Revision No. 48/C.R. of 2006, which came up for hearing on 30.11.2006 before Additional District/Izafi Zilla Qazi-III, Swat and while allowing the same order impugned was set aside and suit of the plaintiff-petitioner dismissed on both the grounds urged in the application of defendant-Respondent No. 1, hence the present writ petition challenging the revisional order dated 30.11.2006.
We have heard Mr.Muhammad Taif Khan, Advocate for the petitioner and Mr. Afridi Khan, Advocate assisted by Aziz-ur-Rehman, Advocate for the contesting Respondent No. 1.
It was argued by learned counsel for petitioner that petitioner had in his plaint categorically stated that inspite of his best efforts he could not lay his hands upon the sale deed and had stated the sale consideration as Rs.2,00,000/- in good faith; that pursuant to Court order dated 3.1.2005 for deposit of 1/3rd of the sale consideration as required under Section 24, N.W.F.P. Pre-emption Act, 1987 plaintiff-petitioner deposited an amount of Rs.70,000/- i.e. in excess of 1/3rd of Rs.2,00,000/-; that the question of limitation is a mixed question of law and facts, which can be answered only after recording of evidence, more particularly when the mutation introduced in defence by defendant-respondent was subject of review and was in fact reviewed on 25.11.2004 after sanction for review was accorded by Collector that from the date of review the suit on its face is within time; that it has yet to be proved through evidence that the mutation pertains to the suit land or some other land. He accordingly argued that in view of the above it was not a fit case for exercise of revisional jurisdiction by Additional District Judge and that on acceptance of the writ petition, the same be declared to be without lawful authority and thus ineffective upon the rights of plaintiff-petitioner. He placed reliance on cases reported as 2004 SCMR 535 and PLD 2004 Peshawar 1259 to substantiate his submissions.
As against that, learned counsel for defendant-Respondent No. 1 argued that plaintiff-petitioner No. 1 was in the know of sale mutation but had purposely and with mala fide intention mentioned an incorrect amount as sale consideration in order to avoid 1/3rd of the actual amount; that limitation has to be reckoned from the date of attestation of mutation as provided under Section 31, Act ibid and thus the suit on its face was barred by time. Accordingly, order passed in revision was argued to be in accordance with law and did not call for interference in our constitutional jurisdiction.
Learned counsel placed reliance on case law reported as 2004 SCMR 1941, 2001 SCMR 543, 2004 CLC 2004 and PLD 2003 Peshawar 189.
We have considered the respective contentions on either side and gone through the record of the case.
Section 24 of NWFP Pre-emption Act, 1987 makes it obligatory for the Court to direct the plaintiff-respondent to deposit in such Court 1/3rd of the sale consideration and if no sale price is mentioned in the sale deed, then to order deposit 1/3rd of the probable value of the property.
In the instant case in view of the averments in the plaint, when the defendant-respondent introduced sale consideration of Rs.4,06,000/- as against the one alleged by plaintiff-petitioner, the proper, appropriate and legal course for the trial Court was to have directed the plaintiff-pre-emptor to make up the deficiency in the said amount by a specified dated. My this view is supported by the law settled by august Supreme Court of Pakistan in the cases titled as Haji Gul Nabi Vs. Mst. Sahib Jamala (1994 SCMR 845), Muhammad Din Vs. Mahboob Khan and 3 others (1993 SCMR 2325) and Shahab-ud-Din and 5 others Vs. Mir Ali Khan (2001 SCMR 543). Both the Courts thus on this question fell into a legal error. Their findings thus cannot be sustained.
As regards limitation, suffice it to say that the question being mixed question of law and facts, more particularly when the sale mutation was subject to review and there are a number of cutting and over-writings in it. In somewhat similar situation a full bench of the apex Court in the judgment reported as 2004 SCMR 535 (Muhammad Shah Vs. Additional District Judge, Kohat and others) had declared the revisional order of the District Judge and maintained by this Court in constitutional jurisdiction to be suffering from legal infirmity which could not be sustained and had restored the order of trial Court directing the parties to prove question of limitation through evidence.
Thus without going into further details and while getting wisdom from the law settled by august Supreme Court of Pakistan, the judgment/order dated 30.11.2006 passed by revisional Court is declared to be suffering from legal infirmities, which cannot be sustained and accordingly set aside. Consequently, suit is restored and remitted to the trial Court for its decision in accordance with law.
Plaintiff-petitioner is, however, directed to make up deficiency in the deposit of sale consideration by depositing balance of 1/3rd of Rs.4,06,000/- within 30 days from the date of passing of this order, failing which revisional order would stand restored.
Trial Court is also directed to frame proper issues arising out of the pleadings of the parties, particularly regarding limitation and mutation in question and effect of its review etc: as well as non-compliance of provisions of Section 32, Act ibid and its effect.
Our these findings should prejudice none in the trial of the suit. Costs to follow the events.
Office is directed to send the record of the trial Court immediately to enable the petitioner to deposit the amount as directed above.
Writ petition allowed.
(Sh.K.A.) Petition allowed.
PLJ 2010 Peshawar 52 (DB)
[D.I. Khan Bench]
Present: Syed Yahya Zahid Gillani and M. Alam Khan, JJ.
ABDUL QADOOS and another--Petitioners
versus
SARWAR KHAN and 2 others--Respondents
W.P. No. 158 of 2008, decided on 23.4.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)--Constitution of Pakitan, 1973, Art. 199--Constitutional Petition--Registration of FIR--Ex-officio Justice of Peace--Commission of cognizable offence--Complainant who alleges commission of cognizable offene, not only has a right that his allegations should be recorded u/S. 154, Cr.P.C. but he also has a right that his allegations should be investigated to take the case up to obvious logical and legal end--Held: Accused can avail remedies within the parameters of Cr.P.C. if he believes that he was innocent no case was made against him--Petition was dismissed. [P. 54] B
Constitutional Jurisdiction--
----Judicial review--Statutory right to investigate an alleged cognizable offence--Held: In exercise of constitutional jurisdiction the power of judicial review should be exercised with necessary judicial restraint, essential to continuance of rule of law, because police has also a statutory right to investigate an alleged cognizable offence. [P. 53] A
Mr. Salimullah Khan Ranazai, Advocate for Petitioners.
Date of hearing: 23.4.2009.
Order
Syed Yahya Zahid Gillani, J.--Sarwar Khan (respondent) applied to learned Ex-Officio Justice of the Peace, Lakki Marwat under Section 22-A(6) Cr.P.C for a direction to SHO, Police Station, Naurang for registration of FIR in his alleged cognizable case. His application was accepted on 25.3.2008, and consequently, FIR No. 77 dated 29.3.2008 of Police Station, Naurang, Lakki Marwat was registered under Sections 324/34 PPC about the occurrence allegedly taken place on 18.3.2008.
Aggrieved by the registration of case, the accused Abdul Qudoos and Abdur Rashid have instituted this constitutional petition for quashment of the FIR.
We have heard Mr. Salimullah Khan Ranazai, Advocate for the petitioners whose fundamental contention is that the occurrence has allegedly taken place near the Police Station and the comments of SHO concerned dated 23.3.2008 conveys that no such incident took place at all.
We find that learned Justice of Peace, vide the impugned order dated 25.3.2008, has turned down the comments of SHO for want of solid grounds and also being evasive. The registration of case was directed simply on the ground that commission of a cognizable offence has been alleged, which is a valid ground.
Registration of FIR is a cognizable case is a legal requirement as per observations of this Court in the case of Salahuddin Khan SHO and two others Vs. Noor Jehan and another (PLD 2008 Peshawar 53). Furthermore, Honourable Supreme Court of Pakistan has laid down in the case of Brig: Rtd: Imtiaz Ahmad. Vs. Govt: of Pakistan (1994 SCMR 2142) that in exercise of constitutional jurisdiction the power of judicial review should be exercised with necessary judicial restraint, essential to continuance of rule of law, because police has also a statutory right to investigate an alleged cognizable offence. At this juncture, we deem it appropriate to add that a complainant who alleges commission of cognizable offence, not only has a right that his allegations should be recorded under Section 154 Cr.P.C, but he also has a right that his allegations should be investigated to take the case up to obvious logical and legal end. Needless to mention that the accused can avail remedies within the parameters of the Code of Criminal Procedure if he believes that he is innocent, no case is made out against him, there is no likelihood of his conviction and he deserves acquittal before proper trial, for which the provisions of Sections 249-A and 265-K Cr.P.C do sufficiently provide him efficacious remedy.
With these views, we hold that the present writ petition has no substance for interference with the impugned order which has been passed in accordance with law and lawful authority, within the four corners of jurisdiction vested in the Ex-Officio Justice of Peace.
The writ petition is, therefore, dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 54 (DB)
Present: Ejaz Afzal Khan and Shahji Rehman Khan, JJ.
MUJAHID and another--Petitioners
versus
APA/ADM BARA KHABAR AGENCY and 7 others--Respondents
W.P. No. 1426 of 2009, decided on 17.6.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 86-A--Constitution of Pakistan, 1973, Art. 199--Issuance of an appropriate writ direction--To arrest and remove to tribal area without complying with provision in S. 86-A, Cr.P.C.--Court functioning in hierarchy of FCR--Question why was their release withheld--Validity--If answer to the question is that they were required in a case registered against them in tribal area, then resort could be had to the course provided by law--Held: When respondents did not resort to course provided by law, High Court would be constrained to hold that they were out to defeat the spirit of law without defeating its words--They would be at liberty to procure their arrest and put them to trial in the Courts functioning under umbrella of FCR after complying with provision of S. 86-A of Cr.P.C.--Petition was allowed. [Pp. 55 & 56] A & B
Mr. Shakir Ahmad, Advocate for Petitioners.
Mr. Qaisar Rasheed, A.A.G. and Mr. Iqbal Ahmad Durrani, Advocate for Respondents.
Date of hearing: 17.6.2009.
Judgment
Ejaz Afzal Khan, J.--Petitioners through the instant writ petition have asked for the issuance of an appropriate writ directing the respondents not to arrest and remove them to the tribal area without complying with the provision contained in Section 86-A Cr.P.C.
Learned counsel appearing on behalf of the petitioners contended that once the petitioners were released on bail in criminal cases registered against them, the respondents could not withhold their release nor could they remove them to the Court functioning in the hierarchy of FCR without complying with the provision contained in Section 86-A Cr.P.C. So long as, the learned counsel added, the said provision is not complied with, their release from Jail could not be withheld.
As against that, Mr. Qaiser Rashid, A.A.G. and Mr. Iqbal Ahmad Durrani, learned counsel for respondents vehemently argued that application of Section 86-A Cr.P.C. would come into play only when a person arrested pursuant to a warrant issued under Section 85 of the Cr.P.C. is removed to the tribal area for trial, but in this case the petitioners were already in Jail, therefore, they cannot be held to have been arrested pursuant to a warrant issued under Section 85 of the Cr.P.C. The learned A.A.G. and the learned counsel further submitted that compliance with the provision of Section 86-A of the Cr.P.C. would hardly be called for, as the petitioners will not be removed to the tribal area, because the Court functioning in the hierarchy of FCR are now housed at Peshawar.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
The record reveals that the petitioners were arrested in a few criminal cases registered against them in Police Station Khazana and Police Station Michani Gate, Peshawar in which they were released on bail. When their release warrants were taken to the Jail, they were confined in, it transpired that they were also required in a case registered against them in the tribal area. Assumed, agreed and accepted that they have not been arrested pursuant to a warrant issued under Section 85 of the Cr.P.C. nor shall they be physically removed to the tribal area because most of the Courts functioning in the tribal area under the umbrella of the FCR are now housed at Peshawar. But the question arises, why was their release withheld? If the answer to the question is that they were required in a case registered against them in the tribal area, then resort could be had to the course provided by law. When the respondents did not resort to the course provided by law, we would be constrained to hold that they are out to defeat the spirit of law without defeating its words. Such a course, we are afraid, cannot be allowed. The Court of law, in any case, has to preserve the spirit of law, while preserving its words, notwithstanding the device employed towards that end is quite deft, dexterous and even deceitful. We, therefore, allow this writ petition and direct that the petitioners be released forthwith. In case the respondents require the petitioners in the case mentioned above, they would be at liberty to procure their arrest and put them to trial in the Courts functioning under the umbrella of the FCR after complying with the provision of Section 86-A of the Cr.P.C.
(R.A.) Petition accepted.
PLJ 2010 Peshawar 56 [D.I. Khan Bench]
Present: Attaullah Khan, J.
Pir MUHAMMAD SABIR SHAH--Petitioner
versus
Mst. HASINA BEGUM (deceased) through her Legal Heirs and others--Respondents
W.P. No. 179 of 2006, decided on 14.1.2010.
Award--
----Misplaced of award by arbitrator--Rule of Court--Existence of the award is doubtful--Application for making rule of Court the award given by arbitrators--Dispute between parties--Validity--Two contradictory stands were before trial Court--No clear cut plea about misplaced of award--Held: Two contradictory stands had been taken one was that the award was torn and the second that it was misplaced--There was no clear cut stand that any award had given by arbitrators--Award had not been proved--Existence of award was doubtful and as such Court could not act upon it--No illegality misreading or miscarriage of justice in impugned judgment--Petition was dismissed. [P. 57] A
Malik Muhammad Jehangir Awan, Advocate for Petitioner.
Mr. Sajid Nawaz Khan Sadozai, Advocate for Respondents.
Date of hearing: 4.11.2009.
Judgment
Attaullah Khan, J.--Pir Muhammad Sabir Shah has questioned the Judgment and Decree of Senior Civil Judge, D.I.Khan dated 30.10.2004 and Judgment and Decree of learned Additional District Judge, D.I.Khan dated 02.06.2006, through the writ petition in hand.
Learned counsel for both the parties heard and record on file perused. In the light of which our discussion is as under.
An application was filed by the petitioner in the trial Court for making rule of Court the award given by arbitrators in respect of the dispute between parties. The parties entered into an agreement on the basis of which arbitrators were appointed and was empowered to decide the dispute between the parties. The arbitrators who were Respondents No. 2 to 5 in the original application decided the matter and an award dated 21.5.1991 was drawan As this award was not accepted to Respondent No. 1, therefore, an application for making the award rule of Court was made. The learned Court framed issues and after recording evidence and hearing arguments on the application, the same was dismissed and refused to issue a decree as rule of the Court.
The award is dated 01.06.1991. It is stated by one witness that the award was torn by Abdul Ghafar, one of the arbitrator and it seems that there after Respondent No. 1 refused to accept the said decision.
During proceedings of the Court one plea was that the award was misplaced by arbitrator Abdul Ghafar, while one other was that it was torn by said Abdul Ghafar. Two contradictory stands were before trial Court and after going through the evidence it has been held that the existence of the award is doubtful. There is no clear cut plea about the disputed award. The PW Abdul Ghafar is the main person who was allegedly in possession of the award. Two contradictory stands have been taken, one was that the award was torn and the second that it was misplaced. There is no clear cut stand that any award was given by the arbitrators. Award Ex:PW2/1 has not been proved. In this way existence of award is doubtful and as such Court cannot act upon it.
We have come across no illegality, misreading or miscarriage of justice in the impugned Judgments and Decrees, therefore, not inclined to accept this petition. Therefore, this writ petition is dismissed accordingly.
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 58
Present: Mazhar Alam Khan Miankhel, J.
Haji ABDUR RASHID ARIF--Petitioner
versus
MUHAMMAD AZIZ REHMAN and others--Respondents
C.R. No. 1272 of 2007, decided on 5.3.2010.
Arbitration Act, 1940 (X of 1940)--
----S. 14(2)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Award to make rule of Court--Resolution of dispute through arbitration--Parties had a joint business and because of some dispute over the rendition of accounts--Matter was referred for arbitration with their consent--No such clause in the business agreement that in case of any dispute regarding their business, the matter would be referred to arbitrators--Validity--After announcement of the award, it is the arbitrator u/S. 14(2) of Arbitration Act, who has to file the award in the Court either at the request of a party or on the discretion of the Court--Court will then give notice to the parties of the filing of award and thereafter, the Court has to see whether the same could be made rule of Court or not--The Court for the purpose of making the award rule of Court, is not required to act mechancially as if it has to affix its stamp of approval on the award without determining its legality maintainability and question of its executability--Held: Party cannot file an award in the Court to make the same rule of Court specially when the award prior to getting the authentication and sanction of the Court, is acted upon between the parties--Courts below after proper appreciation of evidence on the record have rightly dismissed the application of the petitioner--Petition was dismissed. [P. 60] A & B
2009 MLD 1418, ref.
Khanzada Syed Parvez, Advocate for Petitioner.
Syed Asif Ali Shah, Advocate for Respondents.
Date of hearing: 22.2.2010.
Judgment
The petitioner and Respondent No. 1 having a joint business in the name of J.R. Engineering and Metal Works, Peshawar, were compelled to appoint arbitrators for resolution of their dispute of rendition of accounts. (It would be necessary to mention here that their business agreement had no arbitration clause.) Resultantly, an award dated 31.10.2002 was made by the arbitrators.
The petitioner through an application, applied for making the award referred above as rule of Court on 7.4.2004 wherein his business partner was impleaded as Respondent No. 1 and the four arbitrators were impleaded as Respondents 2 to 5. The said application was replied by the Respondent No. 1 as well as the Respondents 2 and 3, the arbitrators. The matter was put to evidence by the trial Court. After recording of evidence, the trial Court dismissed the application of petitioner and his appeal there against met the same fate, hence the present revision petition.
Learned counsel for the petitioner submitted that the findings of the two Courts below are against law as the impugned award was never objected to by the Respondent No. 1, rather the same was admitted by him and in such a situation, legally there was no impediment in the way of the Courts below to make the said award as rule of Court and requested for setting aside the findings of the two Courts below.
Learned counsel for the Respondent No. 1 submitted that the application of the petitioner is not in accordance with law and the arbitrators under the law were required to have filed the award in the Court for making the same as rule of Court. He further submitted that when the said award was acted upon as per its decision, then there remains nothing which could have made the petitioner to apply for making the award as rule of Court.
The learned counsel for the parties were heard and record of the case was perused.
Record of the case reveals that the petitioner and Respondent No. 1 had a joint business and because of some dispute over the rendition of accounts, the matter was referred for arbitration with their consent, in spite of the fact that there was no such clause in their business agreement that in case of any dispute regarding their business, the matter would be referred to the arbitrators. In support of his petition, the petitioner himself appeared as his own witness and narrated the facts regarding their dispute, reference of the same to the arbitrators and making of the award by the arbitrators.
The facts brought on the record would reveal that parties to the lis, of their own opted for the resolution of their dispute through arbitration which was accordingly done and the award so announced by the arbitrators, as per overwhelming evidence on the record, was acted upon and fulfilled, meaning thereby that dispute between the parties was resolved and came to an end.
As far as the present petition is concerned, it has been moved by one of the party to the dispute. It was neither moved by any arbitrator nor any such application was moved by a party to ask/direct the arbitrators, to file the award in Court and then it be made rule of Court. Legal aspect of case which appears is that it was an award given without the intervention of the Court and was based on the mutual consent and agreement of the parties. In addition to that, the same was then acted upon.
After announcement of the award, it is the arbitrator under Section 14(2) of the Arbitration Act, 1940, who has to file the award in the Court either at the request of a party or on the direction of the Court. The Court will then give notice to the parties of the filing of award and thereafter the Court has to see whether the same could be made rule of Court or not. The Court for the purpose of making the award rule of Court, is not required to act mechanically as if it has to affix its stamp of approval on the award without determining its legality, maintainability and the question of its executability. Reliance in this regard can well be placed on Government of N.W.F.P. vs. Shahin Shah and others (2009 MLD 1418). Relevant portion is reproduced as under:--
"The role of Court, if seen in the light of the relevant provisions of the Act and the case law that has grown over years in this behalf is that of active dissenter rather than passive consenter. But strange is the fact that the learned trial Court considered itself just a plant meant for manufacturing the goods known as rule of the Court on receipt of some raw material in the form of award."
Now coming to the facts and circumstances of the present case, it can safely be held that a party cannot file an award in the Court to make the same rule of Court specially when the award prior to getting the authentication and sanction of the Court, is acted upon between the parties. In such a state of affairs, it becomes useless to ask for its making of rule of Court. It simply becomes a document which can be used by the parties for collateral purposes as a piece of evidence.
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 61 (DB)
Present: Dost Muhammad Khan and Liaqat Ali Shah, JJ.
Mst. SAMINA NAHEED--Petitioner
versus
GOVT. OF NWFP--Respondent
W.P. No. 271 of 2009, decided on 10.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Petitioner sent a petition to Chief Justice which was converted into constitutional petition--Rules regarding age relaxation--Pleas of--If educated married women are divorced at a later stage and by then they crossed the upper age limit cannot get employment in Government, Semi Govt., Institution, Autonomous, Semi Autonomous & Statutory Bodies--No relaxation in upper age limit is provided--No rule to extend such concession i.e. relaxation in upper age limit, to the divorced educated women, who after divorce are in dire need of earning/winning bread for themselves and for their kids--That omission, amounts to discriminatory treatment as both Provincial and Federal Governments as well as Statutory/Autonomous Bodies have not taken care of that large segment of the society, who are more deserving in view of peculiar facts and circumstances confronting the society--All the institutions were directed to frame rule, granting relaxation in upper age limit to such divorced women, who want to join or rejoin service of Government. [Pp. 62 & 63] A & E
Relaxation in Upper Age Limit--
----Professional women, possessing higher qualification--Many professional women, possessing much higher qualification like lady doctors, female engineer and other professional women, are divorced the age of 40 or round about then they are unable to get employment/job in institution because of age factor--Immediate steps are required to be taken to appropriately and suitably amend the rules on the subject and experts to frame rules for granting such concession in age relaxation to such women/divorces, who are highly skilled, professional and well educated. [Pp. 62 & 63] B & C
Educated Women--
----Abandoned under influence of the husband--Joining service--Formulating the rules--Upper age limit is re-fixed--While formulating the rules, care would also be taken of those professionals/educated women, who after joining service have abandoned under the influence of their husband and want to rejoin the service after divorced. [P. 63] D
Nemo for Petitioner.
Mr. Khurshid Khan, DAG and Mr. Qaisar Rashid, AA-G on notice.
Date of hearing: 10.12.2009.
Order
Dost Muhammad Khan, J.--A lady namely, Mst. Samina Naheed, sent a petition to Hon'ble the Chief Justice and because of the grounds taken therein, it was converted into constitutional petition. The plea of the petitioner's is that if educated married women are divorced at a later stage and by then they crossed the upper age limit cannot get employment in Government/Semi Government/Institutions/ Autonomous/Semi Autonomous & Statutory Bodies, controlled and managed by the Government, because no relaxation in upper age limit is provided therefor.
We have gone through the relevant rules regarding age relaxation, copy of which was provided by the learned Deputy Attorney General, present in the Court. Perusal of the same would show that for different classes of persons concession of relaxation in upper age limit is provided, however, there exist no rule/provision to extend this concession i.e. relaxation in upper age limit, to the divorced educated women, who after divorce are in dire need of earning/winning bread for themselves and for their kids. This omission, in our view, amounts to discriminatory treatment as both Provincial and Federal Governments as well as Statutory/Autonomous Bodies have not taken care of this large segment of the society, who are more deserving in view of the peculiar facts and circumstances confronting our society.
There is no denial of the fact that many professional women, possessing much higher qualifications like lady doctors, female engineers and other professional women, when are divorced at the age of 40 or round about then they are unable to get employment/job in the Institutions ibid because of the age factor.
Not providing rule to grant relaxation in upper age limit to such professionals and highly skilled women is clearly hit by the prohibitory command of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, hence, immediate steps are required to be taken to appropriately and suitably amend the rules on the subject and experts on the subject shall sit together to frame rules for granting such concession in age relaxation to such women/divorcees, who are highly skilled, professional and well educated. It would be more advisable that the upper age limit is re-fixed for them, at least for one year period after the date the divorce is given and for which become final, so that this large segment of the society becomes active participants in the Nation's building on one hand and to earn likelihood for themselves and for their kids and the expenses incurred on their education either by their parents or by the Government shall not go waste. While formulating the rules, care should also be taken of those professionals/educated women, who after joining service have abandoned/abandon the same under the influence of their husbands and want to rejoin the same after she/they are divorced.
As the learned Advocate General and Deputy Attorney General, both do not grudge/oppose the present order, therefore, there is no need to ask the Federal or Provincial Government or Autonomous/ Statutory Bodies to file comments, more so, when we are supposed to do what is required by Article 25 of the Constitution to do.
Accordingly, this petition is admitted and allowed in the above terms and the Federal/Provincial Government, and all the Autonomous/Semi Autonomous/Statutory Bodies/Institutions are directed to frame rule, granting relaxation in upper age limit to such divorced women, who want to join or rejoin service of Government/ Institutions/Autonomous/Semi Autonomous/Statutory Bodies.
Copy of this order/judgment be sent to the Chief Secretary, Government of NWFP Peshawar, to the Secretary Establishment Division Government of Pakistan Islamabad and to the Heads of all the Institutions/Autonomous/Semi Autonomous/Statutory Bodies, controlled, managed or funded by the Government, whether Provincial or Federal, so that the needful is done within a period of two months at the most.
The Additional Registrar (Judicial) of this Court shall pursue the matter by interacting/corresponding with all these Authorities, till the matter is taken to its logical conclusion.
(R.A.) Petition allowed.
PLJ 2010 Peshawar 64 [D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
AYUB GUL--Petitioner
versus
CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR and another--Respondents
C.R. No. 64 of 2009, decided on 10.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration for correction of date of birth in Matric Certificate and National Identity Card--Dismissed by trial Court--Appeal also met the same fate--Revision petition--Estoppel--Held: On this alleged wrong date of birth, the petitioner joined service and completed his tenure of service while reaching the age of superannuation--He was awakened from a deep slumber and filed the instant suit in order to gain extention in service--Plaintiff/petitioner is legally estopped to challenge the said date of birth specially in the circumstances when he reached the age of superannuation, which cannot be corrected. [Pp. 65 & 66] A & B
1986 SCMR 1950 & MLD 1991 824, rel.
Constitution of Pakistan, 1973--
----Art. 212--Matter related to the terms and conditions of service which action can only be challenged before the service tribunal and no other Court has got jurisdiction to entertain such like pleas in view of bar contained under Art. 212 of the Constitution, 1973--Revision was dismissed. [P. 66] C
Mr. Gohar Zaman Kundi, Advocate for Petitioner.
Respondent in person.
Date of hearing: 10.4.2009.
Judgment
Ayub Gul, petitioner herein, has challenged the judgments and decrees of Additional District Judge-I and Civil Judge-VI Lakki Marwat dated 24.3.2009 and 12.3.2009 respectively whereby his suit was dismissed.
Briefly narrated facts of the case are that Ayub Gul had filed a suit for declaration to the effect that his correct date of birth is 11.4.1951 and the wrong entries with respect to the date of birth dated 11.4.1949 is cropped up from his Matric certificate and consequently the same was entered in National Identity Card which wrong entry is illegal, not binding on him and thus liable to be corrected.
The defendants/respondents were summoned who submitted detailed written statement. However, Defendant/Respondent No. 2, Faridullah Khan Head Master filed a cognovits admitting the claim of the plaintiff/petitioner. The learned trial Court in view of the pleadings of the parties framed five issues including the relief. The plaintiff/ petitioner then produced his evidence which he wished to adduce, while the defendant/respondent relied on the evidence recorded by the plaintiff/petitioner. The learned trial Court after scanning the record, taking the evidence into consideration and hearing the learned counsel for the parties dismissed the suit of the plaintiff/petitioner vide judgment and decree dated 12.3.2009 and his appeal before the learned Additional District Judge-I Lakki Marwat also met the same fate vide judgment and decree referred above, hence the instant revision petition.
It was submitted by the learned counsel for the petitioner that the date of birth of the petitioner has been incorrectly mentioned in the record which later on were incorporated in his educational certificates and National Identity Card. It was also submitted that the Defendant/Respondent No. 2 had filed cognovits in the case admitting the claim of the plaintiff/petitioner, thus, the wrong entries were admitted. It was next submitted that the Defendant/Respondent No. 1 had led no evidence, so there was no evidence in rebuttal against the claim of the petitioner. It was also submitted that the date of birth can be corrected during the service period of a civil servant in the view of the dictum handed down in the case of Administrative Committee of High Court of Sindh Through Registrar, High Court of Sindh Karachi and another Vs. Arjun Ram K. Talreja and another NLR 2008 Civil 532.
I have carefully gone through the record of the case and anxiously considered the arguments of the learned counsel for the petitioner as well as the learned Deputy Advocate General for the respondents.
Perusal of the record shows that the alleged wrong entry according to petitioner cropped up when he was a student of Primary School which was duly incorporated in various record of the Board as well as the University. On this alleged wrong date of birth, the petitioner joined service and completed his tenure of service while reaching the age of superannuation. He was awakened from a deep slumber and filed the instant suit in order to gain extension in service. The superannuation of sixty years was completed on 10.4.2009 and thus he got retired from service.
During the last long period of service he never objected to the date of birth and under this date of birth duly recorded in the testimonials, he joined service, remained in Public Health Engineering Department, secured promotions and reached to the post of Executive Engineer. The attorney for the plaintiff while being cross-examined as PW.2 categorically admitted in the cross-examination that during the entire service of the plaintiff/petitioner, he has never intimated this fact to his department, i.e. Public Health Engineering Department, nor ever applied for the alleged correction of his date of birth, so much so that he obtained the National Identity Card from NADRA and in filing the form thereto entered his date of birth as 11.4.1949. The attorney for the plaintiff was also confronted with the admission form Ex.PW-D-2/5, wherein the plaintiff appeared in Matric examination from Government High School Tank in the year 1966 under Roll Number 15648 wherein the date of birth was entered as 11.4.1949. Thus, the plaintiff/petitioner is legally estopped to challenge the said date of birth specially in the circumstances when he reached the age of superannuation on 10.4.2009 which cannot be corrected in view of the dicta handed down in the case of Sarfaraz Khan Vs. Federation of Pakistan, (1986 SCMR 1950), and Government of the Punjab Through Secretary Department of Education Lahore Vs. Prof: Mst. Jamida Malik and another (MLD 1991 page 824). Besides also, the matter related to the terms and conditions of service which action can only be challenged before the Services Tribunal and no other Court has got jurisdiction to entertain such like pleas in view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan 1973.
In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition, which is accordingly dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2010 Peshawar 66
Present: Liaqat Ali Shah, J.
SHARAFAT and others--Petitioners
versus
ZARDAD and others--Respondents
Civil Revision No. 486 of 2008, decided on 11.12.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 9--Jurisdiction of Civil Court--Question of--Civil Court has the jurisdiction to proceed against trespassers. [P. 69] A
Mr. Gulsad Bar Khan, Advocate for Petitioners.
Mr. Attaullah Khan, Advocate for Respondents (on pre-admission notice).
Date of hearing: 11.12.2009.
Order
Sharafat s/o Zarin resident of Zarin Kalay and two others have impugned the judgment and decree of learned Additional District Judge Charsadda at Tangi in Civil Appeal No. 46/13 vide which appeal of the petitioners-defendants against the judgment and decree of the learned Civil Judge Tangi was dismissed.
Respondents-plaintiffs had instituted a suit against the petitioners-defendants for possession in respect of property measuring 31 Kanal 19 Marla bearing Khasra Nos. 898, 899, 902, 904 and 918 to 920 situated in Mauza Koz Behram Dheri Tehsil Tangi District Charsadda.
The respondents-plaintiffs claimed that the suit property was their ownership and was given to one Muhammad Ghawas as tenant and after his death one Zardad was cultivating the same as tenant. That in the year 2001, the said Zardad handed over the possession of the suit property to the respondents-plaintiffs and thereafter it was cultivated by them. The relinquishment of tenancy by Zardad was later on brought into black and white vide Iqrar Nama dated 20.8.2003. The plaint further reveals that proceedings under Section 145 Cr.P.C were initiated in respect of possession of the suit property by the respondents-plaintiffs and it was observed by the learned Court during the proceedings under Section 145 Cr.P.C that possession of the petitioners-defendants was illegal and the dispute between the parties was of civil nature, hence the parties were directed to approach the Court of competent jurisdiction. In para 4 of the plaint it is averred that the petitioners-defendants being desperate persons were all out to take forcible possession of the disputed property which necessitated the submission of complaint under Section 145 Cr.P.C.
The petitioners-defendants when summoned submitted written statement and claimed that they were tenant in possession of the suit property and the respondents-plaintiffs never cultivated the land. They termed the relinquishment deed as bogus and fabricated one. They claimed that they were inducted in the suit land by one Zardad. In the preliminary objection the question of jurisdiction was also raised.
The pleadings of the parties led to the following issues:--
Whether the plaintiffs have got cause of action? OPP.
Whether the suit is competent in its present form? OPP
Whether the Court has got the jurisdiction? OPP.
Whether the suit is bad because of non-joinder and misjoinder of necessary parties? OPD.
Whether the plaintiffs are owners of suit property? OPP.
Whether Zardad has executed a deed dated 20.8.2003 in favour of plaintiffs, if so, to what effect? OPP.
Whether the defendants are trespassers? OPD.
Whether Defendant No. 1 is a tenant while Defendant No. 2 and 3 works for Zardad, who is a tenant? OPD.
Whether the plaintiffs are entitled to decree as prayed for? OPP.
Relief.
The learned Appellate Court formulated the following questions:--
Whether the Civil Court had the jurisdiction to entertain the present suit?
Whether [plaintiffs/respondents are owners of the suit property?
Whether the defendants are tenant under the plaintiffs?
While addressing the above questions, the learned Appellate Court made detail reference to the statement of Patwari Halqa who was examined as PW1 and had produced the relevant Fard Jamabandi pertaining to the year 1990-91 till 2003 which were exhibited as Ex.PW1/2 to Ex.PW1/7.
Arguments of learned counsel for the parties heard, considered and record perused.
PW1 admitted in his statement that the suit property was the ownership of Fazle Mehbood etc. through family partition dated 12.11.2001 and the same was given to Mst. Sardar Bibi who transferred the same in favour of the respondents-plaintiffs through Tamleek Mutation No. 2708 Ex.PW-1/14. Not only this PW but the witness produced by petitioners-defendants as DW1 also admitted that the suit property was the ownership of respondents-plaintiffs, hence this question was resolved in favour of respondents-plaintiffs.
From Fard Jamabandi 1990-91 Ex.PW-1/4 it is manifest that Khasra Nos. 798, 799, 902 and 904 alongwith others are in possession of Muhammad Ghos son of Janis as Ghair Dakhilkar alongwith Khasra Nos. 918, 919 and 920. PW1 produced Fard Jamabandi for the year 1994-95 Ex.PW1/5 wherein the above mentioned Khasra numbers are recorded in possession of Muhammad Ghos as Ghair Dakhilkar. Similar is the case in Jamabandi for the year 1998-99 which is Ex.PW1/6 and Khasra Girdawari from Kharif 1995 to Kharif 2003 Ex.PW1/7. From Kharif 1995 to Kharif 2000 it is recorded in possession of Muhammad Ghos while in 2001 the tenancy is recorded in the name of Zarin in respect of Khasra Nos. 918, 919 and 920.
DW2 Maazullah had stated that the suit property which is about 7/8 jeribs was cultivated by Zardad and petitioners-defendants No. 2 and 3 are the tenant of Zardad on payment of Rs. 1000/- per jerib per year. Both the revenue record and the statement of the DW make it clear that the suit property was in possession of Zardad and he was tenant under the respondents-plaintiffs.
During the proceedings before the learned Civil Judge the petitioners-defendants had also produced the son of said Zardad namely, Ajmal, as DW3 who stated that he had gone to Saudi Arabia about five years ago and had returned four months back. He has admitted that he did not know about the transaction of the suit property. However, he also stated that he came to know, on his return, that his father has given the suit property to Petitioners-Defendants No. 2 and 3. This DW has admitted it correct that his father has died before his return to the country. Nothing in black and white could be brought on record by the petitioners-defendants that they were inducted as sub-tenants in the suit land by Zardad. Similarly DW-1 admits that it is correct that the suit property is the sole ownership of the respondents-plaintiffs and 12 Kanal is in his possession while 10 Kanal in possession of Sharafat and 9 Kanal in possession of Saifullah the petitioners-defendants herein. He was unable to produce any agreement to show that he was holding the tenancy on behalf of Zardad.
The respondents-plaintiffs have specifically pleaded that Zardad had relinquished the possession of suit property in their favour in 2001 and subsequently relinquishment deed Ex.PW2/1 was scribed which was duly proved by producing PW2, PW3, PW4 and PW5. Even otherwise, if it is presumed that Zardad had inducted the petitioners-defendants as tenants in the suit land, even he was not competent to do so and as such the Appellate Court has rightly held them to be trespassers.
When once they were held and declared to be trespassers, then the civil Court had the jurisdiction to adjudicate upon the lis.
The judgment and decree of the learned Appellate Court is well reasoned and suffer from no irregularity or illegality much less jurisdictional in nature, hence this petition stands dismissed in limine.
(A.A.) Petition dismissed.
PLJ 2010 Peshawar 70
Present: Abdul Aziz Kundi, J.
UMAR KHITAB--Petitioner
versus
AZIZ-UR-REHMAN, etc.--Respondents
C.R. No. 1362 of 2005, decided on 23.12.2009.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 2--Administration of Justice--Failure to disclose date of death--Such lapse of a totally illiterate person who was deposing after a lapse of more than 35 years of the death should be considered natural and could not be considered a sufficient cause to be fatal to their testimony. [P. 73] A
Administration of Justice--
----Civil disputes--Civil disputes are decided on the basis of preponderance of evidence--Appeal allowed. [P. 74] B
Mr. Shams-ul-Hadi, Advocate for Petitioner.
Mr. Khurshid Ahmed Shahan, Advocate for Respondents No. 2 to 4 and 6.
Date of hearing: 22.12.2009.
Judgment
The sole question to be answered in this revision petition is as to whether Mst. Khair-un-Nisa, predecessor-in-interest of Respondents No. 5 and 6 (Defendants No. 6 and 7 in the amended plaint) had predeceased her father Mehar Dil and thus Respondent No. 5 (daughter of Mst. Khair-un-Nisa) and Respondent No. 6 (husband of Mst. Khair-un-Nisa) not entitled to any share in the legacy of Mehar Dil, deceased.
Umar Khitab plaintiff/petitioner sued the defendants/ respondents on 19/1/1989 for declaration, injunction and possession in respect of land fully detailed in the plaint, situate in Mauza Joor, Tehsil Daggar District Buner. The suit was initially decreed ex-parte on 25/02/1989, which was later on set aside on 20.9.2000.
On 29-10-2002, Aziz-ur-Rehman (Defdt/Respondent No. 1) and Mst. Sufia, Defendant No. 6. Respondent No. 5 filed their cognovits admitting claim of the plaintiff/petitioner, while Defendants No. 2 to 5 and 7 as per amended plaint (Respondent No. 2 to 4 and 6 in this petition) contested the suit.
4. On conclusion of trial, Civil Judge, Daggar vide judgment and decree dated 30/04/2003 decreed suit of the plaintiff/petitioner against Defendants No. 1 and 6 (Respondents No. 1 and 5 in this petition) keeping in view the cognovits filed by them, however dismissed the suit against others, holding that Mst. Khair-un-Nisa had not pre-deceased her father Mehar Dil.
Pertinent to mention that before the appellate Court suit in respect of Khasra No. 2487 was withdrawn having been incorrectly included in the plaint.
Such a disposal of the appeal can by no stretch of imagination be termed to be a judicial disposal fulfilling requirements of Order XLI Rule 31 C.P.C. But for the reason that parties are litigating since 1989, therefore instead of remanding the case to the appellate Court for decision of the appeal afresh, I proceed to dispose of the matter on merits.
Learned counsel for the parties heard and perused record with their assistance.
It is the case of plaintiff/petitioner that Mst. Khair-un-Nisa pre-deceased her father Mehar Dil and thus entries in her name and later on in the name of her only daughter Mst. Sufia and Muhammad Rasool, her husband in the first ever settlement carried out in the area and concluded in 1977-78 are wrong, against the facts and law, thus ineffective upon his rights of ownership over the said land fallen in his share as a result of private partition between him, Aziz-ur-Rehman, Defendant/Respondent No. 1 and Mst. Zulaikha, their mother, who also died during pendency of suit and was survived by plaintiff/petitioner and Defendant/Respondent No. 1. Further transfer of the said land by Muhammad Rasool, defendant/respondent in favour of his sons (Defdts No. 3 to 5/Respondents No. 2 to 4) from another wife through a duly attested mutation was also challenged in the amended plaint.
In support of his claim, plaintiff/petitioner examined P.W. 1 Fazal Ghafoor, Patwari Halqa, who produced revenue record in the shape of Misal-I-Haqiat (Ex.PW 1/1) for the year 1977-78, Fard Jamabandi for the year 1997-98 (Ex.PW «) P.W.2 Muqarab Khan, A.D.K, Buner produced Mutation No. 2254 attested on 28/2/2000 as Ex.PW 2/1, while P.W.3 Syed Ali Shah, Assistant Director, Registration Office, Buner produced Registration record in respect of Muhammad Rasool, Mst. Sufia and Mst. Bibi Sahwan as Ex.PW 3/1 to PW 3/3. P.W.4 Muhammad Ghafoor, Head Teacher, Primary School No. 1, Joor produced admission record in respect of Mst. Sufia as Ex.PW 4/1 and P.W.4/2.
Plaintiff/petitioner recorded his statement as P.W.5 and stated that Mehar Dil, his predecessor was alive during settlement proceedings and at the time of his death was survived by him and Defendants No. 1 and 2 (widow) and that the disputed property fell in his share as a result of family partition and is in his possession as well; that his only sister had died during the life of Mehr Dil in the last month of 1965, whereafter Defendant No. 7 contacted second marriage and that Defendants No. 3 to 5 are his (Defendant No. 7) sons from the second wife; that the said defendant in collusion with the settlement staff, who were staying with him in his "Baithak" incorrectly showed his sister as alive and thus entered the land in his own and that of Mst. Sufia name and that later on he transferred his share in the name of his sons Defendants No. 3 to 5/Respondents No. 2 to 4.
In his cross-examination he has confirmed the death of Mst. Khair-un-Nisa in the last month of 1965 but could not name the said month, nor the name of corresponding Islamic Month and rightly so because he is an illiterate person. He could not tell the date of death of his father but stated that he died 10/12 years after the death of Mst. Khair-un-Nisa.
Qareeb-ur-Rehman was examined as P.W.6 who is also special attorney of Mst. Sufia, Defendant No. 6/Respondent No. 5 and confirmed his having filed cognovit on her behalf and further stated that mother of Defendant No. 6 had died in the year, 1965, while Mehr Dil died in 1976; that plaintiff/petitioner is in possession of the disputed property. He was sufficiently cross-examined but nothing favouring the defendants/respondents could be extracted from him.
P.W.7 Abdur Razaq, brother of deceased Mehar Dil also supported the plaintiff/petitioner by stating that Mst. Khair-un-Nisa died in 1965 while Mehar Dil died in 1976-77.
As against that Muhammad Rasool Khan, defendant/ respondent recorded his own statement for himself and as attorney of Defendants No. 3 to 5 (Respondents No. 2 to 4). He as D.W.1, stated that the property was owned by Mehar Dil, who died on 25.09.1976 and his daughter Mst. Khair-un-Nisa died on 10-5-1977; that legacy of Mehar Dil deceased devolved upon his two sons, one widow and one daughter Mst. Khair-un-Nisa, who was his wife; that on death of Mst. Khair-un-Nisa, her property devolved upon him and Mst. Sufia; that he later on transferred his share to his sons Defendants No. 3 to 5/Respondents No. 2 to 4. In cross-examination he has disclosed the date of birth of Mst. Sufia as 12.11.1963 and has admitted the private partition between plaintiff/petitioner and Defendants/Respondent No. 1 to have taken place in the year 1978. He has also admitted that he, his sons and daughter have never been in possession of any property out of legacy of deceased Mehar Dil but volunteered to add that he has been paid his share from the sale proceeds of some of the properties sold.
D.W.2 Shah Wali Khan has disclosed the date of death of Mehar Dil as 25.09.1976 while that of Mst. Khair-un-Nisa as 10.05.1977 and that entries in settlement proceedings have been correctly made in the name of Mst. Khair-un-Nisa. In cross-examination he has admitted to be not on visiting terms with plaintiff/petitioner. He, however, admitted the plaintiff/petitioner to be in possession of the suit property.
The above resume of the evidence produced by both sides would show that there is consensus amongst them on the death of Mehar Dil to be an event of 1976, however, they are not in agreement on the death of Mst. Khair-un-Nisa. Plaintiff/petitioner claims the death of the said lady in 1965 while contesting defendants claims the same in 1977.
Trial Court appears to have been mainly swayed by plaintiff/petitioner's failure to disclose the date and day of the death of Mst. Khair-un-Nisa or the corresponding Islamic month of the last month of December, 1965. While doing so it lost sight of the fact that plaintiff/petitioner a totally illiterate person was deposing after lapse of more than 35 years of the said death and thus no body, except with GOD gilted extra-ordinary memory is expected to remember such minor events. Similarly minor variations in the statements of P.W.5 to P.W.7 have been made basis for non-suiting the plaintiff/petitioner. Variations of this nature in the statements of witnesses who are deposing after lapse of decades is but natural and have been held not to be fatal to their testimony. (2001 S.C.M.R. 798; and 2006 S.C.M.R. 1410 refers).
In the instant case two other very important factors have been totally ignored by Court below. One the cognovit filed by Mst. Sufia, who is the daughter of deceased lady and who would never have conceded to the claim of the plaintiff/petitioner, if her mother had died in 1977 as claimed by other defendants because by that time she with her date of birth of 1963 would have been a grown up girl and remembering every thing. Second is the statement of P.W.3 Syed Ali Shah, Assistant Director, Registration Office, Buner, who produced the Registration record of Muhammad Rasool Khan, Mst. Sufia and Bibi Sehwan, second wife of Muhammad Rasool Khan as Ex.PW 3/1 to PW 3/3, which documents would show that the same were submitted during the period September to December, 1974 and thus there was no reason for Muhammad Rasool Khan, her husband to avoid submission of Form "Alif" of Mst. Khair-un-Nisa, if she was really alive in 1974. Further cross-examination of this witness by defendants/respondents has commenced with a question which has been answered as under:--
19 & 20. This leaves no scope to doubt that Mst. Khair-ur-Nisa had died prior to 1974 and thus the stand taken by the plaintiff/petitioner appears to be true and the one taken by defendants/respondents as untrue.
Civil disputes are decided on the basis of preponderance of evidence. In the instant case overall analysis of evidence would show that not only that the preponderance is in favour of the plaintiff/petitioner but also trial Court has mis-read and non-read evidence as highlighted above, thus resulting into grave illegality. The appellate Court has not at all attended the case in accordance with law, his only operative part of the judgment has been reproduced verbatim in the earlier part of this judgment.
Consequently while allowing this revision petition, the impugned judgments and decrees of both the Courts below are modified and suit of the plaintiff/petitioner is decreed in his favour and against the defendants/respondents in terms of his prayer in the amended plaint.
Parties are left to bear their own costs.
(A.A.) Petition allowed.
PLJ 2010 Peshawar 75 (DB)
Present: Ejaz Afzal Khan, CJ and Abdul Aziz Kundi, J.
HAZRAT BAZ--Petitioner
versus
POLITICAL AGENT/DISTRICT MAGISTRATE KHYBER AGENCY and 2 others--Respondents
Writ Petition No. 1946 of 2009, decided on 15.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Control of Narcotics Substance Act, 1997, S. 46--Establishment of Special Court and them appointment of Sessions Judge or one Additional Sessions Judge--Courts not established in accordance with provisions of the CNSA--In absence of such Courts the powers of such Courts exercised by political agent would have no legal value--In such case the next higher fora in the hierarchy were not competent to hear appeal or revision--Petition allowed.
[P. 76] A & B
Mr. Nasruminullah, Advocate for Petitioner.
Mr. Iqbal Ahmed Durrani, Advocate for Respondents.
Mr. Iqbal Muhammad, DAG for Respondent No. 3.
Mr. Ishtiaq Ibrahim, AAG for Respondent No. 2.
Date of hearing: 15.12.2009.
Judgment
Ejaz Afzal Khan, C.J.--Hazrat Baz petitioner herein has questioned the order dated 21-7-2007 of the Political Agent, Khyber Agency, and those of higher fora in the hierarchy whereby he has been sentenced to ten years R.I. with a fine of Rs. one lac, or in default to undergo 2-1/2 years S.I.
Learned counsel appearing on behalf of the petitioner contended that where the Court was not established and notified in accordance with the provisions of Section 46 of the CNSA in the Tribal Areas, the petitioner could not be tried by the Political Agent and that the entire proceedings and subsequent orders passed by the next higher fora in the hierarchy being against law and statute are liable to be struck down.
Learned counsel appearing on behalf of the Political Agent contended that once the CNSA was extended to the Federally Administered Tribal Areas, vide SRO 1295 (1)/98 dated 16-11-1998 with addition of Section 2 (c) in the 2nd Schedule, the Political Agent had the powers to try the petitioner. Learned counsel by referring to the Notification No. 8-W, dated 9-3-1939, contended that where the powers of Sessions Court are also conferred on the Political Agent, no infirmity much less legal can be found in the trial of the petitioner or in the decisions given by the next higher fora in the hierarchy. The learned AAG appearing on behalf of the Federal Government also adopted the stance taken by the learned counsel for the Political Agent. Mr.Ishtiaq Ibrahim, AAG, appearing on behalf of the State was also in agreement with the proposition canvassed at the bar by the learned counsel for the Political Agent.
We have gone through the record carefully and have also considered the submissions made by the learned counsel for the parties.
No doubt, CNSA has been extended to the tribal areas by virtue of the Notification mentioned above. Similarly powers of Sessions Judge have also been conferred on the Political Agent by virtue of the Notification cited above but can a "Jirga" constituted under the FCR be treated as a Court established in accordance with the requirements of Section 46 of the CNSA. The answer to this question can be in affirmative if we confine ourselves to the Notification cited above. But it would certainly be in negative if seen in the light of the overall scheme of the Act. It, in the first instance, requires establishment of Special Courts and then appointment of a Sessions Judge or an Additional Sessions Judge as a Judge Special Court, after consultation with the Chief Justice of the High Court. The Courts thus established and the Special Judge thus appointed is to try the accused in the cases registered under the Act. If the trial terminates in conviction or acquittal, an appeal there-against lies to the High Court and is heard by a Bench of not less than two Judges when seen in the light of Section 48 of the Act. We despite over stretching the Notifications mentioned above in consonance with the thrust of the arguments addressed at the bar by the learned counsel for the respondents, cannot afford to agree with them as this would not only defeat the provisions of the Act but their spirit as well. We, thus without indulging in unnecessary semantics or verbal quibbles, would straightaway hold that the Political Agent was not competent to try the petitioner and that the next higher fora in the hierarchy were not competent to hear appeal or revision.
This petition is thus allowed, the impugned conviction and sentence is set aside and the petitioner Hazrat Baz who has been in jail ever since his trial, is directed to be released on bail if he furnishes bail bonds in the sum of Rs. Three lac, with two sureties, each in the like amount to the satisfaction of the Political Agent Khyber Agency.
We, therefore, direct the Federal Government to take necessary measures for the establishment of a Special Court in the area in accordance with the provisions of the Act mentioned above. We also direct the prosecution to forward the case of the petitioner to the Court of competent jurisdiction, if and when constituted. Office is directed to send a copy of this judgment to the Federal Secretary (Law & Justice Divisions) Islamabad, for necessary action, as discussed above.
(A.A.) Petition allowed.
PLJ 2010 Peshawar 77 (DB)
Present: Ejaz Afzal Khan, CJ and Abdul Aziz Kundi, J.
M/s. LAL GHEE OIL MILLS (PVT) LTD. through its Chief Executive--Petitioner
versus
PAKISTAN through Secretary Finance and Economic Affairs Islamabad and others--Respondents
W.P. No. 854 of 2006, decided on 18.12.2009.
Constitution of Pakistan, 1973--
----Art. 247(3)--Leavy and collect Federal Excise and Regulatory duty on edible oil--For issuance of an appropriate writ--Applicability of enactments SROs--Imposition of various duties on goods imported in Pakistan--Where the goods were once imported into Pakistan, they were liable to be taxed under the various acts applicable at that time or the SROs issued thereunder regardless of the fact that those had been imported for being transported to or consumed in an areas where those enactments or SROs were not applicable--Petition dismissed. [P. 79] A
Mr. Isacc Ali Qazi, Advocate for Petitioner.
Mr. Iqbal Mohmand, DAG for Respondents No. 1 & 2.
Date of hearing: 18.12.2009.
Judgment
Ejaz Afzal Khan, C.J.--By this single judgment, we propose to dispose of Writ Petitions Nos. 1134, 1191, 1208, 1239, 1246 and 1617 of 2004, 5, 6, 157 and 158 of 2005, 50, 51, 223, 844 and 854 of 2006 and 1049 of 2007, wherein the petitioners have asked for the issuance of an appropriate writ directing the respondents not to levy and collect the Federal Excise and Regulatory duty on edible oil under any law which has not been extended to the tribal area in terms of Article 247 (3) of the Constitution of Islamic Republic of Pakistan, 1973.
The learned counsel appearing on behalf of the petitioners contended that where the manufacturing units of the petitioners are located in tribal area, anything imported from abroad for their consumption cannot be subjected to the levy of regulatory or excise duty, so long as, the laws imposing such levy, are not extended to such areas. The learned counsel next contended that levy and collection of even Sales Tax under different hue and colour would also be uncalled for under the law, when the Sales Tax Act has not been extended to the tribal area. The learned counsel then contended that even the issuance of SRO No. 503 (1) 2004 dated 12.6.2004 is a device to circumvent the provisions of Article 247 (3) of the Constitution, therefore, it is also liable to be set at naught. The learned counsel to support his contention placed reliance on the case of Messrs Gul Cooking Oil Vs. Government of Pakistan and others (2002 PTD 2079). The learned counsel further contended that though in the case of M/S Master Foam (Pvt) Ltd. and 7 others Vs. Government of Pakistan and others (PLD 2005 S.C. 373), the taxable event is held to be the import of goods irrespective of their onward transportation to another place but it being the case of AJK does not have any relevance to the instant case, as in the former case any amount of sales tax levied under the Act can be adjusted as an input tax under the provisions of Sales Tax (Adoption) Act of AJK, while in the latter case its burden is borne by the consumer in the tribal area. The learned counsel by concluding his arguments submitted that where the goods are taken from the Sea Port to the Bonded Ware House located in the tribal area, levy in any form cannot be collected under any law or SRO issued there under, if it has not been extended to the said area and that the amount collected without lawful justification is liable to be refunded.
As against that, the learned counsel appearing on behalf of the respondents contended that since the taxable event for the purposes of Excise Act, 1944, Customs Act, 1969 or Sales Tax Act, 1990 is import of goods into Pakistan, it is immaterial whether any of these enactments have been extended to the tribal area or not. The learned counsel next contended that transportation of the goods imported from the Seaport to the Bonded Ware Mouse or postponement in payment of levy cannot change the nature of the taxable event, as levy and payability of duty are two different things. The learned counsel to support his contention placed reliance on the case of M/s. Shroof and Co. Vs. Municipal Corporation of Greater Bombay, 1989 Supp (1) SCC 347 and the case of NB Sanjana Vs. Elphinstone Spinning and Weaving Mills, AIR 1971 SC 2039. Claim of refund, the learned counsel added, cannot be urged in a Constitutional petition, as it being related to the turf of factual controversy, cannot be trodden over by this Court in its Constitutional jurisdiction.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
Whether it is regulatory duty, excise duty or Sales Tax, the taxable event for the purposes of Excise Act, 1944, Customs Act, 1969 or Sales Tax Act, 1990 or SROs issued there under, is import of goods into Pakistan. Once the goods are imported into Pakistan, they are liable to be taxed under the Acts mentioned above or the SROs issued there under regardless altogether of the fact that those have been imported for being transported to or consumed in an area where neither of the enactments mentioned above or SROs issued there under are applicable. It is true that neither Central Excise Act, 1944 nor the Amendments made in the Customs Act nor the Sales Tax Act including the SROs issued under these Acts have been extended to the tribal area, but it would be absolutely insignificant when the legislature in its wisdom, has made the levy contingent only upon the import of the goods into Pakistan. Their subsequent destination is just a terra incognita for the purposes of these enactments and the SROs issued there under. In the case of M/s. Master Foam (Pvt) Ltd. and 7 others Vs. Government of Pakistan and others (Supra), the Hon'ble Supreme Court after examining the definition of the expression `import' and considering a string of judgments held as under:--
"From above it is clear that right from 1963 till date the Courts in Pakistan have consistently given the word import' its natural and ordinary meaning ofbringing into' the country and have rejected the imposition of artificial constraints on it, such as those imposed by the American doctrine' of original package. It being so, we are of the view that there is no scope that the wordimport' should be given a different meaning than what appears in Section 3(1)(b) of the Act of 1990, especially when there is nothing in the statute to indicate that different meaning was intended by the Legislature. It appears that the Legislature, by not defining the word `import' in the Act of 1990 desired the interpretation of said word in accordance with the following principles:--
".....when a Legislature uses in a statute a legal term, which has received a judicial interpretation, it is to be presumed that the term has been used in the sense in which it has been judicially interpreted, unless a contrary intention appears from the statute."
"Thus, the goods were imported into Pakistan by the appellants when they entered the territory of Pakistan and became liable to taxation accordingly. It is immaterial that ultimately they were to be transported to AJK. This is for the reason that import into Pakistan, is a distinct taxable event independent of any event following thereafter."
The above quoted paragraphs leave no doubt in our mind that the taxable event is import of goods, which has nothing to do with their onward transmission to an area whether settled or tribal. Therefore, the argument that where none of the Acts or the SROs issued there under has been extended to the PATA or FATA in terms of Article 247 (3) of the Constitution, the respondents have no authority to levy the duty, is not tenable. It is all the more untenable, when the incidence of levy is independent of all the subsequent events. Such argument would have had some force, had the business activity carried in the tribal area been subjected to such levy. This is what we held in the case of M/s. Lal Ghee Oil Mills (Pvt) Ltd. Vs. Government of Pakistan and 6 others rendered in Writ Petition No. 589 of 2005 decided on 28.4.2006 and this is what we re-affirm in the instant cases. We, thus, would not hesitate to hold that the import of goods being within the regime of the Acts mentioned above, cannot be exempted from the levy.
The argument that where the goods are taken from the Seaport to the Bonded Ware House located in the tribal area, levy in any form cannot be collected under any law or SRO, if it has not been extended to the said area, too, has not impressed us, when levy and collection are two distinct events. The former becomes a fait accompli on the arrival of the goods at the Seaport notwithstanding the latter is done at a different stage or place. The cases of M/s. Shroof and Co. Vs. Municipal Corporation of Greater Bombay, 1989 Supp (1) SCC 347 and NB Sanjana Vs. Elphinstone Spinning and Weaving Mills, AIR 1971 SC 2039 may well be referred to in this behalf. The question with regard to refund of the duty collected, thus, does not arise in this backdrop. If at all there is any discrepancy in collection, it being related to the factual controversy can well be urged in a proper forum.
Having thus considered, we do not feel inclined to issue the writ asked for. We, therefore, dismiss these writ petitions along with the C.Ms.
(A.A.) Petition dismissed.
PLJ 2010 Peshawar 81 (DB)
Present: Ejaz Afzal Khan, CJ and Mazhar Alam Khan, J
CHERAT CEMENT COMPANY LTD., HEAD OFFICE KARACHI AND BRANCH OFFICE, PESHAWAR--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Industries & Production, Islamabad and 2 others--Respondents
W.P. No. 1643 of 1997, decided on 24.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Powers of legislature to legislate on matters not mentioned in the concurrent list--Quality control does not mention with particularity in Fourth Schedule of Federal or concurrent legislative list but is not an end of the matter--Since law is an instrument for bringing about healthy and whole some changes in the society, parliament can legislate in accordance with the day to day requirements--It being alive and responsive to the growing needs and other socio economic dynamics cannot remain static and stationary. [Pp. 83 & 84] A
Constitution of Pakistan, 1973--
----Art. 199--Fourth Schedule Concurrent List--Fresh legislation--Requirement of--When the previous law in operation required revamping and updating in view of the changed National and International Scenario, fresh legislation became necessary and could not be questioned on the pedantic or hyper technical argument--Petition dismissed. [P. 84] B
Pakistan Standard and Quality Control Act, 1996--
----S. 5--Powers vested in authority--Board constituted u/S. 5 of the Act, can exercise all the powers vested in the authority--Any such exercise by Board cannot be held unlawful, simply because such powers can also be exercised by the authority as well. [P.85 ] C
Mr. Isacc Ali Qazi, Advocate a/w. Arif Raza for Petitioner.
Mr. Iqbal Muhammad, DAG for Respondent No. 1 & 2.
Mr. Abdul Latif Afridi, Advocate for Respondent No. 3.
Date of hearing: 23.12.2009.
Judgment
Ejaz Afzal Khan, C.J.--By this single judgment, we propose to decide Writ Petitions Nos. 1643. 1633 of 1997, 49, 1540 of 1999, 481 of 2001, 765 of 2003. wherein the petitioners have challenged the vires of Pakistan Standard Quality Control Authority Act, 1996, on almost identical grounds.
Learned counsel appearing on behalf of the petitioners by referring to Article 142 of the Constitution of Islamic Republic of Pakistan, 1973, contended that the Parliament has, no doubt, power to legislate laws in respect of the matters entered in the Federal or the Concurrent Legislative List but it has no power to legislate in respect of the matters, which have not been entered in either of the Lists. The learned counsel next contended that where no authority has yet been established in terms of Section 3 of the Act, SRO 705(I) of 2001 dated 10.10.2001 and the letter dated 23.1.2002, being without jurisdiction and lawful authority are liable to be struck down. Pakistan Standard 1654 of 1999, the learned counsel added, issued by the Pakistan Standard Institution, is also without lawful authority, when the said Institution stood dissolved by virtue of Section 37 of the Act. The learned counsel next contended that this Standard is all the more illegal, when it has been established in violation of Section 2(j)(s) of the Act, inasmuch as the persons affected by it were not taken on the Board, while drawing up the technical specification. The respondents have no power, the learned counsel further added, to impose a tax on production in the garb of fee, when they render no service in lieu thereof. The learned counsel by concluding his arguments submitted that Sections 14 and 22 of the Act are also ultra vires, when they are out side the scope of Federal and Concurrent Legislative List. The learned counsel to support his contention placed reliance on the cases of Nishat Tek Limited vs. The Federation of Pakistan, etc. (NLR 1994 Tax 114), Messrs Nafees Dry Cleaners, Wahadat Road, Lahore Vs. The Government of Punjab through Secretary Law and Parliamentary Affairs Department, Lahore and another (2001 PTD 2018), and Collector of Customs and others Vs. Sheikh Spinning Mills (1999 SCMR 1402).
As against that, the learned counsel appearing on behalf of the respondents by referring to entry at Serial No. 59 in the Federal Legislative List, submitted that the Parliament has the power to legislate in respect of the matter incidental or ancillary to any matter enumerated in the List. The learned counsel next contended that where 153 countries including Pakistan signed the World Trade Organization and has been required to conform to the International Standards, the Parliament can legislate with regard to the matters falling within the domain of the Province, if the objects and business travel beyond the Province and that this is what the entry at Serial No. 30 of the Fourth Schedule refers to and that this is, what is done in India under the aegis of Bureau of Indian Standard. Most of the petitioners, the learned counsel submitted, pay what they are required to pay under the aforesaid Bureau, as is evident from the entries down loaded through the network. The learned counsel by referring to Sections 4 and 8 of the Act submitted that where general direction and administration of the authority and its affairs stand vested in the Board, the Board can exercise the power and do all acts and things done by the authority notwithstanding the authority in terms of Section 3 of the Act has not been established. While dealing with the argument of the learned counsel for the petitioners addressed on the strength of Section 2(j)(s), the learned counsel for the respondents contended that the petitioner was not required to be taken on the Board as it was concerned with filling of bottles and those who manufacture concentrates, were consulted and taken into confidence while drawing up the technical specification and other things connected therewith. Sections 14 and 22, the learned counsel affirmed, are also within the legislative competence of the Parliament for the reasons envisaged by the entry at Serial No. 30 of the Federal Legislative List. The learned counsel while dealing with the argument of the learned counsel for the petitioners, vis-a-vis the vires of the Act submitted that an Act or Law can only be declared ultra vires, if it is repugnant to and inconsistent with the fundamental rights and that where there is nothing of that sort, its vires cannot be questioned. The learned counsel to support his contention placed reliance on the case of Messrs Elahi Cotton Mills Ltd. and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582). The learned counsel, while controverting the argument regarding fee without service, submitted that when a lot many things, as enumerated in Section 8 of the Act, are done by the Board, it is not correct that fee is levied without any service.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
Granted that quality control does not find mention with particularity in the Fourth Schedule of the Federal or Concurrent Legislative List but it is not an end of the matter. Parliament in view of diverse socio economic dynamics can legislate in attending the changes around and in the International World. Many other entries in the Federal Legislative List provide for legislation and enlarge its scope, as is evident from the entries at Serial Nos. 3, 25, 30, 32, 54 and 59. In case they do not, which is not so here, it would be against spirit of the sovereignty of Parliament to cabin or confine it to Federal or Concurrent Legislative List. Since law is an instrument for bringing about healthy and wholesome changes in the society. Parliament can legislate in accordance with the day to day requirements. It being alive and responsive to the growing needs and other socio economic dynamics cannot remain static and stationary in its struggle to be at par with other countries in the World, the Parliament of this country has to act and inter-act with the World at large and thus legislate accordingly. Once it entered into an agreement with 153 countries, it is supposed to conform to the International Standards notwithstanding some of the products manufactured by its Industrial Units are meant for home consumption. Their standardization is never-the-less imperative and so is the legislation made by the Parliament in this behalf. It would be a step forward and not a step backward. Fresh legislation on this plane was all the more desirable and even necessary, when the previous law in operation required revamping and updating in view of the changed National and International Scenario. Therefore, cannot be questioned on the basis of a pedantic or hyper technical argument. In the case of Messrs Elahi Cotton Mills Ltd. and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (Supra), the apex Court while dealing with similar situation held as under:--
"Keeping in view the above case-law and the treatises and the aforesaid legal inferences drawn there from, we may now revert to the question of vires of impugned sections. It may again be observed that the power to levy taxes is a sine qua non for a State. In fact it is an attribute of sovereignty of a State. It is mandatory requirement of a State as it generates financial resources which are needed for running a State and for achieving the cherished goal, namely, to establish a welfare State. In this view of the matter, the Legislature enjoys plenary power to impose faxes within the framework of the Constitution. It has prima facie power to tax whom it chooses, power to exempt whom it chooses, power to impose such conditions as to liability or as to exemption as it chooses, so long as they do not exceed the mandate of the Constitution. It is also apparent that the entries in the Legislative List of the Constitution are not powers of legislation but only fields of legislative heads. The allocation of the subjects to the lists is not by way of scientific or logical definition but by way of mere simple enumeration of broad catalogue. A single tax may derive its sanction from one or more entries and many taxes may emanate from one single entry. It is needless to reiterate that it is a well-settled proposition of law that an entry in the Legislative List must be given a very wide and liberal interpretation. The word "income" is susceptible as to include not only what is in ordinary parlance it conveys or it is understood, but what is deemed to have arisen or accrued. It is also manifest that income tax is not only levied in the conventional manner i.e. by working out the net income after adjusting admissible expenses and other items, but the same may be levied on the basis of gross receipts, expenditure etc. there are new species of income tax, namely, presumptive tax and minimum tax."
We, thus, do not agree with the contention of the learned counsel for the petitioners that Pakistan Standard and Quality Control Act, 1996 is ultra vires.
The argument that no action could be taken against the petitioners unless the authority in terms of Section 3 of the Act has been established, no doubt, sounds ingenious, but when we keep in view the overall scheme in general and provisions contained in Section 4 of the Act in particular, the argument appears to be void and vacuous, both legally and logically. The Board constituted under Section 5 of the Act, can exercise all the powers vested in the authority. Any such exercise by the Board cannot be held unlawful, simply because such powers can also be exercised by the authority as well. We need not reiterate that we while interpreting a Statute cannot read a provision in isolation and wrest meaning according to our whim and caprice. We while doing so must consciously seek to mould the law to serve the needs of the time. We must not act like a mechanic or a working mason laying brick on. brick without thought to the overall scheme. Our approach or outlook should be akin to that of an architect who thinks of the structure as a whole. Only in this way, in the words of Lord Denning, we can build a system of law for the society which would be just, strong and durable. We, therefore, are least moved even by the second argument of the learned counsel for the petitioners. The other arguments, too, would lose their force, once we hold that the first two are devoid of force. Similarly the argument addressed with reference to the provisions of Section 2(j)(s) of the Act needs not further comments, when it has been befittingly answered by the learned counsel for the respondents.
The argument regarding the imposition of tax on production in the garb of market fee is also without force, when we see that numerous services are rendered by the Board under the umbrella of the Act to ensure the standardization and quality control of the products. Reference to Section 3 of the Act would be quite relevant on this score. This is what is done by the Bureau of Indian Standard, where even some of the petitioners pay more than what they are required to pay under this Act for almost the same service. The cases of Nishat Tek Limited Vs. The Federation of Pakistan, etc. Messrs Nafees Dry Cleaners, Wahadat Road, Lahore Vs. The Government of Punjab through Secretary Law and Parliamentary Affairs Department, Lahore and another and Collector of Customs and others Vs. Sheikh Spinning Mills (Supra) cited by the counsel for the petitioners being distinguishable on legal and factual plane do not support their case. They rather appear to be in line with the ratio rendered in the case of Messrs Elahi Cotton Mills Ltd. and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (Supra). Even otherwise, we would not like to subscribe to the view canvassed at the bar by the learned counsel for the petitioners, when the object behind it is to get complete emancipation from all the checks and balances which are primarily meant to ensure standardization of the products. We, thus, do not feel inclined to issue the writ asked for.
For the reasons discussed above, these writ petitions being without substance are dismissed.
(A.A.) Petition dismissed.
PLJ 2010 Peshawar 86 (DB)
Present: Ejaz Afzal Khan, CJ and Mazhar Alam Khan, J.
ZAHID ULLAH--Petitioner
versus
N.W.F.P PUBLIC SERVICE COMMISSION through its Chairman Peshawar and 2 others--Respondents
W.P. No. 3077 of 2009, decided on 8.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Administration of justice--Petitioner having passed optional and compulsory subjects cannot be refused viva-voce test--Provisions providing special marks for any subject being discriminatory and violative of equality clause was not sustainable--Appeal dismissed. [P. 91] A
Petitioner in Person.
Mr. Qaisar Rashid, AAG for Respondents.
Date of hearing: 8.12.2009.
Judgment
Ejaz Afzal Khan, C.J.--The petitioner through instant writ petition has challenged the vires of the provisions of syllabus of the Public Service Commission and has also asked for the issuance of an appropriate writ directing the respondents to reckon his marks in accordance with its schedule.
Petitioner present in Court, states that where the general knowledge despite being divided in three papers has been shown as one subject in the schedule of the compulsory subjects in the syllabus, the passing marks are to be reckoned on the basis of his aggregate. So is the case, he added, with political science, physics or chemistry etc., as it too, has been shown as one subject in the schedule of the optional subjects. He next submitted that since passing marks in compulsory as well as optional subjects in all other examinations held under the umbrella of the Provincial or Federal Public Service Commissions are reckoned on the basis of aggregate, he cannot be dealt with a different yardstick, therefore, the provisions in the syllabus being discriminatory and violative of equality clause cannot be maintained.
As against that, the learned AAG appearing on behalf of the respondents contended that though general knowledge has been shown as one subject with three papers but the candidates are required to secure passing marks in each paper. So is the case, he added, with political science, physics or any other subject in the schedule of the optional subjects. The learned AAG next contended that though some of the features of this examination are different from the others but it cannot be considered as discriminatory or violative of the Constitutional provisions because it is based on intelligible differentia, if seen in the light of the nature of the post.
We have gone through the record and the syllabus carefully and have also given a serious thought to the arguments addressed by either of the side.
Before we discuss the merits of the case, it would be worthwhile to refer to the relevant schedules of the compulsory as well as optional subjects which are drawn as below:--
COMPULSORY SUBJECTS
Sr. Subject Maximum Marks
No.
1 English (Precise & Composition 100
2 English Essay 100
3 General Knowledge (a) Current Affairs 100 (b) Every day Science 100 (c) Pakistan Affairs 100 300
4 Islamiat 100
5 Viva Voce 300
Total 900
Qualifying marks in the aggregate of written papers: 600
Qualifying Marks in the Viva Voce: 100
OPTIONAL SUBJECTS
The candidates are required to select optional subjects carrying a total of 600 marks, but not more than 200 marks from a single group (The grouping of optional subjects are as under):
Rules Subject Subjects Marks No.
Note: Business 5 Accountancy & 200
Administration 6 Auditing
Cannot be opted 7 Economics 200
in combination 8 Business
with Public Administration 100
Administration Public
Group 1 Administration 100
Group 2 9 Political Science 200
10 Agriculture 100
11 Forestry 100
12 Sociology 100
13 Journalism 100
Group 3 14 Pure Mathematics 200
15 Applied
16 Mathematics 200
17 Computer
Science 100
Statistics 100
Group 4 18 Physics 200
19 Geology 200
20 Geography 200
21 Chemistry 200
22 Botany 200
23 Zoology 200
Group 5 24 Islamic History &
25 Culture 200
26 History of Pakistan
27 & India 200
28 British History 200
European History 200
History of the USA 100
Note:
International 29 Law 200
Law cannot be 30 Constitutional
opted in 31 Law 100
combination with 32 Mercantile Law 100
International 33 Muslim Law &
Relations: 34 Jurisprudence 100
Group 6 International Law 100
International
Relations 100
Group 7 35 Philosophy 200
36 Psychology including
Experimental
Psychology 200
Group 8 37 English Literature 200
38 Persian 200
39 Arabic 200
40 Pushto 100
41 Urdu 200
A fleeting glance at the schedule of the compulsory subjects would reveal that general knowledge has been shown as one subject despite being divided in three papers. Similarly political science, physics or chemistry etc. has been shown as one subject in the schedule of optional subjects despite being divided in two papers. Once it is not disputed that general knowledge is one subject and so is political science, physic or chemistry etc., the passing marks are to be reckoned on the basis of aggregate as is done in the examination of the Federal Public Service Commission for Civil Superior Service. The provision in the syllabus providing a different yardstick for reckoning the passing marks would be clearly discriminatory and violative of the Constitutional provisions ensuring equality before the law. Though it was submitted by the learned AAG that the mode of marking in the examination under discussion is based on intelligible differentia. But how so stern a standard for marking and reckoning the marks can be laid for the appointment in the management services, when the standard of marking and reckoning of marks is not so stern in the other examinations in general and those of C.S.S. in particular. It is quite strange that in one, assessment of merit is made on the basis of aggregate in two or more papers of the subject, while in the other assessment of merit is made on the basis of individual performance in each paper. In one set of cases the candidates deficient up to five marks succeed with the grant of grace marks while in the other, the candidates similarly placed cannot get even one grace mark. Uniformity in the mode of marking would be a need of the day, when it is also emphasized even in the examinations of Boards and Universities. Lack of uniformity is an unmistakable indication of tyranny. The more tyrant the ruler, the more numerous the laws, is too known an adage to be reiterated. Even today many candidates taking examination under Public Service Commission for the appointment of Judicial Officers were declared successful by this Court with the grant of five grace marks, while the entitlement of the others to the same concession, though, in another examination, is opposed. Yes classification is permissible, if it is based on intelligible differentia and has nexus with the purpose sought to be achieved. But what is the purpose of this classification and what nexus it has therewith and how would it be achieved are the questions which have not been answered by any body who is behind framing the provision in question. Whether change in the mode of marking was okayed by the Governor as is required under the relevant rules is yet another question which, too, has gone unattended.
Let us make it clear that people by and large do not know about the niceties. They want alike treatment of alikes in the absence of any palpable difference. They want to know how and why two examinations held under the same roof have different modes and manners for assessing merit. Intention behind changing the mode and manner of marking may be very pious but when it gives rise to heart burning and a sense of deprivation, it cannot be sustained. Who does not know that transparency in such examinations is highly desirable? It cannot thus be confused and confounded in the grooves of niceties. The fact is that it admits of no niceties. As justice is not only to be done but to be manifestly seen to be done, so would be the case with transparency in the examinations and their results. When this being the case, we are constrained to hold that the petitioner passing compulsory and optional subjects in aggregate cannot be refused viva voce test and that the provision requiring passing marks in each paper of the subject being discriminatory and violative of the equality clause cannot be sustained.
For the reasons discussed above, this writ petition is allowed in terms of prayer with the direction to the respondents to bring about uniformity in the mode and manner of marking in the examination held under their supervision and excise the provisions leading to discrimination.
(A.A.) Petition Allowed.
PLJ 2010 Peshawar 91
Present: Mian Fasih-ul-Mulk, J.
MUHAMMAD KARIM etc.--Petitioners
versus
ZULJALAL and another--Respondents
C.R. No. 969 of 2007, decided on 23.4.2010.
NWFP Pre-emption Act, 1987--
----Ss. 13 & 14--Civil Procedure Code, (V of 1908)--S. 115--Suit for possession--Question for determination--Whether the petitioner was rightly non-suited by Courts below--Talbs--Validity--Ground of talb-e-muwathibat it would not be out of place to mention that performance of talb-e-muwathibat is pure question of fact which in instant case was not only alleged in plaint but the pre-emptor has examined sufficient evidence in that behalf--Where a person is unable to make demands u/S. 13, his guardian or agent can make the required demand on his behalf. [P. 94] A
NWFP Preemption Act, 1987--
----S. 14--Special power of attroney--Performance of talbs--Requisite act--Intention of pre-emptor was clear and unambiguous to authorize his agent in terms of S. 14 of Pre-emption Act, to do all requisite acts for performance of demands of pre-emption as he was unable to perform these acts being an aged person. [P. 96] B
Muhammadan Law--
----Art. 242 & 243--Ground of waiver--To appreciate its legal import--Right of pre-emption accrues after the completion of sale, it is not lost because before the completion of sale, the property was offered to the pre-emptor and he refused to buy. [P. 96] C
1991 CLC 209, ref.
NWFP Pre-emption Act, 1987--
----S. 14--Talb-e-Muwathibat could not be made legally through agent--Validity--Pre-emptor being an agent person was unable to perform various acts and could exercise right of pre-emption in terms of S. 14 of the Act. [P. 96] D
Revisional Jurisdiction--
----Concurrent findings of facts--Such findings do not suffer from controversial defects, illegality or material irregularity. [P. 96] E
PLD 2007 SC 609 & 2007 SCMR 1714 ref.
Concurrent Findings--
----Not sacrosanct--If some material irregularities non-reading, mis-reading is found in the findings of the Court below--High Court can interfere in the matter and revision is competent. [P. 96] F
Fixation of Correct Market Value--
----When market value as mentioned in mutation was not questioned at all for petitioner--High Court did not deem it fit to remand the case for the purpose and proceed to fix the market value of suit property. [P. 97] G
Mian Fazli Amin, Advocate for Petitioners.
Mr. Altaf Ahmad, Advocate for Respondents.
Date of hearing: 20.4.2010.
Judgment
This revision petition under Section 115 CPC has been filed against the judgment and decree dated 6.7.2007 passed by learned District Judge/Zilla Qazi Buner, whereby the appeal of petitioner against the judgment and decree dated 20.4.2006 of the learned Civil Judge-III, Buner was dismissed.
Briefly stated, the facts of the case are that Muhammad Karim son of Muhammad Akbar brought a suit for possession through pre-emption against Zuljalal son of Biladar and one Adam son of Ahmad Din of Village Dawar Haidera, Tehsil Dagar, District Buner. It was averred in the plaint that the petitioner had superior right of pre-emption for which he had made Talb-e-Muwathibat on 19.6.2005 when the transaction had become known to him on the same day at 10.00 a.m. at Dera Umar Saeed situated near Tangai Sangar Amnore through Gul Awan son of Toti Khan R/o Kagoora Kaz Shammal in presence of Umer Said son of Muhammad Karim. Notice of Talb-e-Ishhad was sent through registered A.D. on 20.6.2005 followed by the aforementioned suit on 27.6.2005.
The suit was contested and after recording evidence, the learned Civil Judge/Illaqa Qazi vide his judgment dated 20.4.2006 and the learned District Judge/Zilla Qazi vide his judgment dated 06.7.2007 non-suited the petitioner.
The learned trial Court arrived at conclusion of dismissal of suit, mainly on the grounds of non-performance of Talbs in accordance with law, having no superior right of contiguity and waiver of pre-emption right, while the learned appellate Court upheld the judgment and decree of the learned trial Court on the ground that Talb-e-Muwathibat could not be made legally through an agent, therefore, the remaining evidence, in his view, needed no discussion. Petitioner being aggrieved of the aforementioned judgments has challenged the concurrent findings through the instant revision petition.
Mian Fazli Amin Advocate, learned counsel for the petitioner has vehemently argued that the required Talbs were made in accordance with the spirit of Sections-13 and 14 of NWFP Pre-emption Act, 1987 (hereinafter referred to as the Act) and the findings of trial Court are based on mis-reading and non-reading of evidence. It was further argued that the respondents had not specifically denied the superior right of petitioner on the ground of contiguity in their written statement nor any question was put to the plaintiff witnesses in cross-examination. Findings of the learned trial Court with regard to the contiguity in absence of any evidence are based on surmises and conjectures and therefore not tenable. Learned counsel referred to Section-15 of the Act ibid and Article-242 of Muhammadan Law (2006 Edition by Mullah) and submitted that the right of pre-emption does not waive or is lost before sale as, such right accrues to the pre-emptor after sale. It was finally argued that the learned appellate Court has not interpreted Section-14 of the Act in correct perspective and has passed the impugned judgment illegally and with material irregularity. Reliance was placed on 2004 CLC-359, 1992 MLD 2536, 2000 CLC 1654, 1991 CLC 209 and PLD 2007 SC-26.
On the contrary, Mr. Altaf Ahmad Advocate, learned counsel for the respondents controverted the contentions, so raised by the petitioner and submitted that as per dictum laid down by the superior Courts, the concurrent findings of fact, how erroneous the same may be, cannot be interfered with in revisional jurisdiction. Reliance was placed on PLD 2003 SC 315, 2010 SCMR 5, 2007 SCMR 870 and 2003 MLD 625. On merit, it was contended that the performance of Talbs is to be proved beyond reasonable doubt and right of pre-emption being a feeble right should not be considered as routine matter. The performance of Talb being a personal act must be performed by the pre-emptor himself and not through an agent. Learned counsel invited the attention of Court to 2009 YLR-90, 2004 YLR-202 in this respect, it was further contended that the superior right of pre-emption on the ground of contiguity though not specifically denied in the written statement but was denied in general terms. It was maintained that since the pre-emptor was in the knowledge of sale transaction prior and after the sale therefore, he has waived his right, if any, by not demanding the Talbs on due date and time. Finally, it was argued that the findings of both the lower Courts are based on record and thus warrant no interference.
I have heard the learned counsel for the parties at great length and perused the record with their able assistance.
The question for determination as to whether the petitioner was rightly non-suited by both the Courts below on the grounds mentioned in the impugned judgments, require discussion for a just decision.
Taking-up the first ground of Talab-e-Muwathibat it would not be out of place to mention that performance of Talb-e-Muwathibat is pure question of fact which in the instant case was not only alleged in the plaint but the pre-emptor has examined sufficient evidence in this behalf. Under section-14 of the Act, where a person is unable to make demands under Section-13, his guardian or agent may make the required demand, on his behalf. It is gathered from record that pre-emptor was stated to be 100 years old who appointed his son namely Said Nazar as a special attorney vide Deed Ex.PW 4/1.
In order to determine the powers delegated to the attorney by the petitioner, it is necessary to see the language of the document. It would be therefore expedient to reproduce the contents of the said power of attorney below:--
The superior Courts have time and again held that General rules of construction of documents and deeds, which the Court can call in aid to discover the intention of the Author can be categorized as under:--
(i) In the first instance the intention of the parties is to be collected from the document itself and not by the Court presuming an intention. If the words in a document are express and clear, effect must be given to them and any extraneous inquiry into what was intended by the parties is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.
(ii) To find the intention of parties expressed by the words used in a document, the document must be read as a whole. The words of each clause must be so interpreted as to bring them into harmony with the other provisions of the document. If that interpretation does no violence to the meaning of which they are susceptible. Effect must, as far possible, be given to every word and every clause.
(iii) If there be two methods admissible for the construction of document, one which will give effect to all the clauses therein shall be preferred and the construction which will render one or more of the clauses nugatory shall invariably be avoided.
Viewing the special power of attorney of the present case in the context of above rules, the intention of pre-emptor was clear and unambiguous to authorize his agent in terms of Section-14 of the Act, to do all requisite acts for performance of demands of pre-emption as he was unable to perform these acts being an aged person.
Taking-up the second ground of superior right of contiguity for discussion, it is evident from Shajara Kashtwar Ex.PW 1/3 that the suit property consists of Khasra Nos. 951 and 952 whereas Khasra No. 950 is `Ghair Mumkin in Rasta' which is adjacent to the property of vendor, vendee and pre-emptor. Their remains no doubt that the pre-emptor had proved contiguity with the suit property through evidence.
It brings us to the third ground of waiver. To appreciate its legal import Article-242 and Article-243 of Muhammadan Law are of paramount consideration. It has been laid down in unequivocal terms that as the right of pre-emption accrues after the completion of sale, it is not lost because before the completion of sale, the property was offered to the pre-emptor and he refused to buy. The same principle has been enunciated in 1991 CLC-209 as well. The findings recorded by trial Court on all these grounds are devoid of any force as the same are based on misreading and non-reading of evidence. The learned appellate Court has also erred in law by holding that Talb-e-Muwathibat could not be made legally through agent. As earlier mentioned the pre-emptor being an agent person was unable to perform various acts and therefore, could exercise right of pre-emption in terms of Section-14 of the Act. This view gets support from the judgments reported in 1992 MLD 2536 and 2000 CLC 1654.
Adverting to the exercise of revisional jurisdiction, suffice it to say that concurrent findings of facts shall not be interfered with in revisional jurisdiction PROVIDED such findings do not suffer from controversial defects, illegality or material irregularity. Even otherwise the apex Court in the cases reported in PLD 2007 SC-609 and 2007 SCMR-1714 have observed that the concurrent findings are not sacrosanct and if some material irregularities, non-reading, mis-reading is found in the findings of the Courts below, High Court can interfere in the matter and revision is competent.
Though there are no findings recorded by the learned trial Court qua the fixation of correct market value of the suit property but in view of statements of plaintiff witnesses and more particularly when the market value as mentioned in mutation was not questioned at all by the learned counsel for petitioner, I do not deem it fit to remand the case for the said purpose and proceed to fix the market value of suit property as that mentioned in the sale Mutation No. 220 dated 28.5.2005.
Consequently upon what has been discussed above, the instant revision succeeds. The impugned judgments and decrees of both the Courts below are set aside. Pre-emption suit is hereby decreed in favour of petitioner and against respondents in the sum of Rs. 5,60,000/-. The pre-emptor is required to pay the balance of amount in addition to the one already deposited by him at the time of institution of suit as pre-emption money within a period of one month from the date of announcement of this judgment failing which the suit shall stand dismissed.
(R.A.) Revision accepted.
PLJ 2010 Peshawar 97 (DB) [Abbottabad Bench]
Present: Mian Fasih-ul-Mulk and Miftah-ud-Din Khan, JJ.
MUHAMMAD EHSAN--Petitioner
versus
TAYYABA YOUNUS and 2 others--Respondents
W.P. No. 297 of 2009, decided on 19.11.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Judgment and decree for dissolution of marriage on the basis of khulla was not appealable--Competency of appeal--Suit for recovery of dowery article, dissolution of marriage and maintenance allowance for the period of iddat--Challenge to--Relief of dower amount could not be considered in isolation but the same had nexus with dissolution of marriage based on khulla and, therefore, findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution--Held: No appeal lies against dissolution whether it is on the ground of cruelty or khulla--Appellate Court exercises appellate jurisdiction and has wrongly presumed himself as qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes--Grant of dower by Appellate Court is without jurisdiction--Maintenance allowance had been proved on record and findings of appellate as well as trial Court are maintained--Petition was partially allowed. [P. 99] A
Qazi Ghulam Rauf, Advocate for Petitioner.
Miss Uzma Munawar, Advocate for Respondents.
Date of hearing: 19.11.2009.
Judgment
Mian Fasih-ul-Mulk, J.--Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Ehsan has questioned the impugned judgment and decree of learned Additional District Judge-V, Abbottabad dated 27.11.2008, whereby he passed a decree for recovery of dower amount of Rs. 1,50,000/- and maintenance allowance of Rs.2000/- per month from June, 2007 to September, 2007 in favour of Respondent No. 1.
Briefly stated the facts of the case are that the marriage between spouses, petitioner and Respondent No. 1, took place on 21.09.2006 in consideration of Rs. 1,50,000/- as dower, dowry articles to the tune of Rs.2,50,000/-. and Rs.2000/- as maintenance allowance in case of desertion; that the relations between the parties became strained and petitioner was allegedly forced to leave the house. The respondent requested the petitioner to rehabilitate her but all in vain. The learned Civil Judge-X/Judge Family Court, Abbottabad vide judgment and decree dated 20.06.2008 granted decree for dissolution of marriage on the basis of khulla, dowry articles as per list annexed with the plaint or in alternate their market value i.e. Rs.2,50,000/- and maintenance allowance for the period of Iddat. Feeling aggrieved the respondent filed an appeal which was allowed and decree for recovery of dower amount to the tune of Rs. 1,50,000/- and maintenance allowance @ Rs.2000/- per month was passed in favour of Respondent No. 1. Hence, this writ petition by the husband/petitioner.
Learned counsel for the petitioner mainly contended that in case of dissolution of marriage on the basis of khulla the wife was not entitled to the recovery of dower amount. Further, impugned order of dissolution of marriage on the basis of khulla was not appealable. Therefore, the impugned judgment and decree is not sustainable to this extent.
As against that, the learned counsel for the respondent supported the impugned judgment and decree.
We have heard the learned counsel for the parties at length and perused the available record.
A perusal of record would show that the judgment and decree for dissolution of marriage on the basis of khulla was not, appealable. The learned appellate Court conveniently ignored this important aspect though the ground of competency of appeal was agitated by petitioner in his arguments as mentioned in the impugned judgment but the same was dealt with in a slipshod manner. The learned appellate Court failed to appreciate that in the instant case the relief of dower amount could not be considered in isolation but the same had nexus with the dissolution of marriage based on khulla and, therefore, the findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution. No appeal lies against dissolution whether it is on the ground of cruelty or khulla. The learned appellate Court exercises appellate jurisdiction and has wrongly presumed himself as Qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes. Para 4 of the impugned judgment is also disapproved with the result that the grant of dower by the appellate Court is without jurisdiction. As far as maintenance allowance is concerned that has been proved on record and findings of appellate as well as trial Court are maintained.
Consequently, we partially allow the petition to the extent that the judgment and decree granted to Respondent No. 1 for the recovery of dower amount of Rs. 1,50,000/- is set-aside while remaining decree of maintenance granted by trial as well as appellate Court is upheld and left intact. No order as to costs.
(R.A.) Petition partially allowed.
PLJ 2010 Peshawar 99
Present: Abdul Aziz Kundi, J.
ABDUL MAJEED and others--Petitioners
versus
GUL REHMAN and others--Respondents
C.R. No. 866 of 2006, decided 12.10.2009.
Specific Relief Act, 1877 (I of 1877)--
----S. 9--Exclusive title was challenged--Joint property--One co-sharer cannot seek possession of a specific portion in joint land except through regular partition or a suit under Section 9 of Specific Relief Act--Respondents were neither owners of the property nor ever remained in its possession--Without any entitlement entered into possession--Validity--Inspite of their exclusive title having been put to serious challenge in the written statement, plaintiffs in their rejoinder to the same did not attend to the issues seriously and instead changed their stand as against the one taken in the plaint and stated that defendants are their tenants and thus even if they are admitted to be co-sharers, still they are bound to surrender possession to them--Factum of cancellation of earlier mutation of partition and the property having again gone into common pool has been admitted by petitioners in their evidence--Held: Entries in the record of rights changed and land in dispute again went to common pool--How and when the petitioners were dispossessed of the same and defendants entered into its possession is a mystery and alarming as well because it is against all norms of justice to deprive a co-sharer from possession of his lawful share through means other than lawful--Partition suit, if and when filed, the Court seized should do its best to decide the same in accordance with law on priority basis and within shortest possible time--Petition was dismissed. [Pp. 102 & 103] A, B, C & F
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 7--Relief to be specific stated--Joint property--Determination the relief asked for plaint--Court is empowered to grant such relief as the justice of the case might demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined--In the instant case resort to Order VII, Rule 7, CPC cannot be made to help the plaintiffs because of the suit being one for possession alone in respect of limited area and entire joint property not a subject matter of the suit, absence of other co-owners besides--Held: Only remedy available and left for petitioners is to go for partition of the joint holding--Petition was dismissed. [P. 103] D & E
1999 SCMR 2325, rel.
Mr. Abdul Samad Khan Zaida, Advocate for Petitioners.
Malik Jarar Hussain, Advocate for Respondents.
Date of hearing: 12.10.2009.
Judgment
Abdul Majeed and others plaintiffs-petitioners through plaint dated 5.5.1997 sued Gul Rehman and others defendants-respondents for possession of an area measuring 43 kanals 13 marlas comprising of Khasra No. 1861/538 Khata No. 115/1003, Mauza Takht Abad Awal, Tehsil and District Peshawar. As per averments in the plaint, plaintiffs-petitioners claimed themselves to be the owners of the said property and that they were in possession of the same; that the defendants-respondents are neither owners of the said property, nor ever remained in its possession and that it was one year back that they without any entitlement entered into its possession and inspite of repeated demands are not prepared to leave the said land and hand it over to petitioners.
Defendants-respondents on appearance contested the suit through their written statement dated 26.9.1997 and amongst others stated that the suit property is not exclusively owned by plaintiffs-petitioners and was in fact "Shamilat-e-Deh" bearing Khasra No. 538 measuring 212 kanals 6 marlas during the period 1929-30 to 1951-52, whereafter vide Mutations No. 285 to 288 this Khasra number was divided into two Khasras number i.e. Khasra No. 1861/538 measuring 43 Kanals 13 marlas and Khasra No. 1862/538 measuring 168 Kanals 3 Marlas; that disputed Khasra No. 1861/533 fell into the share of successors of one Ahmad Jee Khan but they never remained in its possession; that plaintiffs earlier instituted a Civil Suit No. 134/1 titled Mst. Shah Pari etc. Vs. Saadat Jan etc. and in the light of judgment and decree dated 27.7.1962 in the said suit the earlier partition was cancelled; that on the basis of the said decree Mutation No. 711 of "Ishtirak-i-Milkiyat" was entered and attested, which resulted into the disputed property again going into common pool. Certain sales and purchases were also detailed in para-2 of the written statement but the same need not to be dilated upon.
In their rejoinder dated 13.10.1997 to the written statement, plaintiffs-petitioners took the stand that even if the defendants-respondents are admitted as co-owners in the disputed property, they are still entitled to possession of the same having been recorded in its possession since sufficient long time and that for the last few years defendants-respondents were tilling the said land as their tenants. This was a complete resile from the stand taken in the plaint.
Divergent pleadings resulted into framing of nine issues by trial Court on 21.10.1997. Issues No. 7 and 8 being relevant for the present controversy are reproduced hereunder:--
Issue No. 7. Whether plaintiffs are joint owners of the land in dispute?
Issue No. 8. Whether plaintiffs are entitled to decree for possession prayed for in the heading of the plaint?
On conclusion of the trial, the trial Court jointly took the aforesaid issues for discussion and held that since the property is jointly owned by parties because the earlier partition was cancelled and property again put in common pool; that one co-sharer cannot seek possession of a specific portion in joint land except through regular partition of a suit under Section 9 of the Special Relief Act.
Resultantly, the suit was dismissed vide judgment and decree dated 29.6.2005.
In appeal, Additional District Judge-VIII, Peshawar concurred with the trial Court and further held that the evidence produced does not conform with the plaint and that it has not been proved that the plaintiffs were dispossessed forcefully or by other means by the defendants-respondents. Accordingly, while dismissing the appeal, the judgment and decree of the trial Court were maintained.
Still aggrieved, plaintiffs-petitioners have filed the present revision petition.
I have heard Mr. Abdul Samad Khan Zaida, Advocate, learned counsel for petitioners and Malik Jarar Hussain, Advocate for respondents on pre-admission notice and gone through the record of the case.
While claiming exclusive title over the suit land plaintiffs-petitioners had filed a simple suit for possession, which exclusive title was challenged by defendants-respondents. Inspite of their exclusive title having been put to serious challenge in the written statement, plaintiffs-petitioners in their rejoinder to the same did not attend to the issue seriously and instead changed their stand as against the one taken in the plaint and stated that defendants-respondents are their tenants and thus even if they are admitted to be co-sharers, still they are bound to surrender possession to them.
I am afraid, the contention of the plaintiffs-petitioners is without any force. In the plaint it had never been their case that respondents are tenants-at-will over the suit land. The factum of cancellation of earlier mutation of partition and the property having again gone into common pool has been admitted by plaintiffs-petitioners in their evidence.
Though after the partition of Khasra No. 538, the plaintiffs-petitioners are recorded as owners in possession of Khasra No. 1861/538 measuring 43 Kanals 13 Marlas and this entry continued till attestation of Mutation No. 711 dated 26.11.1973 of "Ishtirak-I-Milkiyat" whereafter entries in the record of rights changed and land in dispute again went to common pool. How and when the plaintiffs-petitioners were dispossessed of the same and defendants-respondents entered into its possession is a mystery and alarming as well because it is against all norms of justice to deprive a co-sharer from possession of his lawful share through means other than lawful.
It is well settled and as held by Hon'ble Supreme Court of Pakistan in case reported as PLD 1986 SC 35 "Samal Gul vs. Central Government and others" that a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. But in the instant case resort to Order 7 Rule 7 CPC cannot be made to help the plaintiffs-petitioners because of the suit being one for possession alone in respect of limited area and entire joint property not a subject-matter of the suit, absence of other co-owners besides.
In the circumstances, the only remedy available and left for petitioners is to go for partition of the joint holding, as held by Hon'ble Supreme Court in the judgment titled Mst. Resham Bibi and others Vs. Lal Din and others (1999 SCMR 2325).
Partition suit, if and when filed, the Court seized should do its best to decide the same in accordance with law on priority basis and within shortest possible time.
This revision petition, for the aforestated reasons is dismissed. Parties to bear their own costs.
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 103
Present: Abdul Aziz Kundi, J.
REHMAN GHANI and others--Petitioners
versus
SHAHZADA KHAN and others--Respondents
C.R. No. 853 of 2009, decided on 8.9.2009.
Muslim Family Laws Ordinance, 1961--
----S. 4--Civil Procedure Code, (V of 1908), S. 115 & O. XIV, R. 2--Constitution of Pakistan, 1973, Art. 203-D--Civil revision--Entitlement of share equivalent to father--Luxury of frivolous litigation by vested interests can hardly be afforded by Courts administering justice--Challenging inheritance mutation attested in legacy of their deceased grandfather--Trial Court decreed non-suited the plaintiffs holding that u/S. 4 of Muslim Family Laws Ordinance, 1961, the children of deceased were entitled to share equivalent to the one which their father would have received, if alive--Validity--Not denied that respondents are the children of a pre-deceased son whose inheritance devolved upon defendants to extent of share of their deceased father--Provisions of S. 4 of Ordinance are clear in its contents and so are the provisions of Art. 203-D of Constitution--Held: Suit of such like nature should be buried at their very inception and be not allowed to be put to lengthy trials, which ultimately results in unnecessary burden on diary of the Courts--Provisions of Order XIV, R. 2, CPC should be strictly adhered to--Instant was a suit where only one legal issue was involved which could have been resolved at the very initial stage of the suit if judge ceased of the suit had attended to the plaint and provision of law--This would save the precious time of the Court--Revision was dismissed. [Pp. 105 & 106] A & B
Mr. Lal Jan Khattak, Advocate for Petitioners.
Date of hearing: 8.9.2009.
Order
Impugned herein are the judgments and decrees dated 16.11.2007 and 5.5.2009, passed respectively by Civil Judge, Banda Daud Shah, District Karak and District Judge, Karak in a suit filed by petitioners, challenging the Inheritance Mutation No. 212, attested on 24.10.2004, in favour of Defendants-Respondents 1 to 4 in the legacy of their deceased grand father Noor Shah Jehan.
Rehman Ghani and others through plaint dated 2.12.2006 sued the defendants-respondents, seeking declaration, injunction and possession of the land transferred through Inheritance Mutation No. 212 dated 24.10.2004 to Defendants-Respondents 1 to 4, who are the children of Usman Ghani, pre-deceased son of Noor Shah Jehan. In their plaint, the plaintiffs-petitioners' claim is that Usman Ghani, father of Defendants-Respondents 1 to 4 and husband of Defendant-Respondent No. 5 had died on 23.1.1991, while Noor Shah Jehan, father of Usman Ghani and of the plaintiffs-petitioners died on 3.8.2003 and thus Defendants-Respondents 1 to 4 are not entitled to any share in the legacy of Noor Shah Jehan and accordingly have prayed for reversal of the inheritance mutation aforesaid in their favour. The learned trial Court, as it appears, without giving his mind to the plaint on its presentation as a routine issued process to the defendants-respondents, who entered appearance and contested the suit, which led the trial Court to frame the following issues:--
Whether the plaintiffs have got any cause of action?
Whether the Inheritance Mutation No. 212 dated 24.10.2004, attested in favour of Defendants No. 1 to 4 is wrong and against law?
Whether the suit is within time?
Relief?
On conclusion of the trial, the learned trial Court vide judgment and decree dated 16.11.2007, non-suited the plaintiffs-petitioners, holding that under Section 4 of the Muslim Family Laws Ordinance, 1961, the children of the deceased son of Noor Shah Jehan were entitled to the share equivalent to the one which their father would have received, if alive, at the time of the opening of the succession. It was further held that though Section 4 of the Ordinance ibid has been declared un-Islamic by the Federal Shariat Court, but the judgment stands suspended till the decision of the appeal by the Shariat Appellate Bench of the august Supreme Court of Pakistan under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly, the disputed mutation was held to be perfectly correct.
Plaintiffs-petitioners assailed the judgment and decree of the trial Court before the appellate Court but their appeal was also dismissed by learned District Judge, Karak through his judgment dated 5.5.2009.
Still being aggrieved, they have filed the present revision petition.
"Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal."
The learned counsel for the petitioner could not point out any illegality in the impugned judgments and decrees of the two Courts below and I have also found none therein which could attract the exercise of revisional jurisdiction.
Before parting with this judgment, it would be appropriate to observe that luxury of frivolous litigation by vested interests can hardly be afforded by Courts administering justice, therefore trial Courts are under a legal obligation to apply their mind to the suit as and when the same is presented for institution. Suit of such like nature should be buried at their very inception and be not allowed to be put to lengthy trials, which ultimately results in unnecessary burden on the diary of the Courts. These cases are the main cause of huge pendency. Provisions of Order XIV Rule 2 CPC should be strictly adhered to. Instant was a suit where only one legal issue was involved which could have been resolved at the very initial stage of the suit if the learned Judge ceased of the suit had attended to the plaint and the aforesaid provision of law. This would save the precious time of the Court, the parties and their hard earned money. The goals of National Judicial Policy announced recently could also be easily achieved if the trial Courts attend to the above observations.
Finding no merits in this revision, the same is dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2010 Peshawar 106
Present: Atta Ullah Khan, J.
DAMSAZ KHAN--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION (MC) D.I. KHAN through Tehsil Nazim, D.I. Khan and another--Respondents
C.R. No. 224 of 2009, decided on 15.12.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VI, R. 17--Suit for declaration--Dismissed by trial Court--Appeal also met the same fate--Revision u/S. 115, CPC before High Court--An application for amendment in the plaint was moved by petitioner--The Court did not call for reply nor it has been decided--Held: Amendment sought by the petitioner is his right--It is the discretion of the Court to which it is submitted either to accept it or disallow--Neither reply had been submitted by the respondents nor the respondents had been asked for the same--Appellate Court remained silent about the said application--Amendment sought by the petitioner goes to the root of the case and its disposal is necessary--Case remanded. [P. 107] A
Mr. Fazl-ur-Rehman Baloch, Advocate for Petitioner.
Malik Muhammad Asad, Advocate for Respondent No. 1.
Mr. Salahuddin Gandapur, Advocate for Respondent No. 2.
Date of hearing: 15.12.2009.
Order
Through the revision petition in hand the petitioner has impugned the judgment and decree dated 02.5.2009 passed by Additional District Judge-VI, D.I Khan vide which he dismissed the appeal against the judgment and decree dated 21.9.2007 passed by Civil Judge-III, D.I.Khan.
The brief facts are that a suit for declaration was filed by the petitioner against the respondents seeking a declaration on the grounds mentioned in the plaint.
Both the respondents contested the suit by filing their written statement. The pleadings of the parties resulted into five issues. After recording evidence and hearing arguments, the learned trial Court dismissed the suit of the petitioner on 21.9.2007. The said judgment was assailed in appeal before the appellate Court. The appeal was also dismissed vide judgment and decree dated 02.5.2009.
Now the petitioner has challenged the latest judgment in this Court through revision petition under Section 115 C.P.C.
Inter-alia, counsel for the petitioner argued that an application was submitted before the appellate Court on 03.12.2008 for amendment in the plaint. According to the learned counsel, the Court did not call for reply nor it has been decided. In reply, no convincing arguments have been addressed by the opposite counsel.
Arguments heard and record on file perused in the light of which my discussion is as under.
Attested copy of the said application is on file as Annexure-F. In this application it has been prayed that certain amendment may be allowed in the plaint. The record shows that it has been simply placed on file. No reply has come from the respondents. The amendment sought by the petitioner is his right. It is the discretion of the Court to which it is submitted either to accept it or disallow. The disposal is mandatory. As stated above, neither reply has been submitted by the respondents nor the respondents have been asked for the same. The appellate Court remained silent about the said application. The amendment sought by the petitioner goes to the root of the case and its disposal is necessary.
In view of the non-disposal of the above mentioned application, the impugned judgment of the learned Additional District Judge has become nullity in the eye of law. On this point, I accept the revision petition, set-aside the judgment and decree dated 02.5.2009 passed by Additional District Judge-VI, D.I.Khan and remand the case back to that Court with the directions to dispose of the application submitted by the petitioner for amendment in accordance with law and thereafter dispose of the appeal. The parties are directed to appear before the appellate Court on 21.12.2009.
(M.S.A.) Case remanded.
PLJ 2010 Peshawar 108
Present: Syed Musadiq Hussain Gilani, J.
MUHAMMAD AYUB etc.--Petitioners
versus
MUHAMMAD YOUNAS etc.--Respondents
C.R. No. 1438 of 2004, decided on 15.12.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration--Pendency--Registration of sale deed--Effect--Held: Registration of sale deed during pendency of suit would not effect the right of petitioners. [P. 111] A
Barrister Masud Kausar, for Petitioners.
Mr. Muzammil Khan, Advocate for Respondent No. 1.
M/s. Mazullah Barkardi and Javed A. Khan and Aminul Haq, Advocates for Respondent No. 2.
Date of hearing: 15.12.2008.
Judgment
Muhammad Younas, Respondent No. 1 instituted suit against Muhammad Ayub etc: petitioners, and Shaukat Ali, Respondent No. 2, for declaration to the effect that being legal heir of his father Muhammad Yousaf, he was owner in possession of the property bearing No. 1207/1-2, 1209, and 1209/1, Survey No. 269/262, measuring 24' x 68', fully described in the heading of the plaint, known as `Bano' market, situate at Sadar Bazar, Nowshera Cantt:, and petitioners were entitled to the remaining share in the suit property, and that registered sale-deed No. 175, dated 5.4.2002, regarding suit property by Respondent No. 2, Shaukat Ali, in favour of petitioners, was void, illegal, and fictitious, as such, ineffective upon his rights. He also prayed for possession through partition of his share in the suit property, and grant of permanent injunction, restraining the petitioners from alienating the same. According to Muhammad Younas respondent, Muhammad Yousaf, his father and father of Petitioners 1 to 9, and husband of Petitioner No. 10, was running a shop, known as Yousaf General Store at Nowshera Cantt. He was also owner of other property. He purchased the suit property in his life time from respondent Shaukat Ali, and also paid him sale consideration, but before registration of the deed, he died. On death of Muhammad Yousaf, he being his legal heir, to the extent of 14/144 shares, was also owner in the suit property, but petitioners when requested denied his rights in this regard.
The suit was contested by petitioners on the grounds, inter alia, that Respondent No. 1 had no cause of action, because the suit property was self acquired property of the petitioner, and Muhammad Yousaf, the predecessor of the parties, during his life time had given one shop, and plot at A.C. Centre No. 41-A, Phase-I, to Respondent No. 1, besides Rs. 1,30,000/- cash. The shop and plots were sold by him.
The pleadings of the parties were reduced to the following issues, framed by the learned Civil Judge, Nowshera, on 25.9.2002:--
Whether the plaintiff has got a cause of action?
Whether the suit of the plaintiff is based on malafide?
Whether the present suit is not maintainable in its present form?
Whether the suit property is the legacy of decd. Muhammad Yousaf?
Whether the predecessor of the plaintiff and Defdts. No. 1 to 10 had purchased Bano market situated in main Bazar Nowshera Cantt: and had paid consideration?
Whether the market in question has been purchased by Defendant No. 5 alone?
Whether the plaintiff is entitled to the decree for declaration, as prayed for?
Whether the plaintiff is entitled to the decree for possession through partition as prayed for?
Whether the plaintiff is entitled to the decree for permanent injunction as prayed for?
Relief.
The pro and contra evidence of the parties was duly recorded, and after hearing the learned counsel for the parties, the learned Civil Judge held that Respondent No. 1, being legal, heir of Muhammad Yousaf, who had purchased the suit property, was also entitled to inherit his share in the legacy of the father. Accordingly, the suit was decreed, vide judgment dated 14.3.2005.
Having felt aggrieved by impugned judgment and decree, petitioners preferred an appeal, which was dismissed by the learned District Judge, Nowshera, vide judgment dated 15.10.2002.
Dissatisfied with the judgments of the Courts below, petitioners have filed instant revision petition to this Court.
I have heard the learned counsel for the parties, and perused the record.
Learned counsel for the petitioners argued threadbare that the suit property was not ownership of Muhammad Yousaf, the predecessor of the parties, and in fact it was purchased by Muhammad Javed, Muhammad Tufail, and Muhammad Hanif, petitioners, from Respondent No. 2 Shaukat Ali, vide registered sale-deed dated 5.4.2002. He clarified that in fact an agreement to sell had taken place between Muhammad Javed petitioner, and Respondent No. 2 Shaukat Ali, initially, but later on the sale-deed was executed in the name of his two other brothers as well. He argued that the registration of the deed, and its execution was even not denied by Respondent No. 1, and except the testimony of highly interested witness PW.5, Muhammad Farooq, no satisfactory oral or documentary evidence was produced by Respondent No. 1 in support of his claim.
On the other hand, learned counsel for Respondent No. 1, supported the impugned concurrent findings of both the Courts, and argued that Muhammad Yousaf was exclusive owner of the suit property, which he had purchased from Respondent No. 2, and the registered sale-deed executed during pendency of the suit, was an invalid document, and fabricated, just to deprive Respondent No. 1 of his right in the legacy of the father.
Learned counsel for Respondent No. 2 Shaukat Ali supported the claim of petitioners, by stating that in fact the suit property was purchased by petitioners Muhammad Hanif, Muhammad Javed, and Muhammad Tufail from respondent Shaukat Ali, and they had also paid sale consideration to Respondent No. 2. He also drew attention of the Court to the affidavit of Respondent No. 2 in this regard.
The perusal of record would show that, except a bare statement of Muhammad Farooq, PW.5, who admittedly had strained relations with the petitioners, no other strong, reliable and cogent, oral, or documentary evidence is available to prove that in fact Muhammad Yousaf had purchased the suit property from Respondent No. 2 Shaukat Ali. The statement of this witness is not reliable. Needless to say that PW.5 Muhammad Farooq, and PW. 6 Muhammad Asif admitted in cross-examination that neither bargain was struck, nor sale consideration was paid in their presence. The affidavit of vendor Respondent No. 2 Shaukat Ali shows that deal regarding the suit property was not made with him by Muhammad Yosuaf. The payment of sale consideration, which is a sine qua non for completion of sale, by Muhammad Yousaf to the vendor was also not proved. It was for Respondent No. 1 to prove the case, but he badly failed to discharge the onus in this regard. The sale transaction between petitioners and respondent Shaukat Ali regarding the suit property has been made vide registered sale-deed, to which presumption of truth is attached, in the absence of strong evidence in rebuttal. It is abundantly clear that this property is the self acquired property of petitioners Muhammad Hanif, Muhammad Javed, and Muhammad Tufail, and not the legacy of Muhammad Yousaf, the common ancestor of the parties. In the circumstances, the Courts below failed, to appreciate the evidence on the questions of fact, and to interpret the law on the subject properly. The burden of proof was also wrongly allocated, which resulted in erroneous decisions. Consequently, the decisions warrant interference in revision. The registration of deed during pendency of suit would not affect the rights of the petitioners, because the agreement to sell was executed on 8.9.2000. Accordingly, this revision petition is allowed, the findings of the Courts below are set aside, and the suit of Respondent No. 1 is dismissed, leaving the parties to bear their own costs.
(W.I.B.) Revision allowed.
PLJ 2010 Peshawar 111
Present: Abdul Aziz Kundi, J.
GOVT. OF NWFP through Secretary Irrigation & Power Department, Peshawar--Petitioner
versus
M/s. HUSSAIN MAR-N-COMPANY etc.--Respondents
C.R. No. 986 of 2007, decided on 30.10.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVIII, R. 3--Closing of evidence--Ex-parte proceedings--Suit for recovery of a huge amount of Rs. 3,71,79,137--Without carrying for non-available of any evidence on the file and the suit pertaining to recovery of huge amount of over rupees 37 million--Trial Court straightaway fixed the case for ex-parte arguments and order on which date Civil Judge passed ex-parte decree in favour of plaintiff--Application for setting aside the ex-parte decree was accepted--Challenge to--Held: Where while passing the ex-parte judgment and decree trial Court had totally shut its eyes and probably had not even looked to the contents of the plaint otherwise decree for such a huge amount would not have been passed in the presence of a very bulky record and that too without any proof, as evidence had yet to be recorded--Trial Court has in its order impugned herein also taken notice of the fact that in view of law settled by superior Courts to give full opportunities to the parties and avoid technicalities for doing complete justice and also that the conduct of defendant as apparent from the record of the case was that a vigilant party. [P. 115] A & B
Mr. Zahid Yousaf, AAG for Petitioner.
Mr. Mushtaq Ahmad, Advocate for Respondent No. 2.
Date of hearing: 14.10.2009.
Judgment
Government of NWFP through Secretary Irrigation and Power Department, Peshawar sued the defendants-respondents for recovery of a huge amount of Rs. 3,71,79,137/- through its plaint dated 1.1.1998, where Defendant-Respondent No. 2 M/s. East West Insurance Company entered contest while Defendant-Respondent No. 1, M/s. Hussain-Mar-N Company was proceeded against ex-parte and learned trial Court after framing of issues directed the parties to produce their respective evidence.
It was in compliance of the said directions when on 30.10.2004 examination-in-chief of P.W.1 was recorded and case was adjourned for cross-examination of the said PW due to the request of the counsel for Respondent No. 2 and non-availability of certain record. The case thereafter was adjourned a number of times and on 12.1.2005 when the plaintiffs-petitioners sought adjournment, a warning under Order XXVII, Rule 3 CPC was issued to the said plaintiff and case adjourned to 17.1.2005, on which date as per order sheet, the defendant-respondent absented and accordingly proceeded against ex parte.
Without caring for the non-availability of any evidence on the file and the suit pertaining to recovery of huge amount of over rupees 37 million, the learned trial Court straightaway fixed the case for ex parte arguments and order on 28.10.2005, on which date she passed ex parte decree in favour of plaintiff-petitioner and against the defendants-respondents, which is reproduced herein:--
"Counsel for the plaintiff present. Representative of the plaintiff present. Suit for recovery of 3,71,79,137/- instituted. Defendant were summoned. Defendant No. 2 appeared before the Court contested the suit by submitting written statements while Defendant No. 1 placed ex parte. During the proceeding Defendant No. 2 may absent and placed ex parte on 17.1.05. Plaintiff proved his case though his evidence ex parte arguments heard. There is nothing in rebuttal so ex parte decree is here by granted. No orders as to costs.
Fill be consigned to record room after its necessary completion.
Sd/- Shabana Mahsood Civil Judge, Peshawar."
"On 28.1.2005 ex parte decree was passed. An execution of decree was filed on 19.10.2006 whereas setting aside ex parte decree application was filed on 5.12.2005. No. doubt application has delayed in filing of setting aside ex parte decree but there are plethora of judgment of superior Courts that full opportunities should be given to parties and technicalities should be avoided for the ends of justice. Moreover, the conducts of applicant from the file clearly reflects that applicant was vigilantly pursuing the case and as such cannot be punished for one absence and retard his rights. Hence, application is accepted with cost of Rs.2,000/-. File to come up for evidence of plaintiff on 19.6.2007.
Sd/- (Sumbal Naseer) CJ/JFC-VIII, Peshawar."
The plaintiff-petitioner being aggrieved of the setting aside of the ex parte decree has questioned the same through this revision petitioner.
Mr. Zahid Yousaf, learned A.A.G. argued that the application for setting aside ex parte decree dated 28.1.2005 was filed on 5.12.2005 and was thus beyond the prescribed period of limitation under Article 164 of the Limitation Act. It was further contended that defendants-respondents had purposely absented from the proceedings in the suit and thus entitled to no leniency. To support his contention, he placed reliance on law laid down by Hon'ble Supreme Court of Pakistan and reported as 2005 SCMR 609, and 2006 SCMR 631 and contended that in the absence of application under Section 5 of Limitation Act, the defendant-respondent was not entitled to the acceptance of the application.
As against that Mr. Mushtaq Khan, Advocate representing Defendant-Respondent No. 2 argued that the trial Court had passed a well reasoned order, which was in the interest of safe administration of justice because earlier the said Court had without recording any evidence and/or referring to a single document passed a decree of huge amount of over 37 million rupees in favour of the plaintiff-petitioner and against the defendants-respondents which decree was not at all maintainable and thus the trial Court has rightly allowed the application and set aside the ex parte decree. No doubt, the Hon'ble Supreme Court of Pakistan in the case of Honda Atlas Cars (Pakistan Ltd.) Vs. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609) and Shahid Pervez alias Shahid Hamid Vs. Muhammad Ahmad Amin (2006 SCMR 63), settled the law that an application for setting aside an ex parte decree has to be filed within thirty days as provided under Article 164 of the Limitation Act and not under Article 181 as had been earlier held in the case of M/s. Rehman Weaving Factory (Rgd). Vs. Industrial Development Bank of Pakistan (PLD 1981 SC 21), which article of the Limitation Act provides three years period of limitation.
The application of the Defendant-Respondent No. 2 being not supported by any application u/S. 5, Limitation Act did not deserve to have been given a favourable consideration but in the cases aforestated where the Hon'ble Supreme Court Settled the law, ex parte evidence had been recorded by the Court seized of the suits and thereafter on appraisal thereof passed ex parte decrees against the defendant.
The instant is a case where inspite of complicated questions of facts being involved and in the absence of evidence, the trial Court being ignorant of the settled law on the subject proceeded to pass an ex parte decree against the defendants-respondents and in favour of the plaintiffs-petitioners, which ex parte judgment has been reproduced in the earlier part of this judgment. The same can hardly be termed to be a legal verdict. The Hon'ble Supreme Court of Pakistan in the case of Kamran Co and other Vs. M/s. Motors and another (PLD 1990 SC 713), held that in the absence of evidence a decree could not be passed and that if was incumbent upon the trial Court, particularly when the defendants in the written statement categorically denies the liability and when issues had been framed by the trial Court, to record evidence and then decide the case on merits. The same view was reiterated by the said Hon'ble Court in the judgment reported as PLD 2005 SC 337 (Provincial Government through Collector Kohat and another Vs. Shabir Hussain, where it was held as under:--
"(a) Civil Procedure Code (V of 1908)---
----O. IX, Rr. 11 & 13---Ex parte decree after filing of written statement by defendant, but in absence of any evidence led by plaintiff---Not justified---Such decree was set aside and suit was remanded to Trial Court for its decision on merits and in accordance with law.
Kamran Co. and others Vs. Messrs Modern Motors and another PLD 1990 SC 713 fol.
(b) Civil Procedure Code (V of 1908)---
----O. IX, R. 11---Suit involving matter relating to public interest and public property--Ex parte decree, passing of---Duty of Court not to shut its eyes to legal and factual aspects involved in suit but to protect public interest and public property being its final custodian---Principles highlighted.
The Courts of law must always keep in mind that even where the law permitted passing of an ex parte decree, the Judicial Officers should not adopt the said course of action with their eyes completely shut to the factual and legal aspects involved in the matter e.g. if a suit is filed seeking a decree to export heroin from Pakistan and supposing none comes forward, for whatever `reasons, to defend the said suit, then could it be legal or permissible for a Court to pass a decree granting a relief which was absolutely illegal and unlawful? Likewise, Judicial Officers are required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. Courts have never (sic) in favour of giving of preferential treatment to the Government Departments or agencies but Courts are equally obliged, while granting relief to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Government agency.
(The underlining is mine)"
The instant was a case where while passing the ex parte judgment and decree on 28.1.2005, the learned trial Court had totally shut its eyes and probably had not even looked to the contents of the plaint otherwise decree for such a huge amount would not have been passed in the presence of a very bulky record and that too without any proof, as evidence had yet to be recorded.
The trial Court has in its order impugned herein also taken notice of the fact that in view of the law settled by the superior Courts to give full opportunities to the parties and avoid technicalities for doing complete justice and also that the conduct of the Defendant-Respondent No. 2, as apparent from the record of the case was that of a vigilant party The order passed by the trial Court on 15.5.2007 and impugned in this revision, which has undone its earlier illegality is thus maintained but the costs imposed upon the Defended-Responded No. 2 in the sum of Rs. 2,000/- appears to be too meager an amount and thus, I enhance the said costs from rupees two thousand to rupees thirsty thousand, to be deposited by the Defendant-Responded No. 2 in the trial Court or in the account of the Provincial Government. Since the suit had been filed in January, 1998, therefore the trial Court is directed to conclude the trial as early as possible but not later than one year from the date of passing of this order.
(R.A.) Order accordingly.
PLJ 2010 Peshawar 116
Present: Abdul Aziz Kundi, J.
SYED ZAHID HUSSAIN etc.--Petitioners
versus
AUQAF etc.--Respondents
C.R. No. 165 of 2008, decided on 9.4.2010.
N.W.F.P. Charitable Institution Act, 1949 (VIII of 1949)--
----Ss. 3 & 5 (iv) (iii)--West Pakistan Waqf Properties Ordinance, 1959, Ss. 20 & 8--Assuming control of charitable institutions--Notification--Order passed under S. 5(iii) of Act, 1949 was appealable within 15 days before the Court of Judicial Commissioner--Execute a lease agreement with auqaf department--Un-authorized possession of auqaf shop adjacent to mosque--To prove title over the property--Denying the rights of the plaintiffs--Validity--Notification was not challenged--Jurisdiction of Civil Court--Auqaf department did not lay its hands upon the disputed property for suffering long time of issuance of notification and allowed the plaintiffs not only to enjoy it but also demolish and reconstruct it--When Auqaf department managed the attornment of one of tenant of disputed property in its favour and than the dispute between the parties arose, which resulted into present litigation--Plaints are prima facie not hit by either of the provision--Held: Jurisdiction of Civil Courts was already under trial and the most appropriate course for trial Court--If on conclusion of trial petitioners proved their allegation of the disputed property not a part of notification or a waqf property, then surely it would be the Civil Court to decide the matter--Cases were remanded. [Pp. 121 & 122] A & B
Mr. Ghafoor Ahmad Qurehsi, Advocate for Petitioners.
Syed Sardar Hussain, Advocate for Official Respondents i.e. Auqaf Department.
Date of hearing: 25.2.2010.
Judgment
This judgment shall also dispose of C.R. No. 166/2008.
"Charitable Institutions.
Notification.
23rd May, 1950.
No. 689-90-C. 1. The Governor, North West Frontier Province, in exercise of the powers conferred upon him under Section 3 of the North West Frontier Province Charitable Institution Act, 1949 is hereby pleased to take over and assume the administration, control, management and maintenance of the following Auqaf:--
I .................................
II .................................
III. Mosque Khawaja Maroof Khan, Kucha Sheikh-ul-Islam, Mohallah Ganj, Peshawar City consists of:--
2 `Kotis', one "Tanoor" within two outlets, ten shops, one garage, and one "Hamam" bounded in the North by the Road leading to Tehsil Gorkhatri, in the south by Kucha Sheik-ul-Islam, in the east by the Road leading to Ganj Mohallah and in the West by the houses of Fida Muhammad, Tila Muhammad."
"Assuming the Control of charitable institutions--
(ii) The Provincial Government shall from the date of the publication of an order under the last preceding sub-section, be solely Incharge of the administration, control, maintenance and management of the charitable institution or the property so specified."
Under sub-section (iv) of Section 5, Act ibid, an order passed under sub-section (iii) was appealable within 15 days before the Court of Judicial Commissioner, NWFP, whose decision was final.
"20. Repeal and savings--(1) Government may, by notification, repeal all or any of the following enactments with effect from such date or dates as may be specified in that behalf:--
(a) ..............................
(b) The North West Frontier Province Charitable Institutions Act, 1949;
(c) ..............................
(d) ..............................
(e) ..............................
(2) Notwithstanding the repeal of the enactments mentioned in sub-section (1), everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceedings commenced, officer appointed or person authorized, jurisdiction or powers conferred, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance be continued and, so far as may be, be deemed to have been respectively done, taken, incurred commenced, appointed, authorized, conferred, made and issued under this Ordinance.
(3) If any petition is pending with the Administrator under Section 5 of the North-West Frontier Province Charitable Institution Act 1949, it shall be transferred by him for disposal to the District Court within whose jurisdiction a part of the Waqf property is situated."
Vide Section 22(1)(f) "The West Pakistan Waqf Properties Ordinance, 1959, was repealed.
Act LVI of 1976 "Auqaf (Federal Control Act) 1976 was promulgated vide Gazette of Pakistan, Extra-Ordinary, Part I, 31st August, 1976. Section 26 whereof deals with the repeal and saving. Thus "The West Pakistan Waqf Properties Ordinance, 1961" was repealed.
Auqaf (Federal Control Act) 1976 was repealed by "The North West Frontier Province Waqf Properties Ordinance, 1979 (Ordinance IX of 1976) (Gazette of N.W.F.P., Extra Ordinary, 11th April, 1979), Section 26 whereof reads as under:
"26. Continuance of actions, etc., taken under Act LVI of 1976.--Everything done or purporting to have been done, action taken liability or penalty incurred or proceeding commenced, officer appointed or person authorized or power conferred, rule made or notification or order issued under the Auqaf (Federal Control) Act, 1976 (LVI of 1976) since repealed, shall, so far as it is not inconsistent with the provisions of this Ordinance, continue in force, and so far as may be deemed to have been done, taken, incurred, commenced, appointed, authorized, conferred, made or issued under this Ordinance.
Per averments in the plaint dated 2.5.1991, plaintiffs-petitioners allege that suit property detailed in the plaint was mortgaged by Qazi Muhammad Akbar, predecessor of private defendants No. 4 to 8, with Syed Haider Shah through a registered mortgage deed on 5.5.1927; that Syed Haider Shah mortagee has since died and survived by them, thus they came into possession of the said property as mortgagees, which was demolished 21 years preceding May, 1991 and a house and three shops constructed on site of the demolished property and they have been in full enjoyment of the said property without any let or hindrance by any one; that Sher Muhammad defendant No. 3 was inducted as a tenant by them in the newly constructed house, and two shops on payment of Rs.200/- PM, who had been paying them rent through defendant No. 9 Syed Hadi Hussain Shah; that the tenant-defendant No. 3 secretly, collusively and in order to harm the plaintiffs-petitioners executed an agreement of tenancy with official defendants No. 1 and 2 and thereafter started avoiding payment of rent to them; that defendants No. 1 and 2 also served a notice upon defendant No. 9 to prove title over the property; that since defendants No. 1 to 3 are denying the rights of the plaintiffs-petitioners, hence the said suit.
It appears that this suit was yet pending, when official Defendant No. 8 (Administrator Auqaf) vide its Notice No. 1019/B-2 dated 23.4.1992 purporting to be under Section 8, NWFP Waqf Properties Ordinance, 1979 directed defendant No. 10 Riaz Ali Shah that he is in un-authorized possession of Auqaf shop adjacent to Mosque Khawaja Maroof, Peshawar City, therefore should vacate the same within 30 days, failing which he will be ejected under the law and that in case he is interested in retention of the shop, then he should execute a lease agreement with the Auqaf Department.
This prompted the plaintiffs-petitioners to file yet another suit on 19.5.1992 seeking declaration of title as time barred mortgagees and also challenging the notice bearing No. 1019/B-2 dated 23.4.1992.
Both the suits remained pending for sufficient long time and even part of evidence of the plaintiffs-petitioners had been recorded, when ultimately in the mid of the proceedings, official defendants-respondents pressed into service the question of jurisdiction of civil Courts and thus trial Court through impugned order/judgment dated 8.5.2007, passed separately in both the suits ordered return of the plaints to the plaintiffs-petitioners, whereagainst their appeals were also dismissed by Additional District Judge-IV, Peshawar on 6.11.2007.
The two Courts below have ordered return of the plaints by holding that the dispute falls within the jurisdiction of District Courts under Section 11, NWFP Waqf Properties Ordinance, 1979.
Arguments heard. Record perused.
Learned counsel for the plaintiffs-petitioners argued that the two Courts below have fallen into errors of facts and law; that plaintiffs have never challenged the Notification dated 23.5.1950, wherein administration control, management and maintenance of the properties of Auqaf fully detailed by description was taken over, while the one in dispute in the two suits is totally distinct and was in the shape of a seria, fully described in the registered mortgage deed dated 5.5.1927 as "Taweela"; that right from its mortgage, the original mortgagee Syed Haider Shah and after his death his successors had been in un-interrupted possession and enjoyment of the same and non-including Auqaf Department had ever put challenge to their title and possession, so much so that in the year 1969 the same was demolished and reconstructed after obtaining necessary permission for demolition and reconstruction from the then Municipal Committee, Peshawar; that the provisions of Section 11 of NWFP Waqf Properties Ordinance, 1979 are not attracted to the case and that the dispute can only be resolved by civil Court, more particularly when plaintiffs-petitioners also claim title as against private defendants-respondents, on the basis of time barred mortgage. The learned counsel further argued that even the bar of jurisdiction under Section 21 Ordinance ibid is not attracted and further that issues regarding jurisdiction had been already framed and were on trial, which could only be decided after recording of evidence of both the parties.
As against that, learned counsel representing the Auqaf Department argued that suits of plaintiffs-petitioners were hit by Sections 11 and 21 of Ordinance ibid and that the two Courts below have rightly ordered return of the plaints. Accordingly, it was argued that the impugned judgments be maintained and revision petitions be dismissed.
A look at the plaints in both the suits would show that plaintiffs-petitioners have put no challenge to the notification dated 23.5.1950, rather their case is that the disputed property is distinct than the one subject matter of the notification. Even the appellate Court has held so in the light of the description of the property in the notification in question. Auqaf Department did not lay its hands upon the disputed property for sufficient long time of the issuance of the notification dated 23.5.1850 and allowed the plaintiffs-petitioners not only to enjoy it but also demolish and reconstruct it. It was for the first time somewhere in the year 1989, when the Auqaf Department managed the attorment of one of the tenant of the disputed property in its favour and then the dispute between the parties arose, which resulted into present litigation.
Section 11 of NWFP Waqf Properties Ordinance, 1979 reads as under:--
"11. Petition to District Court against notification.--(1) Any person claiming any interest, in any Waqf property in respect of which a notification has been issued under Section 7 may, within thirty days of the publication of such notification petition the District Court within whose jurisdiction the waqf property or any part thereof is situated for a declaration :--
(a) that the property is not waqf property;
(b) that the property is waqf property within the limits stated in the petition:
Provided that, notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment, or order of any Court or other authority, or in any proceeding pending before any Court or other authority no such petition shall lie in respedt of any interest in the income, offerings, subscription or articles, referred to in Explanation 4 to clause (e) of Section 2, or the services or ceremonies (Rasoomat) mentioned in Section 7.
(2) The District Court may, for reason to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vexation or delay."
"21. Bar of Jurisdiction.--Save as expressly provided in this Ordinance, no civil or Revenue Court or any other authority, shall have jurisdiction--
(a) to question the legality of anything done under this Ordinance by or at the instance of the Chief Administrator; or
(b) in respect of any matter which the Chief Administrator is empowered by or under this Ordinance to determine or settle; or
(c) to grant an injunction or other order in relation to any proceeding before the Chief Administrator under this Ordinance or anything done intended to be done by or at the instance of the Chief Administrator under this Ordinance.
When looked into in the light of aforesaid two provisions of law, the two plaints in both the suits are prima facie not hit by either of the aforestated provisions. In both the suits issue regarding jurisdiction of civil Courts was already under trial and the most appropriate course for the trial Court, in the circumstances of the cases was to have allowed the parties to adduce their respective evidence on all contested issues and then decide the same including the one of jurisdiction. If on conclusion of trial plaintiffs-petitioners prove their allegation of the disputed property not a part of the notification dated 23.5.1950, or a waqf property, then surely it would be the civil Court to decide the matter.
In a somewhat similar situation, question of jurisdiction of civil Courts came up for consideration in the case of "Chief Administrator, Auqaf Vs. Sakina Bibi and others" reported as 2005 MLD 318, where it was held as under by Lahore High Court:--
"(a) Punjab Waqf Properties Ordinance (IV of 1979)...
....Ss.11 & 21...Specific Relief Act (I of 1877), S.42...Declaration with consequential relief...Jurisdcition...Plaintiff's suit was concurrently decreed against Auqaf Department...Department had relied upon notification of taking over of property and pleaded bar of jurisdiction...Suit property was found different than the property notificed...Property in question was thus, not taken over by the department...Civil Court had jurisdiction to take cognizance of the matter.. [p.320] A
[Zafar-ul-Ahsan. V. The Republic of Pakistan through Cabinet Secretary Government of Pakistan PLD 1960 SC 113 re]."
Likewise, in the case of "Samiullah and Naveedullah Vs. Fazale Malik and Administrator, Auqaf Department Peshawar" reported as 1997 SCJ 60 it was held as under by august apex Court:--
"(a) Waqf Properties Ordinance (NWFP Ordinance I of 1979)---
S.21. Bar of jurisdiction of civil Courts u/S. 21. Filing of written statement and recording of evidence would be a sine qua non for determination of allegations as to whether orders under Ordinance were in according with or are even mala fide. Remand order passed by High Court in exercise of its revisional jurisdiction u/S. 115. CPC in revision filed to challenge concurrent orders of lower Courts which dismissed suit by applying bar of jurisdiction u/S 21, would be respectly valid and would warrant no interference by Supreme Court.
(c) Jurisdiction--
Bar of jurisdiction of civil Courts. Even where jurisdiction of civil Court is barred and conferred upon special? Tribunals, civil Courts being Courts of ultimate jurisdiction would be competent to examine acts of such fora to see whether their acts are in accordance with law or are illegal or even mala fide.
Again in the case of "Chief Administrator, Auqar, Sindh, Thandi Sarak, Hyder Abad and another vs. Mst. Masooma", reported as PLD 2001 S.C 75, it was held as under:--
"(a) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--
---Ss.2(d) & 6--Waqf Property---Onus of proof--Essential elements--Scope--Burden to prove a property as Waqf property is upon the Authorities and the same can be done by showing either dedication of the property as Waqf or use of the property from time immemorial for religious and charitable purpose, or acquisition of the property from income of Waqf property [p.78]A.
(b) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--S.6--Chief Administrator of Auqaf, jurisdiction of--Scope--Chief Administrator, under the provisions of S.6 of West Pakistan Waqf Properties Ordinance, 1961, can take over and assume administration, control, management and maintenance only of a Waqf property. [p.78]B
(c) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--Ss.2(d) & 6--Waqf property, notification of--Scope--Mere facts that a party had paid rent for a short period to the Authorities erroneously, would not make a property as Waqf property--Such property could not have been notified to be the Waqf property under S.6 of West Pakistan Waqf Properties Ordinance, 1961 [p.78] C
(d) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--
---Ss.2(d), 67 & 17--Constitution of Pakistan (1973), Art.185 (3)--Waqf property, notification of--Jurisdiction of Civil Court--Failure to pursue remedy as provided under S.7, West Pakistan Waqf Properties Ordinance 1961--Effect--Disputed property was originally property of Provincial Government and the plaintiffs had been erroneously paying rent to the Authorities, considering the same as Waqf property--Suit was decreed in favour of the plaintiffs by the Civil Court and the decision was upheld by High Court--Authorities objected to the exercise of jurisdiction by Civil Court--Validity--Authorities were not vested with the powers to take over property other than Waqf property under the provisions of West Pakistan Waqf Properties Ordinance, 1961--Where the property was not a Waqf property, it was not necessary for the plaintiff to pursue the remedy as provided under S.7 of West Pakistan Waqf Properties Ordinance, 1961--Civil Court being not barred under S.17 of West Pakistan Waqf Properties Ordinance, 1961 from entertaining the suit leave to appeal was refused by Supreme Court [pp.78, 79] D & E
When looked into in the light of the law so settled, the impugned judgments and orders, passed by the two Courts below appear to be result of illegal and irregular exercise of jurisdiction vested in them. Thus, I am left with no option but to set aside the impugned judgments and orders of both the Courts in both the suits by accepting these revision petitions and send the cases back to the trial Court for proceeding with the same from the stage at which the plaints were ordered to be returned to the plaintiffs-petitioners, record evidence of the parties and then decide both the suits strictly in accordance with law and on merits, without being influenced by any observations/findings made in this judgment by this Court.
Since these are very old cases of the year 1991-92, therefore, they be treated as target cases and be taken up on day to day basis and positively concluded in the shortest possible time, but not later than four months from 20.4.2010, on which date the parties are directed to appear before the trial Court and the trial Court shall, on conclusion of the trial, within the period aforestated intimate the result thereof to the Additional Registrar (Judicial) of this Court. Costs shall follow the events.
(R.A.) Cases remanded.
PLJ 2010 Peshawar 125 (DB)
Present: Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J.
EXECUTIVE VICE PRESIDENT and another--Appellants
versus
Brg. Rtd. MIAN HAMEED-UD-DIN--Respondent
FAB No. 7 of 2007, decided on 25.3.2010.
Jurisdiction of Banking Court--
----Entitlement of profit on the deposited amount--Suit for declaration was decreed by Banking Court entitling to profit @ 4% on deposited amount--Question of jurisdiction--When respondent had been treated like a shuttle cock by civil and Banking Court--Held: Banking Court had no jurisdiction to have entertained the instant case as it was not a dispute between customer and financial institution as defined in Financial Institutions (Recovery of Finances) Ordinance, 2001 but decision given as such can well be treated a decision as if given by a competent Court of law having jurisdiction in matter--When appellants were compelled to revise their rates of return/profit because of State Bank Policy and they accordingly informed the respondent then it was up to the respondent to continue with newly introduced policy or to encash his COIs for which he was not required to pay any charges--Failure of respondent to realize the situation and to abide by terms and conditions would not clothe him with a cause to challenge the revised schedule of profit--Further held: Respondent cannot claim the rate of profit/return at 14% and is entitled to receive at revised rate intimated by appellants--Appeal was allowed. [Pp. 126 & 129] A, B & C
Mr. Shumail Ahmad Butt, Advocate for Appellants.
Mr. Mian Fazal Wahab, Advocate for Respondent.
Date of hearing: 25.3.2010.
Judgment
Mazhar Alam Khan Miankhel, J.--Suit of the appellants for declaration etc. was decreed by the Banking Judge vide judgment dated 11.11.2006, entitling respondent to profit @ 4% on the amount deposited w.e.f. February, 2003 to 06.02.2006.
The learned counsel appearing on behalf of the appellants in the first instance questioned the jurisdiction of the Banking
Court to decide the question of the type raised in this case by referring to definition of expression customer',finance' and `obligation'. He then by referring to the terms and conditions regulating certificate of investment
(COI) for a fixed term, contended that when it has been expressly provided that profit will be paid upon maturity date unless renewed, modified, amended, changed during the agreed period and that the amount of investment on COI shall be calculated on monthly basis under PLS system at the rate announced by Askari Leasing Limited and is subject to change without notice, no person could claim profit at the rate it was available at the time of making Investment.
As against that the learned counsel appearing on behalf of the respondent contended that once it was promised by the Bank that the respondent would be entitled to 14% profit per annum subsequent variation therein was unjustified and that the judgment and decree of the learned Banking Court being in consonance with the terms and conditions of investment is not open to any exception.
We have gone through the record carefully and have considered the submissions made by the learned counsels for the parties.
Though the question of jurisdiction appears to be valid on the face of it but we wouldn't touch it at this stage when the respondent has been treated like a shuttlecock by the Civil and the Banking Courts and then by this Court and we have no hesitation in our minds to hold that even though in the circumstances of the case, the Banking Court had no jurisdiction to have entertained the present case as it was not a dispute between a customer and the financial institution as defined in Financial Institutions (Recovery of Finances) Ordinance, 2001 but the decision given as such can well be treated a decision as if given by a competent Court of law having the jurisdiction in the matter. Reliance in this regard can well be placed on Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (P.L.D. 1973 Supreme Court 236). Relevant part of the judgment is reproduced below:--
"An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and rights a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked.
Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction."
Similar view was also taken in case of Abdul Majid and others vs. The State Transport Appellate Authority, Bihar and others (AIR 1960 PATNA 333). The relevant part of the judgment is reproduced as follows:--
"(b) Constitution of India, Art. 226--Certiorari, writ of--When can issue--Person invoking jurisdiction under Art. 226 must show that impugned order has occasioned injustice to parties.
The writ of certiorari is not a writ of course. It is a discretionary remedy. The very object of this writ is to foster justice and right a wrong. Hence, before a person can be entitled to invoke the prerogative power of the Court under Art. 226 of the Constitution, it must be shown that the order to be set aside must have occasioned injustice to the parties.
Where the order of the R.T.A. granting renewal of permits was manifestly without jurisdiction and the order of the Appellate Authority setting aside that order was also erroneous and illegal but did not work injustice to any party the extraordinary jurisdiction under Art. 226 could not, be invoked to annul it."
"I/We the undersigned wish to purchase registered certificate (s) of investment (COIs) of Askari Leasing Limited as specified above. I/We agree to provide any documents required. I/We acknowledge that I/We have read the terms and conditions on the back of the application and agree to abide by them and such other rules as may be enforce from time to time. I/We agree to inform you of any changes in the information provided in this form and in related documents. I/We confirm that to the best of my knowledge and belief the information given above is correct. I/We will indemnify you against any loss or damage you may suffer should any of the above information prove incorrect. I/We authorize Askari Leasing Limited to make such inquiries to keep up such references as if may consider necessary in regard to operations of COIs. I/We further agree to abide by the Askari's rules and regulations for profit and loss sharing and hereby authorize Askari to invest the amount of my/our deposit in any manner Askari deems fit under the profit & loss sharing system. Profit/Loss if any as determined by Askari will be acceptable to me/us."
CERTIFICATE OF INVESTMENT
Terms and Conditions
"9. In case of premature encashment of the COI, profit will be paid at the reduced rates according to the term completed. Profit if any paid earlier at a higher rate will be recovered from the principal amount. However, no profit will be paid, if encashed before the completion of three months.
10. The amount of return on a COI shall be calculated on a monthly basis. Profit will be calculated and declared under PLS system. Profit will be distributed at the rate to be announced by Askari Leasing Limited and are subject to change without notice. Profit entitlement will be different for different maturity periods."
Besides, the respondent was also given an option either to continue with the investment or to go for encashment and in case of premature encashment, there will be no premature encashment charges as was provided in clause (9) of the terms and conditions as quoted above.
In this state of affairs, when the appellants were compelled to revise their rates of return/profit because of the State Bank of Pakistan Policy and they accordingly informed the respondent then it was up to the respondent to continue with the newly introduced policy or to encash his COIs for which he was not required to pay any charges. The failure of the respondent to realize the situation and to abide by the terms and conditions as quoted above, would not clothe him with a cause to challenge the revised schedule of profit/return.
So, in this state of affairs, the respondent cannot claim the rate of profit/return at 14% and is entitled to receive at the revised rate intimated by the appellants. We thus have no option but to allow the present appeal by setting aside the judgment and decree passed by the Banking Court with no order as to costs.
(R.A.) Appeal allowed.
PLJ 2010 Peshawar 129
Present: Zia-ur-Rehman Khan, J.
ABDUR RAHIM KHAN--Petitioner
versus
MUHAMMAD TAHIR KHAN, etc.--Respondents
C.R. No. 458 of 2010, decided on 6.4.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Case remanded to trial Court for observing all legal formalities--Suit without making a specific order for consolidation of both the suits--Question of--Whether recording of evidence was sufficient for deciding the fate of connected case with regard to one and same property between the same parties--Validity--Whenever two suits pertain to same subject matter between the same parties, then it is incumbent upon the trial Court to make a specific order for consolidation of both the suits and to frame consolidated issues and thereafter record the evidence of the parties in support of their respective allegation--Held: In absence of consolidation, the evidence of the parties has to be separately recorded in both the suits and evidence in one case cannot be placed and considered in other suit for passing a judgment--There were two separate suits, evidence of the parties was recorded in one suit and was considered as valid one in the other suit--Such practice was certainly un-warranted rather was prohibited in accordance with the provisions of Qanun-e-Shahadat Order. [P. 132] A & B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Non-recording of evidence in subsequent suit--In absence of any consolidated order--Question of--Due to non-recording of evidence in subsequent suit, averments of pleadings of the parties had gone unsubstantiated and in absence of any material, trial Court was not legally in a position to record an independent judgments by referring to the evidence of the parties recorded in another suit. [P. 132] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Evidence of the parties is deficient in nature--Lacuna floating on surface of record--Remanding the case were also not without force--Evidence of the parties was deficient in nature and they could not substantiate their claims properly--Such lacuna floating on the surface of record was of palpable nature and could not be remedied by the parties through their mutual agreement entered before the trial Court--Observations recorded by Appellate Court while remanding the case were also not without force--Petition was dismissed. [P. 133] D
Mr. Hayatullah, Advocate for Petitioner.
Date of hearing: 6.4.2010.
Judgment
The instant revision is directed under Section 115 CPC against the judgment and order dated 29.1.2010 passed by the learned Additional District Judge-VII, Mardan in appeal No. 3/13 of 2009 whereby while accepting the appeal of the respondents, the judgment-and decree dated 8.6.2009 passed by the learned trial Court dismissing the suit of the respondents, has been set aside and the case remanded to the trial Court for observing all the legal formalities and thereafter giving a fresh decision in accordance with law. Likewise, in the connected Revision Petition No. 480/2010 filed by the petitioners which arises out of the same judgment whereby the decree dated 8.6.2009 has been set aside and the case remanded to the trial Court. As both the revision petitions arise out of the same n judgment, and there being involved the same subject matter between the same parties, therefore, I would like to dispose of both the revision petitions through this single order.
Brief facts giving rise to the instant litigation are that the present respondents filed Suit No. 1481/1 originally of 2005 against the present petitioners with regard to the disputed property for a declaration, possession and injunction fully described in the head note of the plaint to the effect that they are owners of the said property and the entries of the revenue record are collusive, fraudulent and are liable to be rectified in their favour. The contents of their plaint show that they are laying claim of title towards the disputed property on the basis of sale Mutation No. 6590 dated 30.11.1992 and the present petitioners have got no concern with the same. The present petitioners contested the suit by submitting their written statement. Likewise, prior to that, they had also instituted a Suit No. 146/1 of 2009 originally of 2004 against the above petitioners with regard to the disputed property for declaration, decree for injunction on the ground that the entire property was originally owned by Mst. Afto widow of Akbar Khan who alienated the same on the basis of Mutation No. 4686 dated 10.1.1976 out of which they subsequently transferred 8 kanals by way of sale and the remaining is still owned by them. In their suit, they have also assigned some fraud to the aforesaid petitioners. Although both the suits were in respect of one and the same property and the parties were also the same but the learned trial Court did not consolidate both the suits nor framed joint issues arising out of both the suits. Rather proceedings in both the suits were conducted separately and after conclusion of trial, the suit of respondents was dismissed and that of the petitioners was decreed and in this way the disputed property has been held to be the ownership of the present petitioners. Feeling aggrieved of the said judgments and decrees the respondents filed two separate appeals before the Court of District Judge which found favour with the said Court and through a single judgment referred to above while accepting the appeals, the cases were remanded to the trial Court for fresh proceedings, thus the instant revision petitions.
The first contention made by the learned counsel for the petitioners is that as there was sufficient material available on the record duly produced by both the parties in support of their respective allegations, thus there was no justification for the remand of the case. The second contention is that there was legally no need of consolidating both the suits and framing consolidated issues and the remand of the case on the ground of non-consolidation of both the suits is unwarranted and mis-conceived. His next contention is that as counsel for the parties had mutually agreed to record evidence in one suit which was prior in time and placed its copies on the file of the other case, thus this practice was warranted under the law and the learned appellate Court has committed a serious mistake to take serious view of this lacuna.
I have heard the learned counsel for the petitioners at sufficient length and also went through the record of both the cases and would like to take combined effect of all the contentions raised by the learned counsel.
Admitted position is that the present petitioners filed their Suit No. 146 originally of 2004 against the contesting respondents with regard to the disputed property and contrarily the said respondents also filed Suit No. 148/against the present petitioners and other respondents with regard to the same property. These suits on each and every date were fixed and proceedings therein were carried on one and the same day and evidence in the first suit was recorded and considered in the other suit without making a specific order for the consolidation of both the suits. The learned trial Court did not bother as to whether recording of evidence was sufficient for deciding the fate of the connected case with regard to one and the same property between the same parties and whether the same evidence could be placed upon the file of the connected case for making it a base for passing a judgment and, that too in the absence of any consolidation order. The answer to this legal question is definitely in negative. It is a settled proposition of law that when ever two suits pertain to the same subject matter between the same parties, then it is incumbent upon the trial Court to make a specific order for consolidation of both the suits and to frame consolidated issues and thereafter record the evidence of the parties in support of their respective allegations. This is also a settled law that in the absence of consolidation, the evidence of the parties has to be separately recorded in both the suits and evidence in one case cannot be placed and considered in the other suit for passing a judgment. In the case in hand, there were two separate suits, evidence of the parties was recorded in one suit and was considered as valid one in the other suit. This practice was certainly un-warranted rather was prohibited in accordance with the provisions of the Qanoon-e-Shahadat Order 1984. Due to non-recording of evidence in the subsequent suit, the averments of the pleadings of the parties have gone unsubstantiated and in the absence of any material, the learned trial Court was not legally in a position to record an independent judgment by referring to the evidence of the parties recorded in another suit. Therefore mere statement of the learned counsel dated 27.5.2009 that "the statement recorded as D.Ws in Suit No. 146/1 would be considered as P.Ws in Suit No. 148/1" is not sufficient to fulfill the requirements of the legal provisions of law which stand violated in the instant suit. Identical question came up for consideration before the Lahore High Court in a case reported as Nazir Ahmad v. Mst. Ghazala Bashir (2001 CLC 468). The relevant observation for convenience sake is reproduced below:
"---Shifting of evidence of one case to the other---Validity--Evidence of one case could not be shifted verbatim to the other case for decision for such procedure was unknown to the Civil Procedure Code--Consent of parties could not change prescribed procedure because law would not permit the change of procedure through consent".
The facts of the reported case amply fulfill the requirements of the instant case because in the reported case too, a remand order of the appellate Court was assailed in similar circumstances but while upholding remand order, the revision petition was dismissed.
Likewise in another D.B judgment of the same High Court reported as Muhammad Arif v. Malik Muhammad Farooq (2002 CLC 1361), it was observed as under:
"S. 151, O.XLI, R.33 & O.I, R.10--Qanun-e-Shahadat (10 of 1984), Art. 57--Evidence recorded in one suit and relied upon by the Trial Court in the other without consolidating both the suits--Effect---Two suits were pending before the same Trial Court--Application to consolidate both the suits was filed by the appellants but the suits were not consolidated--On the basis of exparte evidence recorded in the suit in which the appellants were not party, Trial Court decided both the suits and passed judgment and decree against the appellants---Validity--High Court directed the Trial Court to implead the appellants in the other suit and consolidate both the suits--Judgment and decree passed by the Trial Court were set aside and the case was remanded for decision afresh."
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 134 (DB)
Present: Attaullah Khan and Muhammad Safdar Khan Sikandari, JJ.
PESCO through Chief Executive Peshawar and 5 others--Petitioners
versus
SHAH JAHAN KUNDI and 3 others--Respondents
W.P. No. 180 of 2006, decided on 25.3.2010.
Electricity Act, 1910 (IX of 1910)--
----S. 26(6)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Order of electric inspector to Govt.--Challenged on the ground of jurisdiction through writ petitions--Question of--Whether decision made by Electric Inspector was in accordance with law--Validity--Electric Inspector could only entertain and decide the matter u/S. 26(6) of Electricity Act, relating the meter correctness and consequent determination thereto and no other dispute--Order of appellate authority who once accepted the appeal and then by subsequent order dismissed it--Electric Inspector had trespassed his domain by exercising jurisdiction not vested in him--Petition were allowed. [P. 136] A & B
PLJ 2002 Lah. 757, ref.
Mr. Arif Rahim Ustrana, Advocate for Petitioners.
Mr. Rustam Khan Kundi, Advocate for Respondents.
Date of hearing: 17.3.2010.
Judgment
Attaullah Khan, J.--Through this single Judgment we intend to dispose of Writ Petitions Bearing No. 180 of 2006 and No. 10 of 2007, which relates to one and the same matter.
We have heard both the learned counsel for the parties and have also gone through the record.
Brief facts are that a civil suit was filed by Shah Jehan petitioner in the Civil Court for declaration and permanent injunction, which was decreed in his favour on 20.02.2004. Both the parties assailed the said Judgment before learned District Judge but he did not entertain the same on the ground of jurisdiction and both the parties were directed to approach the proper forum.
Again both the parties impugned the Judgment of learned District Judge through Regular First Appeal No. 8/2004 and Civil Revision No. 381/2004 before this Court. After hearing the parties, this Court vide Judgment dated 22.11.2005 returned both the matters to the petitioners for its presentation to the Electric Inspector in accordance with Section 26 of the Electricity Act, 1910.
The petitioner Shah Jehan moved the Electric Inspector to Govt: of NWFP through submitting complaint. The said complaint was decided by the said forum on 19.05.2006 by partially accepting it. The said Judgment was again assailed through an appeal by petitioner Shah Jehan before Secretary to Govt: of NWFP, Irrigation & Power Department, who vide his order dated 04.07.2006 upheld the order of Electric Inspector to Govt: of NWFP. Later on through order dated 18.07.2006, the earlier order was amended and the words (the appeal is accepted), was substituted by words, "the appeal is not accepted".
All the above orders i.e Electric Inspector to Govt: NWFP and order passed by Secretary to Govt: NWFP, Irrigation & Power Department have been challenged through these two writ petitions.
Both the learned counsel contended that both the orders are illegal because the Electric Inspector has exceeded his jurisdiction.
We may refer to Section 26 (2) of the Electricity Act, 1910, the said section is reproduced as below:--
"Where any difference or dispute arises between a licensee and, a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, indicator or apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector fails to decide the matter of difference or dispute within the said period or where "either the licensee or the, consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Proyincial Government whose decision shall be final:
Provided that, before either a licensee or a consumer applied to the Electric Inspector under this sub-section he shall give to the other party not less than seven days' notice of this intention no to do"
The above provision of law shows that any dispute between the parties regarding meter shall be adjudicated upon by Electric Inspector within a period of ninety days. The matter to be decided by Electric Inspector under this section is regarding as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct. So the Electric Inspector cannot go beyond the above limits.
We have to find out as to whether the decision made by Electric Inspector in his order dated 9.05.2006 is in accordance with sub-section (6) of Section 26 of the Electricity Act, 1910 or not. The last Para of the impugned order shows that he has given findings in this matter which hardly touches the issue within his jurisdiction. The Electric Inspector could only entertain and decide the matter under Section 26 (6) of Electricity Act, 1910, relating the meter correctness and consequent determination thereto and no other dispute. Reference may be given to PLJ 2002 Lahore 757.
Similar is the fate of the order of appellate authority who once accepted the appeal and then by subsequent order dismissed it. The order of the appellate authority is also illegal because while altering/modifying his earlier order he failed to provide opportunity of hearing to the aggrieved party. Thus the Electric Inspector has trespassed his domain by exercising jurisdiction not vested in him.
The upshot of our above discussion is that both the writ petitions are allowed with direction to Electric Inspector to process the complaint of complainant strictly in accordance with the law.
(R.A.) Petitions allowed.
PLJ 2010 Peshawar 136
Present: Mazhar Alam Khan Miankhel, J.
ZWAHIR JAN etc.--Petitioners
versus
LAL REHMAN etc.--Respondents
C.R. No. 979 of 2010, decided on 11.6.2010.
Limitation Act, 1908 (IX of 1908)--
----S. 28--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit was rejected being not maintainable u/Order VII, Rule 11 of CPC--Being mortgagees with possession of property since prior to 1886--Claiming prescriptive title of the property--Validity--Mortgagees though were entitled to ask for their title through prescription much prior to cut off date and had they not been in slumber and vigilant regarding their rights provided under law, they would have got such declaration much prior to target date--Suit was filed for the first time in the year 2006, when S. 28 of Limitation Act, was no more there to their misfortune, they cannot ask for the decree of title through prescription and as such the right of owners to redeem their property cannot be extinguished by efflux of time--Civil revision was dismissed. [P. 138] A
Haji Muhammad Zahir Shah, Advocate for Petitioners.
Date of hearing: 11.6.2010.
Order
The petitioners herein, being plaintiffs of a suit for declaration to the effect that they as mortgagees of the suit property since more than sixty years have attained the prescriptive title of the property, have impugned the concurrent findings of the two Courts below whereby their suit was rejected being not maintainable under Rule-11 of Order VII of C.P.C.
The learned counsel submitted that the petitioners are the mortgagees of the property with possession ever since 1886, when the property was mortgaged in their favour. The mortgagors have failed to redeem their property within the prescribed period of limitation i.e. 60 year. The period of limitation to redeem the mortgage expired much prior to the target date, so the case law referred to by learned Courts below is not applicable in their case as the law laid down by the august Supreme Court is not retrospective in its application. The findings of the Courts below are the result of mis-appreciation of law and requested for decision of the case on merits.
Learned counsel for the petitioners was heard at length and record of the instant petition perused with his assistance. The record would reveal that the petitioners being mortgagees with possession of the property in dispute since prior to 1886, have filed the present suit by claiming prescriptive title of the property in question. Their suit was rejected being not maintainable as the provisions of Section 28 of Limitation Act, 1908 were declared repugnant to injunctions of Islam by the apex Court of the land vide its judgment rendered in the case of Maqbool Ahmad vs. Hakoomat-e-Pakistan (1991 SCMR 2063) and a target date i.e. 31..8.1991 was given by the august Supreme Court of Pakistan. If mortgagee failed to get a decree in his favour before the target date ibid, then no decree of prescription can be passed in his favour. The Government was asked to amend the law otherwise from the above referred target date, Section 28 of Limitation Act would cease to have its effect. After the cut off date, Section 28 is not the part and parcel of the Statute any more. So, no suit for prescription can be instituted after the target date. This view of the apex Court has consistently been followed by the subsequent judgments. Reference can be made to Durranai and 35 others vs. Hamidullah and 15 others (2007 SCMR 480), Muhammad Akram and others vs. Arsalla Khan etc. (NLR 1997 Civil (Peshawar) 458, Baidullah Jan and 3 others vs Hawas Khan and 11 others (PLD 2002 Peshawar 92). In the case of Muhammad Hussain and others vs. Wahid Bakhsh (deceased) through legal heirs (2004 SCMR 1137) effect of the judgment given in Maqbool Ahmad's case (supra) has been determined by holding that this law would be operative with effect from 31.8.1991 and would not govern the past and closed transactions and a decree passed in a suit way back on 14.11.1970 was protected. In addition to this, in Baidullah Jan's case (supra) while discussing the effect of repeal in the light of Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 6 of General Clauses Act, 1897, his lordship observed:
"6. A perusal of the above quoted provisions of the Constitution and the General Clauses Act would reveal that the expression "ceased to have effect" cannot be held synonymous with repeal as is envisioned by Article 264 of the Constitution and Section 6 of the General Clauses Act. In the former eventuality even pending cases cannot be dealth with in accordance with the law which has been so held repugnant to the Injunctions of Islam and ceases to have effect after the date mentioned in the decision while in the later eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from the repealing enactment."
(R.A.) Revision dismissed.
PLJ 2010 Peshawar 139 (DB)
Present: Syed Sajjad Hassan Shah and Liaqat Ali Shah, JJ.
Mst. ISHRAT BANO--Petitioner
versus
NOOR HUSSAIN and 2 others--Respondents
W.P. No. 922 of 2009, decided on 9.6.2010.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Column of Nikah Nama relating to dower amount--Entitlement of gold ornaments or its prevailing market value--Suit for recovery of dower, maintenance allowance, dowry articles and also sought decree for dissolution of marriage--Appellate Court modified the judgment--Dower amount was fixed Rs. 50,000/- as entered in Nikah Nama--Challenge to--Columns relating to dower amount clearly specify that eight tola gold ornaments were agreed to be given at the time of reciting Nikah--Entries had not been challenged at any time before or after institution of suit--Strong presumption of truth is attached to the entries made in Nikah Nama--Payment of dower amount not proved, besides, eight tola gold ornaments had also not been given--Writ petition was accepted to extent that in addition to Rs. 50,000/- as dower amount, the petitioner is held entitled to eight tola gold ornaments or its prevailing market value. [Pp. 141 & 142] A & D
Nikah Nama--
----Columns of Nikah Nama are sold explanatory--No ambiguity in entries--Rule of interpretation--Document is to be read as a whole and must be given effect to the intention of its maker and the contents to be interpreted in accordance with intent and purpose as being conveyed by entries made in document--No word can be added, engrafted, subtracted and omitted while interpreting the document--When document itself is unambiguous, putting upon its language a speculative opinion or using surrounding circumstances in order to portray the instrument as different in nature is not permissible in law--All the words to be read in context of rest of contents of document and give them their simple or ordinary meanings. [Pp. 141 & 142] B
1987 CLC 288 & 272, rel.
Nikah nama--
----Interpretation of columns of Nikah Nama--Term and conditions recorded in Column Nos. 13 to 16 of Nikah Nama--Not challenged any of entries--Applicability of Column No. 16 of Nikah Nama--Validity--Columns of Nikah Nama had not properly conceived the true purpose and intent of the maker of document--The words and meanings had been misconstrued and misinterpreted by Appellate Court--Grossly erred in law--Judgment passed by Appellate Court was hereby modified to extent that besides the payment of Rs. 50,000/- as dower amount was entitled for eight tota of gold ornaments/market value to be paid--Petitioner was not entitled for recovery as entries of Column No. 16 of Nikah Nama quite independent in nature relating to payment of dower amount in shape of immovable property and entries of Column No. 16 would not be applicable to the facts of instant case. [P. 142] C
Mr. M. Hafeez-ul-Ashad Shangla, Advocate for Petitioner.
Mr. Sahibzada Asadullah, Advocate for Respondents.
Date of hearing: 21.5.2010.
Judgment
Syed Sajjad Hassan Shah, J.--Present petitioner questioned the judgment and decree passed by learned Additional District Judge-1, Nowshera dated 19.3.2009, whereby the judgment and decree passed by learned Civil Judge/Judge Family Court dated 6.12.2008, was modified and dower amount was fixed as Rs.50,000/-.
Brief facts of the instant case are that:--
The petitioner has filed the suit for the recovery of dower, maintenance allowance, dowry articles and also sought the decree for dissolution of marriage. The learned Judge Family Court decreed the suit of the plaintiff/petitioner, as prayed for. On appeal filed by the defendant/respondent the learned appellate Court modified the judgment and decree, the dower amount was fixed Rs.50,000/- as entered in the Nikah Nama.
Learned counsel appearing on behalf of the petitioner argued that learned appellate Court while interpreting Nikah Nama misconceived and misinterpreted the entries made in Column Nos. 13, 14 and 16. The plaintiff/petitioner is entitled for the grant of decree as prayed for in her plaint and the learned trial Court has lawfully passed the decree in favour of plaintiff/petitioner, the judgment and decree passed by the appellate Court may be set-aside as without lawful authority and without jurisdiction.
As against this learned counsel for the respondent argued that the entries in columns ibid are not admitting any other interpretation except that only Rs.50,000/- as the dower amount was fixed and entered in the Column No. 13 of Nikah Nama, the entries made in remaining Columns Nos. 14 and 16 are independent in nature not relating to the fixation of dower, therefore, he prayed that the judgment and decree passed by learned appellate Court may be maintained.
Learned counsel appearing on behalf of the parties, heard and record carefully perused.
Perusal of the entries made in the above referred columns of Nikah Nama Ex.PW-1/1 reveal that there is no ambiguity in all the three columns about any of the matters relating to dower amount. Column No. 13 is about the fixation of dower amount, thus Rs.50,000/- entered as dower amount, fixed at the time of Nikah. Column No. 14 is about the mode of payment of dower amount, thus recorded therein as "payable on demand" and "eight tola gold". Column No. 15 is about the detail of payment of dower amount at the time of marriage but the same is left blank, meaning thereby that nothing has been paid at the time of Nikah/marriage. Similarly, Column No. 16 is about the detail of immovable property, if any transferred made in lieu of dower or its any part? with a detail of its particular and value agreed upon in between the parties.
The detail referred to above regarding the columns relating to dower amount clearly specify that eight tola gold ornaments were agreed to be given by defendant/respondent to the plaintiff/petitioner at the time of reciting Nikah. These entries have not been challenged at any time before or after institution of suit, under the law Nikah Nama is treated at par with the registered deed, therefore, strong presumption of truth is attached to the entries made in Nikah Nama. The above mentioned gold ornaments are to be given in addition to dower amount of Rs.50,000/-. The payment of dower amount not proved, besides, eight tola gold ornaments has also not been given. The reference made of five marlas plot in Column No. 16 towards the payment of dower amount mentioned in Column No. 13. It does not create any independent right in favour of plaintiff/petitioner in addition to the dower amount recorded in the said column. Notwithstanding, no boundaries or any detail of the plot mentioned in the Nikah Nama.
Plain language of all the above referred three columns of nikah nama are self explanatory, we find no ambiguity in the said entries. Well settled rule of interpretation is, that the document is to be read as a whole and must be given effect to the intention of its maker and the contents to be interpreted in accordance with intent and purpose as being conveyed by the entries made in the document. No word can be added, engrafted, subtracted and omitted while interpreting the document. When the document itself is unambiguous, putting upon its language a speculative opinion or using surrounding circumstances in order to portray the instrument as different in nature is not permissible in law, however, it can be employed in order to throw light on meanings thereof, all the words to be read in context of rest of the contents of the document and give them their simple or ordinary meanings. Reliance placed on judgment titled "Bank of Oman Ltd. Versus East Asia Trading Company Ltd". Reported in 1987 CLC 288 reproduced as under:--
"Consensus ad idem, doctrine of--For construing a document, contracting parties would be deemed to be consensus ad idem with regard to essential terms of contract--Court while construing a document would be required to analyze it objectively so as to find implied intention, of fact of contracting parties, if circumstances of case, so required".
In another judgment titled "Pakistan State Oil Company Ltd. Versus Burmah Oil Public Limited Company". Reported in 1987 CLC 272 following observations are made:--
"Court has duty to spell out real meaning of expression, used in contracts and to discover and discern real intention of parties behind those expressions".
The parties are conscious of the matter in issue, therefore, they have agreed upon to the terms and conditions recorded in Column Nos. 13 to 16 of the Nikah Nama. They have not challenged any of the entries mentioned above, even in the present proceeding.
Learned appellate Court while interpreting the aforementioned columns of Nikah Nama has not properly conceived the true purpose and intent of the maker of the document. The words and meanings have been misconstrued and misinterpreted by the learned appellate Court, therefore, grossly erred in law, thus, the judgment passed by learned appellate Court is hereby modified to the extent that besides the payment of Rs.50,000/- as dower amount the plaintiff/petitioner is entitled for eight tola of gold ornaments/market value to be paid by Noor Hussain, defendant/respondent to the plaintiff/petitioner, but she is not entitled for the recovery of plot as mentioned in relief "Alif" of the plaint, as the entries of Column No. 16 of Nikah Nama quite independent in nature relating to the payment of dower amount in the shape of immovable property and the entries of Column No. 16 would not be applicable to the facts of the instant case.
In view of the above reasoning, this writ petition is accepted to the extent that in addition to Rs.50,000/- as dower amount, the petitioner is held entitled to eight tola gold ornaments or its prevailing market value.
(R.A.) Petition accepted.
PLJ 2010 Peshawar 143 [Dera Ismail Khan, Bench]
Present: Attaullah Khan, J.
CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 7 others--Petitioners
versus
UMAR ZAD SHAH BUKHARI, ADVOCATE--Respondent
C.R. No. 304 of 2004, decided on 26.4.2010.
Insurance Ordinance, 2000--
----S. 122(3)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Suit for specific performance of contract in respect of insurance--Policy alongwith business partner--Civil Court has no jurisdiction--Tribunal has got exclusive jurisdiction--Validity--Under S. 122(3) of Insurance Ordinance, tribunal is vested with exclusive jurisdiction to be constituted by Federal Government--Tribunal was not constituted by Federal Government--In absence of tribunal, S. 122(3) of Insurance Ordinance cannot be pressed into service--In such eventualities, Civil Court has jurisdiction to entertain and adjudicate upon the matter in dispute--Revision was dismissed. [P. 145] A
Insurance Ordinance, 2000--
----S. 72--Non-impleadment of legal heirs of deceased--Reference might be made wherein the details regarding nominee are given--Policy was matured for payment--Nominated person in the policy shall be paid in the events of his death--Partnership deal--Validity--During the course of joint business, they secured a joint insurance policy for Rs. 4,00,000/- from the petitioners and same was sanctioned after completion of required codal formalities and a sum of specific amount was deposited and first premium receipt was also issued--After the sudden death of the partner the insurance claim was submitted but after its refusal, the matter was referred to Mohtasib's Aala Office who accepted it. [P. 145] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Insurance Ordinance, 2000, Ss. 122 & 123--Jurisdiction to entertain and decide the suit--Suit for specific performance of contract alongwith business partner--Divergent pleadings of the parties--Inquiry by Doctor--Insurance claim was not paid--During inquiry it transpired that deceased was sick person--Validity--State Life conduct medical examination for policy holders through its own Doctor--Holding of enquiry regarding health of deceased was complete having been mitiated by the petitioner before the issuance of required policy--Subsequent enquiry was not believable because he was employee of petitioner and was interested--No independent evidence in support of the claim that deceased was seriously ill--Deceased was declared medically fit by Doctor of State Life--No other ground was proved to justify interference in the impugned concurrent findings of the Courts below--Revision was dismissed. [Pp. 145 & 146] C & D
2000 SCMR 146, PLD 1994 SC 291 & PLD 2002 SC 293, rel.
Mr. Muhammad Kamran Niazi, Advocate for Petitioner.
Respondent present in person.
Date of hearing: 26.4.2010.
Judgment
Chairman, State Life Insurance Corporation of Pakistan and seven others under his subordination, petitioners herein, have filed the instant revision petition under Section 115 CPC against the judgment and decree dated 7/7/2004 passed by the learned Additional District Judge-I Bannu, whereby their appeal against the judgment and decree dated 11/7/2003 passed by the Civil Judge-III Bannu was dismissed.
Facts of the case are that Umer Zad Shah plaintiff filed a suit for specific performance of contract dated 30/7/1998 in respect of Insurance Policy which he alongwith his business partner, namely, Nezam Khan had taken from the petitioners on the grounds detailed in the plaint. The defendants/petitioners contested the suit by filing written statement and the divergent pleadings of the parties gave birth to the framing of eleven issues. The learned trial Judge after recording evidence pro and contra and hearing arguments decreed the suit of the plaintiff/respondent whereagainst appeal of the defendants/petitioners was dismissed as mentioned above, hence this revision petition.
I have perused the written arguments filed by the parties.
The contentions raised by the petitioners are that the Civil Court has no jurisdiction to entertain and decide the suit because under Sections 122 and 123 of the Insurance Ordinance 2000, only the Tribunal has got the exclusive jurisdiction; that the legal heirs of the deceased partners Nezam Khan have not been impleaded and that the evidence of the Claim Manager, Dr.Muhammad Ishaq (DW-1) has not been appreciated correctly.
On the other hand, the written arguments of the plaintiff/respondent discloses that there was no need of impleadment of legal heirs of the deceased Nezam Khan, because the respondent is nominee of the deceased and as the Life Policy was joint one, therefore, the respondent could claim it. Regarding the point of jurisdiction, the stand of the respondent is that at the relevant time, Insurance Tribunal was not constituted and that is why the suit was adjudicated upon by the civil Courts.
As far as the jurisdiction point is concerned, no doubt under sub-section (3) of Section 122 of the Insurance Ordinance 2000, the Tribunal is vested with exclusive jurisdiction to be constituted by the Federal Government under Section 121 thereof. The record reveals that at the relevant time, such Tribunal was not constituted by the Federal Government. In the absence of such Tribunal, sub-section (3) of Section 122 of the Ordinance ibid cannot be pressed into service. In such eventualities, the Civil Court has jurisdiction to entertain and adjudicate upon the matter indispute.
With regard to the non-impleadment of legal heirs of the deceased Nezam Khan, reference may be made to Section 72 of the Insurance Ordinance 2000, wherein the details regarding nominee are given. According to it, before the Policy is matured for payment, the person/persons who are nominated in the Policy shall be paid in the events of his death. In The First Policy Schedule, the respondent is mentioned as Nominee which is Ex.PW.2/1. The record further reveals that there was partnership deal between Nezam Khan and the respondent and during the course of joint business, they secured a joint Insurance Policy for rupees four lacs from the petitioners and the same was sanctioned on 30/7/1998 after completion of required codal formalities and a sum of Rs. 29,068 was deposited and first Premium receipt was also issued. After the sudden death of Nezam Khan partner, the Insurance claim was submitted but after its refusal, the matter was referred to Mohtasib's Aala Office who accepted it on 10/7/2000.
As far as the subsequent inquiry by Doctor Muhammad Ishaq is concerned, the petitioners impugned the said judgment and did not pay the Insurance claim of the respondent. The main reason prevailed with them was that Nezam Khan at the time of obtaining policy was seriously ill and this fact was concealed. They produced Dr. Muhammad Ishaq as DW-I who had conducted inquiry after receipt of death claim. According to him, during inquiry it transpired that the deceased Nezam Khan was a sick person but his cross-examination is not in line with the case of the petitioners. He has made so many admissions, for example, he admitted that the State Life conduct medical examination for Policy Holders through its own Doctor. This means that the holding of enquiry regarding health of Nezam Khan was complete having been initiated by the petitioners before the issuance of the required policy.
As far as the subsequent inquiry by Doctor Ishaq is concerned, it is not believable because he was employee of the petitioner and was interested. There is no independent evidence in support of the claim that Nezam was seriously ill. This Nezam was declared medically fit by the Doctor of State Life and, thereafter, the policy was issued. No other ground has been proved to justify interference in the impugned concurrent findings of the Courts below.
The concurrent findings on facts recorded by the learned two Courts below cannot be set at naught unless it is proved that the same are either perverse, fanciful or erroneous in view of the dicta handed down in the cases of Abdur Rahim and another Vs. Mst. Janatay Bibi and others (2000 SCMR 146), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique (PLD 2002 Supreme Court 293).
Consequently I find no substance in this revision petition which is accordingly dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 146 [D.I. Khan Bench]
Present: Attaullah Khan, J.
MUHAMMAD RAUF KHAN alias ABDUR RAUF KHAN--Petitioner
versus
MUHAMMAD ASHRAF and 2 others--Respondents
C.R. No. 357 of 2004, decided on 26.4.2010.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 115--Civil revision--Challenge the judgment and decree--Application u/S. 12(2), CPC was dismissed--Question of fact cannot be decided without evidence--Order is based on surmises, conjectures and mis-reading/non-reading of evidence--Validity--Expression u/S. 12(2) CPC is based on the application of fraud which involves factual controversy and cannot be decided unless evidence is recorded--No evidence had been recorded--Held: Decision of the trial Court which was not based on evidence was not in accordance with law because question of fact cannot be decided by a Court without having evidence of the parties before it--Impugned judgment and decree was not in accordance with law--Case was remanded. [Pp. 147 & 148] A & B
2008 SCMR 236, rel.
Mr. Muhammad Waheed Anjum, Advocate for Petitioner.
Khawaja Nawaz Khan, Advocate for Respondents.
Date of hearing: 26.4.2010.
Judgment
Through this civil revision petition filed under Section 115 CPC, the petitioner, Muhammad Ashraf Khan has challenged the judgment and decree dated 5/10/2004 passed by the learned Additional District Judge-IV Bannu, whereby his application under Section 12(2) CPC was dismissed.
Learned counsel for the petitioner mainly argued that the trial Court has not afforded opportunity of producing evidence, therefore, the impugned judgment is nullity in the eye of law. According to him, in the application under Section 12(2) CPC, the petitioner has alleged fraud which is a question of fact and cannot be decided without evidence and, therefore, the impugned judgment and decree is based on surmises, conjecturers and mis-reading/non-reading of evidence.
On the other hand, learned counsel for the respondents contended that there is no need of evidence because the matter is proved on the basis of available record, therefore, the impugned finding needs no interference.
I have carefully perused the record and considered the arguments advanced at the bar.
The expression under Section 12(2) CPC is based on the application of fraud which involves factual controversy and cannot be decided unless evidence is recorded. The record shows that no evidence has been recorded. In my opinion, the decision of the learned trial Court which is not based on evidence is not in accordance with law because question of fact cannot be decided by a Court without having evidence of the parties before it. In this respect, I rely upon Mrs. Hasnain Haider Vs. Amir Haider and others reported in 2008 SCMR 236 wherein it has been held that:--
"Obviously, an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence. It is for this period that the Supreme Court had allowed and fixed a period of one year for the decision involved. Despite orders of the Supreme Court, the trial Court never proceeded to record evidence of the parties about their assertions and counter-assertions involving serious questions of fact to be settled on both sides. The only motivating factor for rejection of application was the reply/written statement of the arbitrator and his earlier statement dated 1/7/1979. This was a novel procedure adopted by the trial Court and endorsed by the higher Courts, in that, the pleadings of parties could never be taken as an evidence particularly when the Arbitrator was not even examined in Court in support of his written statement muchless his cross-examination by the party desiring so to do. A mere written statement by a respondent has not at all been a valid ground for guillotining a serious application filed by the ladies and by-passing the order dated 10/4/2003 of the Supreme Court. The trial Court did not exhibit a judicial behaviour and the higher Courts endorsed it with no application of mind."
Through the above principles laid down by the Apex Court, I have reached to the conclusion that the impugned judgment and decree is not in accordance with law.
Consequently, I accept this revision petition, set aside the impugned finding of the trial Court and remand the case to it for recording of evidence to be produced by the parties. Since the dispute between the parties is too old, therefore, the trial Court is directed to dispose it off positively within three months after receipt of record from this Court which shall be sent back to the trial Court forthwith.
(R.A.) Petition accepted.
PLJ 2010 Peshawar 148 [D.I. Khan Bench]
Present: Muhammad Safdar Khan Sikandri, J.
HUSSAIN BAKHSH & 5 others--Petitioners
versus
Mst. BASHIRAN through General-Attorney--Respondent
C.R. No. 25 of 2008, decided on 14.5.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Shari shares--Plaintiff was being paid the yields of the suit land as joint co-sharer--Fraudulently mutated and attested the land with connivance and manipulation of revenue officials taking undue advantage from minor age of the plaintiff--Validity--When fraudulent mutation is challenged in the Civil Court, then the onus of probandi lies upon the beneficiary of deed/transaction to prove its genuineness as well as three well known ingredients i.e. declaration of gift, acceptance of offer of the gift and delivery of possession according to law. [P. 151] A
2008 YLR Lah. 129.
Pardanashin Lady--
----Attestation of mutation--Identifier was not related to her as Mehram--Validity--Lumberdar is the identifier of the plaintiff but he is a stranger and not related to her as Mehram to identify her on the occasion in gathering before attesting officer--Mutation also did not bear the thumb impression as donor nor Roznamcha anywhere mentions the delivery of possession of suit land. [P. 152] B
2006 YLR Lah. 1836.
Old Document--
----Thirty years old document and its authenticity--Presumption of truth--Valuable rights--Presumption of truth is not attached to thirty years old document because the Court must consider the evidence and apply presumption where evidence in proof of documents is reliable but it is a matter of great care and caution in the cases where valuable rights of the parties are involved in property. [P. 152] C
2007 SCMR 497, rel.
Tamleek--
----Non-execution of tamleek--Mutation was attested on basis of collusion of defendant--Validity--Neither tamleek had been attested nor she thumb impressed that document nor appeared before attesting officer personally and such fraud was really committed as a result of which the mutation was attested on basis of collusion with revenue officials and appellate Court had well appreciated the evidence adduced by plaintiff and reversed the judgment and decree of trial Court. [P. 152] D
1995 SCMR 284, rel.
Execution of Document--
----To prove by producing cogent evidence--Question of--Whether it is by a minor or major lady--The person claiming the execution of such document was required to prove its execution under law by producing cogent evidence that it was actually executed by plaintiff in the case but such proof on the part of petitioner was deficient--Revision was dismissed. [P. 153] E
M/s. Muhammad Ayaz Khan Qasuria and Muhammad Waheed Anjum, Advocates for Petitioners.
Mr. Muhammad Younis Taheem, Advocate for Respondent.
Date of hearing: 19.4.2010.
Judgment
My this judgment is directed to dispose of the civil revision petition lodged by Hussain Bakhsh and others petitioners (hereinafter called the defendants) against the impugned judgment and decree dated 15.01.2008 passed by Additional District Judge-VI, D.I. Khan whereby he accepted the appeal of Mst. Bashiran respondent (hereinafter called the plaintiff) and set-aside the judgment and decree dated 18.12.2006 passed by the trial Court whereby the suit of the plaintiff was dismissed.
The brief facts relevant for the instant lis are to the effect that Muhammad Bakhsh, father of the plaintiff and defendants was the owner in possession of suit land comprised in Khata Nos.103 to 112 situated in Mouza Girsar, Tehsil and District D.I.Khan. At the time of death of her father, the plaintiff was of the age of one and a half year. The heritage of Muhammad Bakhsh was devolved upon Allah Bakhsh and Hussain Bakhsh (sons), Mst. Bashiran (daughter) and Mst. Mudam and Mst. Bakhto (widows) through Mutation No. 571 dated 21.3.1943.
Allah Bakhsh. son of Muhammad Bakhsh (brother of plaintiff) died issueless and his property was mutated in the name of Hussain Bakhsh and other legal heirs including the plaintiff Mst. Bashiran through Mutation No. 537, 571 and 856 according to their shari shares in the year 1952 and since then the plaintiff was being paid the yields of the suit land as joint co-sharer till 1997 by defendant and other co-sharers but later on refused to pay the produce.
After inquiry, plaintiff came to know that Defendant No. 1 (brother of the plaintiff) has fraudulently mutated and attested the land Measuring 237 Kanals 13 Marlas in his name through Mutation No. 1053 dated 17.9.1958 with connivance and manipulation of revenue officials taking undue advantage from minor age of the plaintiff.
The plaintiff alleged that she neither appeared before the revenue officials, nor thumb impressed the mutation nor she gave her consent, therefore, the. Mutation No. 1053 attested on 17.9.1958 is false, bogus and fraudulent and as such ineffective upon her rights and is liable to be dismissed and correction in this regard be made in the revenue record about the disputed property mentioned above.
After submission of written statement by Defendant No. 1, issues were framed, evidence of the parties was recorded, arguments of counsel for the parties were heard by the trial Court and consequently, the suit of the plaintiff was dismissed vide judgment and decree dated 18.12.2006.
Dissatisfied from the impugned judgment of the trial Court, it was assailed in the appellate Court and vide judgment and decree dated 15.01.2008, learned Additional District Judge-IV, D.I.Khan accepted the appeal, set-aside the judgment and decree of the trial Court referred to above which gave rise to the instant civil revision petition.
Instead of addressing their oral arguments, the counsel for the parties wished and prepared to submit their written arguments and accordingly they did so and the same are placed on the Court file to be considered as part and parcel of the concerned file.
The written arguments furnished by counsel for the parties supported by the Photostat copies of plethora of pronouncements and dictums of the superior Courts were meticulously perused and assessed in the light of evidence recorded and other material available on record.
Apparently, as evident from the evidence recorded in the trial Court, the plaintiff was the owner in the legacy of her late father Muhammad Bakhsh, her brother Allah Bakhsh and mother Mst. Bakhto, however, she has alleged that her real brother Hussain Bakhsh has transferred the disputed landed property measuring 237 Kanals 12 Marlas situated in the revenue circle of "Girsar" or Girsal, Tehsil Paharpur fraudulently in his name through gift mutation (Tamleek) No. 1053 attested on 17.9.1958.
The pivotal issue is No. 7 which reads as follows:--
"Whether Mutation No. 1053 dated 17.9.1958 has been attested in the minor age of plaintiff and is liable to cancellation, being forged, void, wrong."
This is a well settled principle laid down by superior Courts that when fraudulent mutation is challenged in the civil Court, then the onus of probandi lies upon the beneficiary of the deed/transaction to prove its genuineness as well as the three well known ingredients i.e. declaration of gift, acceptance of the offer of said gift and delivery of possession according to law. Reference in this regard can be made to 2008 YLR Lahore 129 wherein it is held that,--
"Alleged donor having challenged the validity of the gift, it was incumbent upon the defendant to have proved the factum of gift in positive terms, such as the date, the month, the time and the venue where the donor took a conscious decision to gift away the property."
In view of the above quoted dictum, there is no evidence on record to indicate about the fulfillment of the three essential ingredients and this factum of the case already proves that Hussain Bakhsh petitioner has committed fraud with plaintiff.
The plaintiff is a Pardanashin lady and her identity card was prepared on the basis of form `Alif' and the particulars including her date of birth were inserted in it by her brother according to his desires but the fraudulent activities of the defendant were proved on the basis of materials available on record about the forged Mutation No. 1053 because at the time of attestation of this mutation, she was in Mouza Diyal and never delivered the possession to her brother physically. Besides this, one Shadi Khan Lumberdar is the identifier of the plaintiff but he is a stranger and not related to her as Mehram to identify her on the occasion in the gathering before the attesting officer. Moreover, the mutation in question also does not bear the thumb impression of Mst. Bashiran Bibi as donor nor the Roznamcha anywhere mentions the delivery of possession of suit land in favour of Hussain Bakhsh. If authority is needed, reference can be made to 2006 YLR Lahore 1836 (b).
As far as the contention of defendants' counsel agitated in his written arguments about the thirty years old document and its authenticity, presumption of truth is not attached to thirty years old document because the Court must consider the evidence and apply presumption where evidence in proof of documents is reliable but it is a matter of great care and caution in those cases where the valuable rights of parties are involved in the property. Reliance is placed on 2007 SCMR 497 where their Lordships held that presumption of execution of such document is permissible and not imperative even if the document be a thirty years old and was produced from proper custody.
From the evidence, it is envisaged that the plaintiff appeared in the Court as PW-5 and supported her claim agitated and averred in the plaint but her deposition to the extent of non-execution of Tamleek has not been shattered in the cross examination by the counsel for defendant and has established this fact that neither Tamleek in question has been attested nor she thumb impressed this document nor appeared before the attesting officer personally and as such fraud was really committed as a result of which the Mutation No. 1053 was attested on the basis of collusion of defendants with revenue officials and the appellate Court has well appreciated the evidence adduced by the plaintiff and reversed the judgment and decree of trial Court according to law. Reliance is placed on 1995 SCMR 284.
According to PW-1, the date of birth of plaintiff is 31.7.1935. As admitted by PW-5 in her cross" examination, her age was six years at the time of death of her father on 09.12.1940. The date of birth in National Identity Card is 1939 whereas the mutation is attested in 1958 and by calculation, her age would be 19 years and she was major at that time but the plaintiff being Pardanashin lady cannot be blamed for the stance taken in the plaint about the Tamleek mutation in her minor age or the age of puberty and this Court is only concerned as to whether the mutation in question is attested fraudulently or otherwise. Admittedly, as earlier stated, in 1958, she was major but in view of the dictum handed down in the case of Shahbir Anwar Vs. Sheikh Tariq Mehmood and others (2002 CLC Lahore 11021), where if is held that, "execution of document by illiterate person/Pardanashin lady, onus to prove-extent-where a document is allegedly executed by illiterate person, parda observing lady, the beneficiaries of the document are bound to establish by highly satisfactory and strong evidence that not only the document has been executed by such illiterate person/parda observing lady but also that such person had fully understood, the contents of the document."
Therefore, in view of the above dictum the execution of document whether it is by a minor or major lady, the person claiming the execution of such document was required to prove its execution under the law by producing cogent evidence that it was actually executed by the plaintiff in the instant case but such proof on the part of petitioner is deficient. part of petitioner is deficient.
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 153
Present: Mazhar Alam Khan Miankhel, J.
MIR SHAHZADA and others--Petitioners
versus
Mst. ASEEL MAMANA and others--Respondents
C.R. No. 273 of 2007, decided on 18.6.2010.
N.W.F.P. Pre-emption Act, 1987--
----S. 13(3)--Period of time is to be computed--Question of performance of talbs and specially talb-i-ishhad--Validity--While computing the period of limitation provided by S. 13(3) of Pre-emption Act, the Courts below had fallen into an error of law--Held: Whenever the period of time is to be computed, then such counting of days would start from the next day and such counting will be made upto the last day--Period of limitation would start running against the preemptor from the next day i.e. 12.7.1997 and the first day i.e. 11.7.1997 would be excluded from the count--If period of limitation for performance of Talb-i-ishhad is counted in such a manner, then the notice of talb-i-ishhad dated 25.7.1997 is well within the prescribed time i.e. within two weeks as provided u/S. 13(3) of NWFP Pre-emption Act, 1987. [P. 155] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--NWFP Pre-emption Act, 1987--S. 13(3)--Civil revision--Performance of talbs specially of talb-i-ishhad are not in accordance with law--Concurrent findings of two Courts below--Suit of preemptor was dismissed--Assailed--Findings over the issue of performance of talbs, specially of talb-i-ishhad are not in accordance with law and the Court of appeal decided the appeal in cursory and slipshod manner without discussing and deciding the rest of issues except the question of talbs, so the same cannot be upheld--Remand of case had become inevitable--Revisions were allowed. [P. 156] B
Mr. Abdul Sattar Khan, Advocate for Petitioners.
Mr. Ahmad Jan, Advocate for Respondents.
Date of hearing: 18.6.2010.
Judgment
Instant judgment in Civil Revision No. 273/2007 would also dispose of connected Civil Revision No. 274/2007 between the same parties and having the same questions of law and facts.
The petitioners herein have impugned the concurrent findings of the two Courts below whereby the suit of the plaintiff/pre-emptor was dismissed by the Courts below, hence the present revision petition.
Learned counsel for the petitioners argued that the two Courts below have non-suited the pre-emptor on the grounds that notice of talb-i-ishhad' was not issued within the prescribed period of two weeks, so, the pre-emptor had extinguished his right of pre-emption by not performing the requisitetalbs' as per requirement of law. The appellate Court while dealing with the appeal of the pre-emptor has only considered this aspect of the case and has failed to give its findings on rest of the issues for which he was required under the law to have decided all the issues of the case.
On the other hand, the learned counsel for the vendee/respondent submitted that the computation of period of limitation provided under Section 13 of N-W.F.P. Pre-emption Act, 1987 was correctly made by the Courts below and the suit of the pre-emptor was rightly dismissed on this score. He further contended that as the moot question was determined by the learned Court of appeal whereby the suit of the pre-emptor was dismissed, so by not giving any decision on rest of the issues in the circumstances of the case would not amount to illegality or irregularity in the decision of the learned Court of appeal and thereby supported the judgment given by the two Courts below.
Learned counsel for the parties were heard and record of the case was perused which transpired that the suit for pre-emption was filed by one Niamat Khan and per averments made in para-2 of the plaint, he got knowledge of the sale in question on 11.7.1997 and there and then declared his intention to pre-empt by making talb-i-muwathibat' and then performed histalb-i-ishhad' by issuing notice under Section 13(3) of the
N.W.F.P. Pre-emption Act, 1987 on 25.7.1997 in the name of vendee. The record would further reveal that the trial Court while giving its findings vide judgment and decree dated 16.12.2005 decided all the issues involved in the case including the one with regard to performance of talabs' i.e. Issue No. 6 and thereby declared that the notice oftalb-i-isshad' was beyond the prescribed period under the law i.e. two weeks from the date of knowledge and performance of talb-i-muwathibat' whereas the appeal of the legal heirs of pre-emptor (as the pre-emptor had died by this time) was decided by the learned Additional District Judge only by considering the material available on the record regarding Issue No. 6 i.e.
performance oftalabs' by the pre-emptor.
The findings of the two Courts below on the question of performance of talabs' and speciallytalb-i-ishhad' are same and identical which would reveal that while computing the period of limitation provided by Section 13(3) of the
N.W.F.P. Pre-emption Act, 1987, both the Courts below have fallen into an error of law. Whenever the period of time is to be computed, then such counting of days would start from the next day and such counting will be made up to the last day. As per averments in para-2 of the plaint, the pre-emptor got knowledge of the sale on 11.7.1997 and issued notice of talb-i-ishhad' on 25.7.1997. The period of limitation in the given situation would start running against the pre-emptor from the next day i.e. 12.7.1997 and the first day i.e. 11.7.1997 would be excluded from the count. If period of limitation for performance oftalb-i-ishhad' is counted in such a manner, then the notice of `talb-i-ishhad' dated 25.7.1997 is well within the prescribed time i.e. within two weeks as provided under Section 13(3) of the N.W.F.P. Pre-emption Act, 1987.
The computation of time is regularized and managed by Section 8 of West Pakistan General Clauses Act, 1956 and for convenience the same is reproduced hereunder:--
"8. Commencement and termination of time. In any West Pakistan Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word "to"."
and a case of Abdul Majeed Khan vs Abdul Qadeer (2003 CLC 1764) can also be referred in this regard.
talabs' specially oftalb-i-ishhad' are not in accordance with law and the Court of appeal decided the appeal in a cursory and slipshod manner without discussing and deciding the rest of the issues except the question of Talabs', so, the same cannot be upheld in the circumstances of the case. So, in the circumstances, remand of the case has become inevitable. Hence, both the civil revisions are hereby allowed by setting aside the judgment and decree of the learned Additional District Judge, Karak at Takht-e-Nasrati and the appeals of the pre-emptor would be deemed pending before the Court of appeal, who should after hearing the parties, decide the appeals a fresh. Needless to say that the findings to be rendered should be on all the issues including theTalab'. The parties to the suit are hereby directed to appear before the learned Additional
District Judge, Karak at Takht-e-Nasrati on 22.7.2010.(R.A.) Revision allowed.
PLJ 2010 Peshawar 156 [D.I. Khan Bench]
Present: Attaullah Khan, J.
BAIDULLAH JAN and another--Petitioners
versus
AURANGZEB & others--Respondents
C.R. No. 94 of 2004, decided on 14.5.2010.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Purchase of some portion of suit land--Principle of lis pendise--Effect of--Civil suit for redemption of suit--Plaintiff belonged to original mortgagor who created original mortgage--Mutations were based on mortgage agreement created before redemption--Agreement was not on behalf of actual owners--Mortgage of the original owner cannot be renovated--Validity--Land was purchased in the year 1991--Suit for redemption was instituted in 1986--Thus the purchase was made during pendency of suit and u/S. 52 of the Transfer of Property Act--Such purchase is hit by principle of lis pendise and would be of no effect--Courts below had correctly appreciated the oral as well as documentary evidence--Petition was dismissed. [Pp. 158 & 159] A & B
1991 SCMR 2063 & 1998 CLC 128, ref.
Mr. Rustam Khan Kundi, Advocate for Petitioners.
Mr. Khuda Bakhsh Baloch, Advocate for Respondents.
Date of hearing: 23.4.2010.
Judgment
Civil suit was filed by plaintiff (hereinafter called petitioner) against the defendants/respondents for redemption of suit land that he and proforma defendants are owners of the suit land measuring 107 Kanals 6 Marlas and Defendants No. 1 to 14 are mortgagees on the basis of Mutation No. 4737 attested on 25.09.1926.
The suit was contested by concerned defendants by submitting their written statement and the pleadings of the parties resulted into the framing of following issues:--
Whether the suit is hit by Section 10 CPC? If so its effect?
Whether the suit is bad for non-joinder of necessary parties?
Whether the suit is within time?
Whether the suit is bad for partial redemption?
Whether plaintiff & Proforma defendants are entitled to redeem the suit land?
If Issue No. 5 is proved in affirmative. What is the mortgaged amount?
What is the effect of Suit No. 122 decided on 26.01.1986?
Relief.
After recording evidence and hearing the parties, the learned trial Court, dismissed the suit of the plaintiffs on 09.09.2000.
Feeling aggrieved, an appeal was filed by the petitioner, which was dismissed on 31.04.2004.
Dissatisfied from the Judgments/Decrees of the lower Courts, the petitioner filed the instant revision petition.
Written arguments filed by the parties perused. I have minutely gone through these arguments and record in the light of which my discussion is as under.
It is in the written arguments of the petitioners that both the trial Court as well as appellate Court have not taken into consideration the principle laid down in 1991 SCMR 2063 & 1998 CLC 128. According to the arguments both the impugned Judgments/Decrees the law has been mis-interpreted and thus resulted in miscarriage of justice.
The principle laid down in 1991 SCMR 2063 is that the decision had to take effect from 31.8.1991 on which date Section 28 of Limitation Act had seized to have effect but the suit was instituted on 27.04.1976 and decided on 09.04.1984, so in this perspective the principle of the Judgment rendered by apex Court are not applicable. Facts of both the cases are different. Similar is the fate of the other case law.
The suit land in this case was mortgaged prior to 1878 while present suit was lodged in 1986 thus it was filed after a century. The revenue record exhibited as Ex:PW-1/4 and Ex:PW-1/6 reveals that one Mir Alam was recorded as owner mortgagor but his father name was mentioned as Madazam while other Mir Alam s/o Mad Hassan has been record as prior mortgagee. The Mutation No. 4734 was executed by Mir Alam s/o Mad Hassan while the plaintiff belonged to original mortgagor who created the original mortgage. The Mutation No. 5123 & 5124, are based on mortgage agreement created before redemption. This arrangement took place between sub-mortgagees Mir Alam s/o Mad Hassan and Ghulam Jan s/o Molydad who are second mortgagees, so this agreement is not on behalf of actual owners. Therefore, mortgage of the original owner cannot be renovated.
In the case in hand the property in dispute is mortgaged since 1878 and is in possession of mortgagee and this possession in the said capacity continued till date and they would be deemed to be owner by prescription.
As far as the purchase of a some portion of suit land by Chandan, Aurang Zeb, Malik Imam and Hukam Khan is concerned it is to be pointed out that purchase was made in the year 1991 vide Mutation No. 11792 attested on 24.02.1991. The suit for redemption was instituted in 1986. Thus the purchase was made during pendency of suit and under Section 52 of the Transfer of Property Act this purchase is hit by principle of "lis pendise" and would be of no effect. The relevant provision of Section 52 of Transfer of Property Act is reproduced below for ready reference:--
"S.52 Transfer of property pending suit relating thereto--During the (pendency in any Court having authority in (Pakistan) or established beyond the limits of (Pakistan) by (the Federal Government) (\\\), of (any) suit or proceeding (which is not collusive and) in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
(R.A.) Petition dismissed.
PLJ 2010 Peshawar 159 (DB) [D.I. Khan Bench]
Present: Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ.
MUHAMMAD FAROOQ KHAN--Petitioner
versus
GOVT. OF N.W.F.P. through Chairman Board of Intermediate & Secondary Education Bannu and another--Respondents
W.P. No. 395 of 2009, decided on 27.4.2010.
Constitution of Pakistan, 1973--
----Art. 212(2)--Establishment of Administrative Courts--Under Art. 212(2) of Constitution, service tribunal has been established which deals with service matters and under Art. 212(2) of Constitution, no other Court has the jurisdiction to entertain any proceeding in any matter within the jurisdiction of Administrative Tribunal--Art. 212(2) has excluded the jurisdiction of ordinary Courts relating to service--Service Tribunal is the only forum which deals with disputes relating to service. [P. 161] A
Jurisdiction of Service Tribunal--
----Not a Govt. Servant in strict sense--Contingent paid employee of Board of Intermediate & Secondary Education--Validity--To a contingent paid employee, the jurisdiction of service tribunal does not extend, so the jurisdiction of High Court is not ousted--Being a contingent paid servant, the petitioner has no remedy available with Service Tribunal. [P. 161] B
2006 MLD 396.
Constitutional Petition--
----Pendency of civil suit--Maintainability--In spite of pendency of a civil suit, constitutional petition would be entertained. [P. 161] C
PLD 2006 Lah. 298.
Constitution of Pakistan, 1973--
----Art. 199(1)(a) & (c)--Constitutional petition--Question of maintainability--Pendency of suit--Held: Even if suit is pending in civil Court, it would not affect constitutional petition--Civil suit was pending but same was withdrawn and now controversy between the parties is before High Court. [P. 161] D
Constitution of Pakistan, 1973--
----Art. 199--Sought for issuance of directions to reinstate the civil servant in service with all back benefits--Services were terminated--Petitioner was working as contingent paid employee for a specific period--During and after that period, some other persons were employed on fixed pay--Held: Petitioner had been discriminated by not allowing him to continue--Instead of his continuation, some other persons were appointed which is against the interest of the petitioner--Removal of the civil servant from the post was illegal, void abinito--Petition was allowed. [P. 162] E
Mr. Sher Muhammad Khan, Advocate for Petitioner.
Mr. Muhammad Shahnawaz Khan Sikandri, Advocate for Respondent No. 1.
Date of hearing: 27.4.2010.
Order
Attaullah Khan, J.--Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed to declare that the petitioner is/was legally entitled to hold the post of Junior Clerk in BPS-5 since the date of his appointment and his termination from the said post under the verbal orders is illegal and null and void. He has also prayed for issuance, of directions to reinstate the petitioner in service with all back benefits.
The brief facts are that the petitioner was appointed as Junior Clerk in BPS-5 on fixed pay for a period of less than six months vide orders dated 07.12.2007 which was extended and consequently, through verbal orders, the services of the petitioner were terminated.
Arguments of learned counsel for the parties heard and record perused, in the light of which, our discussion is as under:--
The first point raised by learned counsel for the respondent is regarding jurisdiction of this Court and maintainability of this writ petition during pendency of civil suit. We would first discuss the question of jurisdiction. The contention of learned counsel for the respondent is that this is a service matter which can be decided by Services Tribunal under Article 212(2) of the Constitution. In reply, it is contended on behalf of the petitioner that the case of the petitioner does not fall within the ambit of Article 212(2) of the Constitution as he is not a civil servant and therefore, jurisdiction of Services Tribunal was not extended.
We have considered the view points of both the learned counsel. According to Article 212 of the Constitution, the establishment of Administrative Courts has been given. Under this Article, the Services Tribunal has been established which deals with service matters and under Sub-Article (2) of Article 212 of the Constitution, no other Court has the jurisdiction to entertain any proceedings in any matter within the jurisdiction of such Administrative Tribunal. So, in this way, the said Article has excluded the jurisdiction of ordinary Courts relating to service. The Services Tribunal is the only forum which deals with disputes relating to service. In this case, the bar would not apply because the petitioner is not a Govt: servant in strict sense. He is/was a contingent paid employee of Board of Intermediate & Secondary Eduction, Bannu. To a contingent paid employee, the jurisdiction of Service Tribunal does not extend, so, the jurisdiction of this Court is not ousted. In this way, being a contingent paid servant, the petitioner has no remedy available with the Services Tribunal. Reference in this respect may be given to 2001 MLD 396.
As far as pendency of a civil suit is concerned, it again would not affect this writ petition. It is a settled law that in spite of pendency of a civil suit, the constitutional petition would be entertained. We may refer to PLD 2006 Lahore 2981 wherein it is held that, "constitutional petition would be entertained despite pendency of suit, where suit disclosed a declaratory remedy in context of the controversy". So, in view of the above case law, we are of the opinion that even if a suit is pending in the Civil Court, it would not affect this constitutional petition. It is also to be noted that in this case, civil suit was pending but the same was withdrawn and now the controversy between the parties is before this Court. So, the second objection is also of no avail.
As far as merits are concerned, it is on record that the petitioner was working as contingent paid employee (Junior Clerk) for a specific period. He was removed through verbal orders. During and after that period, some other persons were employed by Respondent No. 1 on fixed pay. The appointment orders dated 2.6.2008, 20.8.2008 and 04.12.2008 are on file. Vide these orders, some eleven persons were appointed as Junior Clerks for a period of less than six months. It means that the posts were available and no good-reason has been shown as to why the petitioner was not allowed to continue on the post. In this connection, the objection of learned counsel on behalf of Respondent No. 1 is that the fresh appointees had submitted applications while the petitioner has not done so, therefore, he was not appointed. This argument is not appealing to mind because no application is on file nor any proof of such applications allegedly filed by the new appointees. Furthermore, the record reveals that the petitioner had submitted an application for extension in his service to the Chief Minister who referred the matter to Chairman, BISE, Bannu. The letters dated 13.9.2008 and 23.10.2008 are available on file. The perusal of these letters from the Chief Minister's Secretariat to Respondent No. 1 disclose that the petitioner had applied for his extension in service and in spite of these applications, he was not considered. The discussion made above leads us to the conclusion that the petitioner has been discriminated by not allowing him to continue. Instead of his continuation, some other persons were appointed which is "against the interest of the petitioner. After filling of some posts by other persons, the petitioner has got a vested right and by subsequent appointment of strangers, he has been discriminated, therefore, we are of the view that the removal of the petitioner from the post is illegal, void abinitio, therefore, we allow the petition and direct Respondent No. 1 to reinstate the petitioner on the post which he held previously, with immediate effect.
(R.A.) Petition allowed.
PLJ 2010 Peshawar 162
Present: Muhammad Safdar Khan Sikandri, J.
Mst. IQBAL BIBI--Petitioner
versus
Mst. MARYAM BIBI and 5 others--Respondents
C.R. No. 7 of 2009, (PAN), decided on 25.5.2010.
Principle of Khulla--
----Interpretation in light of dictates of Holy Quran and Sunnah--Extent and effect--When married parties disagree and were apprehensive that they could not observe the bonds prescribed by divine law, woman could release herself from merital tie by giving up some property in consideration of Khulla by husband, meaning thereby that the husband would be at liberty to leave some of prerogative with wife at the time of declaring of Khulla. [P. 165] A
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 151--Civil revision--Application for impleadment as party--Could not be deprived of valuable property before recording evidence and verdict of competent Court and requested for her impleadment in lis--Validity--Deed through which half of the share of suit house was given to the petitioner has not been rescinded on the day on which khulla was obtained--Unregistered deed remained in her possession--Without touching the merits--Held: Petitioner was still the owner to the extent of share on behalf of her late husband and it will yet to be determined by trial Court as to whether she was entitled to the half of her share in legacy--Petitioner be impleaded as party in lis pending between the other legal heirs as defendants with the exception have shown the willingness in writing for her impleadment--Further held: If an adverse order is passed against her, she will be deprived of her valuable property and it will give rise to multiplicity of litigation in the long run--Petitioner would be allowed to be impleaded as a party in the suit--Revision was allowed. [P. 166] B, C & D
PLD 2003 Pesh. 146, 2004 CLC (Lah.) 1932 & PLD 2003 Pesh. 169, rel.
Mr. Abdullah Khan Gandapur, Advocate for Petitioner.
Mr. Jamal Abdul Nasir Awan, Advocate for Respondents.
Date of hearing: 25.5.2010.
Order
This civil revision petition is directed against the order dated 05.6.2008 passed by Additional District Judge-I, D.I.Khan whereby the appeal filed by the petitioner against the order dated 07.2.2007 passed by Civil Judge-IV, D.I.Khan, dismissing the application of petitioner for impleadment as party, was dismissed.
The facts giving rise to the instant revision petition are that Mst. Maryam Bibi brought a suit in the trial Court for possession through partition of a house fully described in the heading of the plaint. During the pendency of that suit, Mst. Iqbal Bibi petitioner submitted an application for her impleadment as party to the suit. The application was contested by Mst. Maryam Bibi (plaintiff) and after hearing the arguments of counsel for the parties, the learned trial Court dismissed the application of the petitioner vide order dated 07.2.2007.
Having felt aggrieved from the impugned order dated 07.2.2007, the petitioner filed appeal which too was dismissed vide judgment dated 05.6.2008 passed by Additional District Judge-I, D.I.Khan.
Learned counsel for the petitioner contended that prima-facie petitioner is the owner to the extent of share in the disputed house which is the legacy of late Khuda Bakhsh and she is necessary party in the lis pending in the Court between the parties. He further urged that the Courts below have arrived at a wrong conclusion and have misapplied the relevant law on the subject and the controversy regarding the factum of Khulla will never deprive the petitioner from her right as she has not specifically abandoned her share in the suit house. He urged that the Courts below have not correctly appreciated the legal position with regard to the consequences of dissolution of marriage on the basis of Khulla and the proposition advanced by the Courts below is erroneous while passing the impugned orders by ignoring the law laid down by the superior Courts in consequence of Khulla. He further urged that being the owner of share in the suit house, she has every right and locus standi to be impleaded as a necessary party in the suit of partition and she could not be deprived of her valuable property before recording evidence and verdict of competent Court and requested for her impleadment in the lis. Counsel for the petitioner relied on PLD 2003 Peshawar 146 and unreported judgment of this Court in W.P. No. 352/2004 decided on 29.3.2005.
On the contrary, learned counsel for respondent-plaintiff Mst. Maryam Bibi urged vehemently that during proceedings in Family Court, Peshawar, Mst. Iqbal Bibi petitioner his recorded her statement on 16.12.1996 whereby her case for dissolution of marriage was decided on the basis of Khulla wherein she has categorically surrendered the dower and maintenance allowance in lieu of getting a decree for dissolution of marriage on the basis of Khulla and she will not file any suit in future for dower and maintenance allowance mentioned in the heading of the plaint, therefore, she is debarred to claim share given to her by her late husband namely Khuda Bakhsh as she had claimed share in the heading of the plaint and as such, her petition may be dismissed being not entitled for impleadment as party. Learned counsel for the respondent relied on 2004 CLC Lahore 1932 and PLD 2003 Peshawar 169.
The submissions addressed at the bar were viewed in the light of materials on record.
Undoubtedly, the petitioner had brought a suit against late Khuda Bakhsh regarding dissolution of marriage, recovery of dower i.e. ten tolas gold ornaments, pacca house measuring 05 marlas situated at Mohallah Nizam Khan, DI.Khan and Rs. 1,000/- cash and recovery of Rs.36,000/- as maintenance allowance for the past three years at the rate of Rs.1000/- per month till final disposal of the case.
As contended by counsel for the petitioner, the petitioner is owner to the extent of share in the house referred to above on the basis of Kabin Nama dated 10.7.1971 executed between Mst. Iqbal Bibi and Khuda Bakhsh in presence of two marginal witnesses. In view of clause (7) of the said unregistered deed, share of the house in question was given to the petitioner by her late husband for the matrimonial obligations. As envisaged from the decision passed by the Family Court, Peshawar on 16.12.1996, the petitioner got the decree on the basis of Khulla against the defendant and she in her statement, has categorically stated that in future she will not file any suit for the recovery of dower and maintenance mentioned in the heading of the plaint. Now the question arises that share of house was also claimed by her in the suit instituted in the Family Court at Peshawar and she has undertaken that she will not bring the suit in future and it is true that since the date of decree in 1996, she has never brought a suit regarding any item claimed in the earlier suit but now wants to plunge as party in the lis pending between the other legal heirs of deceased Khuda Bakhsh. As contended by counsel for the respondent, the petitioner has waived her rights of share in the suit house at the time she got the decree for dissolution of marriage on the basis of Khulla and she cannot claim it now. In this regard, 1 will draw wisdom from an authority reported in PLD 1969 SC 97 wherein it is held that, "It is necessary for the Court to ascertain in the case of Khulla what benefits have been conferred on the wife by the husband as consideration of the marriage and it is in the discretion of the Court to fix the amount of compensation."
Now, in view of the above dictum, it is to be seen that the wife will surrender all the benefits to the husband or she would be entitled to retain some of the privileges given to her by her husband. In the case of dissolution of marriage of the present petitioner, she has grounded her plaint on the basis of couple of allegations but the factum of dissolution of marriage cropped up during the trial which culminated into the dissolution of marriage on the basis of Khulla, thus, she will waive all the rights accrued to her in view of the above authority but in juxtaposition to the same proposition, if the verdict enshrined in the case of Fazle Subhan Vs. Mst. Sabireen (PLD 2003 Peshawar 169) is viewed, the principle of Khulla was interpreted in the light of the dictates of Holy Quran and Sunnah to the extent and effect that when married parties disagree and were apprehensive that they could not observe the bonds prescribed by the divine law, woman could release herself from the merital tie by giving up some property in consideration of Khulla by the husband, meaning thereby that the husband would be at liberty to leave some of the prerogatives with the wife at the time of declaring the Khulla. Apparently, the deed through which half of the share of the suit house was given to the petitioner has not been rescinded on the day on which the Khulla was obtained by the petitioner from her husband and till yet the unregistered deed remained in her possession. The order of the Family Court has also not specifically mentioned that what are those privileges which were bestowed upon the petitioner by her husband and how much were to be taken back in the exchange of the Khulla, therefore, without touching the other merits of the case, I have reached to this conclusion that the petitioner is still the owner to the extent of share on behalf of her late husband and it will yet to be determined by the trial Court as to whether she is entitled to the half of her share in the legacy of Khuda Bakhsh or otherwise. I deem it appropriate that she be impleaded as party in the lis pending between the other legal heirs of late Khuda Bakhsh as the defendants-respondents with the exception of Respondent No. 1 have shown the willingness in writing for her impleadment. Moreso, in the absence of her being party to the suit, if an adverse order is passed against her, she will be deprived of her valuable property and it will give rise to multiplicity of litigation in the long run, therefore, it is in the fitness of things that she should be allowed to be impleaded as a party in the subject suit and hence, the revision petition is accepted, the judgments and orders of the Courts below are set-aside and the application of the petitioner for her impleadment as party to the suit is allowed and she should be entered as defendant by the trial Court by making addition in the plaint.
(R.A.) Application allowed.
PLJ 2010 Peshawar 166 (DB)
Present: Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ.
Dr. AKHTAR NAWAZ, PROFESSOR DEPARTMENT OF SOIL SCIENCE FACULTY OF AGRICULTURE, GOMAL UNIVERSITY, D.I. KHAN and 4 others--Petitioners
versus
VICE-CHANCELLOR, GOMAL UNIVERSITY, D.I. KHAN and 4 others--Respondents
W.P. No. 270 of 2007, decided on 16.3.2010.
Withdrawal Order--
----Before withdrawal of reinstatement order, no notice was given--Final order--No appeal or review was filed--Validity--Judgment of High Court could not be modified/erased by such subsequent resolution as once decision of High Court become final then its validity could not be questioned. [P. 169] A
2001 SCMR 832, rel.
Constitutional of Pakistan, 1973--
----Art. 199--Constitutional petition--Validly appointed by competent authority and its withdrawal through office order was arbitrary ultra vires, malafide, without jurisdiction and without lawful authority--Question of--Whether right accrued to petitioner can be withdrawn without notice--Whether an order passed by High Court can be altered or modified by any other authority--Validity--Judgment of High Court has become final, therefore, it cannot be modified erased by any body--So on such ground also the withdrawal order was not sustainable. [P. 170] B
Withdrawal of Appointment Order--
----Not issuing a notice to the petitioner before withdrawal of the appointment orders--Held: Once rights accrued to a person, it cannot be taken away unless notice is given--No provision in the Act or Rules of the Gomal University about the issuance of notice, again it would be requirement of natural justice to issue notice. [P. 170] C
PLD 1990 SC 666, ref.
Interpretation of Law--
----Notice--Scope of--If provision of notice is not available in the statute, even then issuance of notice is necessary in order to justify with order of vested rights--No opportunity of hearing had been provided before withdrawal of reinstatement to the petitioner. [P. 172] D
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Petitioners were appointed as professors--Appointment was withdrawn--Withdrawal order seems to have been issued in light of direction issued by Chairman HEC--Reinstatement order--Decision had become final--Validity--No review or appeal had been filed against it--Final judgment of High Court cannot be disturbed, modified, or altered by any other authority--Rights of the petitioners were taken back by authority without giving them notice which resulted in gross miscarriage of justice which is against law--Petition was accepted. [P. 172] E
M/s. Gohar Zaman Kundi & Qazi Atiqur Rehman, Advocates for Petitioners.
Mr. Saleem Ullah Khan Ranazai, Advocate for Respondents.
Date of hearing : 16.3.2010.
Judgment
Attaullah Khan, J.--Dr. Akhtar Nawaz and four others filed this writ petition against Vice-Chancellor etc with prayer to declare that they are validly appointed Professors (BPS-20) by the competent authority vide office order dated 30.07 2007 and its withdrawal through office order dated 14.09.2007 is arbitrary, ultra vires, mala fide, without jurisdiction and without lawful authority.
Brief facts are that the petitioners earlier filed a writ petition in this Court Bearing No. 326/2005, which was decided on 27.06.2007 on the basis of statement of counsel for respondents, in which he agreed to redress the grievance of the petitioners by reinstating them with retrospective effect i.e 16.01.2004. Subsequently, in pursuance to the said decision the competent authority issued offence order dated 30.07.2007, through which the petitioners were Adjusted as professors with effect from 16.01.2004.
Later on, an office order was issued on 14.09.2007, vide which the order of reinstatement was withdrawn.
We have listened to the arguments of the learned counsel for the parties and also gone through record available on file, in light of which our discussion is as under.
The main question in this writ petition is that whether the right accrued to the petitioners, can be withdrawn without notice. The second question is that whether an order passed by this Court can be altered or modified by any other authority.
It is argued by learned counsel for the petitioners that the order dated 30.07.2007 vide which the petitioners were appointed as professors, was passed in pursuance to a Judgment of this Court which cannot be altered subsequently by any other authority. It is also one of the arguments on behalf of the petitioners that without notice, the appointments of the petitioner cannot be withdrawn.
We would first discuss the office order dated 30.07.2007. Perusal of the contents of this office order reveals that it was issued in pursuance to the orders of this Court passed on 27.06.2007. The order of this Court dated 27.06.2007 reveals that the counsel of the University agreed before the Court that the respondents concerned are ready to redress the grievance of the petitioners by reinstating them from 16.01.2004.
Keeping in view this consent given at the bar, the above order was passed with direction to reinstate the petitioners with effect from 16.01.2004. It is further clear from the record that this matter was also discussed in University Syndicate and was approved. After due consideration, the petitioners were appointed as professors vide office order dated 30.07.2007. They worked on the said posts till their appointments was withdrawn on 14.09.2007 through an office order issued by Deputy Registrar, Gomal University. The withdrawal order seems to have been issued in the light of direction issued by Chairman Higher Education Commission, Islamabad vide letter dated 28.08.2007.
The above proceedings reveals that the Gomal University, after acting upon the orders of this Court, reinstated the petitioners and secondly before withdrawal of reinstatement order, no notice was given to them.
As far as the decision of this Court recorded on 27.06.2007 is concerned it was and is a final order as no appeal or review has been filed. This Judgment has been acted upon. It is held by apex Court that the Judgment of High Court could not be modified/erased by such subsequent resolution as once the decision of the High Court become final then its validity could not be questioned. We rely upon 2101 SCMR 832 wherein it is held that:
The Resolution No. 108 was passed by the Syndicate and was re-affirmed by the Resolution No.110. Its validity, correctness and propriety were upheld by the High Court in its judgment delivered Constitutional Petition No.D-42 of 1999. After decision of the High Court, it became final and its validity could not be questioned through Resolution No.115 dated 1st and 8th April, 2000. In fact, it tantamounts to interference in the judgment delivered by the High Court and fell within the scope of contempt of Court. The judgment of the High Court could not be modified/erased out by subsequent Resolution. Clause (a) of Resolution No. 115.6, inter alia, contains the words "All remaining students are to be treated alike", this means that the Respondents Nos. 1 to 7 shall also take short courses of two and six weeks, which they are not required to take as per judgment of the High Court. The Vice-Chancellor was clearly directed to implement the Syndicate Resolutions Nos. 108 and 119. Taking a lenient view, we are not issuing contempt notices to those who passed the Resolution No. 115.6 but warned them to be careful in future."
So in view of the above principle, the judgment of High Court, in the case in hand, has become final, therefore, it cannot be modified/erased by any body like Gomal University. So on this ground also the withdrawal order is not sustainable.
Coming to the next issue above, not issuing a notice to the petitioners before withdrawal of the appointment orders, we refer to PLD 1991 Supreme Court 973, in which it is held that:
"In this context, reference can be made to Section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of individual."
"The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself then the failure to give such a notice is fatal and cannot be cured. But where there is no. specific statutory provision and reliance is only placed on the principles of natural justice and audi atleram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view then the defect, if any, in the initial order may be deemed to have been cured. Thus, in the case of Muhammad Ishaq v. Dr. Saiduddin Swaleh PLD 1959 Kar. 669, it was pointed out that each case will have to be determined on its own facts. If the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void; but if there be no such provision or if the provision merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it set aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsada Sugar Mills Ltd. v. Government of Pakistan PLD 1971 Peshawar 210.
This Court, too, has consistently taken the same view vide; The Commissioner of Income-tax, East Pakistan v. Fazlur Rehman PLD 1964 SC 410, Abdul Latif Niazi v. Government of West Pakistan PLD 1967 SC 62 and Mansab Ali v. Amir PLD 1971 SC 124. This Court has gone to the extent of pointing out that the mere absence of a provision a statue as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."
The above principle laid down by apex Court clearly indicates that if provision of notice is not available in the statue, even then issuance of nonce is necessary in order to justify withdrawal of vested rights. In the case in hand no opportunity of hearing has been provided before withdrawal of reinstatement to the petitioner and thus prejudice is caused to them.
The upshot of our above discussion is that the petitioners were vested with a right of serving as professors in BPS-20 through office order of the University it was issued in pursuance to decision passed by this Court. That decision was acted upon after reinstatement order was issued by Gomal University. That the said decision has become final, so far, no review or appeal etc has been filed against it. So the final judgment of the High Court cannot be disturbed, modified, or altered by any other authority. In this case, this has been done, which alien to law and quite illegal. Secondly, the rights of the petitioners were taken back by concerned authority without giving them notice which resulted in gross miscarriage of justice which is against law. Therefore, we declare the order impugned in the writ petition as illegal, void and without jurisdiction by accepting the instant writ petition.
(R.A.) Petition accepted.
PLJ 2010 Peshawar 172 [D.I. Khan Bench]
Present: Attaullah Khan, J.
ALLAH KHAN and 7 others--Petitioners
versus
RAHIM GUL and anothers--Respondents
Civil Revision No. 166 of 2005, decided on 18.6.2010.
Evidence Act, 1872--
----S. 2--W.P. Land Revenue Act, 1887, S. 39--Attestation of mutation--Requirement under the Repealed Act, 1872--No substantial piece of evidence--Question of--Where the mutation was required to be attested on verbal identification of the identifier, the evidence that the identifier did not remember that whether the mutation was attested on his identification or not--Petition was dismissed. [P. 175] A
Mr. Khawaja Nawaz Khan, Advocate for Petitioners.
Respondent in person.
Date of hearing: 18.6.2010.
Judgment
Through this revision petition, the petitioner has impugned the judgment and decree dated 28.01.2005 passed by learned District Judge, Bannu whereby he dismissed the appeal against the judgment and decree dated 26.06.2003 passed by Civil Judge-I, Bannu.
ISSUES:
(i) Whether the plaintiffs have got a cause of action?
(ii) Whether suit of the plaintiffs is maintainable in its present form?
(iii) Whether suit of the plaintiffs within time?
(iv) Whether plaintiffs have come to the Court with clean hands?
(v) Whether suit of the plaintiffs is bad due to non-mis-joinder of necessary party?
(vi) Whether plaintiffs are estopped to sue?
(vii) Whether defendants are entitled to special costs under Section 35-A CPC from the plaintiffs?
(viii) Whether suit of the plaintiffs is properly valued for the purpose of Court fee and jurisdiction?
(ix) Whether plaintiffs are owners in the disputed property upto 28 Kanals and 10 Marlas?
(x) Whether Mutation No. 6534 attested on 08.10.1963 was incorrectly and unlawfully attested with the connivance of Revenue Staff?
(xi) Whether plaintiffs and their predecessor in interest have sold the disputed property to Defendants No. 1 to 3?
(xii) Whether plaintiffs are entitled to a decree as prayed for in Para-A in the heading of the plaint?
(xiii) Whether plaintiffs are entitled to a decree as prayed for in Para-B in the heading of the plaint?
(xiv) Whether plaintiffs are entitled to a decree as prayed for in para-Jeem of the heading of the plaint?
(xv) Relief.
After recording the evidence and hearing the arguments of counsel for the parties, the learned trial Court vide its judgment and decree dated 26.06.2003 dismissed the suit of the plaintiffs. This judgment was assailed in appeal before the Appellate Court which too dismissed the appeal and upheld the above mentioned judgment and decree, hence this revision petition.
The learned counsel for the petitioner argued that there is no proof provided by the defendants that the suit mutation is attested without fraud and malafide intention. He added that according to the evidence produced by the plaintiffs, they have specifically established their ownership. According to him the onus was on the defendant to prove that mutation was attested correctly and without fraud.
The main dispute in this case is as to whether the plaintiffs have sold the property to the defendants concerned through Mutation No. 6534 attested on 08.10.1963 or not. The plaintiffs have produced a number of witnesses but there is no substantial piece of evidence to favour that the mutation in dispute is fraudulent and that the property has not been sold by the plaintiffs. For instance, the statement of PW-5, who was the identifier of mutation Ex No. 2/1. He has stated in examination in chief that the mutation was not signed by him as identifier. It was also stated by him that he does not remember as to whether the said mutation was attested on his identification or not. In my opinion this is no evidence and cannot be taken into consideration because in cross examination he has taken a different stance. According to his cross examination, previously the signature or thumb impression of an identifier was not necessary on the mutation and used to be attested on verbal identification of the identifier. The practice of taking signature or thumb impression of an identifier on the mutation is started some years back and prior to this it was not necessary. He has also stated that he cannot say that the mutation was attested fraudulently or not. In other words he has not denied the attestation of impugned mutation. In my opinion this portion of his statement is sufficient to discard the claim of the plaintiffs. The special attorney of the plaintiff namely Allah Khan who is one of the plaintiffs, appeared as PW-2 and testified that he does not know as to when the disputed mutation was attested. He has also admitted it correct that the suit property is in possession of the defendants for the last 55 years. Other admission is that till today the suit property is in possession of legal heirs of Muhammad Gul. This admission is negation of and contrary to the contention of the plaintiffs raised in the plaint that they are owners in possession of the suit property. This is contradictory statement. Other witnesses of the plaintiffs have also stated that the suit property is in possession of the defendants. None of the plaintiffs' witnesses has stated that the mutation in question was fraudulently attested and that the suit property was not sold by plaintiffs. The possession of defendants also finds support from khasra girdawri placed on file as Ex PW 1/DX. Normally the plaintiff is burdened to prove his plaint. In this case though fraud has been alleged in respect of the suit mutation even then some liability lies jointly on the part of the plaintiffs also to prove it because they have alleged and it is their duty to discharge burden.
On the other hand defendant produced evidence in support of their claim that the mutation was entered and attested correctly. Haji Rahmzad appeared as PW-3. According to whom, the mutation was attested in the name of Muhammad Gul and Rahim Gul in "jalsa-e-aam" and since then defendants are in possession. Two persons namely Muhammad Gul and Rahim Gul were his uncle and they were known to him. According to cross examination, the uncle of Allah Khan, petitioners was present at the time of attestation of mutation. Thus the defendants have discharged their burden in succeeding to prove that they purchased property in disputed from the plaintiff through a valid mutation.
In view of my above discussion, no fraud or illegality has been established by the plaintiffs/petitioners in the attestation of disputed mutation. Their suit was correctly dismissed by both the Courts below. There is no illegality, non-reading or misreading of evidence or jurisdictional error to justify interference hence, the petition is dismissed, leaving the parties to bear their own costs.
(A.A.) Petition dismissed.
PLJ 2010 Quetta 1 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J.
ABDUL JABBAR and anothers--Petitioners
versus
CANTONMENT EXECUTIVE OFFICER ZHOB CANTT.--Respondent
C.P. No. 370 of 2007, decided on 30.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Cantonments Act, 1924, S. 259--Constitutional petition--Petitioners being tenant of the shops owned by respondent, Cantonment Board, filed constitutional petition under Art. 199 of the Constitution, with the claim that respondent is not entitled to demand increase in the rate of rent and they have forcibly sealed the shops without adopting the legal procedure of Rent Restriction Ordinance--Held: Matter involves factual controversy with regard to payment of amount to the Cantonment Board and fixation of the rent, which have been disputed--Petition was dismissed. [Pp. 5 & 6] A
Mr. Jamal Khan Mandokhail, Advocate for Petitioners.
Ch. Mumtaz Yousaf, Standing Counsel for Respondent.
Date of hearing: 16.3.2009.
Order
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that petitioners are tenants in the shops belonging to Cantonment Board Zhob. It was stated that total number of shops are sixty seven, hence; the present petition has been filed through union of the shopkeepers. It was further stated that the shops-in-question were rented out to petitioners and other tenants through auction dated 18th July, 1985 in pursuance of auction notice dated 12th June, 1985 and rent of each shop was fixed at the rate of Rs.350/- per month. It was also stated that some of the tenants have deposited premium of their shops, record of which is available with respondent. It was case of the petitioners that the petitioners started their business in the Respective shops and were paying rent of the shops regularly to respondent till July, 1996 as per agreement, terms whereof expired in 1991. It was further case of the petitioners that on expiry of tenancy, the respondent with his free will and consent continued to receive the rent of respective shops from every tenant/petitioner, vide notice dated 28th July, 1996, whereby; he accepted all the petitioners as his tenant subject to increase of 20% in monthly rent and thereafter the petitioners were depositing the monthly rent at the rate of Rs.420/-. It has been stated that on several occasions, respondent verbally demanded for increase in the rent, to which the petitioners replied that since no maintenance of the shops has been done by the Cantonment Board, therefore, the respondent is not entitled to demand increase in the rate of rent. It has been further stated that the respondent without adopting the legal procedure of Rent Restriction Ordinance has forcibly sealed the shops of Petitioners Nos. 1 to 11, who are occupants of shops mentioned in para 7 of the petition, while; remaining petitioners were threatened that in case the rent is not enhanced, their shops will also be sealed, moreover; petitioners were threatened that their goods are lying in the shops-in-question will be thrown out. It was alleged that respondent in access of his jurisdiction had taken away all the goods valuing more than two lac rupees from the shop of Petitioner No. 9 and had also broken the furniture and fixtures of the shop and thus, heavy loss has been caused to him. Following prayer has been sought in the petition:--
"It is, therefore, respectfully prayed that keeping in view above facts and circumstances, following writ may very kindly be issued in favour of petitioners as against the respondent:
(i) Declare that the act of respondent by putting seal on the shops of Petitioners No. 1 to 11 is illegal, unlawful and without jurisdiction.
(ii) Declare that the demand of increase in the rate of rent by respondent without adopting proper course of law, is also illegal and unlawful and without jurisdiction.
(iii) Direct the respondent to de-seal the shops of Petitioners No. 1 to 11, detail in numbers whereof has already been mentioned in Para No. 6, of the petition and the petitioners be allowed to continue their business.
(iv) Direct the respondent to return back all the goods to the occupant of Shop No. 48/11, which has taken away and in case the goods have been destroyed or damaged, the petitioner be compensated accordingly.
(v) Restrain the respondent from advancing threats, using force and demanding increase in the rent through illegal means.
(vi) Any other relief, which may deem, fit and proper in the circumstances of the case may also be awarded in favour of petitioners.
(vii) Cost of the petition may also be awarded."
Notice of this petition was given to the respondent, pursuant to which, para-wise comments were filed by the respondent-CEO, Zhob, wherein; legal objections were raised that; (a) the petition under reply is not maintainable under the extra ordinary Constitutional jurisdiction, despite the fact that remedy under the special law is available to the petitioners; (b) as per assertions made in the petition, the matter pertains to Cantonment Laws, hence; this Court cannot take a judicial review in this behalf; (c) the petition is hit by laches and the petitioners have no locus standi to file the instant petition, hence; the same is liable to be rejected. On merits also, claim of the petitioners has been contested and denied by stating that Cantonment Board owns sixty seven shops in bazaar area No. 1 Zhob, which were rented out during various periods to various tenants. It was further stated that rent of the shops was revised vide Cantonment Board Zhob Resolution No. 01 dated 07" October, 2007. Details of arrears of rent against the petitioners-tenants as on 01st July, 2006 were given in para No. 4 of the counter affidavit. It has been stated that Petitioner No. 1 Abdul Jabbar has sublet the Shops No. 6/17 and 7/17 on monthly rent of Rs. 2300/- and Rs. 2000/- respectively to other persons but is not paying monthly rent of Rs. 1,000/- of each shop to Cantonment Board Zhob, hence; the said action of Petitioner No. 1 of sub-letting the shops is illegal and un-lawful. It has been further stated that on July, 2006 the total amount of arrears against the sixty seven shops was staggering Rs.17,58,647/- and thus; demand notices under Section 91 of the Cantonment Act, 1924 were served time and again. Record shows that respondent filed an application alongwith list of major defaulters under Section 259 of the Act, 1924 before Judicial Magistrate, Zhob for recovery of the rent of shops-in-question, but no progress was made. It was stated that a meeting of the union of Zhob Adda shopkeepers (not the union referred to by the petitioners) and Station Headquarters was held in Station Headquarters Zhob, and; the President and General Secretary of the shopkeepers union pledged that all the dues would be cleared by 20th June, 2007, and accordingly; all the shopkeepers/defaulters were informed that the last date for deposit of all rent arrears was 20th June, 2007, but; no significant progress was made in the recovery of current demand and arrears, hence; keeping in view the dismal situation of recovery and behaviour of the defaulter-tenants, the Station Commander Zhob/President Cantonment Board Zhob, directed the Station Headquarter Zhob to take over the possession of Cantt Board Zhob shops and initiate the recovery proceedings through Station Headquarters, thus; on 21st June, 2007, after lapse of the deadline, the matter of recovery was taken over by Station Headquarters Zhob from Cantonment Board Zhob through agreement for the recovery of rent and arrears. It has been categorically stated that the action of sealing the shops-in-question was taken with the approval of higher authorities.
Mr. Jamal Khan Mandokhail, Advocate appeared on behalf of petitioners, while Chaudhry Mumtaz Yousaf, learned Standing Counsel appeared on behalf of respondent.
Learned counsel for the petitioners has contended that the petitioners are not being dealt with in accordance with law and there properties have been sealed without any justifiable reason. He has not been able to show from the contents of the petition, as to why shops were sealed. In the rejoinder to the petition, it was contended that the meeting was held and the petitioners had failed to make payment of the amount, which went up to the tune of seventeen/eighteen lacs rupees, and thus; the property was sealed.
Learned Standing Counsel has contended that in view of Section 259 of the Cantonments Act, 1924, a Magistrate has the authority to recover the same by distress of the tenants, and thus; the action was justified on the part of respondent. It was further contended that the remedy by way of suit is available under the Cantonments Act, 1924, for which special procedure has been laid down and the proceedings cannot be set at rest in Constitutional jurisdiction.
We have considered the arguments advanced by learned counsel for the parties and perused the record. On perusal of record, it transpires that rent was enhanced and subsequently settlement was made that the payment will be made up till target date i.e. 20th June, 2007, but the petitioner had failed to make payment of the amount, resultantly, coercive action was taken, whereby; shops were sealed. The petitioners in their petition never mentioned that there was liability on the part of petitioners to make payment of the rent amount and had approached this Court with unclean hands, even; no rejoinder to the para-wise comments has been filed dispelling the contentions raised by the respondent-Department, whereby; it was stated that a sum of Rs. 17,58,647/- or more than that is due. Section 259 of the Cantonments Act, 1924 authorizes the Board to recover the amount, which is reproduced herein-below:--
"259. Method of recovery.--(1) Notwithstanding anything elsewhere contained in this Act, arrears of any tax and any other money recoverable by a Board under this Act may be recovered together with the cost of recovery either by suit or, on application to a Magistrate having jurisdiction in the cantonment or in any place where the person from whom such tax or money is recoverable may for the time being be residing, by the distress and sale of any movable property of standing timber, growing crops or grass belonging to, such person which is within the limits of such Magistrate's jurisdiction, and shall, if payable by the owner of any property as such, be a charge on the property until paid:
Provided that tools of artisans shall be exempt from such distress or sale.
(2) An application to a Magistrate under sub-section (1) shall be in writing and shall be signed by the President or Vice-President of the Board or by the Executive Officer, but, shall not require to be personally presented."
Above provision of law clearly authorizes a Magistrate to recover the amount by distress, as well as, by sale of movable property of the tenants. The matter also involves factual controversy with regard to payment of amount to the Cantonment Board and fixation of the rent, which have been disputed. Thus, for the foregoing reasons, we see no merit in this petition, which is accordingly dismissed. However, the petitioners are at liberty to approach the competent Court of law redressal of their grievance, in accordance with the provisions of law.
(M.S.A.) Petition dismissed.
PLJ 2010 Quetta 6 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J.
Haji ALI JAN--Petitioner
versus
MUHAMMAD AZEEM and 5 others--Respondents
C.P. No. 546 of 2007, decided on 15.4.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 181--Civil Procedure Code, (V of 1908), S. 48--(amendment)--Constitution of Pakistan, 1973, Art. 199--Limitation--Execution application was contested on the ground that the same was time barred--Application was dismissed by Courts below as well as First Appellate Court--Challenge to--Validity--Suit was initially decreed on 23rd October 1996 and execution application was filed on 18th Feb. 1997--First application was well within time as provided by Art. 181 of Limitation Act--Record revealed that the application appears to have been filed after lapse of four years with the limitation prescribed by S. 48 of CPC--Amendment was made in S. 48 of CPC and period of six years was provided therein--Held: Order dismissing execution application on the grounds of limitation were without lawful authority and were of no legal effect. [P. 9] A, B & C
Raja Rab Nawaz, Advocate for Petitioner.
Mr. Muhammad Rauf Atta, Advocate for Respondents No. 1 to 4.
Respondents No. 5 & 6 in person.
Date of hearing: 6.4.2009.
Order
Mehta Kailash Nath Kohli, J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against order dated 18th December, 2006, passed by learned Qazi Panjgoor and order dated 14th April, 2007, passed by learned Majlis-e-Shoora, Panjgoor.
Facts of the case, in brief, are that petitioner Haji Ali Jan filed a suit for recovery of Rs.1,30,000/- i.e. sale consideration of vehicle. During pendency of proceedings parties entered into a agreement whereby the predecessor-in-interest of respondents-defendants agreed to transfer landed property in favour of petitioner-decree holder in lieu of above sale consideration; contents of the agreement are reproduced herein-below:--
URDU
On the basis of aforementioned agreement arrived at between the parties, learned Qazi Panjgoor, decreed the suit of petitioner-plaintiff, vide judgment and decree dated 23rd October, 1996. Record shows that predecessor-in-interest of respondents-defendants did not perform his part of obligation and had avoided to make payment of the outstanding balance amount; hence, present application for execution of decree was filed and following prayer was sought:--
URDU
It was stated that Defendants No. 2 and 3 namely Muhammad Kareem son of Haji Hasil Khan and Haji Hasil Khan son of Fateh Muhammad had died few years ago, while Defendants No. 1 and 2 are legal heirs and sons of Defendant No. 3, and the property is in use and occupation of Defendants No. 1 and 2, details whereof have been given in para 4 of application. It was further stated that after demise of Defendant No. 3, petitioner-decree holder approached the Defendants No. 1 and 2 to perform their part of obligation with regard to execution of decree, the said application was allowed and learned trial Court directed the respondents-defendants to make payment of outstanding balance amount to the petitioner vide order dated 20th March, 2002, in the meanwhile predecessor-in-interest of respondents-defendant died. It was stated that thereafter, petitioner had contacted the present respondents, but they flatly refused to make payment. Present application for execution of decree dated 23rd October, 1996 and order dated 20th March, 2002; reply to the said application was filed by the respondents-defendants, and the execution application was mainly contested on the ground that the same is time barred. Learned trial Court vide order dated 18th December, 2006, dismissed the application. Against aforementioned order revision petition was filed before the Majlis-e-Shoora Panjgoor, which too was dismissed vide order dated 14th April, 2007. Against aforementioned concurrent orders, present petition has been filed before this Court and following prayer has been sought:--
"It is therefore, respectfully prayed in view of submissions made herein above, after perusal of the record and hearing the parties the order passed by learned Qazi Panjgoor dated 18.12.2006 and the order dated 14.4.2007 passed by learned Majlis-e-Shoora Panjgoor may kindly be set aside and Execution Application filed by petitioner may kindly be directed to be allowed. It shall meet the ends of justice.
Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded in favour of petitioner and against the respondents."
Notice was given to the respondents.
Raja Rab Nawaz, Advocate appeared on behalf of petitioner, while Mr. Muhammad Rauf Atta Advocate appeared on behalf of respondents.
Learned counsel for petitioner has contended that the learned trial Court has not examined the provisions of Section 48, Civil Procedure Code, while dismissing the execution application. It was further contended that similarly the Majlis-e-Shoora has seriously erred in holding that the application was not sustainable under law. It was also contended that Article 181 of Limitation Act is not applicable, in case, if the first application having been filed and after invocation of first application; limitation provided to Section 48 of the Civil Procedure Code will come into force and period of six years is provided by the said provision.
On the other-hand, learned counsel for private respondents has contended that it is bounded duty of the petitioner to file application under Article 181 of Limitation Act, for which, the period provided is three years and since order of refusing was passed in 2002, the subsequent application in the year 2006 was barred by time.
We have carefully considered the arguments advanced by learned counsel for the parties and perused the record. On perusal of record, it transpires that the suit was initially decreed on 23rd October, 1996 and execution application was filed on 18th February, 1997. The first application was well within time as provided by Article 181 of Limitation Act. Record reflects that on 20th March, 2002 predecessor-in-interest of private respondents had stood attorney for the payment of said amount. Record further shows that this application appears to have been filed after lapse of four years, within the limitation prescribed by Section 48 CPC. On examination of law, it transpires that by virtue of Ordinance XII of 1972, the amendment was made in Section 48 of CPC and period of six years was provided therein. The Hon'ble Supreme Court in one of the cases i.e. National Bank of Pakistan v. Mian Aziz-ud-din and 7 others (1996 SCMR 759), came to the conclusion that first application has to be filed within period of three years and thereafter period of six years as provided by Section 48, CPC shall come into play. Relevant observations of the Hon'ble Apex Court are reproduced herein-below:--
"4. ... ... ...It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any appeal, would be barred under the said Article and no benefit under Section 48, C.P.C can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed by Article 181 of the Limitation Act, that subsequent applicants can be filed within the period provided by Section 48, C.P.C. Consequently, the view taken by the High Court and the Special Court that the execution application filed by the petitioners beyond the period of three years was time-barred, is not open to exception."
Thus, for the foregoing reasons, we declare that the orders passed by Official Respondents No. 5 and 6 dismissing execution application on the ground of limitation are without lawful authority and are of no legal effect. Consequently, the execution application filed by the petitioner shall be deemed to be pending, which shall be decided in accordance with the provisions of law.
(M.S.A.) Order accordingly.
PLJ 2010 Quetta 10
Present: Ahmed Khan Lashari, J.
CHAIRMAN EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN, LAHORE and another--Applicants
versus
PRESIDENT OF QUETTA HINDU PUNCHAYAT and another--Respondent
Civil Misc. Appln. Nos. 220 & 221 of 2009, in C.R. No. 176 of 2005, decided on 20.7.2009.
Condonation of delay--
----Must explain delay of each and every day--Application for restoration of petition was dismissed in default and for non-prosecution as well as condonation of delay in filing application for restoration of the petition--No explanation was mentioned--Validity--The person seeking condonation of delay, must explain delay of each and every day to the satisfaction of the Court and should also establish that the delay has been caused due to reason beyond his control--When delay in filing application is seemingly due to mere negligence and careless of the applicant, who failed to pursue his case with due diligence, than he is not entitled to any indulgence by the Court--Applications were dismissed. [P. 13] B
Limitation Act, 1908 (IX of 1908)--
----Art. 181--Civil Procedure Code, (V of 1908), S. 115--Restoration of civil revision petition--Applicability of limitation--Contention--No specific provision of law for filing application, seeking restoration of civil revision--Validity--High Court in exercise of inherent jurisdiction u/S. 115, CPC, might restore the petition and that Art. 181 of Limitation Act, would apply in the case, which provides a period of three years for filing of application for restoration of the petition, dismissed in default. [P. 13] A
2004 SCMR 387 ref.
M/s. Kamran Murtaza & Abid Mehmood, Advocates for Applicants.
Mr. Sundar Dass, Advocate for Respondent No. 1.
Date of hearing: 29.6.2009.
Judgment
The applicants have filed Civil Misc: Applications No.220 & 221 of 2009, wherein prayer has been made for recalling of order dated 23.05.2008 and restoration of petition, dismissed in default and for non-prosecution as well as condonation of the delay in filing application for restoration of the petition.
The suit was contested and the trial Court, after framing issues and recording evidence, vide judgment dated 05-04-2004 dismissed the suit, against which appeal was filed and the Additional District Judge-V, Quetta vide judgment dated 26-02-2005 allowed the appeal and the respondents' suit was decreed. The applicants, being dissatisfied with the judgement/decree, filed Civil Revision Petition before this Court, which was admitted for regular hearing on 29-05-2005. Subsequently, due to non-appearance of the applicants as well as their counsel, petition was dismissed in default and for non-prosecution on 23-05-2008, hence, these applications.
M/s. Kamran Murtaza and Abid Mehmood, learned counsel for applicants, contended that the petition was dismissed in default and for non-prosecution on account of absence of Mr. Abid Mehmood, Advocate, who due to illness of his brother had left for Lahore on 17.05.2008, where his brother expired on 23-05-2008, therefore, the absence of the counsel was neither deliberate, nor intentional. It was argued that though application has been filed with a delay, but sufficient cause has been disclosed and this Court has the powers to condone the delay. It was also contended that though specific provision has not been provided for filing application for restoration of the petition dismissed in default, still there is application for condonation of the delay with reasonable ground. They, in support of their arguments referred the judgements-reported in 1971 SCMR 740, PLD 1997 Peshawar 55 and 2004 SCMR 400.
Mr. Sundar Dass, learned counsel for Respondent No. 1, submitted that the application has been filed almost after a lapse of about one year, without disclosing any sufficient cause or reason, thus, applications be dismissed. He, in support of his arguments referred the judgments-reported in 2004 SCMR pages 387-615 and PLJ 1994 Lahore 542.
I have heard learned counsel for the parties and have gone through the reported judgments cited as well as record. The petition was dismissed in default and for non-prosecution on 23-05-2008, while the applications, seeking restoration of the petition as well as condonation of the delay, have been filed on 04-03-2009. The plea raised in the applications is that the counsel (Mr. Abid Mehmood, Advocate) on account of sudden illness of his brother had left for Lahore on 17.05.2008, where his brother expired on 23-05-2008, but the counsel has failed to explain the period from 24-05-2008 to 04-03-2009 (more than nine months) for non-approaching the Court or for non-appearance of the applicants in the matter. The applicants as well as their counsel slept over and filed the applications with the delay, without disclosing the reasons beyond their control.
The counsel for applicants referred the judgment-reported in PLD 1997 Peshawar 55, wherein the suit pending before the trial Court was dismissed in default and for non-prosecution, against which an appeal was filed, whereby the suit was restored on payment of Rs.5000/- as cost and in civil revision petition, the order was not interfered with. The other judgments-reported in 1971 SCMR 740 and 2004 SCMR 400, are also not on the point involved in the matter.
On the other hand, counsel for Respondent No. 1 stressed that the applicants have failed to point out any sufficient cause or reason so that the delay occurred in filing the application be condoned. The judgment, relied upon by the counsel, reported in 2004 SCMR 615, is clear on the point; the relevant portion thereof is reproduced herein below:
"It was the case of the petitioners before the High Court that their learned counsel was present before the Bench on 30.09.1999 and that the said learned counsel left the Court-room to appear before another learned Bench and it was on his return that he found that the said revision petition had been dismissed for non-prosecution. If this was so, then there is no explanation as to what had taken the petitioners almost four months to make an application for restoration of the said revision petition. In these circumstances we find no reason to interfere with the discretion exercised by the High Court in passing the impugned order."
"Contention of petitioner that no period of limitation was prescribed for restoration of civil revision and thus, he could move application within three years, was not accepted being not in consonance with letter and spirit of law."
It is set principle of law and the superior Courts time and again held that the person, seeking condonation of delay, must explain delay of each and every day to the satisfaction of the Court and should also establish that the delay has been caused due to reason beyond his control. When the delay in filing application is seemingly due to mere negligence and careless of the applicant, who failed to pursue his case with due diligence, then he is not entitled to any indulgence by the Court.
What has been discussed hereinabove, the applications, being devoid of any merit, are dismissed.
(R.A.) Applications dismissed.
PLJ 2010 Quetta 13 (DB)
Present: Mehta Kailash Nath Kohli and Ahmed Khan Lashari, JJ.
ABDUL REHMAN--Petitioner
versus
PROVINCIAL TRANSPORT AUTHORITY BALOCHISTAN through its Chairman & 3 others--Respondents
C.P. No. 619 fo 2003, decided on 30.10.2006.
Motor Vehicle Ordinance, 1965 (XIX of 1965)--
----Ss. 44, 45, 68 & 69--Motor Vehicle Rules, 1969, R. 57-A--Authority to declare the route classified--Unclassified route permit--No locus standi--Route permit for plying buses was granted--Question for consideration--Whether Rule 57-A of Motor Vehicle Rules, has provided any penal consequences in case of failure of any authority to declare the route classified--Validity--Motor Vehicle Rules, 1969 have been framed pursuant to Ss. 68 & 69 of the Motor Vehicle Ordinance, 1965--Sections 44 & 45 of the Ordinance give authority to the competent authority for control of vehicles and conditions attached thereon--No penal consequences or requirement has been embodied for an unclassified route permit--Held: No locus standi to file appeal before appellate authority, as well as, no penal consequences have been provided for not declaring the route as classified--Impugned order passed by Provincial Transport Authority having been passed without lawful authority and of no legal consequence and restore the permit issued by D.T.A.--High Court directed the competent authority to take appropriate measures for declaring the route as classified. [Pp. 16 & 18] A & E
Route Permit--
----Classification--Classification has to be made in order to determine the maximum age of the vehicle to be plied on the route, merely because the classification has not been made by the competent authority or high way authorities--It cannot be assumed that the permit cannot be issued for the route. [P. 18] B
Motor Vehicle Rules, 1969--
----R. 57-A--Terminus--Locus standi--Route has the abstract of one terminus to other terminus, thus respondent cannot be termed to be a permit holder of same route and thus has no locus standi having any right to challenge the grant of route permit--Held: Petitioner was not entitled to grant of route permit on the score of Rule 57-A of the Vehicle Rules, is equally without lawful authority as in teh provisions of the Ordinance--No such condition or consequences have been provided in the absence of classification of route. [P. 18] C
Constitution of Pakistan, 1973--
----Art. 18--Motor Vehicle Ordinance, 1965, S. 66--Question of convertion the bus into truck--Utilize the vehicle for other purposes--Route permit for plying the buses was granted--Appeal before Chairman, Provincial Transport Authority--Right of healthy competition of law for business or trade--Public transport--Question of--Having converted the bus into truck can not be sufficient for dismissal of petition--Route permit was cancelled and there was no way out for him except to utilize the vehicle for other purpose--Although his route is covered part of same road would not entitle him to challenge the same--Held: Right of healthy competition of lawful business or trade has been provided--It would be unfair to deprive a particular part of the people from use of public transport in this modern age on the pretext that it is not a classified route. [P. 18] D
Mr. Naeem Akhtar Afghan, Advocate for Petitioner.
Mr. Amanullah Tareen, Asstt. AG for Respondents No. 1 to 3.
Syed Ayaz Zahoor, Advocate for Respondent No. 4.
Date of hearing: 17.10.2006.
Judgment
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that petitioner was granted route permit for plying his buses/mini-buses from Pishin to Rod Mullazia via Khanozai, vide order dated 13th November, 2002 passed by Chairman, District Transport Authority/ D.C.O. Pishin (Respondent No. 2). It was stated that there is no other transporter, plying buses on the said route. Respondent No. 4 Faiz Muhammad alias Khalo Jan, who is also transporter, plying his buses from Muslim Bagh to Pishin via Khanozai, Chairman Zakiazai Murgha to Khanozai to Pishin and Quetta from Yahyanika (Barshore) to Khanozai to Dilsoora to Pishin challenged the said route permit in appeal filed under Section-66 of Motor Vehicle Ordinance, 1965 before Chairman, Provincial Transport Authority Balochistan (Respondent No. 1). It was stated that the said order of grant of route permit was void with regard to minutes of meeting, held between transporters and Respondents No. 2 and 3 i.e. Secretary, District Transport Authority, Pishin. Issuance of time table dated 24th March, 2003, issued by Respondent No. 3 in favour of petitioner was also challenged. It was also stated that he is plying his buses on the route of Pishin to Khanozai via Rod Mullazai. It was further stated that learned appellate authority vide order dated 13th November, 2003 accepted the appeal, holding that it was not classified route under Rule-57-A, of Motor vehicle Rules, framed pursuant to Section-68/69 of the Ordinance, 1965.
Notice of this petition was issued to the other side and counter affidavits were filed by official respondents, as well as, Respondent No. 4. It was stated in the counter affidavit that; (a) the petitioner has not approached this Court with clean hands, as the petitioner does not possess any bus of the route permit, which was allotted to him as the bus was later on converted to a truck; (b) present petition is not maintainable, as the impugned order has been passed by the competent authority, carefully and petitioner has not approached the Court with clean hands, therefore, the petitioner on the face of it is not maintainable. It was further pointed out that the order was lawfully made, as there are several buses plying on said route, as such; no permission could have been granted. On merits also case of the petitioner was denied. Respondent No. 4 also filed copy of the route permit alongwith alteration made vide order dated 20th March, 2004. A report was also filed by Naib Tehsildar, Pishin that the said bus bearing Registration No. BMA-402 has been converted into truck bearing number TKE-241. The said fact was not controverted by the other side.
It is to note that the petitioner was granted permission and was also allocated time table. The said order was set aside vide order dated 18th September, 2003 by Member, Board of Revenue/Chairman, Provincial Transport Authority Balochistan, Quetta i.e. Respondent No. 1. The counter affidavit filed on 20th July, 2004 was not controverted by the counsel for petitioner and it was stated that on account of having setting aside order, there was no option with the petitioner to have converted his bus into truck. On perusal of record, it is indicated that the change was made on 5th April, 2004.
Mr. Naeem Akhtar Afghan, learned counsel appeared for petitioner, while Syed Ayaz Zahoor, learned counsel appeared for Respondent No. 4 and Mr. Amanullah Tareen, learned Assistant Advocate General represented official respondents.
It has been contended by learned counsel for petitioner that Respondent No. 1 had set aside the route permit dated 13th November, 2002 alongwith time table dated 9th September, 2002 mainly on the ground that it was not a classified route permit as provided by Rule-57-A of the Motor Vehicle Rules, 1969. It was further contended that the respondent had no locus standi to challenge the same as he was not a competitor of the said route, who was different and distinct permit holder from the route permit granted to the petitioner. It was also averred that the petitioner had wanted to ply his bus, but on account of cancellation of route permit, he had to earn his hard bread, he had to convert the same into truck and was plying as such.
On the other-hand, learned counsel for Respondent No. 4 stated that petitioner having converted the bus into truck had lost his right if any, and thus; he has no locus standi to initiate present proceedings. It was further contended that Rule-57-A provides classification of route; since this route has not been classified, thus; the Authority had no jurisdiction to issue route permit.
We have heard the arguments advanced by parties' learned counsel and perused the record. The first question for consideration is, as to whether Rule-57-A of the Motor Vehicle Rules, 1969 has provided any penal consequences in case of failure of any relevant authority to declare the route classified or otherwise. The Motor Vehicle Rules, 1969 have been framed pursuant to Section-68 and 69 of the Motor Vehicle Ordinance, 1965. Sections-44 and 45 of the Ordinance give authority to the competent authority for control of vehicles and conditions attached thereon. In the given provisions of Section, no penal consequences or requirement has been embodied for an unclassified route permit. Rule-57-A and 57-B of the Motor Vehicle Rules, 1969 are reproduced herein-below:--
"57-A. Classification of routes for stage-carriage:--
(i) The Regional Transport Authority shall classify the route(s) which originate and terminate within the Region; and
(ii) The
Provincial Transport Authority shall classify the route(s) which originate and terminate in the jurisdiction of more than one Regional Transport Authorities; into A',B' and `C' categories for stage carriage permits on the basis of density of traffic and conditions of the roads:
Provided that no route shall be given any classification unless--
(a) it is a route which permits have already been issued before coming into force of this rule; or
(b) it has already been classified by the Provincial Transport Authority:
Provided further that no existing unclassified route shall be classified if it lies wholly or partly within an urban area unless an opportunity is given to the Road Transport Corporation to make a representation against the proposal to classify the route and any such representation made by it has been considered and decided."
"57-B. Restriction regarding old stage carriages.--(1) No permit shall be granted in respect of----
(i) `A' category route if the stage carriage is more than four years old; and
(ii) `B' category route if the stage carriage is more than six years old.
(2) A permit granted for a particular category under sub-rule (1) shall cease to be valid for that category if the stage carriage exceeds the age limit prescribed therefor.
(3) Routes other than A' and 'B' category routes shall be classified asC' category routes and there shall be no age restriction on the stage carriage for the grant of permit for this category.
(4) For reckoning the age of a stage carriage unler this rule, the age shall ordinarily be calculated from the date of its first registration and in case of any question in this respect the decision of Provincial Transport Authority, after conducting such enquiry as it may deem fit, shall be final."
From perusal of above rules, it is abundantly clear that the classification has to be made in order to determine the maximum age of the vehicles to be plied on the said route, merely because the said classification has not been made by the competent authority or highway authorities, as well as, Communication and Works Department; it cannot be assumed that the permit cannot be issued for the said route. The route has not been defined by the Motor Vehicle Ordinance, 1965, however; in the judgment reported in A.I.R. (36) 1946 Privy Council 137, definitions of highway' androute' have been given, the same is reproduced herein-below:--
"A "Highway" is the physical track along which an omnibus runs, whilst a "route" appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed."
From the above interpretation, which has been made, it is clear that the route has the abstract of one terminus to the other terminus, thus; the Respondent No. 4 cannot be termed to be a permit holder of same route, and thus; has no locus standi having any right to challenged the grant of route permit. The findings of the learned appellate authority that the petitioner was not entitled to the grant of route permit on the score of Rule-57-A of the Rules of 1969 is equally without lawful authority as in the main provisions of the Ordinance, no such condition or consequences have been provided in the absence of classification of route.
The other question with regard to the fact that the petitioner having converted the bus into truck may not be sufficient for dismissal of this petition, as admittedly in 2003, his route permits was cancelled and there was no way out for him except to utilize the vehicle for other purposes. Suffice to observe that Respondent No. 4 also cannot be termed as competitor of the same route, as he is plying his bus on different rout permit. Although, his route is covered part of same road/highway would not entitle him to challenge the same. In view of Article-18 of the Constitution of Islamic Republic of Pakistan, 1973, the right of healthy competition of lawful business or trade has been provided. It would be unfair to deprive a, particular part of the people from use of public transport in this modern age on the pretext that it is not a classified route.
In the circumstances of the case, we hold that Respondent No. 4 has no locus standi to file appeal before the appellate authority, as well as, no penal consequences have been provided for not declaring the route as classified. We, therefore, declare that the impugned order dated 13th November, 2003, passed by Provincial Transport Authority Balochistan i.e. Respondent No. 1 having been passed without lawful authority and of no legal consequence, and; restore the permit issued by District Transport Authority. We also direct the competent authority to take appropriate measures for declaring the route as classified.
Petition stands disposed of in above terms.
(R.A.) Petition disposed.
PLJ 2010 Quetta 19 (DB)
Present: Akhtar Zaman Malghani & Muhammad Nadir Khan, JJ.
NABI DAD--Petitioner
versus
REGISTRAR COURT OF APPEALS JUDGE, A.G. DEPARTMENT, G.H. RAWALPINDI and 4 others--Respondents
Const.P. No. 325 of 2008, decided on 15.12.2008.
Constitution of Pakistan, 1973--
----Art. 199(3)--Pakistan Army Act, 1952, S. 59(a)--Abeting the act of terrorism by planting a bomb--Sentence was recorded against accused--Challenge to--Court martial--Bar by Art. 199(3) of Constitution--Jurisdiction--High Court in view of bar by Art. 199(3) of the Constitution has no jurisdiction in the matters relating to members of armed forces or who for the time being is subject to any law relating to armed forces in respect of any action taken in relation to him as member of armed forces but High Court can examine cases where impugned order, judgment is malafide or without jurisdiction or corum non judice--Petition was dismissed. [P. 22] A
PLD 2001 SC 549, rel.
Amry Act, 1952--
----S. 8(3)--"Civil offence" means an offence which, if committed in Pakistan, would be triable by a Criminal Court as a Court of ordinary criminal justice in Pakistan or established elsewhere by authority of Federal Government, therefore, Anti-terrorism Court in relation to Army Act, 1952 is a Court of ordinary criminal justice and offences falling with in exclusive jurisdiction could be tried by General field Court Martial u/S. 59 of the Army Act, 1952, if the person committing such offence is subject to the Army Act, 1952. [P. 23] B
Interpretation of Statute--
----An accused person is liable to conviction provided for offence at the time of commission of that offence and if any amendment is brought in statute enhancing the sentence afterwards the accused could not be legally convicted for such enhanced sentence and any such order would be totally without jurisdiction. [P. 23] C
Army Act, 1952--
----S. 135--Criminal Procedure Code, (V of 1898), S. 382(b)--Under Section 135 of the Army Act, 1952 the sentence is to commence on the date on which original proceedings were signed by president, therefore, in presence of such special provisions in the Army Act, 1952--Held: Section 382-B, Cr.P.C. is not legally applicable to the sentences awarded under the Army Act, 1952--Petition was dismissed. [P. 24] D
NLR 1983 Cr. 483, ref.
Mr. Amanullah Kanrani, Advocate for Petitioner.
Ch. Mumtaz Yousaf, Standing Counsel & Muhammad Afzal Jami, D.A.G. for Respondents.
Date of judgment: 26.11.2008.
Judgment
Akhtar Zaman Malghani, J.--Following relief has been claimed in the instant Constitutional Petition:
"In view of the same it is, therefore, accordingly prayed that conviction of the petitioner recorded by Field Court Martial and maintained by Appellate Authority is illegal, unlawful and with no legal sanctity of law, therefore, after setting aside the same impugned orders of commitment to jail dated 27.11.2007 the petitioner may be acquitted from the charge and ordered to be released from jail in the interest of justice, fair play and equity."
a. To suffer R.I for 17 years.
b. To be dismissed from service.
c. To be reduced to the ranks.
d. To pay Rs. 2,000/- as fine.
The appeal filed by petitioner before the competent authority was dismissed, however; sentence of two and half years out of seventeen years R.I was remitted.
We have heard the learned counsel for petitioner as well as Standing Counsel. Learned Counsel for petitioner vehemently contended that petitioner was in custody since 13.3.2005 but no benefit of Section 382-B Cr.P.C was extended in his favour in violation of Article-4 of the Constitution of Pakistan. He further argued that conviction of petitioner under sub-clause (a) of Section 59 of Army Act, 1952 was illegal and without jurisdiction as the alleged offence falls under Section 59(b) providing maximum punishment of five years. He next argued that conviction of petitioner under Section 7(b) of Anti-Terrorism Act read with Section 109 P.P.C was also illegal as jurisdiction to try and convict under provisions of Anti-Terrorism Act, 1997 exclusively vested in Anti-Terrorism Court and Field Court Martial had no jurisdiction in such cases. He also argued that petitioner was un-represented before Court Martial and no opportunity to engage a counsel was afforded to him on account of which whole trial had vitiated. Learned counsel was also of the view that charge was defective, as such; conviction was not maintainable. In support of his arguments learned counsel referred to judgments reported in 2008 SCMR 1384, 2007 SCMR 399, PLD 2001 Quetta 64, PLD 1990 Karachi 470, PLD 1996 S.C 801, PLD 1989 S.C 26, PLD 1977 SC 52, PLD 1977 Karachi 833, 1999 SCMR 2078, 1987 SCMR 1382, PLD 1981 SC 522, 1981 SCMR 1237, 1983 SCMR 732 and PLJ 1979 Quetta 66.
On the other hand learned Standing Counsel vehemently contended that the instant petition was not maintainable as this Court had no jurisdiction to interfere in the findings of General Field Court Martial which findings were final as provided under Section 133-B of the Army Act, 1952, and in light of Article 199(3) of Constitution of Islamic Republic of Pakistan. He further argued that provisions of Section 382-B Cr.P.C were not applicable to the persons convicted under the Army Act, 1952. Similarly charge has to be framed in accordance with provisions of Section 111(4) of Pakistan Army Act, 1952 and accumulated sentence for all offences is to be awarded as enunciated in Rule 54 of Pakistan Army Act Rules. Learned Standing Counsel next argued that petitioner was rightly found guilty under sub-clause (a) of Section 59 of Army Act, as he had committed a civil offence entailing punishment up to imprisonment for life.
"This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide. The matters relating to the Members of the Armed Forces or who for the time being are subject to any law relating to any of these Forces in respect of terms and conditions of service or in respect of any action taken in relation to him as Members of Armed Forces or as a person subject to such law, is barred by Article 199(3) of the Constitution. Article 8(3) of the Constitution also envisages that the provisions of this Article shall not apply to any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them. According to Section 133(3)(B) of the Act the decision of the Court of appeal is final and cannot be called in question before any Court of Authority whatsoever."
"By now it is well-settled principle of law that the High Court under Article 199(3) of the Constitution can examine the cases falling within three categories, namely, where impugned order/ judgment, is mala fide, or without jurisdiction or coram non judice."
In another judgment reported in PLD 1996 S.C 632 the Hon'ble Supreme Court in this regard held as under:--
"It is quite clear from the above-quoted passage that the bar contained in Article 199(3) of the Constitution on the powers of the High Court is not absolute in nature. At least in respect of three categories of cases, namely, where the impugned action is mala fide, or without jurisdiction or coram non judice the bar of Article 199 (3) is not applicable."
Admittedly petitioner was subject to Army Act, 1952 and was rightly tried by Field General Court Martial for civil offences under Section 59 of Pakistan Army Act, 1952 which provides that any person subject to the Army Act, 1952 who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against the Army Act. Civil offence has been defined in sub-section (3) of Section 8 of the Army Act, 1952 providing that "civil offence" means an offence which, if committed in Pakistan, would be triable by a criminal Court as a Court of ordinary criminal justice in Pakistan or established elsewhere by authority of Federal Government, therefore, Anti-Terrorism Court in relation to Army Act, 1952 is a Court of ordinary criminal justice and offences falling within its exclusive jurisdiction could be tried by General Field Court Martial under Section 59 of the Army Act, 1952, if the person committing such offence is subject to the Army Act, 1952.
Section 59 of the Army Act, 1952 provides two different sentences, under sub-clauses (a) and (b). Under sub-clause (a) if the offence is one which would be punishable under any law enforced in Pakistan with death or with imprisonment for life the accused shall be liable to suffer any punishment assigned for offence by the said law or such less punishment as mentioned in the Army Act whereas under sub-clause (b) in any other case the accused shall be liable to suffer any punishment assigned for the offence by law enforced in Pakistan or rigorous imprisonment for a term which may extend to five years or such less punishment as mentioned in the Army Act. The petitioner has been found guilty under Section 59 for committing civil offence punishable under Section 7(b) of Anti-Terrorism Act, 1997 read with Section 109 of Pakistan Penal Code and for possessing arms and ammunition without license punishable under Section 13 read with Section 9 of Arms Ordinance, 1965 and was sentenced by Field General Court Martial to 17 years. Section 7(b) of Anti-Terrorism Act as it is at present, provides imprisonment of either description, on conviction, for a term not less than 10 years but may extend to imprisonment for life and fine, however, this amendment was brought in Section 7(b) vide Act-II of 2005 by substituting "five years" and "fourteen years" respectively whereas punishment provided under Section 13-E Arms Ordinance is up to- seven years or fine or with both. It is well settled that an accused person is liable to conviction provided for offence at the time of commission of that offence and if any amendment is brought in statute enhancing the sentence afterwards the accused could not be legally convicted for such enhanced sentence and any such order would be totally without jurisdiction. In the instant case appellant has been charged for abetting in planting bomb near Barkhan Telephone Exchange and according to charge the day of occurrence was 7th February, 2005 whereas amendment was brought in Section 7(b) of Anti-Terrorism Act vide Act-II of 2005 promulgated on 11th January, 2005 prior to commission of offence, as such; he was rightly charged and convicted under Section 59-(a) of Army Act, 1952 as under Rule-54 of Pakistan Army Act Rules the Court constituted under Army Act shall award one sentence in respect of all the offences of which the accused is found guilty, therefore, the sentence provided under Arms Ordinance, 1965 would not bring the case of petitioner under sub-clause (b) of Section 59 as punishment provided for committing offence under Section 7(b) is up to imprisonment for life.
As regards not awarding benefit of Section 382-B Cr.P.C, suffice to observe that under Section 135 of the Army Act, 1952 the sentence is to commence on the date on which original proceedings were signed by President, therefore, in presence of such special provisions in the Army Act, 1952, in our considered view, Section 382-B Cr.P.C. is not legally applicable to the sentences awarded under the Army Act, 1952. In this regard we are fortified by judgment reported in NLR 1983 Criminal Law Journal 483 wherein it was observed as under:
"It is, per se, doubtful if the provisions of Section 382-B of the Criminal Procedure Code would be applicable to cases decided under the Army Act as distinct from cases decided under the Code of Criminal Procedure. The Army Act devises a separate and independent scheme in relation to trials for punishment of crimes and sentences. In our view, this provision is not attracted."
We also find no substance in the contention of learned counsel that Section 7-B of the Anti-Terrorism Act, 1997 is no more on the statute book and conviction of petitioner under said section was illegal because petitioner has not been convicted under Section 7-B but under sub-clause (b) of Section 7 of Anti-Terrorism Act.
As regard defect in charge, it may be observed that we have gone through the charge wherein not only date on which occurrence took place but also brief substance constituting offences have also been stated, as such; the objection is over ruled.
Similarly we find no substance in the contention of learned counsel that petitioner was un-represented during trial as there is nothing on record, which could suggest that petitioner intended to engage a counsel of his choice but he was declined such opportunity. Even in memo. of petition no such objection has been raised.
Learned counsel also objected upon trial of case in light of Section 92 of the Army Act, 1952 but after having gone through provisions of said section we are of the view that the said section is not applicable to the instant case as at the time of trial petitioner was subject to the Army Act, 1952 and have not ceased to be subject to the Act.
Adverting to last limb of arguments of learned counsel with regard to admissibility of confessional statement we are afraid that while exercising constitutional jurisdiction we cannot go into such question being finding of facts arrived at by General Field Court Martial competent to decide such facts as no malafide has been alleged against members of General Field Court Martial nor any jurisdictional defect have been found in such findings.
The case laws referred to by learned counsel are distinguishable as most of judgments pertain to cases tried under ordinary law or by Courts constituted under Martial Law Orders.
For the foregoing reasons, we find no merits in the instant petition which is dismissed accordingly.
(M.S.A.) Petition dismissed.
PLJ 2010 Quetta 25 (DB)
Present: Qazi Faez Isa, CJ and Syeda Tahira Safdar, J.
NOROZ KHAN--Petitioner
versus
SELECTION COMMITTEE through its Chairman Balochistan Public Service Commission Quetta and 3 others--Respondents
C.P No. 86 of 2009, decided on 24.12.2009.
Education Institutional--
----Bolan Medical College Prospectus 2008-09--Para 32--Petitioner applied for admission to MBBS Programme against reserved seats--Question of entitlement--Petitioner admittedly had two local certificates of two different districts--One local certificate having not been got cancelled within stipulated two years period as per requirement of Paragraph 32 of the College Prospectus, he was not entitled to get admission in Bolan Medical College even if he had more marks than the respondents--Petition was dismissed.
[Pp. 28 & 29] A
Mr. Muhammad Aslam Chishti, Advocate for petitioner.
Mr. Ghulam Mustafa Buzdar, Advocate for Respondent No. 3.
Mr. Rauf Atta, Advocate for Respondent No 4.
Mr. Nasrullah Achakzai, Additional Advocate General for State.
Date of hearing: 17.11.2009.
Judgment
Qazi Faez Isa, C.J.--The petitioner applied for admission to Bolan Medical College Quetta ("College") against one of the four reserved seats for District Gwadar to the MBBS Programme in August, 2008 for the Academic Session 2008-09. The petitioner stood at S.No. 4 as per the result of the Pre-Entry Test. The petitioner however was not given admission on the reserved seat and as to Respondent No. 3 Miss Raeesa Aziz, who on the pre-entry test having obtained 43.640 marks against 43.843 marks of the petitioner instead obtained admission. The College came to the conclusion that the petitioner was not entitled to get admission on the reserved seat in terms of paragraph 32 of the College Prospectus 2008-2009, ("Prospectus"). Paragraph 32 of the Prospectus reads as under:
"A candidate or his/her father/ mother/guardian as the case may be found in possession of two or more local/domicile certificates issued by competent authority of different Districts/Agencies in the time of applying for admission, shall not be considered for admission against the seats of any District/Agencies for which he or she has applied. Such cases can be considered as a special case only if he or she or the parents/guardian inform the committee at the time of admission and that too have got cancellation of their certificates at least two years before applying for admission in Bolan Medical College, Quetta, if such cases not mentioned at the time of admission will be de-seated without any notice and will not be eligible for admission in future for at least three coming years. And he or she has no right to appeal in any Court of law."
"The Selection Committee went through the report of EDO Revenue Gwadur dated 15.12.2008 Mr. Noroz Khan S/O Abdullah of District Gwadur [Gwadar) at S.#04 on merit list is holding in two locals at one time i.e. Local of Gwadur as well as Local of Kech, therefore under Clause 32 of the College Prospectus 2008-09 his candidature stand rejected against reserved seat of District Gwadur and the next eligible candidate be admitted in Bolan Medical College, Quetta during the academic session 2008-09."
"The Principal, BMC placed before the Selection Committee the case of Noroz Khan S/o Abdullah resident of District Gwadar on the direction of Hon'ble Chief Minister as envisaged in his letter No. PS-CM/1-1/2008/1781 dated 22/01/2009. The case was discussed by the Selection Committee and all the Members were of the unanimous view that the previous decision of the Selection Committee stands correct and rejected Mr. Noroz Khan S/o Abdullah candidature for admission according to Para No. 32 of the Prospectus 2008-2009."
"(i) declare that decision of Selection Committee rejecting candidature of petitioner (originally as well as on reference from the Chief Minister) is illegal and without lawful authority
(ii) declare that Para 32 of the Prospectus is unreasonable and liable to be quashed;
(iii) As a consequence of the above declarations, admission of 3rd respondent in place of petitioner was unlawful"
Mr. Muhammad Aslam Chishti, learned counsel for petitioner however did not address any arguments on the alleged un-reasonability of paragraph 32 of the Prospectus. He simply maintained that paragraph 32 does not come in the way of the petitioner. In this regard learned counsel stated that whilst admittedly the petitioner held Local Certificate of District Kech but on his request the same was cancelled on 29.8.2007 and on the day the petitioner submitted his application he held only one Local Certificate that of District Gwadar.
On the other hand Mr. Ghulam Mustafa Buzdar, learned counsel for the private respondent Miss Raeesa Aziz opposed the petition on the following grounds:--
(i) the application, submitted by the petitioner to the Executive District Officer (Revenue) District Kech for cancellation of the petitioner's Local Certificate, stated that the petitioner intended to move to District Gwadar;
(ii) that the petition was based on mala fides as Local Certificate was obtained simply for obtaining admission;
(iii) petitioner concealed the facts that he held two Local Certificates and even if the Local Certificate in respect of District Kech was cancelled on 28.9.2007 the petitioner was required to disclose the same in terms of paragraph 32 of the Prospectus;
(iv) the second sentence of paragraph 32 of the Prospectus created an exception, but the same was not attracted to the case of petitioner since the cancellation of Districts Kech Certificate was required to have been cancelled at least two years prior to applying for admission;
(v) paragraph 32 of the prospectus provided for penal consequences if disclosure was not made and as such the provisions thereof were mandatory; and
(vi) the Chief Minister had no authority to require the Selection Committee to reconsider its earlier decision.
"Object of reserved seats for various districts in professional college appears to give legal protection to the students of backward area in order to bring them at par with the developed area of the country. This departure from merits has a Constitutional protection in case of educational institutions financed by the Government. So, this object would certainly be defeated if the students who are not permanent/genuine residents of the districts, manage the certificates and get admission."
Mr. Nasrullah Achakzai, learned Additional Advocate General, supported and adopted the arguments of Mr. Ghulam Mustafa Buzdar, learned counsel for Respondent No. 3.
Admittedly in August, 2008, when the petitioner applied to the College for admission, he as per his own showing had held a local certificate of
District Kech. The local certificate of District was got cancelled on 29.8.2007, whilst the local certificate of District Gwadar annexed with the petition is dated 17.2.2007. Accordingly, it is clear that the petitioner held two local certificates of two different districts for the period 17.2.2007 till 29.8.2007. Even if the petitioner had got one certificate cancelled it would not entitle him to apply on the reserved seats of a particular district, since the requirement of the College in this regard was three fold; Firstly the local certificate of one district should have been cancelled, "at least two years before applying", secondly, the petitioner was required to so "inform the
Committee at the time of admission" and, thirdly, the exercise of the discretion by the committee was by way of special case' and not as of right. Therefore, since the stipulated two years had not expired and the
Committee had not been informed about, the petitioner holding two certificate, the exception by way ofspecial case' provided in paragraph 32 of the
Prospectus was not attracted. The Selection Committee in rejecting the candidature of the petitioner on the reserved seat of district Gwadar, therefore, committed no illegality. Accordingly, the instant petition is dismissed, but with no order as to cost.
(A.A.) Petition dismissed.
PLJ 2010 Quetta 29
Present: Jamal Khan Mandokhail & Ghulam Mustafa Mengal, JJ.
LIAQUAT ALI--Appellant
versus
SABRULLAH and 4 others--Respondents
Crl. Acq. A. No. 363 of 2008, decided on 1.2.2010.
Scene of Crime--
----Presence of--Mere presence of accused/respondents at the spot does not constitute any offence, particularly when no recovery of crime weapon has been effected from the possession of the accused, nor the version of complainant was supported by any other sort of independent evidence. [P. 31] A
Acquittal--
----Appeal against--Appreciation of evidence--Acquittal always carries double presumptions of innocence in favour of the accused--Interference in judgment of acquittal done only when same is perverse, ridiculous and shocking or the trial Court had not taken into consideration any material evidence having direct bearing on the case. Appeal dismissed. [P. 32] B
Mr. Mehmood Sadiq Khokhar, Advocate for Appellant.
Date of hearing: 23.12.2009.
Judgment
Jamal Khan Mandokhail, J.--This Criminal Acquittal Appeal is directed against judgement dated 24-11-2008 passed by Additional Sessions Judge-IV, Quetta, whereby accused/respondents were acquitted of the charge.
It was alleged by complainant that on 27-12-2006 at about 7.00 p.m., he was going from Bazaar towards his house situated at Killi Mehnat, in the way Abdul Rahim informed him that Muhammad Islam was injured by accused persons Abdul Rehman, Munir Ahmed, Muhammad Anwar, Shakirullah, Sabrullah, Rehmatullah, Muhammad Hanif and Idrees by means of firing with Kalashnikov. He, along with Abdul Rahim, rushed to the place of occurrence, where he found Muhammad Islam lying in pool of blood, who was shifted to Hospital, but he succumbed to the injuries .
After investigation, challan was prepared and initially sent to the Court of Sessions Judge, Kharan, wherefrom it was transferred to the Court of Additional Sessions Judge-IV, Quetta by the order of this Court. After framing charge and examining the prosecution witnesses, the trial Court acquitted the respondents, hence this appeal.
We have heard Mr. Mehmood Sadiq-Khokhar, learned counsel for appellant and have gone through record annexed with appeal as well as impugned judgement.
Bare perusal of the record is indicative of the fact that complainant Liaquat Ali (PW-1) is not an eye-witness of the incident and, admittedly, he was informed by PW-6 Abdul Rahim about the incident, who in his Court-statement has not given any specific role of firing by the accused/respondents and has deposed that absconding accused Muhammad Anwar, who was having Kalashnikov in his hand, made firing upon the deceased.
Similarly, PW-2 Jaffar and PW-8 Niamatullah, who alleged to have witnessed the incident, have deposed nothing material against accused/respondents and have stated that due to firing of absconding accused Muhammad Anwar by means of Kalashnikov, Muhammad Islam sustained injuries and later on expired.
PW-5 Abdul Rashid has only deposed that on 27-12-2006 at Washuk Bazaar, deceased had sustained bullet injury and in his presence, Investigating Officer examined the injured, collected one empty shell of Kalashnikov from the place of occurrence and in hospital, the dead body of deceased was handed over to complainant. PW-7 Mushtaq Ahmed, Naib Tehsildar, is Investigating Officer and has deposed to the extent of investigation carried out by him.
From overall assessment of the prosecution evidence, no incriminating material has come on record, which could connect accused/respondents with the commission of crime, because none of the eye-witnesses have assigned any specific role of firing by the respondents upon the deceased and the entire prosecution evidence is surrounding against absconding accused. If presence of respondents is believed, even then mere presence of accused/respondents at the spot does not constitute any offence, particularly when no recovery of crime weapon was effected from the possession of accused/respondents, nor the version of complainant has been supported by any other sort of independent evidence.
The prosecution has failed to collect any material during course of investigation against accused/respondents, showing their common object in the commission of crime, nor has proved any of the respondents to be members of an unlawful assembly.
Furthermore, record shows that the complainant has not approached the Court with clean hands, as he as well as other eye-witnesses mustered the courage of implicating nine persons for a single casualty, therefore, in such circumstances, false implication of the accused/ respondents cannot be rule out. In this regard, we may place reliance on the judgement-reported in 2001 SCMR 25(b), relevant portion thereof is reproduced herein below:
"In the face of medico-legal opinion evidence of witnesses is hardly capable of reconciliation and casts serious doubts as to the truth of the version of the eye-witnesses who had implicated as many as five persons in the occurrence of whom three were acquitted by the trial Court for want of any evidence against them. Learned counsel for the respondent attempt to argue that in the event of any discrepancy ocular version ought to be preferred but we cannot lose sight of the fact that the prosecution did not approach the Court with clean hands as the complainant as well as the witnesses mustered the courage of implicating as many as five persons for a single casualty. This aspect of the case strongly militates against the bona fides of the prosecution version. It is ironical to notice that with the deteriorating of values and standards in society, there has been a growing tendency to rope as many as members of the family of an accused as possible. This practice often leads to the acquittal of the real culprit as well in view of exaggeration and concoction of the prosecution case, which must be deprecated."
Above all, acquittal always carries double presumptions of innocence in favour of accused and the principle of appreciation of evidence in appeal against acquittal is altogether different from that of conviction and the Courts are always reluctant to interfere in the judgement of acquittal, unless and until it is shown that the same is perverse, ridiculous and shocking or the trial Court had not taken into consideration any material evidence having direct bearing on the case. Merely, because after re-appraising of evidence another view is also possible from the evidence on record is not sufficient to disturb the findings of acquittal arrived at by the trial Court, provided both the conclusions are equally possible and probable. In present case, counsel for appellant has failed to point out any illegality, irregularity, misreading or non-reading of evidence in the impugned judgement, warranting us to interfere.
Thus, after having gone through the evidence and above settled principle of law, we are not inclined to interfere in the impugned acquittal order, as such, appeal, being devoid of any merit, is dismissed in limine.
These are the reasons of our short order dated 23-12-2009 announced in the open Court.
(A.A.) Appeal dismissed.
PLJ 2010 Quetta 32 (DB)
Present: Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ.
SARDAR AKHTAR JAN MENGAL--Petitioner
versus
GOVERNMENT OF PAKISTAN SECRETARY MINISTRY OF INTERIOR ISLAMABAD and another--Respondents
C.P. No. 282 of 2006, decided on 24.12.2009.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Arms Ordinance, 1965, S. 12(i)(a)--Cancellation of arms license--Challenge to--Procedure for cancellation of an arms license--A license holder must be given an opportunity of showing cause against proposed cancellation--Where no such opportunity was provided, the order would not be sustainable by law--Petition accepted. [P. 35] A
Mr. Muhammad Wassay Tareen, Advocate for petitioner.
Ch. Mumtaz Yousaf, Standing Council and Mr. Naseer Ahmed Bangulzai, Asstt. A.G. for Respondents.
Date of hearing: 14.12.2009.
Judgment
Jamal Khan Mandokhail, J.--This petition has been presented against the order dated 05-04-2006 passed by Joint Secretary, Government of Pakistan, Ministry of Interior, which is reproduced as under :--
"It has been reported that Sardar Akhtar Mangil is guilty of abduction of persons belonging to law enforceing agency, manhandling and illegal confinement at his residence House No. 29/3, Khayaban-e-Shamshir, St. No. 31-, Phase-V, Defence Housing Authority, Karachi.
In view of above order, arms licenses issued to petitioner by Federal as well as provincial Governments were cancelled. Copies of the orders were circulated to respective Provincial Home Secretaries, on the basis of said order, Government of Balochistan, Home and Tribal Affairs (Arms Section), through its Secretary, has ordered cancellation of arms licenses granted to the petitioner vide order dated 05-04-2006, hence this petition.
The Federal and Provincial Governments have filed their para-wise comments, raising legal objection regarding maintainability of petition. On merits, it is mainly contended that arms licenses of petitioner were cancelled for the reasons that he is involved and nominated in the criminal cases.
Learned counsel for petitioner has submitted that the orders in question are illegal and unlawful, as the petitioner has been condemned unheard. Similarly, no reasons for cancellation of the licenses have been mentioned and above all, the orders in question are without jurisdiction.
On the other hand, Learned Standing Counsel, as well as, Assistant Advocate-General have strongly opposed the contention of petitioner's counsel and raised objection that the petition is not maintainable. They further contended that due to criminal activities, arms licenses of petitioner were cancelled.
We have considered the arguments of both the learned parties' counsels and have gone through the record of the case. It reveals that the licenses have been granted to the petitioner by a competent authority, therefore, right has been created in his favour. The impugned orders are general in nature, which simply says that all the licenses issued to petitioner by the Federal Government and Provinces are cancelled on the basis of gross violation of law. It is important to mention here that the order has been passed by Joint Secretary, Ministry of Interior, Government of Pakistan, but it has not been mentioned that he was also issuing authority or just subordinate to the issuing authority of the licenses.
It is settled principle of law that armed licenses can be cancelled or suspended under Section 12 of the West Pakistan Arms Ordinance 1965, which is reproduced as under:--
"12. Cancellation and suspension of licences.----(1) Any licence may be cancelled or suspended:--
(a) By the officer by whom the same was granted or by any authority to which he may be subordinate, or any District Co-ordination Officer within the local limits of whose jurisdiction the holder of such licence may be, when, for reasons to be recorded in writing, and after giving the holder of the licence an opportunity of showing cause against the proposed cancellation or suspension, such officer, or authority deems it necessary for the security of the public peace to cancel or suspend such licence; or
(b) Be any Judge or Magistrate before whom the holder of such licence is convicted of an offence against this Ordinance or against the rules and Government may, by a notification in the official Gazette, cancel or suspend all or any licences throughout the province or any part thereof.
(2) Any appeal against an order of cancellation or suspension under clause (a) of subsection (1) may be made by the person whose licence has been cancelled or suspended to the immediate official superior to the authority making the order, within sixty days of the receipt by him of a copy of the order, where appeal lies to Government, and where appeal lies to any other authority, within thirty days of the receipt by him of a copy of the order."
The above provision of law clearly stipulates and specifies the authority that who could cancel or suspend the licenses. The orders impugned do not show, as to whether, the person, who is canceling the licenses, had the authority to do so. During the arguments/when the learned Standing Counsel was asked as to show the authority of the person concerned, he had failed to satisfy the Court or show his authority. Thus, in such view of the matter, it is proved that the licenses of petitioner have been cancelled by a person having no authority to do so under the law, therefore, the orders impugned are without jurisdiction.
Apart from above, it is also note-worthy that the impugned order passed by the Joint Secretary does not specify the description of particular license issued by Federal Government, however, on his direction, all the licenses of petitioner, which were issued by Provincial Government, were cancelled. Again, question arises, as to whether, he had the authority to interfere in the jurisdiction of provincial authority, who has lawfully granted arms licenses to the petitioner. Admittedly, he has no jurisdiction to cancel the licenses issued by the competent authority of the Provincial Government. It is strangely to note here that the provincial government without consulting the relevant provision of law has blindly followed the directions of Joint Secretary of Federal Government and has followed the order by canceling the arms licenses issued to the petitioner.
After going through the impugned order dated 05-04-2006, passed by the Secretary, Home and Tribal Affairs Department, Government of Balochistan, it reveals that his intention was never to cancel the licenses in question, however, they have been forced by the Federal Government to do so, as such, the said order is also void and has no force at all.
Without prejudice to the above, even otherwise, procedure provided under Section 12 of the Ordinance is that holder of arms license, which was validly issued to him, should be given prior show-cause notice for cancellation of the same.
Keeping in view the provision of law, order for cancellation of arms licenses can be passed under Section 12(i)(a) of West Pakistan Arms Ordinance, 1965, only after a license-holder was given an opportunity of showing cause against proposed cancellation. Since no notice has been issued to the petitioner, nor any opportunity for hearing was provided to him while canceling his arms licenses, therefore, the order in such a situation is not sustainable in the eyes of law.
Furthermore, the orders impugned are vague and ambiguous in nature as neither any description of single license has been mentioned therein, nor any cogent reason has been assigned. However, it has been mentioned in the order that the petitioner is guilty of abduction of persons belonging to law enforcing agencies, manhandling and illegal confinement at his residence. The respondents have failed to give any detail in respect of any FIR registered against him in respect of any alleged act. On the other hand, learned counsel for petitioner has submitted that neither any such case is pending against the petitioner, nor he has been convicted in any case. The contention of learned counsel for petitioner has not been controverted by respondents and they have no answers to the queries in this behalf. Instant petition is pending since May 2006 and the respondents have filed their para-wise comments, but not a single document has been annexed with their reply, similarly, till today, no copy of FIR has been placed on record in proof of their claim, hence, it is held that the allegation in the impugned order is not only vague, but is baseless, as well.
As far as contention of learned counsel for respondents is concerned that appeal lies against cancellation of arms licenses, the same has no force at all, because had the competent authority passed order for cancellation of licenses, then, Keeping in view the provisions of Section 12 of the Ordinance, off course, appeal has been provided, but if the order is not only without jurisdiction, but also is of no lawful authority, then writ is quite competent. In present case, as discussed above that the orders impugned of Federal, as well as, Provincial Government are without jurisdiction and void, therefore, present writ petition is competent.
Reliance has been placed on judgements reported in 1970 PCr.LJ 647, PLD 1981 Lahore 386, 2001 MLD 94.
(A.A.) Petition accepted.
PLJ 2010 Quetta 37
Present: Ghulam Mustafa Mengal, J.
GUL WALI--Appellant
versus
WIDOW OF SHAIKH GHULAM NABI and 6 others--Respondents
F.A.O. No. 66 of 2009, decided on 27.10.2009.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Eviction application--Non-payment of rent--It is not mandatory for the rent controller to direct the tenant to deposit the rent on the first date of hearing on before framing of issues--If the rent controller omits or fails to pass an order for deposit of rent on the first date of hearing or as soon as possible after framing issues, it could not mean that the rent controller will be debarred from passing any order for deposit of rent. [P. 41] A
1973 SCMR 131 ref.
M/s. Muhammad Wassay Tareen & Abdul Khair Achakzai, Advocates for Appellant.
Mr. Abdur Rasheed Awan, Advocate for Respondents.
Date of hearing: 16.10.2009.
Judgment
The appellant preferred this appeal assailing the impugned order dated 31.7.2009 passed by the learned Rent Controller-cum-Civil Judge-IV, Quetta in Case No. 21/2008 praying therein for setting aside the same and dismissal of eviction application filed by respondents.
Facts leading to the present appeal, in brief, are that the respondents filed an eviction application under Section 13 of the Rent Restriction Ordinance VI of 1959 against the appellant in the Court of learned Civil Judge-IV-cum-Rent Controller Quetta stating therein that the applicants-respondents' father was owner of the shop bearing Municipal No. 8-23/39 situated in Liaquat Bazar Quetta, who died in the year 1998. After his death, the applicants-respondents inherited the shop in question. The shop was rented out to the appellant by the uncle of respondents at the monthly rental of Rs.18,000/-, vide written agreement dated 19.5.2002. The rent of the shop was being received by the uncle of respondents till April, 2008. In the month of June, 2008, the respondents came to know that their uncle namely Sheikh Muhammad Amin succeeded in getting an ex-parte decree in his favour by means of mis-representation and fraud from the Court of Senior Civil Judge-II, Quetta and transferred the property in question in his name. After having come to know about the said ex-parte decree, the respondents through their attorney approached the said Court for setting aside the ex-parte decree, which was accepted, vide order dated 29.9.2008 and the Revenue authorities reversed the mutation entries in the name of predecessor of respondents. The respondents also served a notice under Section 13-A of the Rent Restriction Ordinance, 1959 on 11.10.2008 through their counsel requesting him to enter into tenancy agreement with the attorney of the respondents, but the appellant refused to do so, resultantly, the respondents filed an eviction application against the appellant in the Court of Civil Judge-cum-Rent Controller, Quetta on the ground of non-payment of the rent of shop in question with effect from October, 2008. After receipt of notice, the appellant filed his written statement and raised certain legal objections and denied the relationship of tenancy. After framing of issues the respondents produced their witnesses and got recorded the statement of their attorney, meanwhile on 10.2.2009, the respondents moved an application under Section 13(6) of the Ordinance, after filing of rejoinder the learned Civil Judge-cum-Rent Controller directed the appellant to deposit the rent at the rate of Rs.21,500/- per month from the date of filing of eviction application till decision of the eviction application before 15th of each succeeding month. Against the said order, the appellant filed an appeal bearing FAO No. 42/2009 before this Court; after hearing the parties, the appeal was dismissed vide judgment dated 29.6.2009 in limine.
I have heard Mr. Muhammad Wassay Tareen, Advocate for appellant and Mr. Abdur Rasheed Awan, Advocate for respondents.
Mr. Muhammad Wassay Tareen, Advocate mainly contended that under Section 13(6) of Urban Rent Restriction Ordinance, there are two stages for passing of order under Section 13(6). First is on the first date of hearing and second is before framing of issues, which is mandatory in the law. He further contended that since the relationship of landlord and tenant between the parties is disputed, as such, the order under Section 13(6) of the Rent Restriction Ordinance is totally illegal. He has further contended that the trial Court has acted contrary to the judgments passed in cases of Kausar Butt v. Lt. Col. Syed Iftikhar Ahmed (PLD 1991 Karachi 417) and Malik Abdul Rashid v. Muhammad Gulfam (1984 CLC 2835), Muhammad Daud v. Mst Surriya Iqbal and 3 others (2001 CLC 1819) and Mst. Razia Begum and others v. Senior Civil Judge (Rent Controller) Charsada and 2 others (PLD 1996 Peshawar 08), wherein; it was held by the Division Bench that proceedings before Rent Controller in circumstances were coram-non-judice, ultra vires and without lawful authority because no legal justification existed for Rent Controller to have ordered for deposit of rent before assuming jurisdiction and deciding issue with regard to relationship of landlord and tenant between the parties in absence of evidence. He further submitted that the appellant is making payment of Rs.21,500/- to Sheikh Amin, uncle of the respondent and that case is still pending before the Civil Court.
While on the other hand, the learned counsel for Respondents No. 1 to 7 Mr. Abdur Rasheed Awan, Advocate vehemently opposed the arguments of the learned counsel for the appellant. He contended that the appeal filed by the appellant without payment of Court fee is not maintainable. He further argued that the appellant is admittedly tenant in the shop and the Rent Collector after considering the pleadings of the parties and the other documents has rightly directed the appellant to deposit the rent of Rs.21,500/- per month from the date of filing of the eviction application onward before 15th of every succeeding month and no illegality has been committed by the Rent Controller. The learned counsel also drew my attention towards the following documents which are part and parcel of paper-book:--
(1) Statement of AW-2, representative of Senior Civil Judge-II, Quetta, who produced the copy of order dated 29.9.2008, page 63;
(2) Order dated 29.9.2008 passed by Court of Senior Civil Judge-II, Quetta in application No. 2/2008 in the case titled Sheikh Muhammad Amin v. Widow of Sheikh Ghulam Nabi and others, page 65;
(3) Statement of AW-1 recorded in the case, Widow of Ghulam Nabi v. Gul Wali, page 49;
(4) Order dated 06.11.2008 passed in Civil Revision Petition No. 9/2008 in case title, Sheikh Muhammad Amin v. Widow of Sheikh Ghulam Nabi & others, page 51;
(5) Order dated 12.12.2008 passed in C.P. No. 607/2008, page 177;
(6) Mutation No. 53, whereby the disputed shop has been mutated in the name of Sheikh Ghulam Nabi on 14.11.1993, page 75;
(7) Notice under Section 13-A of Urban Rent Restriction Ordinance dated 11.10.2008 issued by the counsel of respondents, page 103;
(8) Application filed by the appellant through counsel seeking 10 days time for challenging the order dated 29.6.2009 passed by High Court, page 151;
Lastly, the counsel for respondents while concluding his arguments, relied on the case of Mst. Mahmooda Begum v. Mst. Mahmooda Jan (1973 SCMR 131).
I have heard the arguments of the learned counsel for the parties, perused the record of the case with their assistance. Perusal of the record of the case indicates that after filing of the written statement and framing of issues on 4.3.2009, the learned Rent Controller directed the appellant to deposit the rent of the shop in the Court with effect from October, 2008 at the rate of Rs. 21,500/- per month before 15th of each succeeding month till final disposal of the eviction application, but he failed to comply with the order dated 04.3.2009 till passing the order dated 31.7.2009. The trial Court had left no option but to strike off the defence of the respondents. Resultantly the trial Court allowed the eviction application filed by the respondents vide order dated 31.7.2009 and has been proceeded to striking off the defence of the respondents and the appellant was directed to vacate the disputed shop bearing Municipal No. 8-23/39, situated at Liaquat Bazar, Quetta and to hand over the vacant possession of the same to the respondents.
In the instant case, the tenancy is not disputed and the documents referred by the learned counsel of the respondents, it is proved that the respondents are the landlords and learned Rent Controller has not committed any illegality by passing the order dated 04.3.2009, it was obligatory upon the appellant to comply with the order of the trial Court and if in case of decision of issue in respect of non-existing of relationship of landlord and tenant between the parties, the rent deposited in the Court will automatically be refunded to the appellant. It is pertinent to reproduce Section 13(6) of the Rent Restriction Ordinance, as under:
"13(6) In proceeding under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent dues from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine, such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case."
"In interpreting these provisions one has to keep in mind the fact that the liability of the tenant to pay rent cannot disappear simply because issues have been framed by the Rent Controller in violation of the statutory provisions. We consider, therefore, that the learned Rent Controller was right in making the necessary order under sub-section (6) of Section 13 of the Ordinance, once it was brought to his notice that his predecessor had not passed the prescribed order on the first date of hearing or, at any rate, before the framing of issues. No question of lack of jurisdiction arose in these circumstances".
(M.S.A.) Appeal dismissed.
PLJ 2010 Quetta 42 (DB)
Present: Jamal Khan Mandokhel and Muhammad Noor Meskanzai, JJ.
Haji MUHAMMAD AFZAL and others--Petitioners
versus
THE SECRETARY FOREST DEPARTMENT and others--Respondents
C.P. Nos. 366 of 1997, 776 of 2000 and 313 of 2006, decided on 7.12.2009.
Forest Act, 1927 (XVI of 1927)--
----S. 39--Central laws (Statute Reform) Ordinance, (XXI of 1960)--Constitutional petitions--Challenge the levy/charge of tax on the imported timber by the forest department--Question, whether the Forest Act, 1927 has been extended to Balochistan and the provincial Government is empowered to collect taxes/duties upon imported timber--Held: In view of the amendments in Central laws (Statute Reform) Ordinance XXI, 1960, Forest Act, 1927 has been extended to the whole of Pakistan, meaning thereby that the act is applicable in province of Balochistan as well. [P. 45] A
Forest Act, 1927 (XVI of 1927)--
----S. 39--According to Section 39 of the Forest Act, 1927, Provincial Government may levy a duty in a manner as it may declare by notification in the Official Gazette on all timbers or forest produce--It is the provincial Government, who can collect taxes and duties on the imported timber, therefore, the forest department, Government of Balochistan has acted strictly in accordance with law and no illegality has been committed while collecting taxes from the petitioners--Petitions were dismissed. [P. 46] B
M/s. Syed Ayaz Zahoor & Obaidullah Qureshi, Advocates for Petitioner (in C.P. 366/1997).
M/s. Rauf Atta, Standing Counsel and Naseer Ahmed Bangulzai, Asstt: A.G. a/w Haji Muhammad Azam, Law Officer Customs (in C.P. 366/1997).
M/s. Syed Ayaz Zahoor & Obaidullah Quresh, Advocates for Petitioner (in C.P. No. 776/2000).
M/s. Rauf Atta, Standing Counsel and Naseer Ahmed Bangulzai, Asstt: A.G. a/w Haji Muhammad Azam, Law Officer Customs (in C.P. 776/2000).
M/s. Syed Ayaz Zahoor & Obaidullah Quresh, Advocates for Petitioner (in C.P. No. 313/2006).
M/s. Rauf Atta, Standing Counsel and Naseer Ahmed Bangulzai, Asstt: A.G. a/w Haji Muhammad Azam, Law Officer Customs (in C.P. No. 313/2006).
Date of hearing: 21.10.2009.
Judgment
Jamal Khan Mandokhel, J.--These identical petitions have been filed to challenge the levy/charge of tax on the imported Timber by the Forest department, Government of Balochistan.
2-A. Previously a judgement was passed by this Court on 06.03.1998, whereby C.P. No. 3 66 of 1997 was accepted as prayed for. The Government of Balochistan, feeling aggrieved, has preferred a civil petition for leave to appeal before the Hon'ble Supreme Court of Pakistan, in which leave was granted in the following terms:
"6.
Having considered all aspects of the case we feel that questions raised, whether any prior permission from Forest authorities under provisions of Balochistan Forest Regulation 1890 and Pakistan Forest Act, 1927 are required for movement of timber being forest produce' through Balochistan Province even if same has been lawfully imported and whether territorial limits with regard to actual placement of loading has no relevancy and shall be subservient to consequence for the movement offorest produce' as contemplated by the Balochistan
Forest Regulation (supra) require consideration. Leave is accordingly granted to consider, inter alia, above aspects."
The Hon'ble Supreme Court of Pakistan, after hearing the appeal, has accepted the same and remanded the case back to this Court, with the directions to examine both aspects, on which leave to appeal was granted. In the said judgement, directions in respect of payment of taxes have also been made.
After remand of the case, learned counsel for petitioners have submitted that under Article 163 of the Constitution, no one should be taxed twicely. According to them, they have already paid taxes to the Federal Government through Customs Department, therefore, the Government of Balochistan through Forest Department has no authority to charge taxes. They have also stressed upon the legal proposition that the Forest Act, 1927 (the Act) has not been adopted by the Provincial Government. They further stated that the Balochistan Government has promulgated the Balochistan Forest Produce Transit Rules, 1998, therefore, the imposition of duty in terms of the Rule could also not be made applicable retrospectively.
On the other hand, learned counsel for State, have submitted that the Forest Department is empowered to collect taxes on an imported Timber to Pakistan under Section 39 of the Act. Their action is absolutely in accordance with law and is not in contravention of any provisions of the Constitution.
We have heard learned counsel for the parties and have perused the record. In our view, the main question for consideration is as to whether the Forest Act, 1927 has been extended to Balochistan and the Provincial Government is empowered to collect taxes/duties upon imported Timber.
It is important to mention here that on 9th June, 1960, an Ordinance, namely, Central Laws (Statute Reform) Ordinance XXI, 1960 (the Ordinance) was promulgated; relevant provisions of the Ordinance are reproduced herein below:
"Whereas the incorporation of certain former Provinces, Acceding States and Tribal Areas into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955, has rendered it expedient that certain changes should be made in the laws and that certain laws should be extended to parts of the new Province to which they had no extended before;
and whereas such extension has been agreed upon in consultation with the Provincial Government of West Pakistan and the other authorities concerned;
and whereas it is expedient to remove from the Statue-book certain Acts and Ordinance which have become absolute or have discharged their function.
Now, therefore, in pursuance of the Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:--
Short title.--this Ordinance may be called the Central Laws (Statute Reform) Ordinance, 1960
Repeal of certain Central Acts and Ordinances.--The Central Acts and Ordinance specified in the First Schedule are hereby repealed, and shall be deemed to have been so repealed on the fourteenth day of October, 1955.
3. Amendments to effect adaptation of Central Acts and Ordinances necessitated by the establishment of West Pakistan.--(1) Save as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October, 1955."
In pursuance of the said Ordinance, in Second Schedule, following amendments in the Forest Act have been brought:
"1. Throughout the Act, for the words "the Provinces and the Capital of the Federation" the word "Pakistan" shall be substituted.
(a) in sub-section (2), the word "Province" shall be omitted; and (b) for sub-section (3) the following shall be substituted, namely:-
"(3) the Provincial Government of West Pakistan may, by notification in the official Gazette, extend this Act to the rest of the Province or any specified part thereof."
In view of above amendments, the Act has been extended to the whole of Pakistan, meaning thereby that the Act is applicable in Province of Balochistan as well. In this behalf Section 39 of the Act is relevant, which is reproduced herein below.--
"39. Power to impose duty on timber and other Forest-produce.--(1) The Provincial Government may levy a duty in such manner, at which places and at such rates as it may declare by notification in the Official Gazette on all timber or other forest-produce --
(a) which is produced in Pakistan, and in respect of which the Government has any right;
(b) which is brought from any place outside Pakistan or is transported from or to any place within Pakistan.
(2) In every case in which such duty is directed to be levied ad valorem, the Provincial Government may fix by like notification the value on which such duty shall be assessed."
The perusal of aforesaid Section clarifies that the Provincial Government may levy a duty in a manner as it may declare by notification in the Official Gazette on all Timbers or Forest produce.
In view of above provision of law, it is proved that it is the Provincial Government, who can collect taxes and duties on the imported timber, therefore, the Forest Department, Government of Balochistan has acted strictly in accordance with law and no illegality has been committed while collecting taxes from the petitioners.
As far as contention of petitioners' counsel that no one should be charged for tax twice is concerned, we are in agreement with the counsel, rather it is the mandate of the Constitution as enumerated under Article 163, whereby double taxation has been prohibited. According to petitioners, they have already paid taxes and duties to the Customs Department, therefore, one of them is acting illegally by collecting taxes. Since the Customs Department is not before us, nor collection of taxes by them has been challenged through instant petitions, therefore, we are not in a position to make any observation to their extent. The Government of Balochistan has prepared a policy through notification, whereby manner of places and rate of taxes and duties on Timber and foreign produce has been explained. The petitioners are bound to obey the directives of Forest Department and the taxes collected by them are just and proper.
As regards the amount already deposited by the petitioners, the Hon'ble Supreme Court of Pakistan in the remand order has held as under:
"Therefore, he agreed for the remand of the case subject to directions to the department (i) to deposit the amount already recovered from the respondent, in a profit yielding scheme of the National Bank of Pakistan with permission to respondent to draw the profit on the same till the decision of the petition by the High Court. In this behalf respondent is ready to furnish an undertaking that whatever the amount of profit shall be received by the respondent shall be returned to the appellant department, if the same is decided against him."
As has been held above that the Forest Department has, the authority to collect taxes, therefore, the petitioners are directed to release the amount as well as profit/interest thereon in favour of Forest Department, Government of Balochistan, which is deposited in the National Bank of Pakistan as per directions of Hon'ble Supreme Court.
In view of what has been stated above, the petitions, being without any substance, are dismissed with no order as to cost.
(M.S.A.) Petitions dismissed.
PLJ 2010 Quetta 47
Present: Mrs. Syeda Tahira Safdar, J.
Haji MULLAH DAD KARIM and others--Petitioners
versus
MIR ASSA GUL & others--Respondents
C.R. No. 321 of 2006, decided on 7.6.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Question of resjudicata--Suit was dismissed being barred u/S. 11, CPC--Appeal was also dismissed--Question of resjudicata was decided by trial Court the same question cannot be taken twice, nor the suit can be dismissed that too without recording of evidence--Validity--Maintainability of suit being hit by S. 11 of CPC was already decided by trial Court while recorded its findings in negative, same Court thereafter has no jurisdiction to again entertain the question and take altogether a different view--Second order of trial Court is not only erroneous, rather illegal being made without jurisdiction--First Appellate Court did not consider that fact that same was specifically agitated before Appellate Court--Both Courts made an error, which is required to be rectified--Petition was accepted. [P. 48] A
Mr. Kamran Arshad Ch., Advocate for Petitioners.
Mr. Tahir Ali Baloch, Advocate for Respondent Nos. 1 to 22.
Mr. Muhammad Aamir Rana, Advocate for Interveness.
Date of hearing: 18.12.2009.
Judgment
The petitioners being aggrieved of order dated 11.3.2006 of Qazi Pasni whereby their suit is dismissed being barred under Section 11 CPC, while appeal filed by them was also dismissed by Majlis-e-Shoora through order dated 11.8.2006 preferred present petition with prayer for setting aside of both the orders while remanding of the case for decision on merits. It is their contention that trial Court once decided the question of Resjudicata through order dated 23.1.2006, but while deciding application under Order I, Rule 10 CPC the question of Resjudicta was again decided and suit was dismissed through order dated 11.3.2006. The appeal filed against said order was also dismissed through order made on 11.8.2006. Both the orders are illegal and void. Once question of Resjudicata is decided by the trial Court the same question cannot be taken twice by the Court, nor the suit can be dismissed that too without recording of evidence.
As per record during pendency of suit an application under Section 11 CPC was filed, which was decided by the trial Court through order made on 23.1.2006 wherein the learned trial Court held that as the applicants have not filed any document from which it can be ascertained that a suit filed previously in respect of property in dispute, in present case, has already been decided, nor any copy of judgment is attached. The application was dismissed being without merits. But thereafter, some other application for impleading parties were filed while deciding the same through order made on 11.3.2006 the trial Court. arrives to the conclusion that during course of arguments none of the parties have denied that in present and previous suits the property in question were the same and that the other suit is pending before Court of Majlis-e-Shoora Turbat, as such two suits in respect of same disputed property are not maintainable. The trial Court while rejecting the plaint directed the petitioners to approach the Court of in previously instituted suit for impleading them as party. Feeling aggrieved of the same they preferred appeal before Majlis-e-Shoora, which was also dismissed through order dated 11.8.2006.
The perusal of record reveals that the point in respect of maintainability of suit being hit by Section 11 CPC was already decided by the trial Court through order dated 23.1.2006 while recorded its findings in negative, therefore, the same Court thereafter has no jurisdiction to again entertain the same question and take altogether a different view. The second order of the trial Court dated 11.3.2006 is not only erroneous, rather illegal being made without jurisdiction. The learned appellate Court did not consider this fact that same was specifically agitated before the appellate Court. Both the Courts made an error, which is required to be rectified.
In the circumstances without going into further merits of the case, the petition is accepted, impugned orders dated 11.3.2006 of Qazi Pasni and dated 11.8.2006 of Majlis-e-Shoora Mekran at Turbat are hereby set aside. The suit stand restored and remanded to the trial Court to conduct proceedings in accordance with law.
No orders as to costs.
(R.A.) Petition accepted.
PLJ 2010 Quetta 49
Present: Mrs. Syeda Tahira Safdar, J.
MUHAMMAD YAQOOB--Petitioner
versus
ABDUL AZIZ--Respondent
C.R. No. 134 of 2006, decided on 10.6.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLVII, R. 1(i)--Application for review of judgment--Suit cannot be decided by Court on basis of inspection conducted by Presiding Officer--Decree was a consent decree--Order was neither appealable, nor revisable or reviewable--Application for review of judgment was allowed, while amendment was made in decree--Trial Court held that petition writer has after cutting word ( ) i.e. public passage, written after word without signing it, which was illegal--Petition writer has committed illegality by making cutting in contents of agreement without counter signing it--Validity--While writing down the boundaries of property in-question it is written that at East Public Lane--No cutting while writing down south ( ) rather on the word ( ) words Road Khana and public lane ( ) were written, on which the pen was drawn across--Copy of sale deed filed by the petitioner also describe same boundaries wherein at South well is written--There is no cutting or over writing on the same--Suit was decreed in favour of petitioner that too with consent of the parties were presentation person also--Respondent cannot take advantage of alleged over writing or cutting present in contents of the sale deed and based his claim for effecting change in boundaries given in agreement, on basis of which the boundaries were mentioned in decree--Held: No public immunity can be transferred in favour of any private party for his personal use--Further held: Petitioner had not claimed any right on any public lane rather he based his claim on the sale deed which was specifically to extent of a house situated within boundaries--No occasion for trial Court to treat the application for review as a suit and thereby collect evidence in respect of the same and change the contents of decree--Trial Court has made serious error while conducting the case in such a manner--Appellate Court also failed to observe the legal position and also relevant provisions of law--Petition was accepted. [P. 52] A, C & D
Review--
----Scope of--Scope of review is a narrow--Nothing new can be agitated while applying for review of the order/decree--No major alteration can be made in the order. [P. 52] B
Mr. Mujeeb Ahmed Hashmi, Advocate for Petitioner.
Mr. Manzar Siddique, Advocate for Respondent.
Date of hearing: 16.4.2010.
Judgment
Through instant petition the petitioner sought for setting aside of impugned orders dated 22.12.2005 made by Qazi Kalat and dated 30.3.2006 made by Majlis-e-Shoora being contrary to law and facts, further suit cannot be decided by the Court on basis of inspection conducted by the Presiding Officer. Further, as the decree was a consent decree, therefore, the order was neither appealable, nor revisable or reviewable; as such the appellate and the trial Courts have made an error.
As per record the suit filed by the petitioner was decreed with consent of the parties through order dated 28.9.2004 by the Qazi Kalat. Thereafter, on 28.10.2004 the respondent filed an application for review of the order dated 28.9.2004, contending therein that as at south of property in question there is a public way, the only passage for general public, thus prayed that in decree amendment be made to the effect while writing down the same. This application was allowed through order made on 11.11.2004 by Qazi Kalat. Whereupon the petitioner filed an application for setting aside of ex-parte order which was also rejected through order dated 1.12.2004. Feeling aggrieved of the same he approached this Court. His petition was decided through order made on 14.10.2005, whereby both the orders dated 11.11.2004 and 1.12.2004 were set aside, while the case was remanded to the trial Court with direction to decide the application strictly in accordance with law and pass a speaking judgment. On remand of the case the trial Court decided the application for review through order made on 22.12.2005, thereby allowing the same. The appeal preferred by the petitioner was decided through order dated 30.3.2006 thereby upholding the order of the trial Court. The petitioner still feeling aggrieved preferred present petition seeking setting aside of both the orders and decree of his suit.
The petitioner is aggrieved of order of trial Court whereby the application for review of judgment was allowed, while amendment was made in decree dated 28.9.2004. It was held by the trial Court that as the petition writer has after cutting word ( ) i.e. public passage, written after word ( ) without signing it, which was illegal, therefore, at south public passage be written. The appellate Court upheld the findings. This order has been made by the trial Court while accepting the application for review of judgment and decree. Order XLVII, Rule 1(1) CPC describes the scope of review, which states as under:--
"Application for review of judgment.--(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desire to obtain a review of the decree passed or order made " against him, may apply for a review of judgment to the Court which passed the decree or made the order."
In case in hand the petitioner filed a suit against the respondent seeking specific performance of sale agreement dated 22.12.1992 describing the boundaries of the property in question as East Public Lane, West Rod Khana, North houses of Haji Muhammad Ramzan and Allah Bakhsh, South boundary of well. As the suit was not contested by the respondent/defendant with averments that he is ready to effect mutation of property as per sale-deed in favour of petitioner/plaintiff further contended that on southern side the petitioner/plaintiff is interfering in public lane. The trial Court decreed the suit through order dated 28.9.2004 thereby ordered that mutation entry for property within boundary specified as East Public Lane, West Rod Khana, North Houses of Muhammad Ramzan and Allah Bakhsh and South boundary of well be effected in favour of petitioner/plaintiff. It is further apparent from order that at said occasion both the parties were present in person. The review application was filed on 28.10.2004, wherein it was his contention that in sale agreement while describing the boundaries it was written that at South well and public lane, which has been cut down by the petitioner/plaintiff, as at South in fact there is a public lane which is the sole passage for public that cannot be included in the sale agreement. The trial Court on remand of the case before deciding the application visited the disputed property, as apparent from order dated 22.12.2005. It is observed by the trial Court therein that disputed property consist of a house and a lane, while from eastern side the lane is 20 feet wide and from western side its width is 30-1/2 feet, further observed that lane at eastern side is used by general public, while there are no signs of its use from western side. It is further held by the trial Court that as the petition writer has committed illegality by making cutting in contents of agreement without counter signing it, therefore, the application for review is accepted.
The perusal of said sale agreement dated 22.12.1992 reveals that while writing down the boundaries of property in question it is written that at East Public Lane, West Rod Khana, North houses of Muhammad Ramzan and Allah Bakhsh and South Water well and lands of Abdul Aziz respondent. It is apparent from this agreement that there is no cutting while writing down south ( ), rather on the word ( ) words Rod Khana and public lane ( ) were written, on which the pen was drawn across. The copy of ( ) sale-deed filed by the petitioner also describe same boundaries wherein at South well is written. There is no cutting or over writing on the same. The scope of review is narrow. Nothing new can be agitated while applying for review of the order/decree. No major alteration can be made in the order. In present case the respondent at the time of passing of order dated 22.12.2005, whereby the suit was decreed in favour of the petitioner that too with consent of the parties was present in person also. The respondent thereafter, cannot take advantage of alleged over writing or cutting present in contents of the sale-deed and based his claim for effecting change in boundary given in the agreement, on basis of which the boundaries were mentioned in the decree. Even as per observations made by the trial Court the lane existed on eastern side which is not a disputed fact, nothing is observed about the lane alleged to be in existence at Southern side of the property in question. It is settled principle of law that no public immunity can be transferred in favour of any private party for his personal use. In present case the petitioner has not claimed any right on any public lane rather he based his claim on the sale-deed which is specifically to the extent of a house situated within the boundaries mentioned therein. Therefore, in view of the mentioned facts there was no occasion for the trial Court to treat the application for review as a suit and thereby collect evidence in respect of the same and change the contents of decree. The trial Court has made serious error while conducting the case in such a manner. The appellate Court also failed to observe the legal position and also the relevant provision of law.
In view of above discussion the petition is hereby accepted. The order dated 22.12.2005 of Qazi Kalat and order dated 30.3.2006 of Majlis-e-Shoora Kalat are hereby set aside. The application for review stands rejected. The order and decree of trial Court dated 28.9.2004 is hereby upheld.
No orders as to costs.
(R.A.) Petition accepted.
PLJ 2010 Quetta 53 (DB)
Present: Qazi Faez Isa, CJ and Syeda Tahira Safdar, J.
MUHAMMAD SHOAIB--Petitioner
versus
PROJECT DIRECTOR, NATIONAL ICT SCHOLARSHIP PROGRAM MINISTRY OF INFORMATION TECHNOLOGY, ISLAMABAD and another--Respondents
C.P. No 709 of 2009, decided on 1.3.2010.
Constitution of Pakistan, 1973--
----Art. 199(1)(a)--Jurisdiction of High Court--Two-fold power vests with the High Court to issue writs--In the first place, the person to whom a High Court issues such a writ must be within the territorial jurisdiction of the Court and secondly, the impugned act or proceedings taken by a person must had been done or taken within the territorial jurisdiction of the Court--Petition was allowed. [P. 63] A
Mr. H. Shakil Ahmed, Advocate for Petitioner.
Mr. Muezzin Qureshi, Advocate for Respondent No. 1.
Mr. Qahir Shah, Advocate for Respondent No. 2.
Date of hearing: 8.12.2009.
Judgment
Qazi Faez Isa C.J.--The Ministry of Information Technology (I.T.) and Telecommunication Division, Government of Pakistan acting through Secretary, Ministry of Information Technology, Government of Pakistan, Member, Telecom Ministry of Information Technology, Government of Pakistan and Additional Finance Secretary, Ministry of Finance, Government of Pakistan subscribed to Memorandum and Articles of Association of National ICT R&D Fund (hereinafter "the Company"). The Company was incorporated as a company under Section 32 of the Companies Ordinance, 1984 on 28th November, 2006. The objects, for which the Company was established, included the following:-
"1. To transform Pakistan's economy into a knowledge based economy by promoting efficient, sustainable and effective information and communication technology (the "ICT") initiatives through synergic development of industrial and academic resources.
a. Capacity building of human resources;
b. National productivity enhancement;
c. ICT market development;
d. ICT product development;
e. Multisectoral support programme; and
f Development of ICT infrastructure
To implement and keep focused on other priority areas for R&D Fund allocation, including, (a) development of ICT infrastructure, (b) creation of a secure cyberspace environment, (c) creation and management of local content, (d) establishment of an effective policy and (e) the launch of education policies that utilize and encourage the expansion of ICT capacities and ICT consumption.
To devise effective, efficient and transparent management of the Fund provided by the Federal Government of Pakistan in furtherance of the development of the ICT industry, products, services and research oriented projects.
To enhance the national ICT related human resource development capacity manifold by facilitating industrial demand through focused human resource capacity building, including (a) Promotion of education to all segments of the society; (b) creation of industry driven human resource development, (c) creation and development, through ICT, formal and informal learning networks for communities; and (d) Development of an IT-trained workforce."
The Company instituted the "National ICT R&D Fund National ICT Scholarship Program 2009" (hereinafter the "Scholarship Program"). The stated Vision in the Scholarship Program document was, "to provide access to the deserving and talented youth from rural marginalized areas to enter the ICT profession and become world-class ICT professionals to serve Pakistan" And the stated Objectives included, "Providing best quality ICT undergraduate education available in Pakistan to deserving talented youth specifically from rural marginalized areas of Pakistan".
The Company invited applicants to avail of the Scholarship Program. The petitioner was one such applicant. The petitioner completed the prescribed Registration Form and provided particulars about his academic achievements and mentioned his preference of universities as sought in the Registration Form. The petitioner recorded his preferences, as under:--
S.No. Preference University Name Selection Code
1 1st Preference National University of Science & Technology 1 4 0 1
2 2nd Preference Comsats Institute of Information 1 2 0 1
3 3rd Preference Balochistan University of IT 1 1 0 1
4 4th Preference Ghulam Ishaq Khan Institute 1 5 0 1
The instruction page of the Registration Form stipulated that for Balochistan University of Information Technology, Engineering and Management Sciences, COMSATS Institute of Information Technology, Institution of Business Administration and National University of Sciences & Technology, "the applicants are not required to apply directly to the universities and appear in their entrance exam. Admission shall be granted based upon the applicant's performance in ICT-Scholarship Award Test". The petitioner took the prescribed test and obtained 87 marks and was declared qualified by Respondent No. 1 and the university allocated by Respondent No. 1 to the petitioner was COMSATS Institute of Information Technology (COMSATS).
The petitioner therefore proceeded to COMSATS, but it transpired that the petitioner did not meet the admission criteria of COMSATS. In this regard the petitioner states in paragraph 6 that COMSATS required 60% marks, whereas the petitioner had obtained 58%, accordingly he requested for transfer to his third preference university namely Balochistan University of Information Technology, Engineering and Management Sciences, Quetta (BUITEMS) and the request of the petitioner was acceded to by Respondent No. 1. The Respondent No. 1 however disputes that it accorded approval to the petitioner for his transfer to BUITEMS. BUITEMS (Respondent No.2) has filed a separate counter affidavit and in its paragraph 3 inter alia states, that, "the Ministry of Information and Technology being scholarship awarding Institute has referred the petitioner to BUITEMS at Quetta on scholarship basis under National ICT R&B Fund Scholarship Program, 2009 through said scholarship scheme and on the recommendations of the Respondent No. 1, the petitioner was granted admission and was allowed to regularly attend the classes.'" In this regard, BUITEMS has also attached letter No.ICT/Scholarship/09/04 dated October 12, 2009, of Respondent No. 1, which is reproduced hereunder:--
"Mr. Abdul Qadeem Kakar Deputy Registrar Academics Balochistan University of Information Technology, Engineering and Management Sciences, Jinnah Town, Samungli Road, Quetta.
Subject: Inclusion of students names in the admission list.
Dear Sir, This is to thank you for your cooperation and participation in National ICT Scholarship Program.
We would like to inform you that details of the 18 students' who have opted for BUITEMS as their preferred educational institute, have successfully secured the scholarship award through successfully passing the National ICT Scholarship program screening test, are attached as enclosure with this letter.
National ICT R&D Fund would like to request that these students' names may be considered as admitted students and their fees will be duly paid by the National ICT R&D Fund under the National ICT Scholarship Program 2009, after the signing of contract with your reputed university.
Sincerely, Sd/- M. Ali IQBAL DM, Coordination"
The referred to attached List mentioned the name of the petitioner at Serial No. 18. Accordingly, the denial of Respondent No. 1 that it had not accorded approval is controverted from the Respondent No. 1's own letter.
"ICT/Scholarship/09/05
October, 26, 2009
Mr. Abdul Qadeem Kakar Deputy Registrar Academics Balochistan University of Information Technology, Engineering and Management Sciences, Jinnah Town, Samungli Road, Quetta.
Subject:- Removal of student name from the NICTSP 2009 students list at BUITEMS.
Dear Sir, This is with reference to our letter Reference No. ICT/Scholarship/09/04, in which we have sent you the list of 18 students who have opted for BUITEMS as their preferred institute under the NICTSP 2009.
Through this letter, we would like to inform you that one of the students, Mr. Muhammad Shoaib S/o Mr. Abdul Haleem had been allocated to another participating university/institute, per his preference in the registration from of NICTSP 2009. Therefore, his name should be excluded from the said list of students.
National ICT R&D Fund will not be responsible for the payment of any university dues on his behalf.
Sincerely, Sd/- Fawad Younus Project Director, NICTSP.
Copy to: Engr. Ahmed Farooq Bazai VC, BUITEMS."
Surprisingly, the Respondent No. 1 did not inform the petitioner about the aforesaid decision, let alone issuing the petitioner a notice and or according him an opportunity to be heard. The petitioner has assailed this aforesaid letter/decision of the Respondent No.1.
a. That Respondent No. 1 is not amenable to writ jurisdiction as the Respondent No. 1 is not a "person performing functions in connection with affairs of the Federation", and in this regard reliance is upon the following cases:--
(i) Salahuddin v. Frontier Sugar Mills & Distillery Limited, PLD 1975 SC 244.
(ii) Maqsood Ahmed Toor v. Federation of Pakistan, 2000 SCMR 928.
(iii) Province of N.W.F.P. v. P.T. Corpn. PLD 2005 SC 670.
b. That this Court does not have territorial jurisdiction and in support of such contention respondent has placed reliance upon the following precedents :--
(i) Zahoor Ahmed Shah v. Pakistan Medical and Dental Council, 2005 MLD 718.
(ii) New Jubilee Insurance Co. Ltd. V. Collector of Customs, 1997 MLD 2770.
(iii) Abdul Razzak v. Federation of Pakistan, PLJ 1998 (Lahore) 640.
(iv) Benazir Bhutto v. Federation of Pakistan, PLD 1999 (Karachi) 39.
(v) Amin Farooq v. Vice-Chancellor, 1993 CLC 474.
c. Reliance has also been placed on Rule-11 of the NICTSP 2009-Top-level Merit List and Seat Allocation Rules, which stipulates as under:-
"There is no provision for re-allocation or transfer of any candidate to any other university or discipline once the allocation is completed and made public. "
"No student shall be expelled by the Institution unless agreed by the Company and reasons for which shall be intimated to the Company in writing."
According to the learned counsel expulsion of a student has to be initiated by the Institution, which in the instant case is BUITEMS, and BUITEMS has not asked the Company to expel the student.
(i) Mrs. M.N. Arshad v. Miss Naeema Khan, PLD 1990 SC 612.
(ii) Zainul Abidin v. Multan Central Co-operative Bank Ltd., PLD 1966 SC 445.
"The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person, performing functions in connection with the affairs of the Federation or a Province; otherwise not.
We thus need to determine whether (1) education is a function of the State, (2) whether the control of the Company vests in a substantial manner in the hands of Government and (3) whether the bulk of the funds are provided by the State. Provision of education undoubtedly is a function of the State. It would not be out of place to quote from Article 37 of the Constitution:
"37. Promotion of social justice and eradication of social evils.
The State shall---
(a) promote, with special care, the educational and economic interests of backward classes or areas;
(c) make technical and professional education general available and higher education equally accessible to all on the basis of merit;"
The importance given by the framers of the Constitution to the Principles of Policy can be gleaned from Article 29, which inter alia stipulates:--
"29. Principles of Policy.
(1) The Principles set out in this Chapter shall be known as the Principles of Policy, and it is the responsibility of each organ and authority of the State, and of each persons performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority;
(2) In respect of each year, the President in relation to the affairs of the Federation and the Governor of each Province in relation to the affairs of his Province, shall cause to be prepared and laid before the National Assembly or, as the case may be, the Provincial Assembly, a report on the observance and implementation of the Principles of Policy, and provision shall be made in the rules of procedure of the National Assembly or, as the case may be, the Provincial Assembly, for discussion on such report."
The Hon'ble Supreme Court too has stressed the significance of the Principles of Policy. In Attiya Bibi Khan v. Federation of Pakistan, 2001 SCMR 1161, it held that:--
"there is no reason for ignoring the requirements of Article 37 (c) of the Constitution. No doubt, aforesaid Article occurs in the Principles of Policy and is not directly enforceable nevertheless Article 29 of the Constitution requires each organ or authority of State to act in accordance with those Principles. In Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 418 this Court described these Principles of Policy as `conscience of the Constitution and the basis of all executive and legislative action. In Employees of the Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548 it was held that the provisions relating to Fundamental Rights ought to be read together with the directive Principles of Policy."
The second aspect of control of the Company Article 33 of the Articles of the Association of the Company provides that the first directors of the Company will be the aforesaid subscribers to the Memorandum, all of whom are Government servants, whereafter Article 34 governs the matter. The same stipules as under:--
"34. NUMBER OF DIRECTORS:
The Board of Directors may consist of minimum of twelve (12) directors, who shall be nominated and appointed by the Federal Government and the Chief Executive Officer appointed by the board shall be deemed to be the thirteenth (13th) director as provided in Section 200 of the Ordinance. Out of the twelve (12) Directors to be nominated by the Federal Government:--
i. five (5) shall be ex-officio office bearers in the Federal Government;
ii. one (1) shall be the Chairman of the Authority, iii. three (3) shall be selected from amongst the nominations made by the licensees;
iv. two (2) shall be selected from amongst the nomination made by the scientific and academic community; and
v. one (1) shall be a corporate management executive with management experience at a senior position in multinational or international companies."
The power to appoint directors and Chairman mentioned in Clauses (i) and (ii) of Article 34 vests in the Federal Government as stipulated in Article 35. The remaining directors are selected by a Selection Committee of three directors constituted by the Secretary Ministry of Information Technology (clause (iii) of Article 35). Directors appointed under Article 34(iii) and (iv) though designated as `Independent Directors' can be removed even before the expiry of their term (Article 37) by a resolution passed with a simple majority (Article 40). In view of the fact that six directors are Federal Government employees and the remaining are chosen by the Selection Committee constituted by the Federal Government without security of tenure it is clear that the control of the Company vests in a substantial manner in the hands of the Government.
Lastly, it needs considerations wherefrom the bulk of the funds of the Company have been provided. The Respondent No. 1 has not made any specific disclosure in this regard. Article 4 of the Memorandum of Association however stipulates that the fund has been "provided by the Federal Government" to the Company. The fact that both the Registration Form and the Scholarship Program documents also mention the Ministry of Information Technology, Government of Pakistan further supports the presumption that the Government of Pakistan has provided funds to the Company for the Scholarship Program.
The case of Maqsood Ahmed Toor (supra) also does help the Respondent No. 1 as it was held therein, that, "persons, including body corporate, can be regarded as person performing functions in connection with affairs of Federation etc. if functions entrusted to them are indeed functions of State or if control of organization vests substantially in hands of Government."
As regards the case of Province of NWFP v. Pakistan Telecommunication Corporation (supra) the question before the Hon'ble Supreme Court was whether the concession as regards non-payment of tax was available to Pakistan Telecommunication Corporation (the successor of the Pakistani Telegraph and Telephone Department) under Article 165 of the Constitution and Rule 156 of the NWFP Local Councils (Octroi) Rules, 1984. The matters for consideration in the instant petition are neither the same nor similar. The cited precedent also did not involve the interpretation of Article 199 agitated by the Respondent No. 1.
"Jurisdiction of High Court--Subject to the Constitution, a High Court may, it is satisfied that no other adequate remedy is provided by law:--
(a) on the application of any aggrieved party, make an order:--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a Local Authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or [emphasis added]
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority."
Thus a two-fold power vests with this Court to issue writs. In the first place, the person to whom a High Court issues such a writ must be within the territorial jurisdiction of the Court and in the second, the impugned act done or proceedings taken by a person must have been done or taken within the territorial jurisdiction of the Court. De-seating the petitioner and cutting-off his funding are acts done within the territorial jurisdiction of this Court.
"The paradigmatic shift requires that the objectives of the education policy would be to serve the interest of the students and learners rather than all those, who develop policy or implement programs."
(a) That the impugned action/decision of the respondents, whereby the name of the petitioner has been excluded from the list of students, to which the respondents have given scholarship, is illegal, void, mala fide, violative of principles of natural justice and of no legal effect.
(b) That the petitioner being eligible in all respect is entitled to attend the classes of Bachelor of Science in computer Engineer (B.S.C.E.) on scholarship basis and he cannot be deprived from the same in any manner.
(c) Pending disposal of the petition, the operation of impugned decision may be suspended and the petitioner may be allowed to attend the classes on scholarship basis."
Admittedly the petitioner fulfilled the Scholarship Program criteria and obtained the requisite marks and was designated as `qualified' pursuant to the test given by the National Testing Service. He then proceeded to his 2nd preference university, namely COMSATS, as instructed by Respondent No.1 and when found not to meet the said university's entrance criteria proceeded, again as instructed by Respondent No. 1, to BUITEMS (Respondent No.2). The Respondent No. 1 wrongly alleged that transfer of the petitioner to BUITEMS was without its approval, but Respondent No. 1's own letter dated October 12, 2009, controverts this. Under the circumstances the petitioner cannot be faulted and is entitled to the reliefs prayed for.
Petition accepted.
(A.A.) Petition Allowed.
Vol. XXXVIII 2010
PAKISTAN LAW JOURNAL
(P.L.J.)
Supreme Court of Pakistan
PLJ 2010 SC 1 [Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ.
SINDH HIGH COURT BAR ASSOCIATION through its Secretary and another--Petitioners
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and others--Respondents
Const. Ps. No. 9 and 8 of 2009, decided on 31.7.2009.
Per Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ; agreeing
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007, Os. 5 & 6--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits)--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Art. 209 of Constitution--Amending the constitution through several instruments--Appointment of Judges of superior judiciary without consultation of de jure Chief Justice--Contents of Prime Minister's letter addressed to President--Actions of 3rd Nov. 2007 taken by General Pervez Musharraf, viz., PCO No. 1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan to the President of Pakistan.
[P. ] L
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Contents of the letter addressed to President Prime Minister wrote to the President "to share his thoughts on the national security situation and the risks" that it represented for the "future of Pakistan"--Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi and the writ of the government being eroded as non--State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible--Interference by some members of the judiciary in the executive functions and stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security--Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future. [P. ] M
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Contents of the letter--Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Art. 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd Nov., 2007 could be said to have been taken or done while acting in aid of the civil power--Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff--Even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the letter. [P. ] N
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power to remove judges of superior Courts to violation of Arts. 2-A & 209 of Constitution--Securing of independence of judiciary and guaranteeing of tenure of Judges--No power vested in the Chief of Army Staff under the Constitution and the law to issue Proclamation of Emergency and PCO on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary--If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency--Nowhere the Prime Minister asked the President to take the actions that he took on 3rd Nov., 2007--In any case, it was not an advice tendered by the Prime Minister in terms of Art. 48 of the Constitution--Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps--Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No. 1 of 2007--Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO--Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well--being and prosperity of Pakistan," issued Oath Order, 2007, illegally assumed to himself power to remove judges of the superior Courts in violation of Arts. 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts. [P. ] O
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of judges of Supreme Court and High Courts in violation of Art. 209 of Constitution--Acts of the President were violative of the Constitution, pure and simple. [P. ] P
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The terms of "supra-constitutional" and "extra-constitutional", that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases would hardly change the--unconstitutional nature and character of the said actions, which not only ex-facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law. [P. ] Q
Proclamation of Emergency dated 3-11-2007--
[P. ] R
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Courts Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Constitution--On 3rd Nov., 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff--In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughout Pakistan and holding the Constitution in abeyance--By Art. 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other order made by the President be governed, as nearly as may be, in accordance with the Constitution--Under Art. it was provided that the President may amend the Constitution, as may be deemed expedient--Under Art. 2(3) all Courts shall continue to function subject to PCO and Oath Order, 2007, but the Supreme Court, a High Court or any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority--By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Arts. 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments' in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him--Further, an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution--An Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of Nov., 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution--Purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of Art. 243(1-A) of the Constitution. [P. ] S
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendments) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated upon by an impartial Court. [P. ] T
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Art. 209 of constitution--Suspending and amending the constitution--Actions of General Pervez Musharraf dated 3rd Nov., 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President--It could not be said that the said actions were taken for the welfare of the people--Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of manoeuvring another term in office of President, therefore, the same were mala fide as well--Statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect--Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf...." used in it. [P. ] U
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, (1 of 2007)--Oath of Office (Judges) Order--Constitution (Amendment) Order--Constitution (Second Amendment) Order--Islamabad High Court (Establishment) Order--High Court Judges (Pensionary Benefits) Order--Supreme Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Continuation in power of General Pervez Musharraf was all along the result of manoeuvring--Holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the amendments so made in the Constitution were ultimately accepted and the 17th amendment to the Constitution was passed on 31st Dec., 2003 under the umbrella of an accord between the PML(Q) and the MM A, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th Nov., 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid amendment--He promised to relinquish the office of Chief of Army Staff on or before 31 Dec., 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act, 2004--That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami's case, and later by the two rival candidates of the election of President in Wajihuddin Ahmed's case--Majority decision in Jamat-e-Islami's case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the petitioners--However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President. [P. ] V
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Validity to unconstitutional acts of General Pervez Musharraf--Contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18 Feb., 2008, that too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd Nov., 2007, which displayed their commitment to the rule of law and supremacy of the Constitution. [P. ] W
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007--Supreme Court and Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which Supreme Court is entitled to. [P. ] W
Proclamation of Emergency dated 3-11-2007--
----Oath of Office (Judges) Order, 2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Orders, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions of General Pervez Musharraf dated 3rd Nov., 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, are held and declared to be unconstitutional, illegal, mala fide and void ab initio--Chief Justice of Pakistan, the Judges of the Supreme Court Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration--Notifications issued by the Ministry of Law in this behalf are declared to be null and void. [P. ] X
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional--Constitution (Amendment) Orders, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order--Supreme Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Suspending and amending the Constitution through several instruments--General Pervez Musharraf, during the period of the emergency from 3rd Nov., 2007 to 15th Dec., 2007, in pursuance of the instruments and measures of 3rd Nov., 2007, which have been held and declared to be unconstitutional, illegal and void ab initio promulgated some more instruments--On 15th Nov., 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of 3rd Nov., 2007. [P. ] Y
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 20th Nov., 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Arts. 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Art. 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Art. 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Art. 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution)--By the same Order, he purported to add Art. 270-AAA in the Constitution (validation and affirmation of laws etc.). [P. ] Z
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 14th Dec., 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Art. 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Arts. 194 and 208 (Oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Art. 270-C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd Nov. 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution. [P. ] AA
Islamabad High Court (Establishment) Order, [7 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th Dec., 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other Courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, were provided. [P. ] BB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th Dec., 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Art. 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court--Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office w.e.f. 3rd Nov., 2007 would not be entitled to pensionary benefits. [P. ] CC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Art. 3 of Oath Order, 2007 would be entitled to full pension and other retirement benefits [P. ] DD
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Finally, on 15th Dec., 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd Nov., 2007 was revoked on and with effect from 15th Dec., 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date--Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution. [P. ] EE
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act, (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Suspending and amending the Constitution through several instruments--Validity--General Pervez Musharraf could not have introduced his own amendments into the Constitution for self--service and benefit during the so called emergency--Surreptitious validation, affirmation and adoption made by him through insertion of Art. 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Arts. 238 and 239 of the Constitution--Unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment--Amendments were unconstitutionally and illegally validated by so called judgments in Tikka Iqbal Muhammad Khan's case--Therefore, all such instruments and measures including constitutional amendments alongwith the judgments were required to be done away with--They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani's case:
An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Arts. 270C and 270AAA in the Constitution. The provision of Art. 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, die elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the 17th Amendment to the Constitution. Further, when the elections were held on 18th Feb., 2008, the Constitution was in force having already been revived on 15th Dec., 2007. [P. ] FF
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 & 6 of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of judges of Supreme Court and High Courts in violation of Arts. 209 of Constitution--Amending and suspending the constitution through several instruments acts done by General Pervez Musharraf--Validity--To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the judicature and a High Court established for the Islamabad Capital Territory, to be known as the Islamabad High Court--Establishment of a High Court or a. Federal Court for the Islamabad Capital Territory was an act, which could have been done under and in accordance with the Constitution--It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein--Therefore, it was not possible to condone it--However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law--Even while making amendments relating to the judicature, an amendment was made in Art. 186-A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf. [P. ] GG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Judges--Amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court which could be considered to "have been done for the ordinary orderly running of the State" were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd Nov. 2007 and that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution. [P. ] HH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on 15th Dec., 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd Nov. 2007 was revoked on and with effect from 15th Dec. 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date--Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the'time of the revival of the Constitution shall take oath under the Constitution--On the pattern of Zafar Ali Shah's case, this was made to appear like "transactions which are past and closed, for, no useful purpose can be served by reopening them" as held in Asma Jilani's case. [P. ] II
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives--It is to be carried out in accordance with the procedure prescribed in Arts. 238 and 239 of the Constitution, viz. by a two--third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else--Holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se--No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power--Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. [P. ] JJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court & High Courts Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Only those acts which were required to be done for the ordinary orderly running of the State could be protected--Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken--Actions taken by General Pervez Musharraf and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd Nov., 2007 on the other, including passing of order dated 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars. [P. ] KK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 & of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [7 & 8 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Amendments purportedly made .by General Pervez Musharraf from 3rd Nov., 2007 up till 15th Dec., 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio--Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Arts. 238 & 239 and the Third Schedule to the Constitution (Oath of Office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [P. ] LL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 3rd Nov., 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the Courts, which negated the fundamentals of an adversarial system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular--Therefore, it was a situation for which the Constitution provided no solution--If one was to distinguish between these cases on the basis of facts and circumstances, they were all different from each other, and one would end up seeing each time a new scenario--Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the military takeover and thereby an unconstitutional and illegal--Act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more-up to what time, it is not possible to predict--Therefore, one has to see as to where the wrong lies, what options and remedies are available, and then make an objective analysis and reach some conclusion--Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable--On the first two occasions, it was abrogated, but thereafter it was held in abeyance--Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th Oct., 1958, 25th March, 1969, 5th July, 1977, 12th Oct., 1999 and 3rd Nov., 2007 really such that the Constitution provided no solution?--Do similar situations not arise in other countries?--Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries?--Is there no corruption in the other countries?--Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State?--Does rigging in elections not take place in other countries?--What was the wrong with the judiciary in 1958, 1969, 1977 and 1999?--Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable?--Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions--It is for the nation to address these questions in all earnestness. [P. ] MM
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, it was wrongly examined earlier on the factual plane--On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle. [P. ] NN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Constitution is the cementing force of the State and the society--By making a Constitution, the society has already used and applied such a force and brought into existence a State and has chosen to govern itself in accordance with the Constitution so made--It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means--Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution--That is the destruction of the Constitution and if the Constitutions were to be destroyed, State and the society in the modern times could be preserved in no manner--Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the Civil and the State necessity and the welfare of the people, or in the name of "expediency", by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non--existing facts?--The acts/actions of 3rd Nov., 2007 of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court--Doctrine of Civil and State necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd Nov., 2007 until 15th Dec., 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people--Doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, PCO, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court. [P. ] OO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--None of the Judges who did not make oath in pursuance of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah's case--It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people--Even at the international level, grave concerns were expressed on the actions of 3rd Nov., 2007. Statements and resolutions were made by the Bar Associations across the globe. [P. ] PP
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The nation had stood up against the unconstitutional and illegal acts of 3rd Nov., 2007--Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt--All this was a healthy sign in the nation's journey on the path of rule of law, constitutionalism and democracy. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Where people did not show any reaction or failed to hold even peaceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and a pathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases--Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievancesof the people against the denial of their Fundamental Rights guaranteed under the Constitution--It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence--Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved--It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence--It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and Oct. 1999 by certain quarters, which would always be politically motivated--Unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a Court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, Pakistan owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam within the constitutional and legal framework--Supreme Court disapproved the approach adopted in the said cases. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se were unconstitutional, illegal and ultra vires. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 3rd Nov., 2007 the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past--Bench of Supreme Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed's case--This was the most striking distinction between the action of 3rd Nov., 2007 on the one hand and those of 12th Oct., 1999, 5th July, 1977, 25th March, 1969 and 7th Oct., 1958 on the other--A vast majority of the Judges of the superior Courts rejected the actions of 3rd Nov., 2007 and did not make oath in pursuance with the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--Lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country--Abdul Hameed Dogar, J, and some other Judges violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--These Judges, whether they were in Supreme Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the order of 3rd Nov., 2007. [P. ] RR
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Abdul Hameed Dogar as Chief Justice--Validity--Art. 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President--Thus, there is a provision of one Chief Justice of Pakistan alone-Next provision relating to the office of Chief Justice of Pakistan is Art. 180--It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan--On 3rd Nov., 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office--Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed--On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice--Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Art. 180--Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan--In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice--In case of a temporary vacancy, he could not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him--The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution--Therefore, the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd Nov., 2007--In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice--His purported appointment as Chief Justice of Pakistan per se, therefore, was unconstitutional, illegal and ultra vires--Abdul Hameed Dogar), was never a constitutional Chief Justice of Pakistan. [P. ] SS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Under Art. 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e- Shoora (Parliament)--Until the number of Judges is so determined, it may be such as may be fixed by the President--By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen--However, by S. 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words "be sixteen", the words "not be more than twenty--nine" were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of Nov., 2007--Number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President--An Act of Parliament is different to and distinct from a Finance Act--All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Art. 50 of the Constitution--On the other hand, a Finance Act, in general, is concerned with fiscal matters--Since the Constitution, through its Art. 176, authorises only the Parliament to determine the number of Judges of the Supreme. Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Art. 176 of the Constitution--Increase of number of Judges in such a manner also militates against the independence of the judiciary--Strength of Judges is only to be increased keeping in view its needs--It is also to be ensured that the Courts are not packed with persons in disregard of merit--After 3rd Nov., 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not of Pakistan (Iftikhar Muhammad Chaudhry, C J) men of integrity, were appointed on quid pro quo basis--Against one such appointee, there were serious allegations of misconduct and impropriety--However, after restoration of the Judges to the position they were holding prior to 3rd Nov., 2007, he resigned from office--Thus, the number of Judges of the Supreme Court for purposes of the said Art. 176 would continue to remain sixteen [P. ] TT
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges--Even one ad hoc Judge, had also been appointed as such--Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law. [P. ] UU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Abdul Hameed Dogar, as the Chief Justice of Pakistan also stood vitiated by virtue of Notification--Whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd Nov., 2007. [P. ] UU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Purported appointment of Abdul Hameed Dogar, or for that matter the appointments of other Judges was unconstitutional, illegal and void ab initio--Further, the recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd Nov., 2007--Recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Art. 209 of the Constitution and the said position, on the same considerations, was reversed in totality--A wrong stood declared wrong with no mincing of words, for all times to come. [P. ] VV
PCO, [1 of 2007]--
----Proclamation of Emergency--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, and other Judges all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers--They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence--Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio. [P. ] WW
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 and 6 of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judges of the Supreme Court, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ, and the Judges including the Chief Justices of High Courts, who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case were fully aware of the restraint order, which was passed immediately after the announcement made on the TV channels regarding issuance of Proclamation of Emergency and Oath Order, 2007--No sooner the order was passed, its copies were delivered to all the Judges of the Supreme Court at their residences--Copies of the order were sent to the Registrars of all High Courts by fax so as to bring the same to the notice of the Chief Justices and Judges of High Courts at once for compliance. [P. ] YY
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The TV channels repeatedly televised the contents of the order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges--The order was also published in the newspapers of 4th Nov., 2007, It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows. [P. ] YY
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On a perusal of the excerpts from the print and the electronic media, one is left with no manner of doubt that the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajhuddin Ahmed's case was widely covered both in the electronic and print mediaSaid order came fully in the knowledge of all Judges of Supreme Court and High Courts by means of the coverage in the electronic and print media is in line with the following parameters for the purpose of taking judicial notice of press reports: --
Where direct evidence is not available; Where it is sought to be proved that a person has notice of the contents of the newspaper report; Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him; In cases of defamation; and If the issue/occurrence is rather old and eyewitnesses are either wanting or less reliable.
Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order--In fact, all and sundry in the length and breadth of the country knew about it--All such Judges, therefore, wilfully violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case. [P. ] ZZ & AAA
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--Provisional Constitution Order, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary--Appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court--Consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/confirmation of a Judge in the superior Court shall be invalid--Independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary--Acting Chief Justice was not a consultee as envisaged by the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Since consultation for the appointment/ confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the was mandatory, any appointment/ confirmation made without consulting any of the consultees interpreted above would be violative of the Constitution and, therefore, would be invalid--Chief Justice of Pakistan was very much available and able to perform the functions of his office--To have access to free, fair and independent Court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Arts. 9 and 25 of the Constitution. [P. ] BBB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, who was holding office in violation of the order dated 3rd Nov., 2007 passed by seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, was not authorized to/be consulted for such appointments--All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd Nov., 2007 to 21st March, 2009 were violative of the provisions of the Constitution--Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, were unconstitutional, illegal, void ab initio and of no legal effect. [P. ] CCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Purported appointment of four persons as Judges on 5th Nov., 2007, two such Judges, a retired Judge of the Lahore High Court and a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed vide notification--Three such Judges, sitting Judges of the Lahore High Court and a retired Judge of the High Court of Sindh were appointed--All these appointments stood vitiated on account of the declaration--The Judges who were sitting Judges of the High Courts violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, which was enforceable and binding upon them under Arts. 187, 189 and 190 of the Constitution, particularly after it had come at their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution. [P. ] DDD
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, who was not a consultee within the ambit of Art. 177 of the Constitution--All these Judges, were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office--Appointments of all the above Judges were unconstitutional, illegal and void ab initio. [P. ] EEE
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till 22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution--Two such Judges, sitting Judge of the Lahore High Court and a retired Judge of the Lahore High Court were appointed--Two Judges, who had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed--Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, who was not a consultee within the ambit of Art. 177 of the Constitution--All the Judges shall immediately cease to hold office forthwith--However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, shall revert to their respective High Courts subject to their age of superannuation. [P. ] FFF
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Category of appointments made during the period from 15th Dec., 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time--However, the actions of 3rd Nov., 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance of PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration--Notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Art. 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself--They continued to be such Judges throughout without interruption of a single day. [P. ] GGG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--One judge did not make oath as a Judge of High Court on or after 3rd Nov., 2007 after the order dated 3rd Nov., 2007 was passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, and was deposed from office--But his subsequent appointment as a Judge of the Supreme Court was made, firstly, in violation of the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation. [P. ] HHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio--Accordingly, he would cease to hold office of Judge of the Supreme Court. [P. ] HHH
Proclamation of Emergency dated 3-11-2007--
----Appointment as Judges of High Court reverted to original position--The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd Nov., 2007 to 15th Dec., 2007, or thereafter, shall be governed in the same terms--However, any of such Judges who was District & Sessions Judge prior to his appointment as Judge of High Court shall revert to his original position subject to age of superannuation. [P. ] III
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court proceeded to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd Nov., 2007 and who made oath in violation of order dated 3rd Nov., 2007 passed by a seven --member Bench of Supreme Court in Wajihuddin Ahmed's case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J--Actions of 3rd Nov., 2007 have already been held and declared to be unconstitutional, illegal and ultra vires--Appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Waj ihuddin Ahmed' s case all have been held to be unconstitutional, illegal and ultra vires--Therefore, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court--They exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts--As such, the decisions rendered by them would be illegal and nullity in the eye of law. [P. ] JJJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--A prime contention of the counsel for the petitioners on the status of the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case and the decisions rendered in Tikka Iqbal Muhammad Khan's case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd Nov., 2007--They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed's case, which, lay at the root of the actions of 3rd Nov., 2007--Anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--Said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again manoeuvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff--In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of 3rd Nov., 2007--On 5th Nov., 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available at Islamabad, therefore, they could not pass any order in the said case on that day--However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength--Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of 5th Nov., 2007, four persons, were purportedly appointed as the Judges of Supreme Court--With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of 3rd Nov., 2007--Accordingly, on 6th Nov., 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed's case. [P. ] KKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case as well as those in Tikka Iqbal Muhammad Khan's case were coram non judice and a nullity in the eye of law--Secondly, the order dated 6th Nov., 2007 marked the presence ASC/AOR on behalf of the Federation (applicant), was shown to have appeared on Court's call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, was in respondent Government's own custody and it was quite convenient to procure his attendance--Therefore, order passed on the application suffered from the very flaw, which was wrongly alleged in respect of order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. it was passed without notice to the other side. [P. ] LLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the invalidity of the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case, it is noteworthy that the order of 3rd Nov., 2007 was passed in an entirely different setting--Application was presented before the Bench on 2nd Nov., 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz. 5th Nov., 2007--Since the apprehensions expressed in the application came true and Proclamation of Emergency "was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of 3rd Nov., 2007 and the order was passed thereon, as prayed earlier--It was not something, which was cooked up in the meantime--Filing of application was an already existing fact to the notice of all parties, including the Attorney General for Pakistan--No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court--In any case, it was not a final order and the matter was ordered to be put up before the Full Court on 5th Nov., 2007--However, the situation on 6th Nov.,. 2007 was entirely different--Unconstitutional acts of 3rd Nov., 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceeding, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th Nov., 2007, as it existed on 3rd Nov., 2007--If the order of 6th Nov., 2007 was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J. and other Judges would not have been served. [P. ] MMM
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Now, two orders are before the Supreme Court--One was passed on 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. by the Judges appointed under the Constitution, and the other of 6th Nov., 2007 passed by Abdul Hameed Dogar, and other Judges--Former order was passed to preserve, protect and defend the Constitution and the law--Latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of Nov., 2007, PCO No. 1 of 2007 and the law--The one had constitutional and moral authority and power behind it--The other had the gun at its backing--Judges in the former case were bound to abide by the Code of Conduct issued by the Supreme Judicial Council--Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct--There is no manner of doubt left that the order dated 6th Nov., 2007 was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of 3rd Nov., 2007 and onward--By all recognized principles, the order dated 6th Nov., 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin'Ahmed's case--Therefore, the order dated 6th Nov., 2007 is declared to be unconstitutional, illegal and void ab initio. [P. ] NNN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges and Supreme Court (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--While considering the question of validity of the order dated 6th Nov., 2007, a grave error was discovered while examining the record and proceedings--Constitution Petition No. 73 of 2007 alongwith another petition viz. Crl. Orig. P. No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th Nov., 2007 by a subsequently constituted ten--member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLJ 2008 SC 355 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v. Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad and others). , [P. ] OOO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Record, however, showed that the same day the same Bench had already dismissed the two petitions for want of instructions--Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame a new order, surprisingly without making any reference to, rather ignoring its own earlier order so passed. [P. ] PPP
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Petitioner had, inter alia, sought a declaration that "General Pervez Musharraf be declared ineligible, lacking in qualifications under Art. 62 and other provisions of the Constitution and is disqualified under Art. 63 of the Constitution to contest the election of the office of the President of Pakistan." On 5th Oct., 2007, the Bench passed an injunctive order, whereby it was directed that final notification of the election of the returned candidate would not be issued till the final decision of the petitions--The Bench had been hearing counsel for parties on day-to-day basis till 2nd Nov., 2007 i.e. a day before General Pervez Musharraf proclaimed emergency, held the Constitution in abeyance and issued PCO and Oath Order, 2007--After the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 on 3rd Nov., 2007, Abdul Hameed Dogar, J, and. other members of the Bench again took up Petition No. 73 of 2007, dismissed the same for want of instructions, as is evident from record yet framed the order without issuance of notice to the petitioner--Order dated 19th Nov., 2007 so passed reflects that a host of counsel, General Pervez Musharraf, were present, but surprisingly, not a single argument is recorded in the order as if they had said nothing at the hearing, yet, instant petition alongwith Original Petition No. 51 of 2007 was dismissed on merits--Palpably, the object appears to be, as is evident from the order, to hold General Pervez Musharraf immune from any disqualification under the Constitution, for the Presidential Election 2007 and also to vacate the interim stay order dated 5th Oct., 2007 earlier passed by a 10--member Bench thereby enabling the Chief Election Commissioner of Pakistan and the Federal Government to make final announcement of the result of the election of President and to issue the necessary notification. [P. ] QQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The order was framed for no consideration other than for ulterior purposes, in a bid to please General Pervez Musharraf, with, whose blessings Abdul Hameed Dogar, J, and other Judges were holding office unconstitutionally, unlawfully and illegally--In such a situation, Const. P. No. 73/2007 was dismissed for want of instructions, as is borne out from the official record of the Court duly supported by the press reports of 20th Nov., 2007. [P. ] QQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Action of 3rd Nov., 2007, therefore, was unique in the history of the whole world. If anyone had made oath earlier, it did not mean that he would continue to make similar oaths in future as well--Action under the Oath Order, 2000 was a past and closed transaction, which could not be reopened--If such an event occurred in future, that too would be treated as past and closed transaction and would not be reopened and the persons, who had made oath then, would continue making similar oaths--Nothing could be more fallacious--Fortunately, the end to a vicious circle came on 3rd Nov., 2007--The order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case built a stronghold around the Constitution, so as to save it from its further mutilation and subversion at the hands of General Pervez Musharraf. , [P. ] RRR
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The law and order situation had worsened and much deteriorated during the currency and even after Proclamation of Emergency was revoked on 15th Dec., 2007. [P. ] SSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Remedies for curbing terrorism, extremism and militancy lay elsewhere and not in imposing an unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate the existing Judges of the Supreme Court and High Courts and bring in their place compliant Judges under the PCO and the Oath Order--Proclamation of Emergency, if any, could be promulgated within the ambit of the Emergency Provisions contained in Part X of the Constitution by the authority. [P. ] TTT
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The law and order being a provincial subject, necessary legislative and administrative steps would be required to be taken under the provisions of Art. 234, which empowered the President to assume to himself or direct the Governor of the Province to assume on his behalf, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, etc, in a situation in which the government of the province could not be carried on in accordance with the provisions of the Constitution--But the imposition of any such emergency too, would be subject to judicial review. [P. ] UUU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. [P. ] VVV
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly. [P. ] XXX
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation--No one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. [P. ] AAAA
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power of judicial review is a cardinal principle of the Constitution--Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government--It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. [P. ] BBBB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Fundamental principle of that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive--Such expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges--Power of judicial review was being exercised by the judiciary before 3rd Nov., 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution. [P. ] CCCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Though the exercise of suo moto powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision --except a bald reference in Para 2(ii) of the short order--to point to any undue interference in the functioning of the other branches of the government--In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court--But, no such step was ever taken in any case whatsoever--Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan's case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3rd Nov., 2007. [P. ] DDDD
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the institution of the Supreme Judicial Council, which was allegedly rendered ineffective, the argument was not available in view of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578. Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally and constitutionally debarred--from commenting upon the matter. [P. ] EEEE
Oath of Office (Judges) Order, 2007--
----Proclamation of emergency--The whole grievance was nurtured against the Judges of the Supreme Court who were hearing the disqualification case of General Pervez Musharraf, but iri issuing the unconstitutional and illegal Proclamation of Emergency; PCO No. 1 of 2007 and Oath Order, 2007 all Judges of the Supreme Court, Federal Shariat Court and High Courts were declared to have ceased to hold office and only such Judges were allowed to occupy the seats of Judges who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case. [P. ] FFFF
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd Nov., 2007 to 15th Dec., 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people. [P. ] GGGG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan's case and Wajihuddin Ahmed's case, that is to say, the short order dated 23rd Nov., 2007 passed in Tikka Iqbal Muhammad Khan's case, reported as PLJ 2008 SC 446, 500, the detailed reasons in support of the aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th Feb., 2008 passed in Civil Review Petition No.7 of 2008 in the said case, reported as PLJ 2009 SC 18 and the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case, reported as PLD 2008 SC 25 are hereby declared to be illegal, mala fide, coram non judice and void ab initio. [P. ] HHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd, Nov., 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case. [P. ] HHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--All the acts/actions done or taken by General Pervez Musharraf from 3rd Nov., 2007 to 15th Dec., 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent acts/actions done or taken in pursuance thereof, having been held and declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned--Proclamation of Emergency and the PCO No. 1 of 2007 issued by him as Chief, of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the two instruments, all dated 3rd Nov., 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th Nov., 2007; Constitution (Amendment) Order, 2007 (President's Order No.5 of 2007 dated 20th Nov., 2007); Constitution (Second Amendment) Order, 2007 (President's Order No.6 of 2007 dated 14th Dec., 2007); Islamabad High Court (Establishment) Order 2007 (President's Order No.7 of 2007 dated 14th Dec., 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.8 of 2007 dated 14th Dec., 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.9 of 2007 dated 14th Dec., 2007)--Actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan's case--The decisions have themselves been held and declared to be coram non judice and nullity in the eye of law--Amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd Nov., 2007 till 15th Dec., 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Art. 270AAA of the Constitution. [P. ] IIII
Islamabad High Court (Establishment) Order, [7 of 2007]--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: the amendments introduced in the relevant Arts. of the Constitution under which they were appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of fhe acts/actions of General Pervez Musharraf of 3rd Nov., 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President's Order No.7 of 2007 dated 14th Dec., 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Art. 193 of the Constitution, as held in the Al--Jehad Trust case--However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court, he shall stand repatriated to his respective High Court subject to the age of superannuation--The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd Nov., 2007 and had made such an oath--However, the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day--to--day business of the Islamabad High Court from 15th Dec., 2007 till 31st July, 2009, i.e. the date of announcement of this judgment, would not be affected on the principle laid down in Asad Ali's case--All judicial matters pending before the erstwhile Islamabad High Court at the passing of this judgment, whether they were transferred to the said Court from any other Court, or were instituted before it, shall stand transferred to the Courts which had jurisdiction in such matters before its establishment--Islamabad High Court having ceased to exist all posts on its establishment stand abolished--All the officers and employees of the Islamabad High Court have become surplus--They, therefore, shall become part of the Federal Government Surplus Pool for their further appointment/posting/absorption in accordance with law--However, if any such officer or employee was an officer or an employee of some other Court, department or office, such officer or employee shall revert to his respective Court--Department or office to which he belonged before joining service in the Islamabad High Court, subject to his age of superannuation--nder Art. 37 of the Constitution, State is obliged, inter alia, to ensure inexpensive and expeditious justice--Right of access to justice was a human right universally recognized, which was being implemented and executed by granting relief under the provisions of the Constitution--Similarly, the right to have access to justice through an independent judiciary was a Fundamental Right--Establishment of the Islamabad High Court was a commendable step in aid of the right of access to justice in line with the constitutional mandate and the law laid down in the cases--However, it was unfortunate that the Supreme Court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, mixed up his mala fide acts of removal of Judges of the superior Courts in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Art. 270-AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament--Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to protect it--Notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a Court in accordance with the Constitution and law. [P. ] JJJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the question of protection, if any, of other acts done during the period of the unconstitutional and illegal Proclamation of Emergency, i.e. from 3rd Nov., 2007 to 15th Dec., 2007 (both days inclusive)--A distinct feature of the present case was that though on 3rd Nov., 2007 the Constitution was held in abeyance and Pakistan made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No. 1 of 2007 and any other Order issued by General Pervez Musharraf as President, the fact remained that the other two branches of the government, namely, the executive and the legislative were continued--Federal and the Provincial Governments, i.e. Prime Minister, Federal and State Ministers, Chief Ministers and Provincial Ministers all continued in office--Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker, National Assembly also continued in office--National Assembly and the Provincial Assemblies continued and were dissolved on completion of their term of five years--Thereafter, caretaker governments at the Federal and Provincial levels were formed and ultimately the election of 18th Feb., 2008 was held--Thus, all along the day--to--day business of the executive and legislative branches of the government was carried on under and in accordance with the Constitution--Therefore, all acts/actions of the said branches of the government from 3rd Nov., 2007 to 15th Dec., 2007, as aforesaid, were done in the ordinary orderly running of the State under and in accordance with the Constitution and the law--Thus, they would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non--conformity with the Constitution or violation of the Fundamental Rights or on any other available ground--Umbrella of Proclamation of Emergency and PCO No. 1 of 2007 was an eyewash and a blackmailing tool--Though emergency as purportedly proclaimed was in force and the Constitution was held in abeyance, General Pervez Musharraf made oath of President under the Constitution and not under PCO No. 1 of 2007--Proclamation of Emergency having been, revoked on 15th Dec., 2007, the acts/actions done or taken from 16th Dec., 2007 onward until the swearing in of the elected representatives and formation of governments at the federal and the provincial levels were even otherwise done or taken under and in accordance with the Constitution and the law, and were, therefore, valid and were not affected in any way. [P. ] KKKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Art. 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye--laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him--Art. 5(i) provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution--Art. 5(2) an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of Nov., 2007 shall also not be subject to limitations--As a result, all the Ordinances., which were in force on 3rd Nov. 2007 as well as the Ordinances which were promulgated on or after 3rd Nov., 2007 up to 15th Dec., 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Art. 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts. 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation--Under Art. 89 of the Constitution, an Ordinance issued by the President--Before National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation--Similarly, under Art. 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws--Thus, the fact remains that on the touchstone of the provisions of Arts. 89 and 128 r/w Art. 264 of the Constitution and S. 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd Nov., 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies--However, the period of four months and three months mentioned respectively in Arts. 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in instant case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods--Extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007--Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non--conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Questions in issue before Supreme Court, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007--Elections of 18th Feb., 2008 were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution--Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed--Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007--Initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of 3rd Nov., 2007 in no way affects the process whereby elections were held and the people of Pakistan expressed their will--Nor are the elections affected by Art. 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled, and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general electidns--The elections of 18th Feb., 2008 were held in accordance with the Constitution and the law--Supreme Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically--elected government on 18th Feb., 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law--Supreme Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and self--enrichment, and will devote themselves to the service of the people--Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises--Any declaration made in instant judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions--However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non--conformity with the Constitution or violation of the Fundamental Rights or on any other available ground. [P. ] MMMM
Constitution of Pakistan, 1973)--
----Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act, (XXXIII of 1997)--Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non--justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non--justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Arts. 177 and 193 of the Constitution, as interpreted in Al--Jehad Trust's case, has to be effective, meaningful, purposive, consensus--oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary--At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus--oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates--However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the-- Province about the antecedents of the person concerned, which shall be given primacy--The law laid down in Al--Jehad Trust's case that the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference" admits of no other interpretation. [P. ] NNNN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Art. 105 of the Constitution--Recommendations of the Governor in the case of the respondents acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J. [P. ] OOOO
PLD 2000 SC 869; PLD 2008 SC 178; PLD 1969 Central Statutes 42; PLD 1969 Federal Statues 326; PLD 1996 SC 324; PLD 2008 SC 25; PLD 1972 SC 139; PLD 1999 SC 504; PLD 1958 SC 533; PLD 1977 SC 657; PLD 1955 FC 240; PLD 2003 SC 74; PLD 1956 FC 200; Reference by His Excellency the Governor-General PLD 1955 FC 435; Cooley's Constitutional Limitations 8th Edn. Vol. 2, p. 137; PLD 1994 SC 738; PLD 2003 SC 724; PLD 2002 SC 939; PLD 1955 FC 387; PLD 2001 SC 233; Dialogue on the Political Chess Board First Edn. 2004, p.276 by S.M. Zafar; PLD 2005 SC 719; PLD 2009 SC 549; PLD 1976 SC 57; PLD 1988 SC 416; PLD 1993 SC 473; PLD 1998 SC 388; PLD 2000 SC 77; PLD 2004 SC 583; PLD 2006 SC 697; PLD 2004 Lah. 130; (1970) 6 N.S.C.C. 143; PLD 1960 SC 237; PLD 1970 SC 98; PLD 1997 SC 426; PLD 1998 SC 161;, [(1977) 1 All ER 364, at 378-379];, [(2003) 3 All ER 351, p.356; PLD 1989 SC 61; PLD 2000 SC 179; PLD 2008 SC 13; PLD 1975 SC 66; 1980 SC 1789; AIR 1995 SC 1403;, [(2007) 3 SCC 184]; AIR 2007 SC 861;, [(1997) 3 SCC 261];, [(1994) 3 SCC 1]; PLD 1993 SC 341; PLD 1998 SC 1445; PLD 1990 SC 513; PLD 1994 SC 693; 1994 SCMR 1548; 1994 SCMR 2061; PLD 1998 SC 823; PLD 2005 SC 93; PLD 2003 SC 126; 2002 SCMR 1993; PLD 2008 SC 6; PLD 2008 SC 615; PLD 1989 Kar. 404; AIR 1982 SC 149; AIR 1994 SC 268 and, [(1998) 7 SCC 739] ref.
Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Efforts of Supreme Court to revitalize the judiciary for ensuring social justice, economic justice and political justice for the welfare of the people of Pakistan did not find favour with General (Retd.) Pervaiz Musharraf who despite order dated 3-11-2007 passed by Supreme Court but following ill--advice, in his capacity as Chief of Army Staff, promulgated PCO followed by the Oath of Office (Judges) Order, 2007. [P. ] SSSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Constitution of Pakistan (1973) for the first time has prescribed Oath for the members of the Armed Forces--Earlier they only took oath prescribed in the Army Act, 1952. Military Courts cannot be equated with the original Courts on the basis of well known principle that establishment of military Courts militates the independence of judiciary--Arts. 243 and 245 of the Constitution do not show that the Chief of Army Staff has any authority whatsoever to impose emergency which is in violation of Arts. 232 to 236--Even the emergency which was imposed by Chief of Army Staff cannot be imposed by the President of Pakistan in terms of the provisions of the Constitution--There are certain parameters and restrictions upon the President to impose emergency wherein fundamental rights were suspended--President of Pakistan had no authority whatsoever to interfere or remove the judges of the superior Courts through extra constitutional instruments i.e. Proclamation of Emergency, PCO and Oath of Judges Order--President of Pakistan is the supreme commander of the forces--Chief of Army Staff has imposed emergency through extra constitutional measures and thereafter delegated powers to the President--Delegation ought not to be permitted unless it is authorized by statute or by necessary implication meaning thereby whereas specific officer or authority is authorized to exercise his discretion, exercise of that power by a different body in the absence of statutory provision to the effect--In view of the rules of business Minister has authority to delegate power to any Officer of that department--It is not known to any canon of justice in any part of the world that subordinate can delegate powers to superior--Extra constitutional steps were taken by Gen. Musharraf when his own case for the candidature for the office of fhe President was fixed before Supreme Court. [P. ] AAAAA
PLD 1998 SC 1445; PLD 1964 SC 829; AIR 1978 Punjab Haryana 294; (1970 Vol. Ill AELR 871; (1983 Vol H, AELR 353; (AIR 1964 SC 1573 and (1921 Vol.3 KB 621) ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions of 3-11-2007 are based on mala fide therefore they are not sustainable in the eyes of law--It was admitted by the Gen. Pervez Musharaf that he" had taken extra constitutional actions which tantamounts to amend the Constitution, which is not permissible--Power to amend the Constitution is vested in the Parliament by Part II vide Arts. 238 and 239. Constitution may be amended by Parliament vide Art. 238 whereas Art. 239 prescribes procedure for amending the Constitution--Even the Parliament cannot change the salient features of the Constitution to destroy one organ of the judiciary in view of Art. 238 and 239 of the Constitution. [P. ] BBBBB
PLD 1997 SC 426 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In case all the three instruments (Proclamation, PCO and Oath Order) be read together then Emergency Plus, does not remain within the parameters of emergency as Constitution was in fact abrogated under the garb of emergency coupled with the fact that'action was taken by him for his personal benefit which does not fall in the category of good faith. [P. ] CCCCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions were taken by Mushraf at night in spite of the fact that the order dated 3-11-2007 of Supreme Court was communicated to all concerned as is evident from news clippings, published on, all electronic media and the daily evening newspapers dated 3.11.2007 which contained that news--All the daily newspapers contained that news in the newspapers published on 4-11-2007--Almost more than 60 Judges had refused to take oath under the provisions of Proclamation of Emergency, (PCO) and Oath of Office of Judges Order, 2007. Mr. Justice Abdul Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of Pakistan and 4 other Judges of Supreme Court had taken oath on the said night as Judges of the Supreme Court under PCO inspite of the restraining order and the fact that post of Chief Justice was not vacant as the Chief Justice had not resigned or removed or had gone out of the country--Four other Judges had also taken oath as the order dated 3-11-2007 was passed by seven Judges Bench, therefore new four Judges were also appointed with the consultation of Abdul Hameed Dogar for the purpose to complete the quorum--Said application was taken up for hearing on 6-11-2007 wherein the said order set aside by the Court and subsequently petition was also dismissed--The case was decided by the Court which was coram non judice in terms of Arts. 175, 177 and 184(3)--The Judges who had not taken oath under the command of the Chief of Army Staff, were detained in their houses--Such fact was also known to every one--Not only in Pakistan but also in the whole world it was considered a unique action that the Judges of the superior Courts were detained--Judges and Advocates are two parts of one body i.e. Judiciary--Every part of the body had played unprecedented historical role for the supremacy of Constitution and law--Their struggle was highly supported by media without fear and favour by showing their courage for the welfare of the country and for supremacy of Constitution and law, duly supported by the civil society--People of Pakistan had also joined hand in the struggle of the lawyers--On account of that unprecedented struggle by sacrificing even lives of the Advocates, consequently the dictator had to go and the Prime Minister of Pakistan had restored the Judges of the superior Courts vide notification dated 17-3-2009--All the appointments of the Judges of the Superior Courts from 3-11-2007 to 24-3-2009 were made with the consultation of Chief Justice Mr. Abdul Hameed Dogar, which was not in terms of the mandate of the Constitution--He was not even holding status of Acting Chief Justice as he was not senior puisne Judge on 3-11-2007, therefore, appointees were appointed after consultation with a stranger in terms of the law. [P. ] DDDDD
PLD 1971 SC 197; PLD 1996 SC 324; PLD 1998 SC 161; PLD 1997 SC 84; AIR 1982 SC 149; AIR 1994 SC 268 and AIR 1999 SC 1 at 1 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--When the constitution of the Court falls in the category of coram non judice then any order passed by such tribunal comes within the purview of without lawful authority--General Muhammad Yahya Khan was declared as usurper in Asma Jillani's case (PLD 1972 SC 139) when he was not in power whereas General Musharraf was restrained to pass any order on 3-11-20Q7 when he was in full power--Supreme Court has been validating actions of the usurper since imposition of Martial Law in Dosso's and Zafar Ali Shah's cases--General Pervez Musharraf wanted to contest the election of the President of Pakistan while in service of Pakistan as Chief of Army Staff--Justice (R.) Wajihuddin Ahmed had also filed nomination papers to participate in the election of President and had filed objections before the Chief Election Commissioner qua his candidature--On rejection by the Chief Election Commissioner he filed petition before Supreme Court which was pending adjudication at that time before the Bench consisting of 11 Judges of Supreme Court--General Pervez Musharraf had the apprehension that case would be decided against him as his counsel were not ready to conclude their arguments in spite of the suggestion of the Bench to hear the case after Jummah Prayer and even on Saturday--The manner of appointing the judges after 3-11-2007 for the purpose to complete the strength to form a Bench of seven Judges as the earlier order was passed by a Bench of Supreme Court consisting of seven Judges whereas the other case was fixed before a Bench of 11 Judges--Therefore, assumption of jurisdiction by Supreme Court to decide the cases of Wajihuddin Ahmed, Tikka Muhammad Iqbal and Wattan Party are not synonymous with the precedents of Supreme Court apart from the orders passed for their benefit, therefore, such type of judgments are not sustainable in the eyes of law and such types of orders/judgments are without lawful authority. [P. ] EEEEE
PLD 1972 SC 139; PLD 1958 SC 533; PLD 2000 SC 869; PLD 2008 SC 25; PLD 2008 SC 30; PLD 2008 SC 178 and PLD 2008 SC 615 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Both the orders/judgments in Tikka Muhammad Iqbal's case are judgments per incuriam--Supreme Court has ample power to review such type of orders/judgments which are not sustainable in the eyes of law--Judgment of larger Bench of Supreme Court has binding effect on the Bench consisting of lesser number--The judgments/orders of the Court are not sustainable in the eyes of law and in terms of well known maxim per incuriam and sub silentio--These doctrines parted as exceptions to the rule of precedents--Decision which is not based on reason is not judgment in the eyes of law--Following are three basic ingredients of every decision:--
Findings of fact both direct and inferential; Statement of principles of law applicable to the legal terms disclosed by the facts; The judgment passed on the combined effect of the above ingredients.
Principles on which the question is decided is alone binding as precedent--The word decision or decisions means decision of Supreme Court binding only when it fulfils the following three conditions: (a) It decides a question of law; (b) It is passed upon the basis of law; (c) It enunciates a principle of law--To determine whether the decision has `declared law', it is immaterial whether the Supreme Court gave the decision ex parte or after a hearing--But no law is laid down when a point is disposed of on the concession. However, if the Supreme Court is satisfied that the earlier judgments have resulted in deprivation of fundamental right of a citizen or rights created under any substantive law; it can take a different view notwithstanding the earlier judgments. [P. ] FFFFF
PLD 2000 SC 869; PLD 1995 SC 423; 1999 SCMR 2883 at 2912; AIR 1999 SC 1958; 1991 Vol. 4 SCC 139; AIR 1996 SC 2124; 1999 Vol. 9 SC 596 para. 32; AIR 1998 SC 2735 para. 2; PLD 1970 SC 158; PLD 1978 SC 173; PLD 1975 Lah. 65; AIR 1979 SC 451 and AIR 2000 SC 1650 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court has ample power to reconsider, revise its earlier decisions, nothing in the Constitution to prevent the Supreme Court from departing from a previous decision of its own if it is satisfied of its error particularly constitutional or other matters, its effect on the general interests of the public as perpetuation of a mistake will be harmful to public interests--Such power vests in Supreme Court in terms of Art. 188 of the Constitution. [P. ] GGGGG
(AIR 1965 SC 1636 at 1643 and 1644); (AIR 1967 SC 997 at 1001 para 5); (PLD 1962 SC 336); (PLD 1972 SC 139); (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); (AIR 1954 SC 119 at 137); (AIR 1955 SC 661 at 672); (1924 (264) U.S. 219); (1898 A.C. 375); (AIR 1969 SC 1100) and (AIR 1965 SC 845 at 855 para 21) ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty, it is a fundamental right of the people of Pakistan to have an independent judiciary. , [P. ] HHHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--It is no doubt that in Iqbal Tikka's case, the earlier decision of the larger Bench was noted but it was neither followed in its true sense nor made any attempt to distinguish it and in fact had taken a counter view to the one adopted by Larger Bench in Syed Zafar Ali Shah's case--Therefore, judgment of Iqbal Tikka's case is liable to be reviewed. [P. ] IIIII
AIR 1955 SC 661 at 672 ref.
PCO, [1 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--`Incuria' literally means "carelessness". In practice per incuriam is taken to mean per ignoratium and ignored if it is rendered "in ignoratium of a statute or other binding authority--What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the Court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. [P. ] JJJJJ
[2004 SCC 558 at 565 para 21]; (LR 1972 AC 1027 at 1107, 1113, 1131);, [AELR 1947 (2) 193 at 196];, [LR 1955 QB 379 at 380],, [Weekly Law Reports 1988 (3) 867 at 875 and 878];, [AELR 1944 (2) 293 at page 294] and, [AELR.1955 (1) 708] ref.
Constitution of Pakistan, 1973--
----Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Once the Court has come to the conclusion that judgment was delivered per incuriam then Court is not bound to. follow such decision on the well known principle that the judgment itself is without jurisdiction and per incuriam, therefore, it deserves to be over--ruled at the earliest opportunity--In such situation, it is the duty and obligation of the apex Court to rectify it--The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, Supreme Court, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Arts. 4, 5 (2) r/w Arts. 189 and 190 of the Constitution. [P. ] KKKKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--When the particular point of law involved in the decision is not perceived by the Court or present to it its mind--Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent--Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. [P. ] LLLLL
[1991 (4) SCC 139 at 163];, [AIR 1999 SC 2378] and [AELR 1941 (2) 11 at page 13 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decisions rendered, without reference to crucial words of rule and without any citation of authority are not binding and would not be followed. [P. ] MMMMM
PCO, [1 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Principle laid down by any provision of law or Constitution by the larger Bench has binding effect over the smaller Bench. [P. ] NNNNN
(PLD 2004 SC 600 at 618); (PLD 1995 SC 423); (1997 SCMR 314); (1999 SCMR 2518); (AIR 1976 SC 2433 at 2437 para 12);, [1982 (2) SCC 289 at 290 para 4] and (AIR 1991 SC 574) ref.
Provisional Constitution (Amendment) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decision of the larger Bench is binding upon the smaller Bench--It is also duty and obligation of the larger Bench in the circumstances if, however, the decision of the smaller Bench is erroneous the larger Bench has necessarily to interfere with the decision as Supreme Court will not permit a wrong decision to operate as a good law of the land. [P. ] OOOOO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Binding nature of judicial decisions may be derived either from a constitutional or statutory provision or it may be derived from the conventions which the Courts observe in the administration of justice--Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and 190 of the Constitution whereas the judgment of the High Court is binding on each and every organ except Supreme Court by virtue of Art. 201 of the Constitution--Conflict between the judgment of Supreme Court and the High Court, then the judgment of Supreme Court is binding on all State organs. [P. ] PPPPP
AIR 1943 Nag 340 (345) and AIR 1950 Pat 50 (FB) ref.
Provisional Constitution (Amendment) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decision of Supreme Court is binding not only under Art. 189 of the Constitution but also with the doctrine of binding precedents with one exception that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as contemplated in terms of the aforesaid Article. [P. ] QQQQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judgment is a precedent for what has been decided therein and cannot become precedent what can be inferred from it--Purpose and object of principle of precedent is to achieve consistency in judicial pronouncements, the Courts have evolved the role of precedents, principle of stare decisis which are based on public policy and if these are not followed by Courts and not implemented in letter and spirit by the other organs of the State then there will be chaos in the administration of justice. [P. ] RRRRR
Extract from the Book "Suneray Faislay" under the heading "Adulka Krishma written by by Al-Sheikh Ali Al-Tnatawi R.A. in his book "Qasus mun Al-Tareek" ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Irreconcilable decisions of Supreme Court are consisting of two different Benches i.e. earlier judgment of larger Bench subsequent judgment of smaller Bench, not considering decision of earlier larger Bench--Latter decision, per incuriam in that important aspect of the matter considered by earlier Bench not considered by latter Bench. [P. ] SSSSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judgment in Tikka Iqbal's case is not sustainable in the eyes of law inspite of the fact that in the latter judgment reference was made to Zafar Ali's case which was rendered by a larger Bench--The judgment was delivered in Tikka Iqbal's case in violation of ratio of Syed Zafar Ali Shah's case--The judgment of Tikka Iqbal's case is not sustainable in the eye of law on any canon of justice--Action of 3rd Nov., 2007 by is not within the parameters of the Constitution as highlighted herein above and also accepted by him, therefore, trie same is declared to be void and is hereby set aside. [P. ] TTTTT
Per Jawwad S. Khawaja, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The whole case before Supreme Court can be reduced to one foundational question--Can Constitutional legitimacy flow from the force of arms or as is more graphically put at times - from the barrel of a gun?--Basic issue here because General Musharraf, on 3rd Nov., 2007 took actions in his capacity as the Chief of Army Staff (and then purportedly, as President) without the slightest pretence that these actions were permitted to him by the Constitution--As noted in the main judgment, he was also afforded an opportunity to appear in the case, personally or through counsel, to justify his actions of 3rd Nov., 2007--He, however, chose not to avail that opportunity--For reasons which have been spelt out in the main judgment, there can be no doubt at all that the actions of 3rd Nov., 2007 were un-Constitutional--General Musharraf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command--This constituted a frontal attack on the Constitution and directly undermined the writ of the State--It is only through the unremitting struggle by the people, for their right to be governed in accordance with the Constitution, that the assault on their guaranteed rights, was thwarted--If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan--Supreme Court to embark on a discussion on questions which do not directly arise in instant case--It would, however, be for the representatives of the People and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today--Causal connection very strongly suggests itself--Prime Minister of Pakistan, addressed letter to the President, General Pervez Musharraf has been reproduced--The contents of the letter have also been commented upon but at this stage--At two places in the said letter the term " writ of the government" has been used and interference with the said 'writ' by the judiciary has been criticised--It is a measure of the abysmal lack of understanding of Constitutional rule on the part of the then Prime Minister and President, that the distinction between the writ of the government and the writ of the State has not been recognized by them--It is the writ of the State which has to, be enforced and not the writ of the government because the government represents only the executive organ of the State and in that capacity it can and must be checked by the Judiciary if it starts acting in violation of the Constitution--It is the duty of Courts to call in-question all executive measures which transgress and are not in line with constitutional norms--Instead of complaining of judicial interference, any politically responsible government committed to the rule of law would have been appreciative of a Court which had identified any shortcomings of the government, and in response would have adopted measures to improve governance and adherence to constitutional principles--The wholly specious and untenable reasoning in the Prime Minister's letter was used by General Musharraf with the sole object of launching an unashamed attack on the Constitution and in particular on the judicial organ of the State--On 3.11.2007, with utter disdaim for the Constitution and in a manner which was brazenly imperious, General Musharraf arrogated on himself the right to decide what was good for the people of Pakistan and the manner in which they ought to be governed--This was an anachronistic throw--back to the notion (discredited in all civilized dispensations) where an absolutist ruler could say "l'Etat, c'est moi." Surely, as President of Pakistan, General Musharraf cannot be presumed to have been ignorant of the Constitution of the country--The people of Pakistan have consciously chosen the method for their own governance--Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State--Initial lines appearing in the preamble to the Constitution stipulate, inter alia, "that it is the will of the people of Pakistan to establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people." The operative part of the preamble in the clearest possible terms, states that "we the people of Pakistan do hereby adopt, enact and give to ourselves this Constitution"--It was nothing but haughty arrogance on the part of General Musharraf to claim to be above the Constitution and to assume the power of arbitrarily amending it--Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people of Pakistan who had chosen their own method of governance, were incapable of knowing what was best for them--There can be no other explanation for the actions of 3rd Nov., 2007 when these are examined in the context of the contents of the preamble referred to above. Fortunately for the people of Pakistan, the troubled events starting on 9th March, 2007 enabled them to see behind the false face and deceptive veneer of an essentially anti--people dispensation--These events also enabled the people to realize, what heretofore had been mere rhetoric, viz. that they were the sarchashma (fountain--head) of power--This heady realization must, however, be tempered with the awareness that Judges can exercise constitutional and moral authority, but they alone cannot thwart un--Constitutional forces without the people actively standing up in defence of their Constitution--As upholders of constitutional rule, and in the context of the present case, Judges and society must have faith ein themselves and take courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol horde:
[P.] UUUUU
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Following were held to be the legal consequences of the above:--
(i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore alleged judgments or any other such judgment and on account instruments shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;
(ii) Office of the Chief Justice of Pakistan never fell vacant on Nov. 3, 2007 and as a consequence thereof it was further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un--constitutional, void ab initio and of no legal effect;
(iii) since Mr. Justice Abdul Hameed Dogar, was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges made, in consultation with him, during the period that he, unconstitutionally held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) were declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
(iv) the Judges of. the Supreme Court of Pakistan, if any, the Chief Justices of the High Courts, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3-11-2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3-11-2007 in CM. A.No.2869 of 2007 in Const. P. No. 73 of 2007, shall be proceeded against under Art. 209 of the Constitution;
(v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which inpluded the afore--described Judges whose appointments had been declared void ab initio, were protected on the principle laid down in Malik Asad All's case (PLD 1998 SC 161);
(vi) Constitution (Amendment) Order, 2007 being the President's Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, were declared to be unconstitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith--All judicial matters pending before the said High Court before the passing of present order shall revert/stand transferred to the Courts which had jurisdiction in the said matters before the promulgation of President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th Dec., 2007;
(vii) the Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by the PCO No.l of 2007 as also the Ordinances issued by the President or a Governor between 3-11-2007 and 15-12-2008 (both days inclusive) which were also, like--wise given permanence through the same instrument and which legislative measures alongwith the said PCO had been validated by the judgment delivered in Tikka Iqbal Muhammad Khan's case, stood shorn of their purported permanence on account of Supreme Court declarations--Since on account of the judgment in Tikka Iqbal Muhammad Khan's case purporting to be a judgment of Supreme Court, the presumption that the Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Art. 89 or 128 of the Constitution and since it was today (31-7-2009) that Supreme Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Art. 89 and the said Art. 128 of the Constitution, would be deemed to commence to run from today (31-7-2009) and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;
(viii) since the Constitution, through its Art. 176, authorised only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act, 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Art. 176 of the Constitution--The number of Judges of the Supreme Court for purposes of the said Art. 176 shall continue to remain sixteen;
(ix) Code of Conduct prescribed for the Judges of the Superior Courts in terms of Art. 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any un--constitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Art. 209 of the Constitution;
(x) Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Addl. Judges of the High Court of Sindh were declared to be un-constitutional and of no legal effect;
(xi) Supreme Court observed that the Court acknowledged and respected the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th Feb., 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which was the essence of the rule of law--Any declaration made in the present judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions; said acts were fully protected in terms of the age old principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139;
(xii) Supreme Court reiterated that to defend, protect and uphold the Constitution was the sacred function of the Supreme Court--The Constitution in its Preamble, inter alia, mandates that there shall be democratic governance in the country, "wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; wherein the independence of judiciary shall be fully secured." Supreme Court observed that while rendering present judgment, said abiding values had weighed with the Court and the Court was sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths. [P. ] C
Constitutional developments in Pakistan--
----A cursory glance. [P. ] D
PLD 1955 FC 387; PLD 1955 FC 435; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 637; PLD 2000 SC 869; PLD 2001 SC 233; 1st Edn. 2004, p.276; PLD 2008 SC 178 and PLD 2008 SC 25 ref.
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Constitution does not envisage any situation where the Armed Forces act without any direction by the Federal Government--Proclamation requiring the aid of Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role--Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect--Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their autnority or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and law and does so at his own risk and cost--Any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subservt the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason--Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan--No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance of the Constitution, or its subsequent mutilation by incorporating amendments in it by any authority not mentioned in the Constitution and in a manner not provided for in the Constitution--By Art. 6 of the Constitution, an in--built mechanism is provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever--Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts.238 and 239 of the Constitution, or it is repealed on the pattern of the Interim Constitution under the provisions of Art.266 of the Constitution, which too is possible by recourse to the provisions of Arts.238 and 239 of the Constitution, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself--Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives--Validity accorded to such an action, in the past did not give a licence to any holder of the office of the Chief of Army Staff of repeating such acts at his will--Holding in abeyance the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner nor authorised under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus, constitutes the offence of high treason--Principles--Art. 245(1) of the Constitution the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Art. 243 of the Constitution the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces Act under the directions of the Federal Government--Thus, the provisions of Art. 243(1-A) under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law--Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government. [P. ] E
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. [P. ] F
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--In the cases of State v. Dosso (PLD 1958 SC 533), Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1997 SC 657), (PLD 2000 SC 869) and Tikka Iqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 25 and 178) the Court did not take into consideration the aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and State necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come--Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect--Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. Supreme Court, in Liaquat Hussain's case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Art. 237 of the Constitution wherein the words "martial law" have been omitted, the legal effect of which is that the Parliament cannot make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan--Language of Art. 237 of the Constitution was preceded by a discussion of the term 'martial law' in Asma Jilani's case, a decision which was rendered only a year before the promulgation of the Constitution of 1973. [P. ] G
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Art. 237 as finally approved, the framers of the Constitution also legislated Art. 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. [P. ] H
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Supreme Court while affirming Asma Jilani's case ruled that Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution--Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Art. 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people--He is also sworn not to engage himself in any political activities whatsoever--He also solemnly affirms and declares that he will honestly arid faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law--General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution--Constitution was framed to continue to be in force at all times. By Art. 6, an in--built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever--Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts. 238 and 239, or it is repealed on the pattern of the Interim Constitution under, the provisions of Art. 266, which too, is possible by recourse to the provisions of Arts. 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself--The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the CJiief of Army Staff and to be revived after he has achieved his objectives--Validity apcorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will--Holding in abeyance of the Constitution or any other Act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason. [P. ] I & J
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Therefore, the military rule, direct or indirect, is to be shunned once and for all--Supreme Court made it clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theorj whatsoever--Military rule is against the dignity, honour and glory of the Nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the. sovereignty and integrity of the Nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath--bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services--Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government--In the course of the discharge of his duties, a soldier, therefore, is obligated to see that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution--If a member of the Armed Forces acts in aid of a person who does any of the above'acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law. [P. ] K
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Arts. 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else--Holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se--No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power--Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. [P. ] JJ et seq
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Only those acts which were required to be done for the ordinary orderly running of the State could be protected--Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken--Actions taken by General Pervez Musharraf on 3rd Nov., 2007 and thereafter being unconstitutional, illegal and void ab initio , the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd Nov., 2007 on the other, including passing of order dated 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc. [P. ] KK
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Amendments purportedly made by General Pervez Musharraf from 3rd Nov., 2007 up till 15th Dec., 2007 (both days inclusive) were neither made by an authority mentioned in the Cpnstitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio--Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Arts. 238 & 239 and the Third Schedule to the Constitution (Oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [P. ] LL
PLD 1955 FC 387; PLD 1955 FC 435; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 637; PLD 2000 SC 869; PLD 2001 SC 233; 1st Edn. 2004, p. 276; PLD 2008 SC 178; PLD 2008 SC 25 and PLD 1999 SC 504 ref.
Constitution of Pakistan, 1973--
----Art. 209--Assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any Court, including the Supreme Court--Judge playing any role in the recognition of such assumption of power would be guilty of misconduct within the ambit of Art.209 of the Constitution. [P. ] R
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Chief Justice of Pakistan is head of the Judiciary, therefore his views deserve due deference and his recommendation is non--justiciable which is inextricably linked with the independence of judiciary-- Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid--Appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary--Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court--An Acting Chief Justice was not a consultee as envisaged by the relevant Arts. of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness--Since consultation for the appointment/ confirmation of a Judge of a superior Court by the President/ Executive with consultees mentioned in the relevant Arts. of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees interpreted would be violative of the Constitution and, therefore, would be invalid. [P. ] BBB
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Arts. 177 and 193 of the Constitution, has to be effective, meaningful, purposive, consensus--oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciaryTo achieve the primary objective of mandatory, effective, meaningful, purposive and consensus--oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates--However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consideration the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. [P. ] NNNN
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Art. 105 of the Constitution--Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid. [P. ] OOOO
Judicial Review--
----Scope--The judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. [P. ] VVV
Judicial Review--
----Scope--It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and Vigilantly. [P. ] XXX
Judicial Review--
----Scope--Judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation--No one could claim to be the , sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. [P. ] AAAA
Judicial review--
----Scope--Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government--Duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. [P. ] BBBB
Judicial Review--
----Scope--Fundamental principle of jurisprudence Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive--Such expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges. [P. ] CCCC
Constitution of Pakistan, 1973--
----Arts. 270AAA, 89 & 128--Validation of laws--Proclamation of Emergency, dated 3-11-2007 and PCO, 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Art. 270AAA of the Constitution and by the judgment in Tikka Iqbal Muhammad Khan's case (PLJ 2008 SC 446, 500; PLD 2008 SC 178 and PLJ 2009 SC 18) also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts,89 & 128 of the Constitution--Any validation whether with retrospective effect or otherwise shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground--Principles. [P. ] LLLL & MMMM
Judicial Notice--
----Qanun-e-Shahadat, 1984 (10 of 1984), Art. 164--Reports of the relevant period from the electronic and print media had been taken into consideration by the Supreme Court, in forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the matter--Parameters for the purpose of taking judicial notice of press reports detailed. [P. ] W & ZZ
Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Independence of judiciary--
----Supremacy of law--Two nation theory--Genesis of Pakistan is based on justice--Historical events recapitulated. [P. ] PPPP
AIR 1916 Bom.9 ref.
Constitution of Pakistan, 1973--
----Preamble--Basic salient feature of Constitution of Pakistan is justice and independence of judiciary--Constitutional history of Pakistan surveyed. [P. ] QQQQ et seq
Shahabnama by Qudurat Ullah Shahab ref.
Interpretation of Constitution--
----Basic rules enumerated. [P. ] RRRR
Understanding Statute by S.M. Zafar ref.
Constitution of Pakistan, 1973--
----Preamble--Each and every organ of the State is bound to discharge its duties within the command of the Constitution--Principles--Each and every organ of the State is bound to discharge its duties within the command of the Constitution--Moment when one organ interferes or encroaches the sphere of the other organ then situation will automatically arise when said constitutional organs would not discharge their duties and obligations due to which the only net result is chaos--When system is disturbed then destruction is must as abnormal situation creates an opportunity for the adventurers to get the benefit of the situation which was created on account of incompetency of the three organs of the State which do not perform their functions within their parameters. Constitution of Pakistan has a very beautiful scheme which consists of rights and obligations--When any person, body, organ is not vigilant about its rights then he is also not vigilant and aware about his obligations and duties. [P. ] TTTT
Constitution of Pakistan (1973)--
----Preamble--Balance must be maintained in each and every sphere of life otherwise destruction is must--Once the constitutional machinery has broken on account of interference by one of the organs into the sphere of the other organs, then destruction is must--Constitution is based on trichotomy, i.e. legislature, executive and judiciary--Role has also been defined with regard to the function of the said organs--There are four organs which are as foliows:--
(1) Legislature; (2) Executive; (3) Judiciary; (4) People of Pakistan
It is the paramount duty and obligation of first organ of the State to perform duties for the welfare of the people of Pakistan--Unfortunately since the creation of Pakistan this principle has not been acted upon in letter and spirit and that is why the nation has riot progressed in real sense in every sphere of life--No body is above the Constitution--Even the Chief Executive of the country is bound to obey the command of the Constitution. [P. ] UUUU
Constitution of Pakistan (1973)--
----Preamble--Constitution is a social binding contract--Conduct of all organs has to be in terms of the Constitution subject to the condition that you accept the Constitution from the core of your heart--No body is above the Constitution and cannot imagine to do anything in violation of the Constitution and rule of law. [P. ] VVVV
Understanding Statute by S.M. Zafar ref.
Rule of law--
----Definition and application--Scope--Governmental power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformally applied--Rule of law as defined by Aristotle is "Rule of law is to be preferred to that of any individual" whereas in the words of the Massachusetts Constitution it means "a Government of laws and not of men" which described in one word means supremacy of law. Supremacy of law defined with the Divine Command in the Holy Qur'an 4:59. [P. ] XXXX
1997 MLD 299 ref.
Constitution of Pakistan, 1973--
----Art. 177--Appointment of Judges of the superior Courts--Consultation with the consultees--Scope--According to Art. 177 of the Constitution Chief Justice of Pakistan is appointed by the President and each of the other Judges are appointed by the President after consultation with the Chief Justice of Pakistan whereas Judges of the High Courts are appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and except appointment of the--Chief Justices of the High Courts, with the Chief Justices of the High Courts--Consultation must be meaningful and executive has no authority whatsoever to ignore the recommendations of the Chief Justices--Governor has no right to disagree with the recommendations of the Chief Justice. However executive has authority to judge/evaluate the antecedents of the appointees--Opinion of the Chief Justices must be given preference and the Governor has no right to directly send the proposal for appointment of Supreme Court or High Courts Judges. [P. ] WWWW
(AIR 1975 Delhi 66 at 73); (AIR 1991 SC 63 at 640 to 641, 645 to 646); (AIR 1982 SC 149); (AIR 1999 SC 1); (AIR 1994 SC 268 at 437, 342, 431, 434, 438, 439, 356); (PLD 1996 SC 324); (PLD 1997 SC 84); (PLD 1998 SC 161); (PLD 2000 SC 179) and PLJ 2007 Mag. 195 at 195 and 198 rel.
Constitution of Pakistan, 1973--
----Art. 243(1)A--Command of Armed Forces--Scope--Principles--According to Art. 243(1) of the Constitution the Federal Government has control and command of the Armed Forces whereas the supreme command of the Armed Forces shall be vested in the President in terms of Art. 243(1)(A)--Principles--Personnel of the Armed Forces are under the final administrative control of the Federal Government; (ii) Every member of the Armed Forces has to take oath in the term stated in the Third Schedule in term of Art. 244; Armed Forces which owe allegiance to Pakistan cannot be used for political motive by the party in power; It not only is violative of the oath prescribed in the Third Schedule which prohibits engagement of the army in political activities and further tarnishes the image of the Army. [P. ] ZZZZ
PLD 1999 SC 504 and PLD 1980 Lah. 206 ref.
Decision--
----Basic ingredients of `decision' enumerated. [P. ] FFFFF
Constitution of Pakistan (1973)--
----Art. 188--Review of Supreme Court judgment--Scope. [P. ] GGGGG & HHHHH
(AIR 1965 SC 1636 at 1643 and 1644); (AIR 1967 SC 997 at 1001 para.5); (PLD 1962 SC 336); (PLD 1972 SC 139); (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); (AIR 1954 SC 119 at 137); (AIR 1955 SC 661 at 672);, [1924 (264) U.S. 219]; (1898 A.C.375); (AIR 1969 SC 1100) and (AIR 1965 SC 845 at 855 para 21) ref.
Maxim--
----"Per incuriam"--Meaning and applicability--Scope. [P. ] JJJJJ
[2004 SCC 558 at 565 para 21]; (LR 1972 AC 1027 at 1107, 1113, 1131);, [AELR 1947 (2) 193 at 196]; (LR 1955 QB 379 at 380);, [Weekly Law Reports 1988 (3) 867 at 875 and 878],, [AELR 1944 (2) 293 at p.294] and, [AELR 1955 (1) 708] ref.
Maxim--
--"Sub silentio"--Scope and application. [P. ] KKKKK
[1991 (4) SCC 139 at 163]; (AIR 1999 SC 2378) and [AELR 1941 (2) 11 at page 13] ref.
Precedent--
----Principle laid down by a Larger Bench--Binding effect--Scope and extent [Pp. ] NNNNN & OOOOO
(PLD 2004 SC 600 at 618); (PLD 1995 SC 423); (1997 SCMR 314); (1999 SCMR 2518); (AIR 1976 SC 2433 at 2437 para 12); (1982 (2) SCC 289 at 290 para 4) and (AIR 1991 SC 574) ref.
Precedent--
----Source and authority of judicial precedents--Binding effect--Scope.
[P. ] PPPPP
[AIR 1943 Nag 340 (345) (FB)] and, [AIR 1950 Pat 50 (FB)] ref.
Constitution of Pakistan, 1973--
----Art. 189--Supreme Court judgment--Binding effect of--Scope and extent. [P. ] QQQQQ
Precedent--
----Two irreconcilable decisions of Court consisting of two different Benches--Principles. [P. ] RRRRR & SSSSS
Mr. Hamid Khan, Sr. ASC, Mr. Rashid A. Razvi, ASC, Mr. M. S. Khattak, AOR Assisted by M/s. Waqar Rana, Barrister Waleed Khalid & Haq Nawaz Talpur, Advocates for Petitioner (in Const. P. No. 09/2009).
Mr. Muhammad Akram Sheikh, Sr. ASC Assisted by Barristers Ms. Natalya Kamal & Mr. Sajeel Shehryar, Advocates for Petitioners (in Const. P. No. 08/2009)
Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan, Agha Tariq Mehmood Khan, DAG, Mr. Shah Khawar, DAG and Ch. Akhtar Ali, AOR for Respondent No. 1.
Mr. Yousaf Khan Leghari, AG Sindh and Raja Abdul Ghafoor, AOR for Respondents No. 2.
Nemo for Respondents No. 3 & 4.
Mr. Mazhar Ali B. Chohan, AOR (absent) for Respondent No. 5.
Dates of hearing: 20 to 22 and 29 to 31.7.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--These Constitution Petitions were disposed of by the short order dated 31st July, 2009 as under:-
"The above Constitutional Petitions Bearing Nos. 9 of 2009 and 8 of 2009 involve common questions of facts and law and are disposed of by this single judgment.
"The removal of Judges of Supreme Court and High Courts on 3.11.2007 was not only violative of Article 209 of the Constitution, 1973 but was against the rule laid down by the Bench of twelve (12) Judges of Supreme Court in the case of Syed Zafar Ali Shah (PLD 2000 SC 869). The subsequent validation in the ca se of Tikka Iqbal Khan (PLD 2008 SC 178) a smaller Bench of the Supreme Court is per-incuriam and in any event, is not by a Supreme Court that is de jure. It is respectfully submitted, that Justice Abdul Hameed Dogar could not be treated as Constitutional head of the Supreme Court even after the decision in the case of Tikka Iqbal Khan (supra) as he himself was the real beneficiary of the said judgment and contrary to one of the cardinal principles of Natural justice, "no person should be judge in his own cause" had headed the Bench. Hence, in view of the facts and reasons stated above Justice Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all appointments and re-appointments made in the Supreme Court and High Courts without consultation of de jure Chief Justice of Pakistan are unlawful, illegal, ultra-vires of the Constitution as well as mala fide".
(i) that the purported acts done by General Pervez Musharraf, (Rtd.) between 3.11.2007 to 16.12.2007 aimed at to suspend and amend the Constitution through several instruments are unconstitutional, invalid and without any legal consequence;
(ii) that on account of his acts taken during 3.11.2007 to 15.12.2007 relating to superior judiciary, General Pervez Musharraf (Rtd.) became a usurper;
(iii) all the appointments of Judges of superior judiciary on or after 3.11.2007 up till 22.3.2008 which were without consultation of de-jure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence;
(iv) that the two (so called) Judgments dated 23.11.2007 and 15.2.2008 on Constitutional Petitions No. 87 and 88 of 2007 filed by Tikka Iqbal Muhammad and WATAN Party and the Review Petition No. 7 of 2008 filed by the former are/were nullity in law, being decisions per incuriam, coram non judice, without any legal basis and based on mala-fide proceedings rendered by biased persons of Tribunal (then calling themselves as Judges of this Court) fraudulently, collusively and lacking in bona-fides:
"All the persons who were not judges on 3rd November 2007 but who were brought into Supreme Court and High Courts as `judges' despite the fact that the Honourable Chief Justice of Pakistan was never consulted before their appointment which meant that they were never appointed under the Constitution.
AND
"On the night of 22 March 2009, issuance of cause lists comprising persons who have not been appointed in strict adherence to Article 177 and who are therefore complete strangers to the Supreme Court, is a serious matter and it is incumbent on the Honourable Chief Justice, before proceeding with any other judicial work, to forthwith stop all these persons from hearing any cases till such time that he, along with other validly appointed judges, are able to look into and judicially determine validity of their appointments as judges."
The petitioner has, among others, sought a declaration that all those persons, both in Supreme Court and High Courts, regardless of whether they have taken oath under PCO or the Constitution, who have been appointed without `consultation' of Honourable Chief Justice of Pakistan as not judges and therefore, not entitled to function as such.
On 22.7.2009 a notice was issued to General Pervez Musharraf (Rtd.) on his available address intimating him about the proceedings in this case and 29.7.2009 as the date fixed therein before this Court. The Process Serving Officer reported on the same day that he had gone to the residential place viz. C-1, B Park Road, Chak Shahzad, Islamabad where a person identifying himself as Muhammad Hussain son of Amir and that on formers offer the latter refused to receive the notice. The factum of issuance of the afore-referred notice was widely televised through National and International T.V. channels. Also, it was widely published in National and International print media, but, on the date so fixed no one entered appearance.
We have heard learned counsel for petitioners and learned Attorney General for Pakistan.
Before dilating upon the pleas taken in the arguments by learned counsel for the parties, in our view, some of the facts/events which took place before 3rd November, 2007 touching the very basis of the issues involved in the matter are brought on record.
In our country, during sixty years of its independence after partition, to the misfortune of people, several times, the Constitutions framed by Legislative Bodies were desecrated. Sovereignty of people was not allowed to flourish and get deep-rooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end. For the first time, Constitution of 1956 was abrogated on 7th October, 1958 and Martial Law was imposed by the then President, Is kandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointe d General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Iskandar Mirza was soon, within few days, replaced by the latter. On 25th March, 1969, again the then head of Army, General Agha Muhammad Yahya Khan, abrogated the Constitution of 1962 and by proclamation (PLD 1969 Central Statutes 42) Promulgated Martial Law followed by Provisional Constitution Order (Gazette of Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once again Martial Law was imposed throughout the country by the then head of Army Chief viz. former General Muhammad Ziaul Haq, who, vide Proclamation of Martial Law (PLD 1969 Federal Statutes 326) dissolved the National Assembly, the Senate, the Provincial Assemblies etc. and put the Constitution of 1973 in abeyance followed by Laws (Continuance in Force) Order, 1977. When the Constitution was revived, it was undeniably, in a mutilated form by the notorious Eighth Amendment.
Later, there was another onslaught on the ongoing democratic system of governance. On 12th October, 1999, the then Chief of Army Staff, General Pervez Musharraf, now retired, once more, put the Constitution in abeyance and the whole of Pakistan was brought under the control of Armed Forces. The National
Assembly, the Senate and the Provincial Assemblies were suspended, so also, the Chairman and Deputy Chairman of Senate, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies were suspended and it was declared that the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers and the Advisor to the Chief Ministers would ceased to hold offices, followed by issuance of Provisional Constitution Order and the Oath of Office (Judges) Order 2000. General Pervez Musharraf (Rtd.), self styled himself as Chief Executive and started ruling the country under the new dispensation. Later, he, unceremoniously, occupied the office of President and in the coming years revived the Constitution with Seventeenth Amendment.
Again, on 3rd November, 2007 the General Pervez Musharraf, (Rtd.), in his capacity as Chief of Army Staff, in the garb of declaration of emergency, put the Constitution in abeyance, issued Provisional Constitution Order No. 1 of 2007 followed by the Oath of Office (Judges) Order, 2007, making as many as sixty one (61) Judges of superior judiciary including Chief Justice of Pakistan and Chief Justices of three Provinces dysfunctional for many of them either did not agree to take or were not given the oath. Of them were; from Supreme Court 13 out of 18 (17 permanent and one ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh, 6 out of 13 Judges including Chief Justice of Peshawar High Court. It is quite saddening that all the five Judges including the Chief Justice of Balochistan High Court took oath under the Oath of Office (Judges) Order, 2007.
An independent and strong judiciary is a back bone of viable democratic system all over the world. The time tested experience has proved that independent and strong judiciary provides strength to the institutions running government particularly, those who roll on the wheels of democracy. Equally the independent and strong judiciary acts as an arbiter striking balance among various segments of Democratic system. It helps State organs, such, as, Legislature, Executive and the judiciary itself to function smoothly maintaining balance inter se. The constitution of Pakistan, of 1973, too, provides the judiciary guarantees enshrined in it and states that the judiciary shall be fully secured, but, unfortunately, to its great dismay, this organ of State has, all along been under the wrath of adventurers imposing their dictatorial terms obviously for their ulterior designs. The history of this country witnessed that in a set up of one government tenure of a Chief Justice of Pakistan was curtailed with ulterior motives and was restored to its original position when the designs were stood achieved. Likewise, through various instruments, the favourites and pliant members of superior judiciary were out rightly given underserved benefits while the others were shown doors. This happened during the era of the then Martial Law Administrator General Ziaul Haq and following the same foot steps, General Pervez Musharraf (Rtd.) did the same in the year 2000. Many judges of superior judiciary who declined to toe his line of action were unceremoniously sacked.
General Pervez Musharraf (Rtd.) through his 1999/2000 action, declared that the national Assembly, the provincial Assemblies, Senate, Chairman and Deputy Chairman of Senate, Speaker of National Assembly and the Provincial Assemblies were suspended and the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors and the provincial Chief Ministers and the Advisors to the Chief Ministers, to have ceased to hold offices. However, his November, 2007 action was a singular in nature, in that, the onslaught was on judiciary alone. All other institutions were intact. The independence of judiciary was given a serious blow. In order to save the judiciary from being destroyed, for the first time in the history of this Country, a seven member Bench of this Court headed by the de jure Chief Justice of Pakistan, passed an order, inter-alia, restraining the President and Prime Minister of Pakistan from undertaking any such action, which was contrary to the Independence of Judiciary. So also the Judges of this Court and that of the High Courts including Chief Justice (s) were required not to take oath under the Provincial Constitution Order or any other extra Constitutional step and on the same day viz. 3.11.2007, the order was served on the members of superior judiciary through the respective Registrars of the Courts by way of Fax. It was also sent to all the relevant Executive functionaries.
The action of General Pervez Musharraf (Rtd.) was, undeniably, taken to prevent the 11 member Bench of this Court which was hearing the Petition No. 73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad and others in which the qualification of the General was in question, and perhaps, he was not expecting a favourable decision. The reasons shall, in that behalf be found in the detailed judgment. Be that as it may, Justice Abdul Hameed Dogar, as then he was called, along with four other Judges of this Court took oath in pursuance of unconstitutional Provisional Constitution Order and the Oath of Office (Judges) Order, 2007 and by that he also violated the order of seven member Bench of this Court which was headed by de jure Chief Justice of Pakistan. Mr. Justice Abdul Hameed Dogar took the oath of Chief Justice of Pakistan, although, the office was not vacant. Some of High Courts Judges too took oath likewise violating the Constitution and the order of seven-member Bench, legally and lawfully passed. Besides, many other Judges in this Court and in the High Courts were appointed and they took oath in violation of constitutional provisions and the order of seven-member Bench of this Court.
Subsequently, in order to dilute the effect of afore-referred 7 member Bench order, Mr. Justice Abdul Hameed Dogar, the CJP, as then was called, constituted a Bench of 8 Judges including those appointed afresh in pursuance of Provisional Constitution Order and took up CMA bearing No. 2874 of 2007 in Constitution Petition No. 73 of 2007 and by their order dated 6.11.2007 illegally and unlawfully, without the mandate of the Constitution, declared the order dated 3.11.2007 to be illegal and without jurisdiction. Later, a 10 member Bench was also constituted which was headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called. This Bench again illegally and unlawfully took up and dismissed the petition No. 73 and Original Criminal Petition No. 51 of 2007 filed by Justice (Rtd.) Wajihuddin Ahmad calling in question the eligibility of General Pervez Musharraf to contest election to the office of President although, it already stood dismissed for want of instruction. Further details in this behalf shall be given in the detailed judgment.
Also subsequently, an other 7 member Bench headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party and decided the same on the principle of `Salus Populi Supreme Lex' and granted that relief which was even not prayed by the petitioner. This judgment is/was, ex-facie, per incuriam, coram-non-judice illegal and unlawful. Later, a time barred Review Petition was filed by Tikka Iqbal Khan which was heard by 13-member Bench and was dismissed, palpably to give impression that a larger Bench decided the matter to dilute the effect of a previous judgment handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).
It may be noted that the chosen representative of the time, too, did not extend validation to the unconstitutional acts taken upto 3rd November, 2007 as is universally known. It is, however, quite heartening that, for the first time, in the history of our beloved country, the chosen representative of people, who took their offices as a result of election taking place on 18th February, 2008 have, commendably, stayed their hands off and have not sanctified the unconstitutional acts, such as, the Declaration of Emergency, the Provisional Constitution Order No. 1, the Oath of Office (Judges), Order, 2007, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order of 2007 (President's Order No. 6 of 2007) and many other instruments made and declared by General Pervez Musharraf (Rtd.). In this, their restraint not extending validity to all these unconstitutional and illegal instruments and other steps taken by retired General are laudable. Evidently, this was done by the present representatives of people believing firmly that the prosperity of the country lies in the strong and independent democratic system which can alone flourish and survive with democratic steps to be taken in the better interest of people always apt and keen to choose them in such a viable system of governance. We are sanguine that the current democratic dispensation comprising of the President, the Prime Minister, Ministers and the Parliament shall continue to uphold the Constitution, its institutions and sacred values.
From above, the conclusions drawn are that:
(i) The General Pervez Musharraf (Rtd.) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired the powers which all are unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences;
(ii) Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3.11.2007 passed by a 7 member Bench headed by de-jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd.), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant;
(iii) Also, the Judges who were either retired or were not holding any judicial office, beside those in High Courts took fresh oath on their appointment on and after 3.11.2007 till 15.12.2007 in Supreme Court where the full strength of Judges along with an Ad-hoc Judge appointed under the Constitution were already working and thus there was no vacancy. Similarly, many Judges took oath in Provincial High Courts. All of them did so in violation of order dated 3.11.2007 passed by 7 member Bench headed by de-jure Chief Justice of Pakistan. Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd.);
(iv) The Petition No. 73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad challenging the eligibility of General Pervez Musharraf (Rtd.) to contest for the office of President in uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise;
(v) The decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd.) were per incuriam, coram-non-judice, without any legal basis hence, of no legal consequences;
(vi) The amendments in the Supreme Court (Number of Judges) Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1+16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges is unconstitutional because the strengths of Judges of Supreme Court is be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defines the acts of Parliaments;
(vii) Surprisingly, in the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by the General Pervez Musharraf (Rtd.) himself through the PCO and brought a host of unconstitutional amendments for his own benefits; and
(viii) The present representative of people firmly believe in strong and independent judiciary and the democratic system which is evident that the deposed Judges of Supreme Court, High Courts and the de-jure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implied that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd.) taken from 3.11.2007 to 15.12.2007 during which the Constitution remained suspended.
Considering the above, in the light of submissions of learned counsel for the parties and on examination of the material brought before us and for the detailed reasons to be recorded, we dispose the above petitions as follows.
The judgment purported to have been delivered in Constitutional Petitions bearing No. 87 and 88 of 2007 in the case titled as Tikka Iqbal Muhammad Khan vs. General Pervez Musharraf and others (PLD 2008 SC 25 and PLD 2008 SC 178) and the judgment dated 15.2.2008, purported to have been passed in C.R.P. No. 7 of 2008 titled as Tikka Iqbal Muhammad Khan Vs. General Pervez Musharraf and others and any other judgment/judgments passed on the strength of the said two judgments are hereby declared to be void ab initio.
The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No. 1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President's Order No. 5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No. 6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President's Order No. 7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President's Order No. 8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No. 9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Cons titution and consequently being illegal and of no legal effect.
As a consequence thereof:-
(i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;
ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional; void ab initio and of no legal effect:
Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;
(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and like-wise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation;
(iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A. No. 2869 of 2007 in Constitution Petition No. 73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly:
Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan;
(v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in Malik Asad Ali's case (PLD 1998 SC 161);
(vi) since the Constitution (Amendment) Order, 2007 being the President's Order No. 5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No. 7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of this order shall revert/stand transferred to the Courts which had jurisdiction in the said matters before the promulgation of afore-mentioned President's Order No. 5 of 2007 and President's Order No. 7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said Court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the Court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other Court or department or office, such officers or employees shall revert to their respective Courts, departments or offices to which they belonged before joining the service in the Islamabad High Court, subject again to their age of superannuation;
We would like to mention here that establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but it is unfortunate that such a step was taken in an un-constitutional and a highly objectionable manner. We may, therefore, add that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a Court in accordance with the Constitution/the law;
(vii) the Ordinances promulgated by the President or a Governor of a Province before 3.11.2007 which were given permanence by the Provisional Constitution Order No. 1 of 2007 as also the Ordinances issued by the President or a Governor between 3.11.2007 and 15.12.2007 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures along with the said Provisional Constitution Order had been validated by the afore-mentioned judgment delivered in Tikka Iqbal Muhamad Khan's case, stand shorn of their purported permanence on account of our afore-mentioned declarations. Since on account of the said judgment in Tikka Iqbal Muhammad Khan's case purporting to be a judgment of this Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;
(viii) since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen;
(ix) in the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any un-constitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution;
(x) in view of our findings above regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26.8.2008 and the notification dated 15.9.2008 extending the term of office of Mr. Justice Abdur Rasheed Kalwar and of Mr. Justice Zafar Ahmed Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be un-constitutional and of no legal effect;
(xi) that the Court acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions. These acts are fully protected in terms of the age old of principle of Salus populi est suprema lex reflected in PLD 1972 SC 139;
(xii) Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, "wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ................. wherein the independence of judiciary shall be fully secured." While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths;
Hereinbelow are the detailed reasons for the above short order.
"The petitioner, therefore, prays that this Hon'ble Court may be pleased:-
(i) To declare that the Respondents Nos. 3 and 4 are and continue to be Judges of the High Court of Sindh and would continue as Additional Judges till 25th August, 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar;
(ii) To declare and direct Registrar of the High Court of Sindh that the respondents should be assigned regular work as Judges of the Sindh High Court;
(iii) To issue writ of mandamus directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the Respondents Nos. 3 and 4, further directing the continuance of Respondents Nos. 3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March, 2009;
(iv) To issue directions to the Respondent No. 1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March, 2009 before this Hon'ble Court;
(v) To issue a writ of mandamus to appoint the Respondents Nos. 3 and 4 as permanent Judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan;
(vi) To grant costs of the petition; and
(vii) To grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case."
"NOTIFICATION
No. F.12(d)/2007-A.II.--In pursuance to Article 3 of the Oath of Office (Judges) Order, 2007 (Order No. 1 of 2007), the following persons have ceased to hold office of Judges of High Court of Sindh with effect from 3rd November, 2007:-
Mr. Justice Rahmat Hussain Jafferi
Mr. Justice Khilji Arif Hussain
Mr. Justice Amir Hani Muslim
Mr. Justice Gulzar Ahmed
Mr. Justice Maqbool Baqar
Mr. Justice Muhammad Athar Saeed
Mr. Justice Faisal Arab
Mr. Justice Sajjad Ali Shah
Mr. Justice Zafar Ahmed Khan Sherwani
Mr. Justice Salman Ansari
Mr. Justice Abdul Rasheed Kalwar
Mr. Justice Arshad Siraj
Sd/- (Malik Hakam Khan) Acting Secretary"
It was further averred that vide notification No. F.1(2)/2008-A-II., dated 26.08.2008, the Respondents Nos. 3 & 4 were re-appointed as the Additional Judges of the High Court of Sindh with effect from the date they took oath of their offices for the period mentioned in Notification No. F.5(1)/2007-A.II., dated 15.09.2007. Later, vide another Notification No. F.5(1)/2007 dated 15.9.2008, the tenure of the Respondents Nos. 3 & 4, along with others, was extended for a period of six months with effect from the date their term expired.
It was stated that the Chief Justice, High Court of Sindh vide his letter dated 10.09.2008 recommended one year extension in the tenure of five Additional Judges including the Respondents Nos. 3 & 4, but an extension of six months was granted, which, according to the Chief Justice was to expire on 14.03.2009. He, therefore, vide letter dated 25.02.2009 again took up the matter of appointment of five Additional Judges including Respondents Nos. 3 & 4 and recommended that they be appointed as permanent Judges under Article 193 of the Constitution. However, vide notification dated 12.03.2009, only three persons, namely, Abdur Rahman Faruq Pirzada, Salman Ansari and Syed Mahmood Alam Rizvi were appointed as Judges under Article 193 of the Constitution. Once again, the Chief Justice, High Court of Sindh, vide his letter dated 13.03.2009 reiterated his recommendation regarding the permanent appointment of the Respondents Nos. 3 & 4. The Ministry of Law and Justice was under the impression that since the Respondents Nos. 3 and 4 were not recommended by the then incumbent Chief Justice of Pakistan for their permanent appointment, therefore, on expiry of their tenure on or about 16.03.2009, they ceased to be Judges of the High Court.
After a preliminary hearing of the petition, a three-member Bench of this Court vide order dated 3rd April, 2009 issued notices to the respondents for filing of Para-wise comments/written statements. Notice was also issued to the learned Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions requiring interpretation of the Constitutional provisions by this Court were involved therein. The contentions raised by the learned counsel for the petitioners, noted in Paragraphs 2 to 4 of the aforesaid Order, were as under:-
"2. The learned counsel contended that Respondents Nos. 3 and 4 (Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Kalwar) were illegally directed to cease to hold office in pursuance of Proclamation of Emergency of 3rd November, 2007, which was incorrectly validated by a 7-Member Bench of this Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) holding, inter alia, that the Judges who had not taken oath under the Provisional Constitution Order, 2007 (PCO 2007) had ceased to hold office. According to the learned counsel, this judgment was per incuriam in view of the 12-Member Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held in unambiguous terms that after the pronouncement of this judgment, no Judge of a Superior Court could be removed except by following the procedure laid down in Article 209 of the Constitution. According to him, in the case of Tikka Iqbal Muhammad Khan, the judgment in the case of Zafar Ali Shah was not examined in the correct perspective. Therefore, the judgment of the 12 Judges would prevail.
"3. The learned counsel further contended that the respondents Nos. 3 and 4 were reappointed for a period of one year vide notification dated 26.08.2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007. He pointed out that later on vide notification dated 15.09.2008 the period of their appointment as Additional Judges of the High Court was extended for six months with effect from the date their present term expired. Thus, according to the learned counsel, this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25.08.2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25.02.2010. He submitted that although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the notifications dated 26.08.2008 and 15.09.2008, but on a representation made by the Respondents Nos. 3 and 4, corrected the error and assigned them Court work. Subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the notifications dated 26.08.2008 and 15.09.2008 in a manner that their period of appointment as Additional Judges had already expired, which according to the learned counsel, was not the correct interpretation of both the notifications.
"4. The learned counsel also contended that without prejudice to his plea with regard to the interpretation of the notifications dated 26.08.2008 and 15.09.2008, the Chief Justice and the Governor of Sindh both recommended the two Additional Judges for their appointment as permanent Judges under Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel maintained that after recommendation of the Chief Justice and the Governor of Sindh regarding permanent appointment of the Respondents Nos. 3 and 4, in view of the law laid down in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), the respondents ought to have been appointed accordingly."
Constitution Petition No. 08 of 2009 filed by Mr. Muhammad Akram Sheikh, Sr. ASC, on behalf of Nadeem Ahmed, Advocate, challenging the action of General Pervez Musharraf dated 3 rd November, 2007 was ordered to be listed and notice was issued to the respondent therein, namely, Federation of Pakistan, through Secretary, Ministry of Law and Justice, Islamabad. Vide order dated 22nd July, 2009, notice of the proceedings was also issued to General Pervez Musharraf.
It was averred in Constitution Petition No. 8 of 2009 that General Pervez Musharraf, the then Chief of Army Staff had forcibly prevented all the Judges of the Supreme Court and the High Courts from functioning as Judges of their respective Courts by means of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. The restraint Order dated 3rd November, 2007 passed by a seven-member Bench of this Court in Wajihuddin Ahmed's case was binding upon all concerned. The Chief Justice of Pakistan and many other Judges along with their family members were illegally placed under house arrest. Abdul Hameed Dogar, J was illegally appointed as the Chief Justice of Pakistan. The Judges of the Supreme Court and the High Courts, who made oath under PCO No. 1 of 2007 read with Oath Order, 2007 were continued in office. General Pervez Musharraf, without regard to merit, competence and repute and without consultation with the Chief Justice of Pakistan `packed the Courts' with dozens of persons by placing them in the Supreme Court and the High Courts, who occupied office of Judge in violation of the Constitution and the Order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case. Such Judges, in Tikka Iqbal Muhammad Khan's case, purportedly set aside the very Order dated 3rd November, 2007 that they had violated and upheld all the illegal actions of General Pervez Musharraf. A declaration was sought to the effect that all the persons regardless of their oath under PCO No. 1 of 2007, or the Constitution, who were appointed on or after 3rd November 2007 without consulting the Chief Justice of Pakistan were not Judges under the Constitution and, therefore, not entitled to function as such.
Mr. Rashid A. Rizvi, ASC, learned counsel for the petitioner in Constitution Petition No. 9 of 2009 made the following arguments:-
(1) Respondents Nos. 3 and 4 were illegally directed to cease to hold office in pursuance of Proclamation of Emergency of 3rd November, 2007, which was incorrectly validated by a 7-Member Bench of this Court in the case of Tikka Iqbal Muhammad Khan's case holding, inter alia, that the Judges who had not taken oath under PCO No. 1 of 2007 had ceased to hold office;
(2) The judgments in Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) and Wajihuddin Ahmed v. Chief Election Commissioner (PLD 2008 SC 25) were violative of Article 209 of the Constitution 1973 and per incuriam as they failed to take into consideration the law laid down in the cases of Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), Liaquat Husain v. Federation of Pakistan (PLD 1999 SC 504), Zafar Ali Shah v. Pervez Musharraf, Ch ief Executive of Pakistan (PLD 2000 SC 869) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) on legal and factual planes. Therefore, the judgment of the 12 Judges would prevail. In Asma Jilani's case, the assumption of power by General Agha Muhammad Yahya Khan was declared to be illegal and unconstitutional and he was termed as a usurper, while in Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), this Court in unequivocal terms rejected the law of necessity invoked earlier in the cases of State v. Dosso (PLD 1958 SC 533) and Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) as a means for validation of unconstitutional and illegal actions of the concerned military commanders. In Zafar Ali Shah's case this Court, in unambiguous terms, held that after the pronouncement of that judgment, no Judge of a Superior Court would be removed except by following the procedure laid down in Article 209 of the Constitution. Therefore, the imposition of emergency on 3rd November, 2007 and promulgation of PCO No. 1 of 2007 and Oath Order, 2007 and the consequential measures/laws/ordinances were unlawful and violative of the Constitution and liable to be declared illegal, unjustified, mala fide and of no legal effect;
(3) The imposition of emergency on 3rd November, 2007 was aimed at destroying the independence of judiciary and to obtain a favourable verdict in Wajihuddin Ahmed's case challenging the candidature of General Pervez Musharraf for the election of President, which was evident from the press clippings placed on record vide CMA No. 2361 of 2009;
(4) Notification dated 03.12.2007 by which twelve judges of the Sindh High Court were declared "to have ceased to hold office" was illegal, mala fide and ultra vires of the Article 209 of the Constitution and the law laid down in the cases of Asma Jilani, Liaquat Husain, Zafar Ali Shah, Al-Jehad Trust and Asad Ali;
(5) The Respondents No. 3 and 4 were victimized for obeying the Order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case and thereby refusing to take oath under PCO No. 1 of 2007 and Oath Order, 2007;
(6) Vide notification dated 15.09.2008 the period of the appointment of the Respondents Nos. 3 & 4 as Additional Judges of the High Court was extended for six months with effect from the date their present term expired. Thus, this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25.08.2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25.02.2010;
(7) Although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the notifications dated 26.08.2008 and 15.09.2008, but on a representation made by the Respondents Nos. 3 and 4, corrected the error and assigned them Court work. Subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the notifications dated 26.08.2008 and 15.09.2008 in a manner that their period of appointment as Additional Judges had already expired, which was not the correct interpretation of both the notifications;
(8) Without prejudice to the plea with regard to the interpretation of the notifications dated 26.08.2008 and 15.09.2008, the Chief Justice and the Governor of Sindh both recommended the Respondents Nos. 3 & 4 for their appointment as permanent Judges under Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, in view of the law laid down in Al-Jehad Trust case, the respondents ought to have been appointed accordingly;
(9) It was a matter of record that the Respondents Nos. 3 & 4 were initially appointed as Additional Judges of the High Court of Sindh on 15th September, 2007 on the recommendation of Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry and Chief Justice of Sindh High Court Justice Sabihuddin Ahmed (late). They were declared to have ceased to hold office of Judge as a result of illegal, unconstitutional and mala fide emergency on 3rd November, 2007 imposed by General Pervez Musharraf. Subsequently, they were reappointed on 26th August, 2008 for the same period i.e. one year. Again on 15th September, 2008 through another notification their tenure was extended for six months. No adverse remarks were passed by any of the constitutional consultees during the entire consultative process. Thus, non-acceptance of the recommendation under Article 193 by Abdul Hameed Dogar, J, was result of mala fide and ill-will;
(10) Where there were two conflicting recommendations for appointment of a Judge under Article 193; one by de facto Chief Justice of Pakistan who had assumed his office in violation of constitutional provisions and the other by a de jure Chief Justice of High Court, the Executive/President ought to accept the views of the de jure Chief Justice of High Court, particularly in view of the fact that the Chief Justice of the High Court has had the opportunity and privilege of directly watching the conduct and performance of the Additional Judges;
(11) The Respondents No. 3 and 4 were condemned unheard and since notification dated 3rd December 2007 was violative of the principle of natural justice, therefore, the same was void and liable to be set aside;
(12) The Respondents Nos. 3 & 4 were liable to be declared to be Additional Judges of the High Court of Sindh and the proceedings for their appointment under Article 193 of the Constitution ought to be initiated de novo; and
(13) The issue was required to be determined by the apex Court because the same had not been dealt with in the Al-Jehad Trust case, which laid down that the opinion of the Chief Justice of the High Court and the Chief Justice of Pakistan regarding fitness and suitability of a candidate for judgeship, being the experts of the field, was entitled to be accepted in the absence of valid reasons to be assigned by the executive, which would be justiciable. The judgment in Al-Jehad Trust case proceeded on the assumption of consensus between the two judicial consultees. The said judgment did not deal with a situation where there was divergence of views between the two Chief Justices. The non-justiciability of the views of the two Chief Justices was also founded upon the same consideration of a consen sus between the said two consultees. The views of the Chief Justices would become justiciable where there was a difference of opinion between the two of them. The respondents Nos. 3 and 4 were reappointed for a period of one year vide notification dated 26.08.2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007.
(1) General Pervez Musharraf imposed an unconstitutional and illegal emergency, unconstitutionally and illegally held in abeyance the Constitution in abeyance and in its place imposed a new constitutional order, called PCO No. 1 of 2007 and Oath Order, 2007. Therefore, the acts/actions and instruments brought about by him from 3rd November, 2007 till 15th December, 2007 (both days inclusive) were unconstitutional, ultra vires and void and were liable to be so declared;
(2) Two of the instruments, namely, Proclamation of Emergency and PCO No. 1 of 2007 were issued by General Pervez Musharraf in his capacity as the Chief of Army Staff, while the third instrument, namely, Oath Order, 2007 was issued by him in his capacity as President of Pakistan. Neither the Constitution nor any law permitted him to promulgate any of the said instruments in any of his capacities. Therefore, the actions of 3rd November, 2007 were patently unconstitutional, illegal and invalid. The unconstitutional and illegal assumption of power as described in the aforesaid instruments made him a usurper and he was liable to be so declared;
(3) Oath Order, 2007 was issued by General Pervez Musharraf in his capacity as the President of Pakistan as a delegatee of the Chief of Army Staff, which was against the scheme of the Constitution and the law, inasmuch as neither any subordinate authority could delegate its functions to a superior authority nor the President was empowered under the Constitution to issue such an Order;
(4) The instruments of 3rd November, 2007 were purported to be laws of permanent and perpetual character. On the other hand, under Article 89 of the Constitution the President was empowered to promulgate Ordinances for a period of four months. The Chief of Army Staff did not have any power or authority under any law to promulgate any of the aforesaid unconstitutional measures. As such, the same were issued neither under any provision of the Constitution nor under any law on the statute book;
(5) The actions of 3rd November 2007 up to 15th December 2007 (both days inclusive) were the creation and for the benefit of one individual alone, namely, General Pervez Musharraf. Any reference he made to other institutions in any of the instruments of that date and onward was incorrect in the course of history and an attempt to involve other institutions and persons with the sole object of his own personal aggrandizement and political benefit. The Pakistan Army was dragged into it and confronted with the people. Earlier, as a result of agreement with the Muttahida Majlis-e-Amal (MMA), he got inserted into Article 41 of the Constitution clause (7) - his assumption of the office of President in pursuance of the Referendum held in April 2002 for a term of five years; clause (8) - for a vote of confidence for further affirmation of his being in office; and clause (9) for regulating the proceedings for the vote of confidence by the Chief Election Commissioner in accordance with such procedure and the counting of votes in such manner as may be prescribed by the rules framed by the Federal Government - all notwithstanding any provision of the Constitution or any other law for the time being in force. All these were special provisions made for one person;
(6) After the acts of 3rd November, 2007 General Pervez Musharraf was as much a usurper as was General Agha Muhammad Yahya Khan after the imposition of martial law in 1969. Therefore, as stated by Yaqub Ali Khan, J., in Asma Jilani's case, at the first available opportunity, on the ouster of the usurper, his actions should be nullified and he would be liable to be tried for high treason and punished;
(7) General Pervez Musharraf could not have introduced his own amendments into the Constitution for self-service and benefit during the so called emergency. The surreptitious validation, affirmation and adoption made by him through insertion of Article 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Articles 238 and 239 of the Constitution. The unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment. The said amendments were unconstitutionally and illegally validated by the so called judgments in Tikka Iqbal Muhammad Khan's case. Therefore, the constitutional amendments along with the judgments were required to be done away with;
(8) All the consequential acts based upon or flowing from those actions would also be ineffective, that is to say, all the actions of 3rd November, 2007 up to 15th December, 2007 would have to be declared invalid and ineffective;
(9) Before the schedule of election was announced, Constitution Petitions No. 58, 59, 61, 62, 63 and 68 of 2007 were filed in the Supreme Court in August 2007 on behalf of Jamat-e-Islami, Imran Khan and others challenging the dual office of General Pervez Musharraf as well as his candidature for the election of President on the ground that being a person in the service of Pakistan, he was not eligible to contest election of President in view of the provision of Article 63(1)(d) of the Constitution. The petitions were held to be not maintainable by a majority of 6 to 3. Later, the nomination papers filed by General Pervez Musharraf were challenged before the Supreme Court, inter alia, on the ground that the schedule of election was against the provision of Clause (4) of Article 41, which provided that the election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiry of the term of the President in office. His term was to expire on 15th November, 2007, therefore, his election had to take place between 15th September, 2007 and 15th December, 2007. However, before the verdict was given in Wajihuddin Ahmed's case, apprehending without any legal and valid justification that the said petitions would be decided against him, Proclamation of Emergency of 3rd November 2007 was unconstitutionally and illegally promulgated;
(10) The so called judgments in Tikka Iqbal Muhammad Khan's case (though they were not judgments in the eye of law because the body of persons who sat in judgment over the actions of 3rd November 2007, having been appointed under PCO No. 1 of 2007, and not under the Constitution, did not constitute Supreme Court of Pakistan, therefore, at the most that body would be described as a tribunal) were in any case per incuriam because they were violative of the law laid down in Zafar Ali Shah's case and thus were void and nullity in law;
(11) It had illegally and unjustifiably been held in Tikka Iqbal Muhammad Khan's case that the proceedings in Wajihuddin Ahmed's case were being delayed by the petitioner's counsel. In reality, the situation was the other way round because it was the counsel for the respondent General Pervez Musharraf and the learned Attorney General for Pakistan who were delaying the proceedings by reading lengthy excerpts from the books being cited at the bar;
(12) It was wrongly held in Tikka Iqbal Muhammad Khan's case that before Order dated 3rd November, 2007 was passed, the Hon'ble Judges of the 7 - Member of the Supreme Court had ceased to be the Judges because a Judge would cease to hold office only in accordance with the procedure laid down in Article 209 of the Constitution, and by no other means;
(13) By 5th November, 2007 the strength of the tribunal was not more than 5, therefore, they were in a hurry to increase the number beyond seven. Accordingly vide notification dated 05.11.2007 four persons were purportedl y appointed to the Supreme Court under PCO No. 1 of 2007 and Oath Order, 2007 whereafter the tribunal took up matter for hearing on 6th November, 2007 and passed the order on that date;
(14) One of the grounds for setting aside the Order dated 03.11.2007 given in the order dated 06.11.2007 was that it was passed without notice, but surprisingly, the order dated 06.11.2007 itself was passed without any notice, even to the petitioner;
(15) The judgments in Tikka Iqbal Muhammad Khan's case were clearly motivated by collateral and ulterior purposes of acting in collusion with the usurper to depose the de jure Chief Justice of Pakistan and Judges of the Supreme Court and the High Courts, upholding his unconstitutional actions and validating the unconstitutional appointments. The personal interest and bias of Abdul Hameed Dogar, J, and others was apparent on the face of the record, which rendered their decisions void;
(16) The judgments in Tikka Iqbal Muhammad Khan's case were void inasmuch as the ratio of the judgments in the cases of Begum Nusrat Bhutto's case did not apply to this case and the application of the doctrine of civil and state necessity and maxim of salus populi est suprema lex (welfare of the people was the supreme law) were not at all applicable. Rather the dictum laid down in Asma Jilani's case was applicable;
(17) The striking difference and distinction between the actions of 5th July 1977 and 12th October 1999 on the one hand, and the action of 3rd November 2007 on the other, was that the former were affirmed, adopted and validated by the Parliament through the Eighth and Seventeenth Amendments of the Constitution respectively whereas the latter was not validated or ratified by the Parliament. Reference in this behalf was made to Article 270C, which though was first introduced under the Legal Framework Order, 2002, but it was later inserted into the Constitution under the Seventeenth Amendment. In absence of any validation or ratification by the Parliament, Abdul Hameed Dogar and other persons who were ostensibly styled as Chief Justices would not be consultees for the purposes of Articles 177, 193 and 197 of the Constitution. Hence, all the appointments made in consultation with such Chief Justices would be void ab initio;
(18) The actions of 3rd November 2007 were directed against one organ of the State alone, namely, the judicial branch as against the earlier two military takeovers of 5th July 1977 and 12th October 1999 when the whole of the governmental structure was demolished, the Constitution was held in abeyance, the Federal and the Provincial Governments (Prime Minister and Chief Ministers along with their Cabinets) were dismissed, and the National and the Provincial Assemblies were dissolved. In the instant case, emergency was imposed and the use of the words "martial law" was avoided, though rumours were spread that "emergency plus" was being imposed. Therefore, the principles enunciated in the cases Begum Nusrat Bhutto and Zafar Ali Shah were not applicable, rather the instant case would be governed, as nearly as may be, by the principles laid down in the case of Asma Jilani;
(19) The actions of 3rd November, 2007, in the course of our history, were different from the previous ones, inasmuch as they were never accepted or acquiesced by the Judges, the lawyers, political activists and the people of Pakistan. Thousands of lawyers and political activists were arrested and detained. The apex Court could take judicial notice of the fact that there was nationwide movement, joined by each and every segment of the nation. Initially on the first day, a large number of Judges including 13 out of 18 Judges, i.e. 3/4 Judges of the Supreme Court itself, did not make oath under PCO No. 1 of 2007 read with Oath Order, 2007. None of the Judges who did not accept the aforesaid oath applied for pension, or for revival of his licence to practice law. Had the tribunal looked into the earlier judgments, the conclusion reached by it in Tikka Iqbal Muhammad Khan's case would not have been reached. As a matter of fact, it was a selective application of the law laid down in those judgments. It was repugnant to the earlier judgments;
(20) Under Article 190 of the Constitution, all authorities including General Pervez Musharraf were obligated to act in aid of the Supreme Court. Since the Order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case was in force, therefore, the acts of General Pervez Musharraf, besides being unconstitutional and illegal, also violated the Order of the Supreme Court, hence, the same were void. There was a judicial order restraining General Pervez Musharraf from imposing emergency, or doing anything against the independence of judiciary and requiring the Judges not to take oath. Despite that, General Pervez Musharraf took the action of 3rd November 2007 and certain Judges took oath under PCO No. 1 of 2007 read with Oath Order, 2007. This aspect was different from the earlier cases;
(21) The Judges of the superior Courts who had taken oath to preserve, protect and defend the Constitution ought not break their oath under any circumstances and not submit to the will of the military adventurer. All the Judges of the Supreme Court including Abdul Hameed Dogar, J, and all the Judges of the High Courts including Chief Justices, who were appointed under PCO No. 1 of 2007 and who took oath of office under it, despite the Order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case were not only unconstitutionally and illegally appointed as such Chief Justices and Judges and their appointments were inherently invalid, but they would also be guilty of misconduct and liable to be proceeded against under Article 209 of the Constitution;
(22) The fresh appointments were made after 3rd November, 2007 in consultation with Abdul Hameed Dogar, J, who was neither a de facto Chief Justice of Pakistan, nor could he be described as the Acting Chief Justice of Pakistan within the meaning of Article 180 of the Constitution;
(23) At the relevant time, there was no vacancy either in the office of the Chief Justice of Pakistan or any Judge of the Supreme Court according to the law. Under the Supreme Court (Number of Judges) Act, 1997 (Act No. XXXIII of 1997), the strength of the Supreme Court was Chief Justice an d 16 Judges. The number of Judges of the Supreme Court was raised from 16 to "not more than 29" by the Finance Act, 2008, which was unconstitutional and invalid for the reason that the Act of 1997 could only be amended by an Act of Parliament. The Finance Act was not an Act of Parliament, inasmuch as it was passed only by the National Assembly. As a matter of fact, Finance Bills were never placed before the two Houses of Parliament and were directly passed by the National Assembly. While the Finance Act remained valid for the purposes of financial allocations, it would be invalid as regards the increase of number of Judges of the Supreme Court was concerned;
(24) On 3rd November 2007, not only the Chief Justice and 16 Judges were in place, but one ad hoc Judge was also working in the Supreme Court. Thus, there was no vacancy against which anyone could be appointed as the Chief Justice of Pakistan, or as a Judge of the Supreme Court;
(25) All the 13 Judges of the Supreme Court who had not made oath under PCO No. 1 of 2007 read with Oath Order, 2007, though they were put under house arrest, were available for performing their functions. They could not be said to have vacated office and there could not be appointment of permanent Judges in their place. The tribunal, therefore, exercised the usurped jurisdiction of the Supreme Court and acted with clear mala fides, which rendered its decisions as without jurisdiction and of no legal effect;
(26) Since there was no vacancy in the Supreme Court of Pakistan, and no consultation with the constitutional consultee ever took place regarding the appointment of any of the persons purporting to act as the Judges of the Supreme Court in Tikka Iqbal Muhammad Khan's case to purportedly confer validity on the actions of 3rd November 2007, the tribunal was coram non judice and the members of the tribunal were not even de facto Judges;
(27) The so called judgments in Tikka Iqbal Muhammad Khan's case wrongly placed reliance on the cases of Begum Nusrat Bhutto and Zafar Ali Shah as the facts and circumstances were entirely different which formed the basis for the said judgments and the dictum laid down therein could not be extended to it, as was attempted to be done by the tribunal. Even otherwise, the lawyers and the people of Pakistan never considered the aforesaid two judgments a good law of the land, and perhaps a time had come that the same were revisited;
(28) The Supreme Court had the jurisdiction to reconsider and revisit any of its previous judgments. It was not unprecedented that the Supreme Court had also reconsidered or revisited its previous view even after a review against the previous decision had been heard and decided. The Supreme Court has reconsidered and revisited its previous decision even in exercise of its suo motu jurisdiction;
(29) The whole nation, the judiciary, the lawyers and political parties all rejected the actions of 3rd November 2007, therefore, unlike what was being said in earlier judgments that the military takeovers were welcomed and sweets were distributed, was not the situation in the present case;
(30) The doctrine of civil or state necessity was at best a doctrine of condonation and not of validation. But while extending condonation, a wrong could not be made right, at the best it could only be ignored, pardoned, etc. In any case, not everything would be condoned, and more specifically a usurper's acts to entrench himself into power would not be condoned, as held in Asma Jilani's case;
(31) The petition of Tikka Iqbal Muhammad Khan having been filed under Article 184 (3), was not competent because--
(a) As held in Watan Party v. Chief Executive (PLD 2003 SC 74) the petitioner had no locus standi because he was neither a leader of any political party nor a political worker; and
(b) No question relating to the enforcement of his fundamental rights was involved. Moreover, the fundamental rights were suspended and it was purportedly held so by the said tribunal. The petitioners had no interest in or nexus with the proceedings. Even the members of the tribunal were feeling difficulty how to treat the proceedings adversary. In the earlier cases, the bona fides of the petitioners were established on the face of the record inasmuch as in Asma Jilani's case, the daughter of the detenu, in Begum Nusrat Bhutto's case the wife of the detenu, and in Zafar Ali Shah's case, a member of the National Assembly had filed the petitions. Tikka Iqbal Muhammad Khan and Zafarullah Khan, the so called President of the so called Watan Party were definitely planted and inspired to bring the petitions. The whole exercise was mala fide and an abuse of the jurisdiction of the Supreme Court and also of its process. Since it was well settled that discretionary jurisdiction could not be exercised to perpetuate injustice, the jurisdiction was wrongly exercised.
(1) General Pervez Musharraf became a usurper as a result of the acts of 3rd November 2007 to 15th December, 2007 and that he be so declared;
(2) All his acts/actions purportedly done to suspend and amend the Constitution between 3rd November, 2007 and 15th December, 2007 (both days inclusive) were unconstitutional and invalid and may be so declared;
(3) All appointments of Judges on and after 3rd November, 2007 till 24th March, 2009 not made in consultation with the de jure Chief Justice of Pakistan were unconstitutional and invalid, and were liable to be so declared, and that such Judges were not even de facto Judges;
(4) The two so called judgments in Tikka Iqbal Muhammad Khan's case dated 23.11.2007 and 15.2.2008 were nullity in law being per incuriam, coram non judice, without any legal basis, based on mala fide proceedings, rendered by biased persons of the tribunal and given on collusive and fraudulent petitions lacking bona fide. Because the judgments in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were no longer considered good law in Pakistan, perhaps it was time to revisit the same; and
(5) The elections of 18th February 2008 were constitutionally valid because they were held after the expiry of the constitutional term of the National and Provincial Assemblies between 15th and 22nd November 2007 and were actually a consequence of the constitutional mandate contained in Article 224 of the Constitution, hence the same were liable to be declared as such.
(1) All the actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter holding the Constitution in abeyance, deposing and putting under arrest the Judges of the Superior Courts and appointing strangers as such Judges and getting his all such acts validated by those strangers were patently illegal. General Pervez Musharraf, being a member of the Armed Forces of Pakistan and bound by his oath under the Constitution the illegality was more blatant;
(2) The decisions in Tikka Iqbal Muhammad Khan's case were unconstitutional and Article 270AAA as inserted into the Constitution by General Pervez Musharraf could not be treated as part of the Constitution. The decisions rendered in Tikka Iqbal Muhammad Khan's case were coram non judice and a nullity in law, having been rendered by persons who stood disqualified to act as Judges under the Order dated 03.11.2007 passed by a seven - member Bench of the Supreme Court;
(3) It was laid down in Al-Jehad Trust case that the consultation referred to in Articles 177 and 193 of the Constitution was to be meaningful and would be binding upon the Executive/President and a consultation with an Acting Chief Justice did not meet the criteria laid down in the aforesaid Articles. The possibility of arbitrary judicial appointments by the executive stands overruled;
(4) Ever since the 30th of June, 2005, the date of his taking oath, Mr. Justice Iftikhar Muhammad Chaudhry continued to be the Chief Justice of Pakistan without any interruption of a single day. The office of the Chief Justice of Pakistan never fell vacant in terms of Article 180 of the Constitution. Therefore, Abdul Hameed Dogar, J, could not, in law, be said to be an Acting Chief Justice, nor could he be treated as entitled to perform the constitutional function of being consulted for appointment of new Judges of the Supreme Court and the High Courts and the consultation made with him for such appointments did not meet the requirement of Articles 177 and 193 of the Constitution;
(5) General Pervez Musharraf, without any regard to merit, competence or repute, and without any consultation with the Hon'ble Chief Justice of Pakistan, `packed the Courts' with dozens of persons on and after 3rd November, 2007. The persons so brought into the Supreme Court and the High Courts were not duly appointed Judges under the Constitution;
(6) Such forum illegally reversed the Order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case and illegally upheld all the illegal actions of General Pervez Musharraf taken by him on and after 3rd November, 2007;
(7) A government servant, such as General Pervez Musharraf, who is bound by his Constitutional oath to defend the Constitution, could not hold the Constitution in abeyance, dismiss and arrest the Judges of superior Courts of Pakistan, appoint strangers as Judges of superior Courts and get his illegal acts validated by those strangers. Even the Executive organ of State or any executive officer could not dismiss or restrain any Judge of superior Courts or stop him from performing his judicial functions because Judges of superior Courts could be removed from their offices by no process other than the one provided in Article 209 of the Constitution;
(8) Non-performance of functions of his office by the Chief Justice of Pakistan from 3rd November 2007 till 16th March 2009 due to the forcible restraint placed upon him by the Executive could not be construed as resulting in his "absence" from office, or his "inability" to perform his functions or causing "vacancy" in his office so as to appoint the next most senior Judge as Acting Chief Justice under Article 180 or to appoint a permanent incumbent under Article 177;
(9) Abdul Hameed Dogar, J, in the presence of Chief Justice of Pakistan from 3rd November 2007 till 16 th March 2009 was neither a permanent Chief Justice nor an Acting Chief Justice. Therefore, he could not validly be "consulted" for the appointment of Supreme Court and High Court Judges under Articles 177 and 193 of the Constitution, something for which even a duly appointed Acting Chief Justice was not competent;
(10) The Constitution could only be amended by following the procedure prescribed in Articles 238 and 239 of the Constitution and the Supreme Court did not have the power and jurisdiction to allow any person to amend it. The amendments made by the usurpers in the past, even though made under the purported authority of the Supreme Court in the cases of Begum Nusrat Bhutto and Zafar Ali Shah , remained invalid until they were validated and protected by the Parliament by means of the Eighth and the Seventeenth Amendments to the Constitution. The purported validation by insertion of Article 270AAA by General Pervez Musharraf was invalid, which was even otherwise in direct clash with the principle of independence of judiciary, which was a salient feature of the constitutional framework and hence illegal;
(11) This Court had a constitutional duty to safeguard the independence and dignity of the judiciary, security of tenure of the Judges of superior Courts and also to block the possibility of future constitutional adventurism and a possible judicial recognition thereof by overruling the ratio of the cases of Dosso, Begum Nusrat Bhutto and Zafar Ali Shah and all other such judgments to the extent that they provided justification for validation of constitutional breach; while
(12) This Court may, in the larger public interest, indemnify the judgments and orders rendered in the name of the Supreme Court and of all the High Courts of the country from 3rd November 2007 till the date of pronouncement of judgment in the instant petition, except any judgment or order that would stand in conflict with the Order of 7-member Bench passed in Constitution Petition No. 73 of 2007.
. The dissolution of the Constituent Assembly by the Governor-General Ghulam Muhammad on 24th October, 1954 and upholding of such dissolution by the Federal Court in the case of Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 FC 240) on a purely legal ground, rather a technicality that the Sindh Chief Court was divested of the power and jurisdiction to issue the writ it did, declaring the dissolution of the assembly illegal and restoring it, due to invalidity of the law for want of requisite assent by the Governor-General;
. The imposition of martial law by General Ayub Khan by means of Proclamation of 7th October, 1958, annulment of the Constitution, dissolution of the National and the Provincial Assemblies and dismissal of the Central and the Provincial Cabinets and justification of all acts of General Ayub Khan by the Supreme Court in Dosso's case on the principle of revolutionary legality;
. The promulgation of a new Constitution in 1962 by General Ayub Khan; imposition of second martial law by General Yahya Khan on 25th March, 1969, abrogation of the Constitution, dissolution of the legislatures and dismissal of the governments, assumption of the office of President, promulgation of Provisional Constitution Order on 4th April, 1969 and decision in Asma Jilani's case declaring the assumption of power by General Yahya Khan as a usurper and the law laid down in Dosso's case being declared unsustainable both on the principle of revolutionary legality, stare decisis or otherwise;
. The elections of 1970, dismemberment of Pakistan, enactment of Interim Constitution on 21st April, 1972 and then enforcement of the Constitution of the Islamic Republic of Pakistan, 1973 on 14th August, 1973;
. The imposition of third martial law by General Muhammad Ziaul Haq on 5th July, 1977, holding in abeyance the Constitution, arrests and detentions of the political activists, including the then Prime Minister of Pakistan, Zulfikar Ali Bhutto and the decision of the Supreme Court in Begum Nusrat Bhutto's case filed against the detention of her husband justifying the military takeover under the doctrine of necessity and the maxim salus populi est suprema lex and the departure thus made from the dictum enunciated in Asma Jilani's case, authorizing the Army Chief to amend the Constitution for attainment of his declared objectives, the execution of Zulfikar Ali Bhutto, boycott of the non-party elections of 1985, the passing of the Eighth Amendment to the Constitution on 31st December 1985, dissolution of the Assemblies on 29th May 1988;
. Imposition of emergency on 12th October, 1999 by General Pervez Musharraf, holding the Constitution in abeyance, issuance of Provisional Constitution Order, 1999, dissolution of the National and the Provincial Assemblies, dismissal of the Government of Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan having two-third majority in the Parliament and the Oath of Office (Judges) Order, 2000, sacking of Judges of the superior Courts and the validation of all his acts by the Supreme Court in Zafar Ali Shah's case authorizing him to run the affairs of the government including the power to amend the Constitution;
. Holding of Referendum on 30th April, 2002 by General Pervez Musharraf to become the President of Pakistan for a term of five years and the decision of the Supreme Court in Hussain Ahmad v. Pervez Musharraf, Chief Executive (PLD 2002 SC 853) holding that the consequences flowing from the holding of Referendum were purely academic, hypothetical and presumptive in nature and leaving the same to be determined at a proper forum at the appropriate time;
. Promulgation of the Legal Framework Order, 2002 making large scale amendments in the Constitution and the decision of the Supreme Court in Watan Party v. Chief Executive/President of Pakistan (PLD 2003 SC 74) case holding that the elected Parliament and not the Supreme Court was the appropriate forum to consider all these amendments;
. Election of October 2002, formation of government by PML (Q) under the patronage of General Pervez Musharraf, periodical restoration of the Constitution, the passing of the Seventeenth Amendment to the Constitution as a result of an accord with the MMA, the Pakistan People's Party and the Pakistan Muslim League (N) boycotting the proceedings; and
. Announcement of the schedule of election of the President on 20.09.2007, filing of nomination papers by General Pervez Musharraf, filing of Constitution Petitions by Makhdoom Amin Faheem and Wajihuddin Ahmed and dismissal thereof by the Supreme Court holding the petitions not maintainable and asking the petitioners to submit objections before the Chief Election Commissioner in the first instance, acceptance of his nomination papers, again filing of petition by Wajihuddin Ahmed, its hearing, conclusion of arguments of the petitioner and the promulgation of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 by General Pervez Musharraf and the judgment in Tikka Iqbal Muhammad Khan's case validating all his acts and empowering him to amend the Constitution, restoration of the Constitution on 15th December, 2007, holding of election on 18th February, 2008, formation of the Federal and the Provincial Governments by the Pakistan People's Party and establishment of a complete democratic set up in the country.
(1) The present democratic government had never accepted extra-constitutional promulgation of Orders and/or any other repressive measures. The respect for judiciary had always been hallmark of its ideology and judicial process was resorted to by their leaders even in the most trying circumstances. The verdict in Tikka Iqbal Muhammad Khan's case was affirmed in review by a 13 - member Bench of the Supreme Court whereby the acts of 3rd November 2007 were validated on the principles of state necessity and salus populi est suprema lex, which even otherwise ceased to exist on revival of the Constitution on 15th December 2007;
(2) Notwithstanding the aforesaid position, the present fourteen-member Bench may like to revisit the cases of Dosso, Begum Nusrat Bhutto, Mehmood Khan Achakzai, Zafar Ali Shah, Watan Party, Pakistan Lawyers Forum, and Tikka Iqbal Muhammad Khan, but such revisiting would be prospective as held in a chain of authorities, including Punjab Province v. Malik Khizar Hayat Khan Tiwana (PLD 1956 FC 200), etc;
(3) Much water having flown under the bridge in the interregnum, the de facto doctrine would call for judicial restraint because complete annulment would create chaos and confusion of great magnitude. In re: Reference by H.E. The Governor-General (PLD 1955 FC 435), certain Ordinances were saved for consideration of their validity by the Constituent Assembly. Reliance was also placed on Cooley's Constitutional Limitations 8th Edition, Vol. 2, p. 137, Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738), Managing Director, Sui Southern Gas Co. Ltd. v. Ghulam Abbas (PLD 2003 SC 724), etc;
(4) The objection with regard to increase of number of the Judges of the Supreme Court was neither part of the pleadings nor was any prayer made for annulment of Section 13 of the Finance Act, 2008. The striking down of a legislative instrument could not be pleaded collaterally which was not permissible in law. The Money Bill even otherwise was simultaneously sent to the Senate of Pakistan and their recommendations solicited. Money bill as a matter of fact was unanimously passed in terms of Article 73 of the Constitution and was duly passed by the National Assembly after consideration of the Senate and assented to by the President of Pakistan. The Finance Act, 2008 was passed in line with the consistent and constant practice, inasmuch as laws were amended through the Money Bills so as to work out the financial implications and to budget the expenditure from the national exchequer. Hence, no exception could be taken to it.
On merits of Constitution Petition No. 09 of 2009, the learned Attorney General took the position that the Respondents Nos. 3 and 4, being aggrieved of their non-confirmation could have filed a petition, but not the Sindh High Court Bar Association. The Respondents Nos. 3 & 4 were recommended by the Chief Justice of the High Court alone, while the Governor, the Chief Justice of Pakistan, the Prime Minister and the President of Pakistan had not agreed. The opinion of the Chief Justice of Pakistan, being the pater familias, deserved primacy, which even otherwise was not justiciable in view of the law laid down in Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939). He, however, stated that whatever view was taken by the apex Court, it would be acceptable to the Government.
Mr. Yousaf Khan Leghari, learned Advocate General Sindh, who appeared on behalf of the Respondent No. 2 (Government of Sindh through Chief Secretary), stated that he had clear instructions not to support the actions of 3rd November 2007. The learned Advocate General made the following submissions on the main petition:-
(1) The petition ought to be decided by the High Court in the first instance so that the apex Court had the benefit of the views of that Court. In the alternative, it should be heard by a smaller Bench, so that the same could be reviewed by a larger Bench;
(2) A Bar Association was not competent to invoke jurisdiction of the apex Court under Article 184(3) of the Constitution asking for appointment of Judges from amongst its members, or for de-notifying the appointments of the Judges;
(3) It was clear from notification dated 26.08.2008 that the Respondents Nos. 3 & 4 were appointed as Additional Judges for a period of one year from the date of their oath for the period mentioned in the notification dated 15.09.2007 otherwise the notification dated 26.08.2008 would have mentioned period of one year. On the other hand, the notification recited "for the period mentioned in notification dated 15.09.2007". Thus, the appointment made vide notification dated 26.08.2008 was for the remaining period of the year, which commenced from the date of their oath under the notification dated 15.09.2007, that is to say, it was only for 22 days; and
Having heard the learned counsel for the petitioners in both the petitions, the learned Attorney General for Pakistan and the learned Advocate General Sindh, and having perused the record of Constitution Petitions No. 59 of 2007 as also Constitution Petitions No. 73 of 2007 together with other connected petitions, which were repeatedly referred to by the learned counsel for the petitioners in the course of arguments, and also having gone through the case-law cited at the bar, we now proceed to determine the issues involved in the present petitions. The appointment of the respond ents No. 3 and 4 as Additional Judges of the Sindh High Court on 15.09.2007 for a period of one year, their reappointment vide notification dated 26.08.2008 for the period mentioned in the notification dated 15.09.2007, extension in their tenure for a period of six months vide notification dated 15.09.2008 and ultimately their non-confirmation were interjected by the actions of 3rd November, 2007 taken by General Pervez Musharraf, in consequence whereof not only the Respondents Nos. 3 & 4 but a large number of other Judges of the Supreme Court and High Courts, including the Chief Justice of Pakistan were declared to have ceased to hold office. The next interjection was the judgment reported as Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) whereby the actions of 3rd November, 2007 were validated and the power to amend the Constitution as provided in Article 2 of PCO No. 1 of 2007 to be exercised by the President was reaffirmed. Thus, it is imperative to determine the validity of the judgment in Tikka Iqbal Muhammad Khan's case, side by side with the actions of 3rd November, 2007, which formed the foundation upon which the whole superstructure of the later actions rested.
Indeed, we have a chequered history of constitutional developments in Pakistan. Before dealing with the issues raised in these petitions, it is necessary to have a cursory glance at the major constitutional developments. The first major event in this behalf was the dissolution of the Constituent Assembly of Pakistan by Governor-General Ghulam Muhammad in 1954, which he did on the following grounds:-
"(1) The Governor-General having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitutional machinery has broken down. He, therefore, has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function;
(2) The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Elections will be held as early as possible;
(3) Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted; and
(4) The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the supreme national interest."
This act of the Governor-General was challenged by Moulvi Tamizuddin Khan, President of the Constituent Assembly, in the Chief Court of Sindh. The Chief Court of Sindh allowed the petition and declared the dissolution of the Assembly as illegal. It was held that the Acts of the Constituent Assembly when it did not function as the Federal Legislature did not require the Governor-General's assent. The Federation of Pakistan challenged the judgment of the Sindh Chief Court before the Federal Court. The Federal Court reversed the judgment of the Sindh Chief Court on the ground that the assent of the Governor-General was necessary to the validity of all the laws and the amendments made in the Government of India Act, 1935. The Court held that since Section 223-A of the Government of India Act under which the Chief Court of Sindh assumed jurisdiction to issue the writs did not receive assent of the Governor-General, it was not yet law, and that, therefore, the Chief Court had no jurisdiction to issue the writs. However, in his dissenting judgment, Cornelius J, (later CJ,) held that there was nothing in Section 6(3) of the Indian Independence Act, or in the status of Pakistan as a Dominion which created the obligation that all laws made by the Constituent Assembly of a constitutional nature, required the assent of the Governor -General for their validity and operation. Thus, by majority, the dissolution of the assembly was upheld on a legal ground. As to the merits of the case, it was observed that it was wholly unnecessary to go into the other issues, and nothing said in the judgment was to be taken as an expression of opinion on anyone of those issues.
The next case of constitutional importance was Usif Patel v. Crown (PLD 1955 FC 387). The appellants in that case were proceeded against under the Sind Control of Goondas Act, 1952. They were declared to be goondas, directed to furnish heavy security, and for their failure to give security confined to prison. Against their detention in prison, the petitioners approached the Sind Chief Court by an application under Section 491 of the Code of Criminal Procedure, 1898 alleging that their imprisonment was wrongful and prayed that they be set at liberty. Some of the petitioners moved revision petitions under Section 17 of the aforesaid Act before the Chief Court.
By means of the Emergency Powers Ordinance, 1955 (Ordinance No. IX of 1955) issued under Section 42 of the Government of India Act, 1935 the Governor-General sought to validate all those Acts by indicating his assent with retrospective operation. The ground urged before the Chief Court on which their imprisonment was alleged to be illegal was that the Governor's Act under which action had been taken against them was invalid because it was passed by the Governor in exercise of the powers which were conferred on him by a Proclamation issued by the Governor-General under Section 92A of the Government of India Act, 1935, which section had been inserted in the Government of India Act, 1935 by an Order of the Governor-General under Section 9 of the Indian Independence Act, 1947. It was contended that this action of the Governor -General was ultra vires of the provisions of the aforesaid Section 9. The contention was repelled by the Chief Court and the detentions of the petitioners were held to be legal and their applications rejected.
The matter came up in appeal before the Federal Court where the questions requiring determination were as under:-
(1) Whether the Governor-General could by an Ordinance validate the Indian Independence (Amendment) Act, 1948; and
(2) Whether the Governor-General could give assent to constitutional legislation made by the Constituent Assembly with retrospective effect.
It was held that a Legislature could not validate an invalid law if it did not possess the power to legislate on the subject to which the invalid law related, the principle governing validation being that validation being itself legislation, one could not validate what one could not legislate upon. The essence of a federal legislature was that it was not a sovereign legislature, competent to make laws on all matters; in particular it could not, unless specifically empowered by the Constitution, legislate on matters which were assigned by the Constitution to other bodies. Nor was it competent to remove the limitations imposed by the Constitution on its legislative powers. The power of the legislature of the dominion for the purpose of making provision as to the constitution of the Dominion could, under sub-section 1 of Section 8 of the Indian Independence Act, 1947, be exercised only by the Constituent Assembly, and that, such power could not be exercised by that Assembly when it functioned as the Federal Legislature within the limits imposed upon it by the Government of India Act, 1935. The Governor-General could not, by an Ordinance, repeal any provision of the Indian Independence Act, 1947 or the Government of India Act, 1935 and assume unto himself all powers of legislation.
Since the Amendment Act of 1948 was not presented to the Governor-General for his assent, it did not have the effect of extending the date from 31st March, 1948 to 31st March, 1949 and that since Section 92A was added to the Government of India Act, 1935 after 31st March, 1948, it never became a valid provision of that Act. Thus, the Governor-General had no authority to act under Section 92A and the Governor derived no power to legislate from a Proclamation under that section. Accordingly, the Sind Goondas Act was ultra vires and no action under it could be taken against the appellants. That being so, it was argued, the detention of the appellants in jail was illegal.
The Federal Court held that the Acts mentioned in the Schedule to the aforesaid Ordinance could not be validated by the Governor-General under Section 42 of the Government of India Act, 1935, nor could retrospective effect be given to them. A noteworthy fact was that the Constituent Assembly, having already been dissolved by the Governor -General by a Proclamation on 24th October, 1954 had ceased to function and no legislature competent to validate these Acts was in existence. In conclusion, the Court observed as under:-
"It might have been expected that, conformably with the attitude taken before us by responsible counsel for the Crown the first concern of the Government would have been to bring into existence another representative body to exercise the powers of the Constituent Assembly so that all invalid legislation could have been immediately validated by the new body. Such a course would have been consistent with constitutional practice in relation to such a situation as has arisen. Events, however, show that other counsels have since prevailed. The Ordinance contains no reference to elections, and all that the learned Advocate-General can say is that they are intended to be held."
Next case of significant relevance was the Reference by H. E. The Governor-General reported as PLD 1955 FC 435. The Federal Court having held in Maulvi Tamizuddin Khan's case that assent of the Governor-General was necessary to all laws passed by the Constituent Assembly, the Governor-General sought to validate such Acts by indicating his assent, with retrospective operation, by means of the Emergency Powers Ordinance, 1955 (Ordinance No. IX of 1955) issued under Section 42 of the Government of India Act, 1935. The Federal Court in Usif Patel's case, however, declared that the Acts mentioned in the Schedule to that Ordinance could not be validated under Section 42 of the Government of India Act, 1935, nor could retrospective effect be given to them. A noteworthy fact was that the Constituent Assembly had ceased to function, having already been dissolved by the Governor-General by a Proclamation on 24th October 1954, and no legislature competent to validate these Acts was in existence.
The Governor-General made a Reference to the Federal Court under Section 213 of the Government of India Act, 1935 asking for the Court's opinion on the question whether there was any provision in the Constitution or any rule of law applicable to the situation by which the Governor-General could, by Order or otherwise, declare that all orders made, decisions taken, and other acts done under those laws, should be valid and enforceable and those laws, which could not without danger to the State be removed from the existing legal system, should be treated as part of the law of the land until the question of their validation was determined by the new Constituent Convention.
The answer returned by the Federal Court (by majority) was that in the situation presented by the Reference, the Governor-General had, during the interim period, the power under the common law of civil or state necessity of retrospectively validating the laws listed in the Schedule to the Emergency Powers Ordinance, 1955, and all those laws, until the question of their validation was decided upon by the Constituent Assembly, were, during the aforesaid period, valid and enforceable in the same way as if they had been valid from the date on which they purported to come into force.
In Dosso's case, the respondents in one of the appeals were tried by a Jirga (Council of Elders) under the provisions of the Frontier Crimes Regulation, 1901 (FCR) and convicted and sentenced under different provisions of the Pakistan Penal Code, 1860. They filed applications before the High Court for a writ of habeas corpus and certiorari on the ground that the provisions of the FCR enabling the executive authorities to refer a criminal case to a Council of Elders were void under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1956. The High Court accepted the contention and held that the provisions of FCR could be enforced under subsection (4) of Section 1 ibid only against Pathans and Baluchis and against such other class of persons the local government may notify and as this was not a reasonable classification, those provisions were ultra vires of Article 5 of the Constitution. The convictions and sentences were set aside, and the respondents were ordered to be treated as under trial prisoners, it being left to the government to refer their cases to a Court of law. On appeals filed by the State before the Federal Court against the impugned orders of the High Court, the validity of the exercise of power by the High Court was adjudged in the context of the actions of 7th October, 1958. What happened was that by Proclamation of that date, the President of Pakistan annulled the Constitution of 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies. Simultaneously, martial law was declared throughout the country and Commander-in-Chief of the Pakistan Army was appointed as the Chief Martial Law Administrator. Three days later, the President promulgated the Laws (Continuance in Force) Order, 1958, the general effect of which was the validation of laws other than the late Constitution, that were in force before Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and High Courts. The Order contained the further direction that the country, thereafter to be known as Pakistan and not the Islamic Republic of Pakistan, should be governed as nearly as may be in accordance with the late Constitution.
Under Clause (7) of Article 2 of the Laws (Continuance in Force) Order, 1958, all writ petitions pending in High Courts seeking enforcement of fundamental rights stood abated. The Court held that if the Constitution was destroyed by a successful revolution, the validity of the prevalent laws depended upon the will of the new law-creating organ. Therefore, if the new legal order preserved any one or more laws of the old legal order, then a writ would lie for violation of the same. As regards pending applications for writs or writs already issued but which were either sub judice before the Supreme Court or required enforcement, the Court in the light of the Laws (Continuance in Force) Order, 1958 held that excepting the writs issued by the Supreme Court after Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after Proclamation shall have any legal effect unless the writ was issued on the ground that anyone or more of the laws mentioned in Article 4 or any other right kept alive by the new Order had been contravened.
The Supreme Court, on the basis of the theory propounded by Hans Kelsen, accorded legitimacy to the assumption of power by General Ayub Khan holding that coup d'tat was a legitimate means to bring about change in the government and particularly so when the new order brought about by the change had been accepted by the people. It was held that where a Constitution and the national legal order under it was disrupted by an abrupt political change not within the contemplation of the Constitution, then such a change would be a revolution and its legal effect would not onl y be the destruction of the Constitution but also the validity of the national legal order, irrespective of how or by whom such a change was brought about. In the result, in accordance with the judgments of the majority, the proceedings for writs in each of these cases were held to have abated. The result was that the directions made and the writs issued by the High Court were set aside.
According to the facts of Asma Jilani's case, President Ayub Khan vide his letter of 25th March, 1969 addressed to General Yahya Khan called upon him to discharge his legal and constitutional responsibility not only to defend the country against external aggression but also to save it from internal disorder and chaos. But, the Commander-in-Chief on the very same day, on his own proclaimed martial law throughout the length and breadth of Pakistan and assumed the powers of the Chief Martial Law Administrator. He abrogated the Constitution, dissolved the National and Provincial Assemblies and declared that all persons holding office as President, members of the President's Council, Ministers, Governors of Provinces and members of their Council of Ministers shall cease to hold office with immediate effect. Existing laws and Courts were, however, preserved with the proviso that no writ or other order shall be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator.
Ms Asma Jilani filed a petition before the High Court under Article 98(2)(b)(i) of the Constitution of 1962 to question the validity of the detention of her father, Malik Ghulam Jilani, who was arrested at Karachi under the Defence of Pakistan Rules, 1971. The Government raised a preliminary objection that the High Court could not assume jurisdiction in the matter because of the bar contained in the jurisdiction of Courts (Removal of Doubts) Order, 1969 promulgated by the last martial law regime. The High Court relying on Dosso's case held that the Order of 1969 was a valid and binding law and that, as such, it had no jurisdiction in the matter by reason of the provisions of clause (2) of the said Order.
On a petition filed before this Court, leave was granted to consider: (1) as to whether the doctrine enunciated in Dosso's case was correct, (2) even if correct, whether the doctrine applied to the facts and circumstances in which FM Ayub Khan transferred power to General Yahya Khan and (3) if the source of power assumed by General Yahya Khan was illegal and unconstitutional, then whether all legislative and executive acts done by him including the imposition of martial law and the promulgation of Martial law Regulations and Orders were illegal. It was held that the doctrine of legal positivism founded on Hans Kelsen's theory and recognized in Dosso's case was inapplicable, General Yahya Khan was termed as a usurper and all actions taken by him except those in the welfare of the people were declared to be illegal. The principle laid down in Dosso's case was held to be wholly unsustainable and could not be treated as good law either on the principle of stare decisis or otherwise. Proclamation of martial law did not by itself involve abrogation of civil law and functioning of civil authorities and certainly did not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country.
It was held that Kelsen's theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory which favoured totalitarianism.
The seizing of power by Yahya Khan having been declared by the Supreme Court to be entirely illegal, question arose whether everything (legislative measures and other acts) done during his illegal regime, whether good or bad, could be treated in the same manner and branded as illegal and of no effect. It was held that grave responsibility, in such circumstances, rested upon Courts not to do anything which might make confusion worse confounded or create a greater state of chaos if that could possibly be avoided consistently with their duty to decide in accordance with law. Acts done by those actually in control without lawful authority may be recognized as valid and acted upon by the Courts within certain limitations, on principles of necessity. It was observed that a usurper would have done things both good and bad, and he would have during the period of usurpation also made many Regulations or taken actions which would be valid if they emanated from a lawful government and which would have, in the course of time, affected the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer of property and similar subjects. All these could not be invalidated and the country landed once again into confusion.
It was, therefore, held that recourse had to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but one had to disagree with the view that it was a doctrine for validating the illegal acts of usurpers. Rather, the doctrine could be invoked in aid only after the Court came to the conclusion that the acts of the usurpers were illegal and illegitimate. It was only then that the question would arise as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. This principle would be called a principle of condonation and not legitimization. Applying this test the Court condoned--
(1) all transactions which were past and closed, for, no useful purpose could be served by re-opening them, (2) all acts and legislative measures which were in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tended to advance or promote the good of the people, and
(4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of the objectives in the Objectives Resolution.
It was held that the Court would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. The Court would not also condone anything which seriously impaired the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity.
In Begum Nusrat Bhutto's case, the facts were that on 5th July 1977 General Ziaul Haq, the then Chief of Army Staff imposed martial law and held in abeyance the Constitution of 1973. Prime Minister Zulfikar Ali Bhutto and other leaders of the Pakistan People's Party were detained under Martial Law Order No. 12 of 1977. Begum Nusrat Bhutto filed a petition under Article 184(3) of the Constitution against the detention of her husband and others. The Court declared the imposition of martial law as valid on the doctrine of state necessity.
Explaining the circumstances for Army's intervention, General Ziaul Haq, in his address of 5 th July 1977 said:-
"The Army take-over is never a pleasant act because the Armed Forces of Pakistan genuinely want that the administration of the country should remain in the hands of the representatives of the people who are its real masters. The people exercise this right through their elected representatives who are chosen in every democratic country through periodic elections.
The elections were held in our beloved homeland on March 7 last. The election results, however, were rejected by one of the contending parties, namely, the Pakistan National Alliance. They alleged that the elections had been rigged on a large scale and demanded fresh elections. To press their demand for re-elections, they launched a movement which assumed such dimensions that people even started saying that democracy was not workable in Pakistan. But, I genuinely feel that the survival of this country lies in democracy and democracy alone. It is mainly due to this belief that the Armed Forces resisted the temptation to take over during the recent provocative circumstances in spite of diverse massive political pressures. The Armed Forces have always desired and tried for the political solution to political problems. That is why the Armed Forces stressed on the then Government that they should reach a compromise with their political rivals without any loss of time. The Government needed time to hold these talks. The Armed Forces bought them this valuable period of time by maintaining law and order in the country. The Armed Forces were subjected to criticism from certain quarters for their role in aid of the civil administration, but we tolerated this criticism and ridicules in the hope that it was a passing phase. We hoped that when this climate of agitational frenzy comes to an end, the nation would be able to appreciate the correct and constitutional role of the Armed Forces and all fears would be allayed.
I have just given you a very broad -outline picture of the situation obtaining in the country. It must be quite clear to you now that when the political leaders failed to steer the country out of a crisis, it is an inexcusable sin for the Armed Forces to sit as silent spectators. It is primarily for this reason that the Army, perforce, had to intervene to save the country.
I would like to point out here that I saw no prospects of a compromise between the People's Party and the P.N.A. because of their mutual distrust and lack of faith. It was feared that the failure of the P.N.A. and P.P.P. to reach a compromise would throw the country into chaos and the country would thus be plunged into a more serious crisis. This risk coul d not be taken in view of the larger interests of the country. The Army had, therefore, to act as a result of which the Government of Mr. Bhutto had ceased to exist; martial law has been imposed throughout the country; the National and Provincial Assemblies have been dissolved and the Provincial Governors and Ministers have been removed."
The Court, in the course of the judgment, took judicial notice of the following facts:-
(1) That from the evening of the 7th of March 1977 there were wide-spread allegations of massive official interference with the sanctity of the ballot in favour of candidates of the Pakistan People's Party;
(2) That these allegations, amounting almost to widespread belief among the people, generated a national wave of resentment and gave birth to a protest agitation which soon spread from Karachi to Khyber and assumed very serious proportions;
(3) That the disturbances resulting from this movement became beyond the control of the civil armed forces;
(4) That the disturbances resulted in heavy loss of life and property throughout the country;
(5) That even the calling out of the troops under Article 245 of the Constitution by the Federal Government and the consequent imposition of local Martial Law in several important cities of Pakistan, and the calling out of troops by the local authorities under the provisions of the Code of Criminal Procedure in smaller cities and towns did not have the desired effect, and the agitation continued unabated;
(6) That the allegations of rigging and official interference with elections in favour of candidates of the ruling party were found to be established by judicial decisions in at least four cases, which displayed a general pattern of official interference;
(7) That public statements made by the then Chief Election Commissioner confirmed the widespread allegations made by the Opposition regarding official interference with the elections, and endorsed the demand for fresh elections;
(8) That in the circumstances, Mr. Z. A. Bhutto felt compelled to offer himself to a referendum under the Seventh Amendment to the Constitution, but the offer did not have any impact at all on the course of the agitation, and the demand for his resignation and for fresh elections continued unabated with the result that the Referendum Plan, had to be dropped;
(9) That in spite of Mr. Bhutto's dialogue with the leaders of the Pakistan National Alliance and the temporary suspension of the Movement against the Government, officials charged with maintaining law and order continued to be apprehensive that in the event of the failure of the talks there would be a terrible explosion beyond the control of the civilian authorities;
(10) That although the talks between Mr. Bhutto and the Pakistan National Alliance leadership had commenced on the 3rd of June 1977, on the basis of his offer for holding fresh elections to the National and Provincial Assemblies, yet they had dragged on for various reasons, and as late as the 4th of July 1977, the Pakistan National Alliance leadership was insisting that nine or ten points remained to be resolved and Mr. Bhutto was also saying that his side would similarly put forward another ten points if the General Council of P. N. A. would not ratify the accord as already reached on the morning of the 3rd of July 1977;
(11) That during the crucial days of the deadlock between Mr. Z.A. Bhutto and the Pakistan National Alliance leadership the Punjab Government sanctioned the distribution of fire -arms licences on a vast scale, to its party members, and provocative statements were deliberately made by the Prime Minister's Special Assistant, Mr. G.M. Khar, who had patched up his differences with the Prime Minister and secured this appointment as late as the 16th of June, 1977; and
(12) That as a re sult of the agitation all normal economic, social and educational activities in the country stood seriously disrupted, with incalculable damage to the nation and the country.
On consideration of the aforesaid facts and circumstances, the Court held as under:-
"In the light of these facts, it becomes clear, therefore, that from the 7th of March 1977 onward, Mr. Z. A. Bhutto's constitutional and moral authority to rule the country as Prime Minister stood seriously eroded. His Government was finding it more and more difficult to maintain law and order, to run the orderly ordinary administration of the country, to keep open educational institutions and to ensure normal economic activity. These conclusions find support from the declaration of loyalty to Mr. Z. A. Bhutto's Government made by the Chairman of the Joint Chiefs of Staff and the Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force on the 28th of April 1977. There has been some controversy between the parties as to whether Mr. Bhutto had requested the Service Chiefs for such a declaration, or it was voluntarily made by them on their own initiative, but the fact remains that the situation had deteriorated to such an extent that either Mr. Bhutto or the Service Chiefs themselves felt that a declaration of loyalty to Mr. Bhutto's Government was needed at that critical juncture so as to boost up his authority and to help in the restoration of law and order and a return to normal conditions. It is again a fact that even this declaration did no have any visible impact on the momentum of the agitation launched by the Opposition which continued unabated.
The Constitutional authority of not only the Prime Minister but also of the other Federal Ministers, as well as of the Provincial Governments was being repudiated on a large scale throughout the country. The representative character of the National and the Provincial Assemblies was also not being accepted by the people at large. There was thus a serious political crisis in the country leading to a break-down of the constitutional machinery in so far as the executive and the legislative organs of the State were concerned. A situation had, therefore, arisen for which the Constitution provided no solution. It was in these circumstances that the Armed Forces of Pakistan, headed by the Chief of Staff of the Pakistan Army, General Mohammad Ziaul Haq intervened to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster. It was undoubtedly an extra-constitutional step, but obviously dictated by the highest considerations of State necessity and welfare of the people. It was precisely for this reason that the declaration of Martial Law on the morning of the 5th of July 1977 was spontaneously welcomed by almost all sections of the population which heaved a sigh of relief after having suffered extreme hardships during the unprecedented disturbances spread over a period of nearly four months."
The petition was decided as under:-
"As the present petition under clause (3) of Article 184 of the Constitution is intended for the enforcement of certain Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July 1977 under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide.
The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows:-
(i) That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed;
(ii) That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is of a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution;
(iii) That examined in this light, the Proclamation of Martial Law on the 5th of July 1977, appears to be an extra-Constitutional step necessitated by the complete breakdown and erosion of the constitutional and moral authority of the Government of Mr. Z. A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster;
(iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by judicial authorities as falling within the scope of the law of necessity;
(v) That it has also become clear from a review of the events resulting in the culmination of Martial Law, and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan as well as the superior Courts continue to function under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the 1973 Constitution;
(vi) That, accordingly, the superior Co urts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance; and
(vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an Emergency contemplated by clause (1) of Article 232 of the Constitution, and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the Constitution.
"As a result, the present petition fails and is hereby dismissed. However, it will be for the detenus, if so advised, to move the High Courts concerned under Article 199 of the Constitution.
It was also observed as under:-
"While the Court does not consider it appropriate to issue any directions, as suggested by Mr. Yahya Bakhtiar, as to a definite time-table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan."
"My dear countrymen, Assalam-o-Alaikum.
You are all aware of the kind of turmoil and uncertainty that our country has gone through in recent times. Not only have all the institutions been played around with, and systematically destroyed, the economy too is in a state of collapse. We are also aware of the self-serving policies being followed, which have rocked the very foundation of the Federation of Pakistan.
The armed forces have been facing incessant public clamour to remedy the fast declining situation from all sides of the political divide. These concerns were always conveyed to the Prime Minister in all sincerity, keeping the interest of the country foremost. It is apparent that they were never taken in the correct spirit. My singular concern has been the well-being of our country alone. This has been the sole reason that the army willingly offered its services for nation building tasks, the results of which have already been judged by you.
All my efforts and counsel to the Government it seems were to no avail. Instead they now turned their attention on the army itself. Despite all my advices they tried to interfere with the armed forces, the last remaining viable institution in which all of you take so much pride and look up to, at all times, for the stability, unity and integrity of our beloved country. Our concerns again were conveyed in no uncertain terms but the Government of Mr. Nawaz Sharif chose to ignore all these and tried to politicize the army, destabilize it and tried to create dissension within its ranks.
I was in Sri Lanka on an official visit. On my way back the PIA commercial flight was not allowed to land at Karachi but was ordered to be diverted to anywhere outside Pakistan, despite acute shortage of fuel, imperiling the life of all the passengers. Thanks to Allah, this evil design was thwarted through speedy army action.
My dear countrymen having briefly explained the background, I wish to inform you that the armed forces have moved in, as a last resort, to prevent any further destabilization. I have done so with all sincerity, loyalty and selfless devotion to the country with the armed forces firmly behind me. I do not wish to make a lengthy policy statement at this moment. I shall do that very soon. For the moment I only wish to assure you that the situation in the country is perfectly calm, stable and under control. Let no outside forces think they can take advantage of the prevailing situation.
Dear brothers and sisters, your armed forces have never and shall never let you down, Insha'Allah, we shall preserve the integrity and sovereignty of our country to the last drop of our blood. I request you all, to remain calm and support your armed forces in the re establishment of order to pave the way for a prosperous future for Pakistan."
"284. We, therefore, declare that the Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000 (Order 1 of 2000) is hit by the doctrine of past and closed transaction and cannot be reopened."
"TAKING OF OATH UNDER PCO NO. 1 OF 1999
Fresh oath under Oath of Office (Judges) Order No. 1 of 2000, does not in any way preclude the Judges of this Court from examining the questions raised in the above petitions, which have to be decided in accordance with their conscience and law so as to resolve the grave crises and avoid disaster by preventing imposition of Martial Law for which the Constitution does not provide any remedy."
"INTERVENTION BY ARMED FORCES
National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic processes in the country, which may cause instability, impair the economic growth and resultantly prove detrimental to the general well-being of the people. However, where the representatives of the people, who are responsible for running the affairs of the State are themselves accused of massive corruption and corrupt practices and in the public as well as private sectors are benefiting therefrom and resist establishing good governance; where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practised by diversified strata including politicians, parliamentarians public officials and ordinary citizens and that a number of Parliamentarians and members of the Provincial Assemblies misdeclared their assets before Election Commission and Tax Authorities; where there was no political and economic stability and bank loan defaults were rampant and that as per report of Governor, State Bank of Pakistan Rs. 356 billion are payable by the bank defaulters up to 12-10-1999 having no accountability and transparency; where economic stability in Pakistan was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population; where Pakistan has a debt burden, which equals the country's entire national income; where all the institutions of the State were being systematically destroyed and the economy was in a state of collapse due to self-serving policies of the previous government, which had threatened the existence, security, economic life, financial stability and credit of Pakistan; where a situation had arisen under which the democratic institutions were not functioning in accordance with the provisions of the Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were closely associated with the former Prime Minister and there was no real democracy because the country was, by and large, under one man rule; where an attempt was made to politicize the Army, destabilize it and create dissension within its ranks and where the Judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous speeches by some of the members of the previous ruling party inside and outside the Parliament and no reference was made to the Chief Election Commissioner for their disqualification as members of the Parliament under Article 63 (2) of the Constitution; where the disparaging remarks against the Judiciary crossed all limits with the rendering of judgment by this Court in the case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military Courts as ultra vires the Constitution, which resulted into a slanderous campaign against the Judiciary launched by the former Prime Minister registering his helplessness in the face of the Judiciary not allowing him the establishment of Military Courts as a mode of speedy justice; where the image of the Judiciary was tarnished under a well conceived design; where the telephones of the Judges of the Superior Courts and other personalities were tapped in spite of the law laid down by this Court in the case of Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388, that tapping of telephones and eavesdropping was immoral, illegal and unconstitutional; where storming of the Supreme Court was resorted to allegedly by some of the leaders and activists of the Pakistan Muslim League which ultimately led to the issuance of contempt notices against them/contemners by the Full Bench of this Court in a pending appeal; where Mian Nawaz Sharif's constitutional and moral authority stood completely eroded and where situation was somewhat similar and analogous to the situation that was prevalent in July, 1977, the extra constitutional step of taking over the affairs of the country by the Armed Forces for a transitional period to prevent any further destabilization, to create corruption free atmosphere at national level through transparent accountability and revive the economy be fore restoration of democratic institutions under the Constitution, is validated, in that Constitution offered no solution to the present crisis."
"No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. We are firmly committed to the governance of the country by the people's representatives and we reiterate the definition of the term `democracy' to the effect that "it is Government of the people, by the people and for the people" and not by the Army rule for an indefinite period. It has already been emphasized in the Short Order that prolonged involvement of the Army in civil affairs ran a grave risk of politicizing it, which would not be in national interest and that civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive, dated 13th and 17th October, 1999, which necessitated the military take-over."
"1. On 12th October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto's case. The doctrine of State necessity is recognized not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo, Grotius, Chitty and De Smith and some Superior Courts from foreign jurisdiction to fill a political vacuum and bridge the gap.
"2. Sufficient corroborative and confirmatory material has been produced by the Federal Government in support of the intervention by the Armed Forces through extra-constitutional measure. The material consisting of newspaper clippings, writings, etc. in support of the impugned intervention is relevant and has been taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur. The findings recorded herein are confined to the controversies involved in these cases alone.
"3. All past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts, which tended to advance or promote the good of the people, are also validated.
"4. That the 1973 Constitution still remains the supre me law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity;
"5. That the Superior Courts continue to function under the Constitution. The mere fact that the Judges of the Superior Courts have taken a new oath under the Oath of Office (Judges) Order No. 1 of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. 1 of 1999 and other legislative instruments issued by the Chief Executive from time to time;
"6(i) That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO No. 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:-
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.
"(ii) That Constitutional Amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6) sub- clause (i) (a) ibid is controlled by sub-clauses (b)(c) and (d) in the same clause.
"(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions.
"(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233 (1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.
"(v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice;
"(vi) That the Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf.
"(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the Superior Courts.
"6. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was proclaimed by way of an extra-Constitutional step as a follow up of the Army take-over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field.
"7. That the validity of the National Accountability Bureau Ordinance, 1999 will be examined separately in appropriate proceedings at appropriate stage.
"8. That the cases of learned former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court; who were not given oath, cannot be re-opened being hit by the doctrine of past and closed transaction.
"9. That the Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly equitably and in accordance with law.
"10. That the Judges of the Superior Courts are also subject to accountability in accordance with the methodology laid down in Article 209 of the Constitution.
"11. General Pervez Musharraf, Chief of the Army Staff and Chairman Joint Chiefs of Staff Committee is a holder of Constitutional post. His purported arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect.
"12. That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order.
"13. This is not a case where old legal order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives.
"14. That the current electoral rolls are outdated. Fresh elections cannot be held without updating the electoral rolls. The learned Attorney-General states that as per report of the Chief Election Commissioner this process will take two years. Obviously, after preparation of the electoral rolls some time is required for delimitation of constituencies and disposal of objections, etc.
"15. That we take judicial notice of the fact that ex-Senator Mr. Sartaj Aziz moved a Constitution Petition No. 15 of 1996, seeking a mandamus to the concerned authorities for preparation of fresh electoral rolls as, according to Mr. Khalid Anwar, through whom the above petition was filed, the position to the contrary was tantamount to perpetuating disenfranchisement of millions of people of Pakistan in violation of Articles 17 and 19 of the Constitution. Even MQM also resorted to a similar Constitution Petition bearing No. 53 of 1996 seeking the same relief. However, for reasons best known to the petitioners in both the petitions, the same were not pursued any further.
"16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above, three years period is allowed to the Chief Executive with effect from the date of the Army takeover i.e. 12th October, 1999 for achieving his declared objectives.
"17. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.
"18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency, dated 12th October, 1999 at any stage if the circumstances so warrant as held by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57."
The review petition against the above judgment was filed by Mr. Wasim Sajjad, but the same was dismissed vide judgment reported as Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233).
The Supreme Court, in this case, allowed General Pervez Musharraf a period of three years for the purpose of achieving his declared objectives and for that limited purpose, in the interest of the State necessity and for the welfare of the people, held him entitled to perform the acts mentioned in Para 6(i) of the Short Order, including the power to amend the Constitution to achieve his declared objectives. Accordingly, the power to amend the Constitution, as declared in the aforesaid terms, could only be resorted to by General Pervez Musharraf if the Constitution failed to provide a solution for attainment of his declared objectives. It was a mere declaration of an already existing fact having no bearing at all on the amending power of Majlis-e-Shoora (Parliament). By the Proclamation of Emergency of 14th October, 1999 and the PCO No. 1 of 1999 General Pervez Musharraf had already purportedly assumed powers whereby he held the Constitution in abeyance, though continued the President in office, but suspended (later dissolved) the Senate, National Assembly and the Provincial Assemblies along with Chairman/Deputy Chairman of the Senate and Speakers of the Assemblies, and declared that the Prime Minister, Chief Minister, Federal and the Provincial Ministers, State Ministers, Advisors, etc. ceased to hold office and he himself assumed the office of Chief Executive of Pakistan, all in derogation and in violation of, the provisions of the Constitution.
General Pervez Musharraf, while acting as Chief Executive of Pakistan, in which capacity he was to perform certain legislative and administrative acts, as referred to above, by Provisional Constitution (Amendment) Order, 2000 (Chief Executive's Order No. 10 of 2000 dated 14.11.2000, amended PCO No. 1 of 1999, so as to provide that the words "Prime Minister" and the words "Chief Minister" wherever occurring, shall be deemed to be substituted by the words "Chief Executive of the Islamic Republic of Pakistan" and "Governor" resp ectively.
In June 2001, he promulgated the President's Succession Order 2001 (Chief Executive's Order No. III of 2001) on 20th June, 2001 in pursuance whereof Mr. Muhammad Rafiq Tarar, President of Pakistan was ousted from office and on 21st June, 2001 he himself assumed that office. Nothing has come on record to indicate that President Tarar was, in any manner, hampering the exercise of power by General Pervez Musharraf as the Chief Executive in the attainment of his declared objectives - he already having administered oath of office to Irshad Hasan Khan, J, as the Chief Justice of Pakistan and other Judges of the Supreme Court under PCO No. 1 of 2000 and Oath Order 2000, which had been issued in derogation of the provisions of the Constitution. President Tarar, like the Judges of the Supreme Court of that time, had two options, either to tender resignation, or to accept the situation, as it was, in an attempt to save what institutional values remained to be saved, and he too opted for the latter. But unfortunately, the tide of time was not with him so as to enable him to play any role in bringing the country back on the democratic path. He was unceremoniously made to quit the office of President against the provisions of the Constitution. It too, was one of the many coups General Pervez Musharraf made since the 12th October, 1999. This was not the first time that a President had met such a fate. In 1958 President Iskandar Mirza abrogated the Constitution, declared martial law in the country and appointed General Ayub Khan as the Chief Martial Law Administrator. The latter did not take too long to oust President Iskandar Mirza from the Presidency and to assume unto himself the office of President also. In 1969, Ayub Khan by his letter of 25th March asked Commander-in-Chief of the Army General Yahya Khan to play his constitutional and legal duty of bringing normalcy in the agitation stricken country, but he imposed martial law in the country and soon thereafter assumed the office of President. On 5th July, 1977 General Ziaul Haq continued to accept President Mr. Fazal Elahi Chaudhry in office and assumed the office of President on the completion of the latter's term in 1978. However, it is noteworthy that though President Tarar continued to function under the extra-constitutional set up, but when he was made to quit the Presidency earlier than the completion of his term by means of the President's Succession Order, 2001, he did not resign from his office. Thus, constitutionally and legally the office of President had not fallen vacant so as to enable anyone else to assume the same. At any rate, General Pervez Musharraf, having captured the office of President, as mentioned earlier, by means of Chief Executive's Order No. XII of 2002 dated 30th April, 2002 next proceeded to hold Referendum asking for a vote on his continuation in the office of President for next five years so as to achieve his "declared objectives". We would not like to make any comments on the results of the Referendum, except that it was a replica of the Referendum held in 1985 by General Ziaul Haq for his continuation as President of Pakistan for a term of five years and, therefore, the overwhelming success of General Pervez Musharraf too, was a foregone conclusion. He was returned with more than 99 % of the polled votes.
Nearing the completion of the three years' period, he took in hand the work of amendment of the Constitution at a large scale. On 21st August, 2002, he issued the LFO (Chief Executive's Order No. 24 of 2002 whereby he made amendments in Articles 17, 41, 51, 58, 59, 62, 63, 63A, 70, 71 (new Article), 73, 75, 106, 112, 140A (new Article), 152A (new Article), 199, 203C, 209, 218, 224, 243, 260, 268, 270AA (new Article), 270B, 270C (new Article) and the Sixth Schedule to the Constitution wherein new entries 25 to 35 were made. By the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002 dated 9th October, 2002), he made amendments in Articles 51, 63, 106, 179, 193 and 195 of the Constitution. By the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002 dated 26th October, 2002) he amended Articles 59 and 152 of the Constitution.
Article 2 of the LFO provided the manner of convening of first meetings of the National Assembly, Senate and the Provincial Assemblies. Under Article 3 of the LFO, the Constitution was amended to the extent and in the manner specified in column 3 of the Schedule to the LFO. Article 4 provided that the Constitution shall stand revived on such day as the Chief Executive may, by notification in the Official Gazette, appoint and different days may be so appointed in respect of different provisions. Article 5 provided that the provisions of LFO shall have effect notwithstanding anything contained in the Constitution or any other Order or law for the time being in force. The LFO was challenged before the Supreme Court through a Constitution Petition filed by Watan Party. The petition was dismissed vide judgment dated 7th October, 2002 on the ground that the petitioner had no locus standi to file the same. It was further held that the elected Parliament and not the Supreme Court was the appropriate forum to consider all these amendments.
Elections to the National Assembly and the Provincial Assemblies were held on 10th October, 2002, i.e. within the timeframe given by the Supreme Court in Zafar Ali Shah's case. By notification dated 15th November, 2002 certain Articles of the Constitution were revived, and on 16th November 2002 General Pervez Musharraf took oath of the office of President. On the same date, the members of the National Assembly were also sworn in. Vide notification dated 20th November, 2002 remaining Articles of the Constitution were revived, to come into effect on different dates mentioned in the notification. The members of the Senate took oath on 23rd November, 2002 while the four Chief Ministers were sworn in on 12th March, 2003.
Under the judgment in Zafar Ali Shah's case, General Pervez Musharraf was allowed a period of three years to achieve his declared objectives, hold elections before the end of the said period and handover power to the civilians. Further, he would resort to amending the Constitution in case the Constitution failed to provide a solution of any problem hampering the achievement of his declared objectives. However, from 12th October, 1999 until 20th August, 2002 he made, so to say, no amendment in the Constitution and remained content with the available constitutional and legal apparatus. However, nearing the close of his three years period, he took in hand the work of amendment of the Constitution, obviously not for achieving his declared objectives - the constitutional deviation made by him having been validated for a transitional period - but to go ahead with his plans of his continuation in power for an indefinite period of time, because if it were not so, he would have made amendments in the Constitution as and when needed in the execution of his functions. Earlier, General Ziaul Haq, at the time of imposition of martial law on 5th July, 1977, too had come up with a similar stance of achieving his declared objectives, holding of elections within 90 days and restoring of democracy in the country. In his speech of that day, he had stated--
"I want to make it absolutely clear that neither I have any political ambitions nor does the Army want to be detracted from its profession of soldiering. I was obliged to step in to fill in the vacuum created by the political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim is to organize free and fair elections which would be held in October this year. Soon after the polls power will be transferred to the elected representatives of the people. I give a solemn assurance that I will not deviate from this schedule. During the next three months my total attention will be concentrated on the holding of elections and I would not like to .dissipate my powers and energies as Chief Martial Law Administrator on anything else."
Validation and affirmation of laws etc. Article 270AA.--(1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive's Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Orders No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been validly made by the competent authority, are hereby further affirmed, adopted and declared to have been validly made and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointments made including secondments and deputations and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on Which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority.
Explanation.--In this clause, "competent authority" means,--
(a) in respect of President's Orders, Ordinances, Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any Court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby."
(1) There, is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
(2) There has also been a spate of attacks on State infrastructure and on law enforcement agencies;
(3) Some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation's resolve and diluting the efficacy of its actions to control this menace;
(4) There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;
(5) Constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;
(6) Some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
(7) Some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
(8) The Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable Judges confine the scope of their activity to the judicial function and not assume charge of administration;
(9) An important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
(10) The humiliating treatment meted to government officials by some members of the judiciary on a routine basis during Court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
(11) The law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded; and
(12) A situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures.
The second instrument issued by General Pervez Musharraf, namely, PCO No. 1 of 2 007 provided as under:-
(i) Notwithstanding the abeyance of the Constitution, Pakistan would, subject to PCO No. 1 of 2007 and any other Order made by the President, be governed, as nearly as may be, in accordance with the Constitution;
(ii) The President may, from time to time, by Order amend the Constitution, as is deemed expedient;
(iii) The Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 shall remain suspended;
(iv) Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic Injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260(3)(a) and (b) shall continue to be in force;
(v) Subject to clause (1) above and the Oath Order, 2007, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction;
(vi) The Supreme Court or a High Court and any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority;
(vii) All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to Oath Order, 2007, and such further Orders as the President may pass;
(viii) Subject to clause (1) above, the Majlis-e-Shoora (Parliament) and the Provincial Assemblies shall continue to function;
(ix) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President;
(x) No Court, including the Supreme Court, the Federal Shariat Court, and the High Courts, and any tribunal or other authority, shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, Oath Order, 2007 or any Order made in pursuance thereof;
(xi) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or tribunal against the President or the Prime Minister or any authority designated by the President;
(xii) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him;
(xiii) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution; and
(xiv) The above provision shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.
(a) A person holding office immediately before this Order as a Judge of the Supreme Court, the Federal Shariat Court or a High Court shall cease to hold that office with immediate effect;
(b) A person who is given, and does make Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be;
(c) A Judge of a Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule;
(d) A person who has made oath as aforesaid shall be bound by the provisions of the Oath Order, 2007, Proclamation of Emergency of 3rd November, 2007, PCO No. 1 of 2007, and, notwithstanding any judgment of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof; and
(e) The Judges of the superior Courts including Chief Justices would cease to hold office on and from 3rd November 2007 and only such Judges would continue to hold office who made oath under PCO No. 1 of 2007 read with Oath Order, 2007.
The Chief Justice of Pakistan constituted a Bench of available 7 Judges of the Supreme Court, which passed a restraint order in Wajihuddin Ahmed's case against the above instruments and measures and directed, inter alia, the Judges of Supreme Court and High Courts not to make oath under PCO or any other extra-constitutional step. Certain Judges of the Supreme Court including Chief Justice of Pakistan were put under house arrests. Immediately thereafter, General Pervez Musharraf purportedly made the appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan, who was at serial No. 4 of the seniority list of the Judges of the Supreme Court, i.e. Chief Justice of Pakistan, Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, by means of notification of even date, which is reproduced below:-
"GOVERNMENT OF PAKISTAN
LAW, JUSTICE AND HUMAN RIGHTS DIVISION
Islamabad, the 3rd November, 2007
NOTIFICATION
No. F.2(1)/2007-A-II(A).--In exercise of the powers conferred by clause (1) of Article 177 of the Constitution of the Islamic Republic of Pakistan read with Provisional Constitution Order No. 1 of 2007 and Oath of Office (Judges) Order, 2007, the President is pleased to appoint Mr. Justice Abdul Hameed Dogar, Judge, Supreme Court of Pakistan to be the Chief Justice of Pakistan with immediate effect.
Sd/- Mr. Justice (Retd.) (Mian Muhammad Ajmal) Principal Secretary"
In pursuance of the above notification, Abdul Hameed Dogar, J, was administered the oath of office as the Chief Justice of Pakistan during the night between 3rd and 4th November, 2007. The same night three Judges, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar and M. Javed Buttar, JJ, took oath as Judges of this Court under the new dispensation while Saiyed Saeed Ashhad, J, who was at Karachi at the relevant time, made similar oath as a Judge of this Court before the Governor of Sindh as nominee of the President. Likewise, some Judges of High Courts including Chief Justice of the Lahore High Court and all the five Judges of the Balochistan High Court including Chief Justice made oath under PCO No. 1 of 2007 and Oath Order, 2007. On 5th November, 2007, four persons were purportedly appointed in the Supreme Court by notification of even date issued by the Ministry of Law and Justice, which read as under:-
"Islamabad, the 5th November, 2007.
NOTIFICATION
No. F.2(1)/2007-A-II(A).--In exercise of the powers conferred by clause (1) of Article 177 of the Constitution of the Islamic Republic of Pakistan read with Provisional Constitution Order No. 1 of 2007 and Oath of Office (Judges) Order, 2007, the President is pleased to appoint the following as Judges of Supreme Court of Pakistan on and from the date they take oath of their office:-
Mr. Justice Ijaz-ul-Hassan, Judge Peshawar High Court.
Mr. Justice Muhammad Qaim Jan Khan Judge, Peshawar High Court.
Mr. Justice Mohammad Moosa K. Leghari, Judge, High Court of Sindh.
Mr. Justice Ch. Ejaz Yousaf, Former Chief Justice, Federal Shariat Court.
Sd/- Mr. Justice (Retd.) (Mian Muhammad Ajmal) Principal Secretary"
Later, more appointments were made details of which are given in later part of the judgment.
"In the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to "a state within the state". Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007;
"The Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the State machinery, particularly legislative and executive branches of the government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary;
"The sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/President;
"The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto v. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance."
"The Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
"The extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, Oath Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi est suprema lex, may perform,--
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State."
"The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;
"Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
"The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
"The superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;
"The Chief Justices and Judges of the superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;
"The learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under Oath Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
"Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of Proclamation of Emergency if the circumstances so warrant."
In pursuance of PCO No. 1 of 2007, General Pervez Musharraf, as President of Pakistan, purported to make amendments in the Constitution, inter alia, protecting his own actions including removal of Judges, establishment of Islamabad High Court, etc., by insertion of Article 270AAA into the Constitution. On 28th November, 2007, he relinquished the office of Chief of Army Staff. On 15th December, 2007 by means of Revocation of Proclamation of Emergency Order, 2007, he revoked the emergency imposed on 3rd November, 2007 and restored the Constitution as amended by him. General Elections were held on 18th February, 2008. The newly elected representatives of the people were sworn in, the National Assembly and Provincial Assemblies came into existence and governments at the Federal and the Provincial levels were formed. On 24th March, 2008, pursuant to an announcement made by the newly elected Prime Minister, restrictions on the movement of Judges were lifted. In the wake of resolutions passed by all the four Provincial Assemblies calling upon General Pervez Musharraf to quit the office of President otherwise impeachment resolution would be moved against him, he resigned from the office of President on 18th August, 2008. Election for the office of President was held on 6th September, 2008 wherein Mr. Asif Ali Zardari was returned as the successful candidate. He made oath of office of President on 9th September, 2008. Vide notification dated 17th March, 2009, the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd November, 2007. Later, by different notifications, Judges of Supreme Court and High Courts, who were declared to have ceased to hold office on or after 3rd November, 2007 were restored to the position they were holding prior to 3rd November, 2007. The relevant details are given in later part of the judgment.
In the above background, instant Constitution Petitions No. 8 and 9 of 2009 were filed wherein the constitutionality of the actions of 3rd November, 2007 as also the judgment in Tikka Iqbal Muhammad Khan's case validating and legitimizing the aforesaid actions were questioned.
On the fateful day of 3rd November, 2007, General Pervez Musharraf, who was wearing two hats, one of the President of Pakistan and the other of the Chief of Army Staff, issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity as Chief of Army Staff, while as President of Pakistan he issued Oath Order, 2007 in pursuance of the aforesaid two instruments. By this, according to the learned counsel for the petitioners, two wrong impressions were created: (1) the Chief of Army Staff was an authority superior to the President of Pakistan, and (2) he was competent to proclaim emergency and promulgate PCO No. 1 of 2007 notwithstanding the provisions of the Constitution and the law. The learned counsel for the petitioners contended that no such power was vested in the Chief of Army Staff either under the Constitution or under any law nor a reference could usefully be made to the cases of Begum Nusrat Bhutto and Zafar Ali Shah, which were decided by this Court in different sets of facts and circumstances narrated hereinabove for comparison and analysis. The learned counsel also strenuously questioned the validity of the Oath Order 2007 issued by General Pervez Musharraf in his capacity as President of Pakistan because the Constitution did not empower him to promulgate an Order, which was not in accordance with any provision of the Constitution, but it also contravened a host of provisions of the Constitution, e.g. Articles 2A, 209, etc. relating to the independence of judiciary, an important pillar of the constitutional edifice of the State of Pakistan. The learned counsel canvassed that the instant case would be governed, as nearly as may be, in accordance with the law laid down in the cases of Asma Jilani and Liaquat Hussain. At the same time, they also urged that the judgments in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were required to be revisited because they were never considered a good law. On the latter point, the learned Attorney General for Pakistan also made a similar submission. To deal with the above contentions, it is necessary to examine the role and functions of the Armed Forces in the light of the provisions of the Constitution.
Chapter 2 of Part XII of the Constitution deals with the Armed Forces. Clause (1) of Article 243 provides that the Federal Government shall have control and command of the Armed Forces while under clause (1A) it is provided that without prejudice to the generality of the provisions of clause (1), the supreme command of the Armed Forces shall vest in the President. Under clause (3), the President shall, in consultation with the Prime Minister, appoint--
(a) the Chairman, Joint Chiefs of Staff Committee;
(b) the Chief of the Army Staff;
(c) the Chief of the Naval Staff; and
(d) the Chief of the Air Staff.
Under Article 244, every member of the Armed Forces shall make oath in the form set out in the Third Schedule, which recites as under:-
"I _________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A'meen)."
Article 245(1) of the Constitution deals with the functions of the Armed Forces of Pakistan. It provides as under:-
"(1) The Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so."
"From this examination of the authorities I am driven to the conclusion that the Proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of any agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the state in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State. I cannot, therefore, agree with the learned Attorney-General that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend.
If this be so, then from where did General Agha Muhammad Yahya Khan acquire the right to assume control of the reins of Government? Field Marshal Muhammad Ayub Khan did not appoint him as his successor by his letter of the 24th March 1969. He merely called upon him to perform his "constitutional and legal duty to restore order" in the country. If this was his authority, then the only authority he got was to restore order and nothing more.
Even the imposition of Martial Law by his proclamation is of doubtful validity, because the proclamation should have come from the civil authorities and it was only then that under the proclamation the Commander of the armed forces could have moved into action. There is no provision in any law which gives the Commander of the armed forces the right to proclaim Martial Law, although he has like all other loyal citizens of the country a bounden duty to assist the State, when called upon to do so. If the magnitude of the insurrection is so great that the Courts and the civil administration are unable to function, the military may exercise all such powers that may be necessary to achieve their objective and in doing so may even set up Military Tribunals to promptly punish wrong-doers but this, whether done throughout the country or in a restricted area within the country, merely temporarily suspends the functioning of the civil Courts and the civil administration. As soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role."
Thus, essentially, a proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role.
"As both President's Order No. 3 of 1969 and Martial Law Regulation 78 were intended to deny to the Courts the performance of their judicial functions, an object opposed to the concept of law. Neither would be recognized by Courts as law.
We may now turn to the methodology of law-making during the Martial Law which was imposed by Yahya Khan on the 26th March 1969. Pakistan came into being with a written Constitution Government of India Act, 1935 (26 Geo. 5, Ch. 2) and the Indian Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30). These constitutional instruments were, in time, replaced by the Constitution of 1956 which in turn was substituted by the Constitution of 1962. It is still in force either by its own vitality or under the Provisional Constitution Order, 1969. The written Constitution of a State is, according to Kelsen, its basic norm. It regulates all other legal norms. Pakistan has unfortunately suffered long spells of Martial Law, but its basic structure was democratic from its inception. There was distribution of powers between the executive, legislature and judiciary. During Martial Law the legislative powers of the State were usurped by the Executive and attempt made to deny to Courts the exercise of judicial functions. The usurpation of legislative powers of the state by the Chief Martial Law Administrator was therefore against the basic norm. The new Legal Order consisting of Martial Law Orders, Martial Law Regulations, Presidential Orders and Presidential Ordinances was, therefore, unconstitutional and void ab initio. This Order would have become legal only if the Government of Yahya Khan was recognized by Courts as de jure and the Order he gave to the country was held valid. This question has already been answered in the negative.
In this connection, we may examine also the nature of Martial Law imposed by Yahya Khan on the 26th March 1969, for lest it is said that the Martial Law Regulations, and Martial Law Orders were not laws in juristic sense, but they derived their validity from the Proclamation of the 25th March 1969. Martial Law is of three types: (i) the law regulating discipline and other matters determining the rule of conduct applicable to the Armed forces. We are not concerned with it; (ii) law which is imposed on an alien territory under occupation by an armed force. The classic function of this type of Martial Law was given by the Duke of Wellington when he stated in the House of Lords that "Martial Law is neither more nor less than the will of the General who commands the Army. In fact Martial Law means no law at all." We are also not concerned with this type of Martial Law; and (iii) law which relates to and arises out of a situation in which the civil power is unable to maintain law and order and the military power is used to meet force and recreate conditions of peace and tranquility in which the civil power can re-assert its authority. The Martial Law Regulations and Martial Law Orders passed under this type of Martial Law must be germane only to the restoration of peace and tranquility and induced during the period of unrest.
In practice, the Martial Law imposed by Yahya Khan belonged to the second category. A large number of Martial Law Regulations and Martial Law Orders passed by him between 25th March 1969 and 20th March 1971 had no nexus with civil disturbances. In fact, peace and tranquility was restored in the country within a few days of his stepping in. Martial Law should, therefore, have come to an end but the entire structure of institutions of Pakistan including superior Courts were made to appear by Yahya Khan as merely the expression of his will which a victorious military commander imposes on an alien territory to regulate the conduct and behaviour of its subjugated populace. Neither Pakistan was a conquered territory, nor the Pakistan Army commanded by Yahya Khan was an alien force to justify the imposition of this type of Martial Law.
The Martial Law imposed by Yahya Khan was, therefore, in itself illegal and all Martial Law Regulations and Martial Law Orders issued by him were on this simple ground void ab initio and of no legal effect.
Let us next examine the validity of the Presidential Orders and Ordinances issued by Yahya Khan between 26th March 1969, and 20th December 1971. He assumed the office of President on 31-3-1969 with effect from the 25th March 1969. Under Article 16 of the 1962 Constitution if at any time the President was unable to perform the functions of his office, the Speaker of the National Assembly was to act as President. Muhammad Ayub Khan could not, therefore, transfer the office of the President to Yahya Khan. Indeed, he did not even purport to do so. He simply asked him to perform his constitutional and legal responsibilities. Yahya Khan, therefore, assumed the office in violation of Article 16 of the Constitution to which he had taken oath of allegiance as Commander-in-Chief. It could not, therefore, be postulated that Yahya Khan had become the lawful President of Pakistan and was competent to promulgate Orders and Ordinances in exercise of the legislative functions conferred by the Constitution on the President. All Presidential Orders and Ordinances which were issued by him were, therefore, equally void and of no legal effect."
Along with Article 237 as finally approved, the framers of the Constitution also legislated Article 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
It appears that the draftsman, who drafted the Proclamations of Emergency of 14th October, 1999 and 3rd November, 2007 and the relevant PCOs had an eye on the constitutional developments taking place in the country at the legislative and the judicial forums. He changed the earlier methodology to facilitate the intending military adventurer to wriggle out of the fence erected by the judiciary and the legislature to prevent repetition of the military takeovers. In 1999, as opposed to the previous practice of imposing martial law, the draftsman came up with the idea of promulgating a simple Proclamation of Emergency and holding the Constitution in abeyance and by the PCO making a provision that subject to the PCO and any other Order issued by the Chief of Army Staff, Pakistan shall, as nearly as may be, be governed in accordance with the Constitution of 1973. Thus the term `martial law' was not used, but a mere emergency proclaimed, the practical effect of which was exactly the same as it was of the impositions of martial law on 5th July, 1977, 25th March, 1969 or 7th October, 1958. In 1977 and 1999, Oath Orders were issued and attempts made to make the superior Courts subservient to the orders and other legislative and administrative measures issued by the Chief of Army Staff. In October, 1958 and March, 1969 the Constitutions were abrogated, and martial law imposed. But in July 1977, though martial law was imposed, but the Constitution was not abrogated, rather it was held in abeyance. In October 1999, a new methodology was adopted, i.e., only an emergency was proclaimed, which was nothing but a chip off the old block. On all the previous four occasions, the Parliament and the Provincial Assemblies were dissolved; the Federal and the Provincial Governments were dismissed and Prime Minister, Federal Ministers, Chief Ministers, Provincial Ministers, Chairman and Deputy Chairman Senate and Speakers and Deputy Speakers of the National and the Provincial Assemblies were declared to have ceased to hold office. In November 2007, though emergency was proclaimed and the PCO and the Oath Order issued on the pattern of 12th October, 1999, but as opposed to the past practice, the legislative and executive organs of the State were kept intact, and the judiciary alone was shown the door because it was apprehended that a favourable decision was not likely to be rendered in the disqualification case of General Pervez Musharraf. However, a new dimension in the present case was that the vast majority of the Judges including Chief Justice of Pakistan did not make oath under PCO No. 1 of 2007 read with Oath Order, 2007. All such non-compliant Judges were put under house arrest along with their family members. In the above background, we affirm and approve the law laid down in Asma Jilani's case that martial law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. We also firmly lay down that no proclamation of emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution.
Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever. He also solemnly affirms and declares that he will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. The learned counsel for the petitioners vehemently contended that General Pervez Musharraf, by his actions of 3rd November, 2007, not only violated his oath as a member of the Armed Forces, but also overthrew the solemn pledge he made as President of Pakistan of performing his functions and discharging his duties honestly, to the best of his ability, faithfully in accordance with the Constitution and the law. We agree with the contention of the learned counsel that General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever. Thus, unless and until the Constitution is altered or amended in accordance with the procedure laid down in Articles 238 and 239, or it is repealed on the pattern of the Interim Constitution under the provisions of Article 266, which too, is possible by recourse to the provisions of Articles 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself. The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives. Let it be stated in unequivocal terms that the validity accorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will. It is hereby firmly laid down that the holding in abeyance of the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason.
The State of Pakistan emerged on the map of the globe on 14th August 1947 wherein up till November 2007, i.e., in a span of 60 years, there were made five military coups all of which were challenged, some directly while others indirectly, before the apex Court of the country. With the exception of the imposition of martial law by General Yahya Khan on 25th March, 1969, which was examined in Asma Jilani's case, the validity of all other military takeovers/actions was not adjudged on the touchstone of the Constitution, ostensibly taking the view that the takeover was an extra-constitutional step, that is to say, a step outside the Constitution itself, or a step not envisaged by any provision of the Constitution, taken in a situation for which the Constitution provided no remedy, therefore, the same was not liable to be adjudicated upon in the light of any provision of the Constitution. A wrong that was committed in 1954 by the Federal Court with its decision in Moulvi Tamizuddin Khan's case, given not on merits, but on a purely legal - rather a hyper-technical question, continued to be perpetuated every now and then under the garb of different theories and doctrines. Had the Court adopted a constitutional approach in the very first case, and followed the same in just one or two more cases if such an occasion arose, the course of history would have been, certainly not the one that this nation has treaded all along, and the country would not have landed in the quagmire it is presently found in. Be that as it may, it is our firm belief that Pakistan came into existence as a result of sacrifices made by the people in its cause. The people of Pakistan are committed and dedicated to preserving democracy achieved by their unremitting struggle against oppression and tyranny, as duly voiced and recognized in the Preamble to the Constitution of the Islamic Republic of Pakistan. The Founder of Pakistan, the Quaid-i-Azam Muhammad Ali Jinnah declared that Pakistan would be a democratic State based on Islamic principles of social justice. While addressing a gathering of the civil officers of Balochistan on 14th February, 1948, he said - "...... Until we finally frame our Constitution which, of course, can only be done by the Constituent Assembly; our present provisional constitution based on the fundamental principles of democracy, not bureaucracy or autocracy or dictatorship, must be worked. ......." Therefore, the military rule, direct or indirect, is to be shunned once and for all. Let it be made clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever. Military rule is against the dignity, honour and glory of the nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the sovereignty and integrity of the nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services. Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government. In the course of the discharge of his duties, a soldier, therefore, is obligated to seeing that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution. If a member of the Armed Forces acts in aid of a person who does any of the above acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law.
In the instant case, the actions of 3rd November 2007 taken by General Pervez Musharraf, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan Shaukat Aziz to the President of Pakistan General Pervez Musharraf, in which he wrote as under:-
"SUBJECT: NATIONAL SECURITY SITUATION
Dear Mr. President, I am writing to you to share my thoughts on the current national security situation and the risks that it represents for the future of Pakistan.
The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the government is being eroded and non-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally in Karachi on 18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of such incidents between April - October, 2007 are enclosed. The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.
There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular. The corner stone of the economic policies of the government is privatization, liberalization and deregulation which create economic growth and investment. Both local and foreign investment has been negatively affected.
It cannot be disputed that the legality of executive measures is open to judicial scrutiny. The wisdom or necessity of a policy or a measure is an executive function and not open to judicial review, however, in the recent past, some members of the judiciary have, nevertheless, departed from these norms. While we all are committed to the independency of the judiciary and the rule of law and hold the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function. While judges must adjudicate they must neither legislate nor assume the charge of administration.
Most importantly, constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens of Pakistan and negatively impacting the economy. Wide-ranging suo motu actions of the Courts negate the fundamentals of an adversarial system of justice. The police force has been completely demoralized and is fast losing its efficacy to fight terrorism. Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists.
A large number of hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.
There is a widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Privatization is at a standstill while domestic and foreign investors are being compelled to reconsider investment plans thus adversely affecting the economy.
On the other hand, an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant by a recent order. Detailed reasons for this order are still awaited despite a lapse of three months. Judges have, thus, made themselves immune from inquiry into their conduct and are now beyond accountability.
The law and order condition in the country as well as the economy have been adversely affected and trichotomy of powers eroded. A situation has thus arisen where the routine and smooth functioning of government machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has been an unusual increase in security related incidents highlighting the gravity of the situation.
Mr. President, the contents of this letter reflect my views and public opinion about the current scenario. For any State to function, all the three pillars of State must act in harmony in the best national interest. Pakistan is a country that achieved independence after immense sacrifices and has tremendous potential to develop. Prosper and be recognized among the comity of nations as a country with an exciting future."
Yours sincerely, Sd/- (Shaukat Aziz)
General Pervez Musharraf President Islamic Republic of Pakistan Aiwan-e- Sadr, Islamabad"
As is evident from the opening paragraph of the letter, the Prime Minister wrote to the President "to share his thoughts on the national security situation and the risks" that it represented for the "future of Pakistan". In Paragraph 2, the Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi on 18th October, 2007, etc., and the writ of the government being eroded as non-State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible. Paragraphs 3 to 8 dilated upon the interference by some members of the judiciary in the executive functions and in Paragraph 9 he stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security. In Paragraph 10, the Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future.
From the contents of the letter of the Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Article 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of the civil power. Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff. But for the sake of argument, it may be stated that even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the aforesaid letter. With a slight change in the modus operandi, it was a replay of the events of 25th March, 1969 where President Ayub Khan wrote a letter to the Commander-in-Chief of Army General Yahya Khan asking him to discharge his constitutional and legal duty of restoring law and order situation in the country, which had worsened on account of agitation and riots throughout the length and breadth of the country. In turn, General Yahya Khan, imposed martial law, abrogated the Constitution of 1962 and brought the country under the control of the Armed Forces and took upon himself the governance of the affairs of the country by means of the PCO of 1969. In Asma Jilani's case, such assumption of power by General Yahya Khan was declared to be illegal and he was termed as a usurper because no such power vested in the Commander-in-Chief of Army to take the kind of steps that he took in pursuance of the letter of President Ayub Khan. In the instant case too, no power vested in the Chief of Army Staff General Pervez Musharraf under the Constitution and the law to issue Proclamation of Emergency and PCO No. 1 of 2007 on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary. If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency. Nowhere the Prime Minister asked the President to take the actions that he took on 3rd November, 2007. In any case, it was not an advice tendered by the Prime Minister in terms of Article 48 of the Constitution. Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps. The Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No. 1 of 2007. Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO No. 1 of 2007. Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan, issued Oath Order, 2007, illegally assumed to himself power to remove Judges of the superior Courts in violation of Articles 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts.
In the cases of Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan, such acts of the concerned Chief of Army Staff were described as extra-constitutional steps or measures and were dealt with on an extra-constitutional plane. We, however, take the view that the aforesaid acts of General Pervez Musharraf were violative of the Constitution, pure and simple. In Begum Nusrat Bhutto's case, Syed Sharifuddin Pirzada, Sr. ASC, while appearing as Attorney General for Pakistan, described such assumption of power by the Chief of Army Staff General Ziaul Haq as "supra-constitutional". Anwarul Haq, CJ, while dilating upon such submission of the learned Attorney General, chose to term it as "extra-constitutional" and granted validity keeping aside the provisions of the Constitution. It was not right to expend so much judicial talent, legal acumen, industry, time and energy on the part of the Bench and the bar to coin the terms of "supra-constitutional" and "extra-constitutional", that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases. In our view, such terminology would hardly change the unconstitutional nature and character of the said actions, which not only ex facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law.
It was contended that after the acts of 3rd November, 2007 General Pervez Musharraf was as much a usurper as was General Yahya Khan after the imposition of martial law in 1969. A detailed analysis of the judgment in Asma Jilani's case has already been made in the preceding paragraphs. In the said case, General Yahya Khan was declared usurper by this Court in the following manner:-
"Looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation. It was not even a revolution or a military coup d'tat in any sense of those terms. The Military Commander did not takeover the reins of Government by force nor did he oust the constitutional President. The constitutional President out of his own free will and accord in response to the public demand, stepped aside and called upon the Military Commander to restore law and order, as he was bound to do both under the law and under the Constitution. On the stepping aside of the constitutional President the constitutional machinery should have automatically come into effect and the Speaker should have taken over as Acting President until fresh elections were held for the choice of a successor. The political machinery would then have moved according to the Constitution and the National and Provincial Assemblies would have taken steps to resolve the political disputes, if any, if the Military Commander had not by an illegal order dissolved them. The Military Commander, however, did not allow the constitutional machinery to come into effect but usurped the functions of Government and started issuing all kinds of Martial Law Regulations, Presidential Orders and even Ordinances."
"Now, it will be seen that in Asma Jilani's case the Court has taken the view that the abrogation of the Constitution and assumption of all governmental power by the Army Commander-in-Chief was illegal because it was not justified by the circumstances in which he was called upon by the then President, Field Marshal Muhammad Ayub Khan to perform his legal and constitutional duty of restoring law and order. The Court took note of the fact that the Constitution itself contained a provision for the Speaker of the National Assembly to assume the office of Acting President, in case the sitting President wanted to resign or step aside, but this constitutional provision was frustrated by General Yahya Khan when he proclaimed himself to be the President of the country as well as the Chief Martial Law Administrator and abrogated the 1962 Constitution without there being any justification for the same. It is clear, therefore, that the conclusion that the acts of General Muhammad Yahya Khan amounted to a usurpation of powers flows directly from the circumstances obtaining in that case, and is not to be regarded as a general proposition of law to the effect that whenever power is assumed in an extra-Constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. It would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation or not."
Thus, Anwarul Haq, CJ, treated the decision in Asma Jilani's case as restricted to the facts and circumstances of that case alone, and as not having laid down a general proposition of law that whenever power would be assumed in an extra-constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. However, he did not notice a very loud and clear assertion of Hamoodur Rahman, CJ, when he said--
"I am not aware of any document or of any provision in any law which gives the Commander of the armed forces the right to proclaim Martial Law, although I am prepared to concede that he has like all other loyal citizens of the country a bounden duty to assist the State, when called upon to do so."
The statement of Hamoodur Rahman, CJ, just quoted, referring to "any document or of any provision in any law which gives the Commander of the Armed Forces the right to proclaim martial law" could in no manner be treated as restricted to the assumption of power by General Yahya Khan alone. Further, in holding that "looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation", he minced no words. It was a general statement and would apply to each and every situation in which an authority not mentioned in the Constitution assuming power would be treated as usurper. We lay it down firmly that the assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any Court, including the Supreme Court. Henceforth, a Judge playing any role in future in the recognition of such assumption of power would be guilty of misconduct within the ambit of Article 209 of the Constitution.
As noted earlier, on 3rd November, 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff. In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughout Pakistan and holding the Constitution in abeyance. By Article 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other Order made by the President be governed, as nearly as may be, in accordance with the Constitution. Under the proviso to the above Article, it was provided that the President may amend the Constitution, as may be deemed expedient. By clause (3) of Article 2 it was provided that all Courts shall continue to function subject to PCO No. 1 of 2007 and Oath Order, 2007, but the Supreme Court, a High Court or any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority. By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Articles 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him. Further, an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution. He purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of clause (1A) of Article 243 of the Constitution.
To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated upon by an impartial Court.
Mr. Hamid Khan, Sr. ASC, contended that the acts/actions of 3rd November, 2007 were taken by General Pervez Musharraf for his own benefit and the same were neither required in the interest of the State necessity nor for the welfare of the people of Pakistan, hence the same, besides being unconstitutional and void ab initio, were also mala fide. This aspect too, according to the learned counsel, made the instant case distinguishable from the cases of Begum Nusrat Bhutto and Zafar Ali Shah. To substantiate his contention, Mr. Hamid Khan referred to the events and circumstances, which led to the actions of 3rd November 2007.
On 31st December, 2004 the President to Hold Another Office Act, 2004 (Act No. VII of 2004) was enacted. Section 2 of the Act provided that the holder of the office of the President of Pakistan (General Pervez Musharraf) may, in addition to his office, hold the office of the Chief of the Army Staff which was declared not to disqualify its holder as provided under paragraph (d) of clause (1) of Article 63 read with proviso to paragraph (b) of clause (7) of Article 41 of the Constitution of the Islamic Republic of Pakistan or any other law for the time being in force, or any judgment of any Court or Tribunal. Proviso to above section provided that this provision shall be valid only for the present holder of the office of the President.
In the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) challenge was thrown, inter alia, to the LFO, 2002, the Seventeenth Amendment to the Constitution and the President to Hold Another Office Act, 2004. The petition was dismissed holding, inter alia, that General Pervez Musharraf was the President of Pakistan under clauses (7) and (8) of Article 41 of the Constitution, which provided that he shall hold the office of Chief of Army Staff notwithstanding anything in the Constitution to the contrary and that Articles 43, 243 & 244, by virtue of the overriding effect of aforesaid clauses (7) and (8), were held not applicable to him. Further, under the proviso to clause (7) ibid, the provisions of Article 63(1)(d) of the Constitution were made applicable to the continuation in office of General Pervez Musharraf as President on and after 31st December 2004, meaning thereby that he would have to relinquish the office of Chief of Army Staff after the said date. Thus, he continued to retain the office of Chief of Army Staff.
In May 2007, Qazi Hussain Ahmed, Ameer Jamat-e-Islami filed Constitution Petition No. 58 of 2007 in this Court under Article 184(3) of the Constitution with the prayer that General Pervez Musharraf (1) had ceased to be a member of the Armed Forces w.e.f. 11th August, 2003; (2) had violated his oath as a member of the Armed Forces by taking part in political activities and made himself liable to dismissal, etc.; (3) had rendered himself disqualified to hold the office of President due to his acting against the Constitution, betraying the nation, defying the oath, siding with, and campaigning for, the political parties of his personal liking, dragging the Army into politics for his own benefit, holding office of profit in the service of Pakistan and ridiculing the judiciary; and (4) he may be restrained from acting and posing himself as the Chief of Army Staff, as also from patronizing the government-led political parties and addressing political gatherings of such parties.
The aforesaid petition of Qazi Hussain Ahmed came up for hearing on 5th September, 2007 when it was ordered to be heard along with other identical petitions, as in the meantime, Constitution Petitions No. 59, 61, 62, 63, 68, 74, 79, 80, of 2007 had been filed by Jamat-e-Islami through its Ameer Qazi Hussain Ahmed, Imran Khan, Chairman, Pakistan Tehrik-e-Insaf, Engineer Jameel Ahmed Malik, Dr. Anwarul Haq, Pakistan Lawyers Forum through its President Mr. A.K. Dogar, Advocate, Makhdoom Muhammad Amin Fahim, President, Pakistan Peoples Party Parliamentarian, Muhammad Shahbaz Sharif, President, Pakistan Muslim League (N) and Tariq Asad, Advocate, respectively with similar prayers. From the 17th September 2007 the petitions were being heard on day to day basis. In the meantime, the Chief Election Commissioner, vide notification dated 20th September, 2007, announced the schedule of election for the office of President as under:-
(a) Filing of nomination papers with the Returning Officer at Islamabad and with each of the Presiding Officers at Lahore, Karachi, Peshawar and Quetta
27.09.2007 (upto 12.00 noon)
(b) Scrutiny of nomination papers by the Returning Officer at Islamabad
29.9.2007 (at 10.00 a.m.)
(c) Withdrawal of candidature before the Returning Officer at Islamabad
01.10.2007 (upto 12.00 noon)
(d) Publication of the list of validly nominated candidates
01.10.2007 (at 01.00 p.m.)
(e) Polling day and polling time
06.10.2007 (from 10.00 a.m. to 03.00 p.m.)
Vide judgment dated 28.09.2007 reported as Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), by a majority of 6 to 3, the petitions were held to be not maintainable under Article 184(3) of the Constitution, inter alia, holding that the petitions relating to the eligibility of President General Pervez Musharraf, a prospective candidate for the election of President, though involved questions of public importance, but the same did not relate to the enforcement of any of the Fundamental Rights so as to invoke jurisdiction of this Court under Article 184(3) of the Constitution, besides being premature, speculative and presumptive in nature. It was further held that the questions involved therein, in fact, fell in the domain of the Chief Election Commissioner of Pakistan. On the other hand, as per the minority view of Rana Bhagwandas, Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ, the petitions were held to be maintainable under Article 184(3) of the Constitution and were allowed. General Pervez Musharraf was held not qualified to contest the election of President on account of his holding an office of profit in the service of Pakistan, viz., the Chief of Army Staff. Falak Sher, J, in his separate reasons concurred with the majority view that the petitions were not maintainable under Article 184(3) of the Constitution. However, on merits he held that General Pervez Musharraf, being in the service of Pakistan as Chief of Army Staff, was holding an office of profit within the contemplation of Article 63(1)(d) of the Constitution, and, therefore, was not qualified to contest the election of President. Thus, on merits four Judges allowed the petitions and held General Pervez Musharraf disqualified to contest the Presidential election.
The Daily News, Islamabad, 29th September, 2007
"CABINET WELCOMES SC VERDICT"
Islamabad: The federal cabinet Friday expressed profound happiness at the verdict of the Supreme Court and endorsed that Pakistan needs the vision and leadership of President General Pervez Musharraf to continue its march towards peace and prosperity.
The informal meeting of the cabinet was called by Prime Minister Shaukat Aziz here at the Prime Minister's House soon after the announcement of Judgement by the Supreme Court in which the cabinet welcomed the Supreme Court's decision related to the re-election of President General Pervez Musharraf for the second term.
The cabinet was of the view that the judgement given by the Supreme Court removes any uncertainty about the future developments and has put the country firmly on the path of growth and development. ........"
And, The Daily Nation, Islamabad, 29th September, 2007
"MUSHARRAF, AZIZ SAY JUSTICE TRIUMPHS"
President General Pervez Musharraf and Prime Minister Shaukat Aziz Friday welcomed the Supreme Court's decision regarding dual offices saying that it would be milestone in the country's journey towards democracy and has strengthened it.
Maj. Gen. (Retd.) Rashid Qureshi, spokesman for the President respected and honored the judgment of the Supreme Court. In a brief statement he said that justice had triumphed.
Meanwhile, addressing a press briefing after chairing the emergency cabinet meeting following Supreme Court's verdict on petitions to disqualify General Pervez Musharraf for re -election, Prime Minister Aziz said that the government was happy over the decision which proves that is rule of law, justice, democracy and parliament in the country.
"After the decision, I called an emergency cabinet meeting which has endorsed this verdict and greeted President General Pervez Musharraf on this success," said Shaukat Aziz, who also phoned President General Pervez Musharraf to congratulate him on the issue. The PM was briefing the media about government stance on Supreme Court's decision and special cabinet meeting.
He said that this judgement would also make the process of presidential elections smoother.
"Let us all accept this landmark judgement with grace and dignity and move on with the electoral process in a mature (way), "Prime Minister said, adding that the opposition should also accept it in good spirit.
To a question that as to what step the government would take if the opposition went on strike on roads as some of its workers threw rotten eggs and tomatoes at the Supreme Court building and also announced streets struggle against the verdict, the Prime Minister said no one would be allowed to take law and order in their hands and damage the national assets.
"We would ensure implementation of Supreme Court decision ............
As per schedule of election, nomination papers filed by General Pervez Musharraf, Makhdoom Muhammad Amin Faheem, Mr. Wajihuddin Ahmed and Mrs. Faryal Talpur were scrutinized by the Chief Election Commissioner of Pakistan on 29th September, 2007. However, the objections raised on behalf of the latter three candidates against the candidature of General Pervez Musharraf were rejected vide order of even date.
One of the candidates of election of the President, namely, Mr. Wajihuddin Ahmed, a former Judge of the Supreme Court filed Constitution Petition No. 73 of 2007 in this Court with the following prayer:-
(1) The order of the Chief Election Commissioner dated 29.09.2007 accepting orally the nomination papers of General Pervez Musharraf as a candidate for the President of Pakistan may kindly be set aside as unconstitutional;
(2) General Pervez Musharraf may kindly be declared ineligible, lacking in qualifications under Article 62 and other provisions of the Constitution and disqualified under Article 63 of the Constitution to contest the election of the office of the President of Pakistan;
(3) After rejecting nomination papers of General Pervez Musharraf, the remaining electoral process for the election of President of Pakistan under the schedule announced by the Chief Electi on Commissioner may be set aside; and
(4) As a consequence, fresh Presidential elections through the new electoral college to be inducted after holding general election be ordered.
"In the judgment in Jamat-e-Islami v. Federation of Pakistan (Const. P. 59/2007), one of us (Mr. Justice Sardar Muhammad Raza Khan) has already expressed his complete views on merits and hence he expresses his inability to sit on the Bench. In the circumstances, the matters are referred to his lordship, the Hon'ble Chief Justice for re-constitution of the Bench."
After the recusal of the said learned Judge, the matter was taken up by the remaining 8 members of the Bench who passed the following order:-
"After having heard the learned counsel on behalf of the petitioners at length we are of the view that prima facie some questions of law of public importance with reference to enforcement of fundamental rights are involved and besides that various Articles of the Constitution such as Articles 41, 43, 62, 63, 243 and 244, require interpretation and more-so the import, significance and impact of amendment made in the Presidential Election Rules, 1988 is also to be examined, therefore, it seems inevitable to issue notice to the learned Attorney General for Pakistan as well as the other respondents. To come up tomorrow i.e. 4.10.2007."
On the same day, i.e. 3rd October, 2007, CMA No. 2683/2007 was filed on behalf of petitioner Wajihuddin Ahmed stating, inter alia, that the main petition involved important questions of public and national importance pertaining to the enforcement of fundamental rights and that the very constitutional and political future of the country was at stake, therefore, the petition ought to be heard by the Full Court. The application was placed before the Chief Justice of Pakistan who passed the following order:-
"This application has been moved for constitution of full Court to hear the subject petition. Keeping in view the availability of the Hon'ble Judges, a larger Bench has already been constituted with due diligence. However, if the petitioner is not satisfied and still desires for the constitution of full Court, his request will be considered later on, subject to availability of Hon'ble Judges. Petitioner may be informed accordingly."
"Having heard the learned counsel for the parties at some length, it is unanimously resol ved and directed that the election process already commenced shall continue as per the schedule notified by the Chief Election Commissioner of Pakistan but the final notification of the election of the returned candidate shall not be issued till the final decision of these petitions.
On passing of the above order, General Pervez Musharraf seemed to be fully satisfied. According to the news items appearing in the Daily News, Islamabad dated 6th October, 2007, he told the Treasury MPs that he was grateful to the judiciary on the "wonderful decision". Elaborating the point, he observed that the decision was also beneficial to him and that he left it to the judiciary to decide, and expressed that they must bank upon the judiciary of Pakistan. The relevant excerpts are reproduced as below.
The daily News, Islamabad, 6th October, 2007
"MUSHARRAF IN SEVENTH HEAVEN OVER SC VERDICT"
President General Pervez Musharraf told the treasury MPs Friday that he is grateful to the judiciary on the "wonderful decision" it made on presidential polls, adding he would be at liberty to say in uniform if the case lingers on even after October 17 and the election commission does not notify his victory in case he wins.
He said any delay in Court's decision and the issuance of notification can win him even a year in army office. He said he would be under no compulsion to drop uniform before the judgement comes and he could be able to buy more time for wearing two hats in case the decision on the issue gets late.
Elaborating the point that the Court decision is also beneficial to him, he said there would be no hurdle in his way to continue holding the COAS office even for a year or so if the case is not decided. At the same time he also thanked the judiciary and said, "We should bank on the judiciary".
"It is a good decision. We are grateful to the Supreme Court Bench," he said while commenting on the decision of the larger Bench of the Supreme Court that the presidential polls should be held unhindered but the results be withheld up till October 17. He said he has good hopes from the judiciary in future as well and the government should trust it.
"I leave it to the judiciary to decide. We must bank on the judiciary of Pakistan," an insider quoted him as telling the treasury members of parliament. He also laughed at those smelling foul for him in the SC decision saying he considers it a "blessing in disguise".
Musharraf said those who consider it their defeat are wrong as the decision goes in his favour. Suppose, he said, the case keeps lingering even for a year or two, it would again be beneficial for him as he would not have to drop the army hat. "In that case, I would be at liberty to keep the uniform," he told the legislators."
The Attorney General Malik Muhammad Qayyum also expressed his satisfaction over the verdict, which was evident from his remarks published in the Daily News of 6th October, 2007, viz., "Attorney General Malik Qayyum expressed his sati sfaction over the verdict and said they are happy as the Court has accepted the viewpoint of the government."
"Mr. Hamid Khan, learned Sr. ASC, Dr. Farooq Hassan, Sr. ASC and Mr. A.K. Dogar, Sr. ASC have made a request for constitution of Full Court to hear these petitions. Let these petitions and the request made be placed before the Hon'ble Chief Justice to consider constitution of Full Court."
The same day, the matter was placed before the Chief Justice of Pakistan who passed the following order:-
"In view of the order of even date, passed by Bench-II, request of the petitioners has been considered once again. Meanwhile, the Registrar has also enquired from HJ(8) [Falak Sher, J.], who has expressed his inability to be a member of the Bench hearing the listed petitions, as according to him he has already expressed his opinion on merits in Constitution Petition No. 58 of 2007, etc. Same is the position of HJ(9) [Mian Shakirullah Jan], while HJ(1) [Rana Bhagwandas, J.] is out of country being on ex-Pakistan leave and HJ(13) [Nasir-ul-Mulk, J.] is proceeding abroad on official commitment on 20th morning, whereas HJ(12) [Saiyed Saeed Ashhad] is on medical leave. As far as the undersigned is concerned, I feel that the judicial propriety requires that I should not sit on the Bench hearing petitions involving election of the incumbent President of Pakistan being holder of two offices. Therefore, the Bench already constituted may proceed with the matter from tomorrow, i.e. 18th October, 2007 to dispose of the cases accordingly."
The daily DAWN, Islamabad 30th October, 2007
Attorney General Lists Options For Musharraf
"President Pervez Musharraf may seek re -election from the present or the new assemblies if the Supreme Court gives a verdict against him on the petitions challenging his nomination as a presidential candidate, says Attorney-General Malik Muhammad Qayyum.
Talking to Dawn on Monday, he said that before going for re-election the President would have to get removed - though the parliament and by Nov. 15-any legal or constitutional disqualification pointed out by the apex Court.
The worst case scenario would be if the apex Court held that Gen Musharraf was not qualified to run for any legal or constitutional reason.
If the Court pointed out some disqualification on legal grounds, the government would have to remove the same by amending the relevant law or enacting a new law.
Similarly, if the disqualification was on constitutional ground, the president would have to get a constitutional amendment passed by the middle of November, by which day the assemblies would complete their tenure and stand dissolved:"
The daily News Islamabad, 30th October, 2007
"WHAT IF...?
"Now the Supreme Court is again under pressure to give a verdict favourable to the current military ruler of the country. In a interview with a private television channel on October 10, the general was asked how he would react if the Court said he could not be president again. He left open all options: "We will cross the bridge when we reach it," he said.
Prime Minister Shaukat Aziz, the cheerleader-in-chief of the Musharraf election campaign, said on October 14 that he expected the Supreme Court to uphold his election. Some Ministers have thrown dark hints that if decided ineligible, the General could proclaim a state of emergency or even impose martial law. In other words, he would not shrink from violating even the badly mutilated constitution that the country was given through the Seventeenth Amendment. So much for the General's oath to "preserve, protect and defend the Constitution".
The real question is what the general would do if the Court decides against him. His past record gives some clause. He grudgingly accepted the restoration of the chief justice, because it did not directly touch on his powers. The decision of the Court on the right of Nawaz Sharif to return to the country, on the other hand, threatened to disrupt Musharraf's re-election plans and he flouted it openly. In the present case, his political survival is at stake. His reaction is therefore, expected to be robust, to say the least.
Lastly, he could refuse to accept the verdict and either declare a state of emergency or impose martial law.
The general now lacks the authority to enforce a state of emergency or martial law, because the country has come a long way since March and the ground realities have changed dramatically."
The Daily News, Islamabad, 3rd November, 2007
"SC JUDGMENT UNLIKELY ON TUESDAY
The Supreme Court will be able to hand down its ruling on petitions challenging General Pervez Musharraf's eligibility as presidential candidate on Tuesday only if lawyers of the two sides hurriedly wrap up their arguments which seems impossible at the moment.
The eleven-judge Bench headed by Justice Javed Iqbal, which is hearing these petitions, dispelled the impression that it was delaying their disposal. It was even prepared to sit on non-Court work day of Saturday but could not as some lawyers had other engagements.
Attorney General Justice (Retd.) Malik Qayyum has taken considerably long time, contrary to what was earlier believed, to argue the government case. He will take at least another hour on Monday, the next day of hearing, to finish his expositions.
After that, Barrister Wasim Sajjad, who represents the federal government, will take the floor. If the proceedings went ahead smoothly, he will be able to conclude his arguments by tea break at 11 am Tuesday.
Then will come on podium the constitutional guru, Syed Sharifuddin Pirzada, who requires a full day to defend the president's eligibility. This means that the proceedings would spread to Wednesday."
The Daily Time, Islamabad, 3rd November, 2007
"SUPREME COURT AND PRESIDENT MUSHARRAF
The remark has come in the midst of rumours that some steps "of a special nature" could be taken by the government if the verdict of the Court goes against the president. Some ministers have expressed their fears on this ground over a period of time, pointing to "alternative" options reserved by the government. Thus, over the last two days, these statements have given rise to rumours of "emergency or martial law" to which the honourable judge has referred. It is thought that the stock market in Karachi spiraled downwards on account of this, and Ms Benazir Bhutto may have gone to Dubai to avoid being stranded in Pakistan under martial law.
The federal ministers who have been talking about "options" have covered their tracks by saying that special measures have been discussed but no consensus exists inside the government over the President Musharraf might do if his candidature is rejected by the Supreme Court. According to his attorney general, Malik Muhammad Qayyum, President Musharraf would continue to hold the post of army chief if he was blocked from taking oath of the president's office for another term.
The Daily News, Islamabad, 3rd November, 2007
"QAYYUM HINTS AT EMERGENCY IMPOSITION
The government on Friday night gave the strongest hint that emergency may be imposed in the country when Attorney General Justice (r) Malik Qayyum told The News all major political cases being heard by the Supreme Court, including the case of General Musharraf's eligibility, would cease if emergency was proclaimed.
The attorney general talking exclusively Friday evening from Lahore said the much talked about stage of emergency, if imposed, would mean suspension of fundamental rights and end to all cases filed under Article 184(3) of the constitution.
"No petition could be entertained by the superior judiciary to challenge any act under the basic fundamental rights provisions of the constitution," he said."
The Daily Nation, Islamabad, 3rd November, 2007
"EMERGENCY NEXT 48 HOURS CRUCIAL"
After high level consultations, the government has finalized the blueprint of a legal framework order to impose emergency in the country and a PCO purported to tame the judiciary, which has given a number of decisions against the Presidency and the government.
Under the new PCO, the judges will be required to take fresh oath, which will automatically exclude all the judges hostile to the Presidency from the future dispensation.
Sources close to the Presidency claimed that emergency could be enforced any time.
"Earlier the issue was when to impose emergency, whether before the Supreme Court decision on the eligibility of Gen Musharraf or after the ruling. But now there is probability that it will be promulgated within next 48 hours. The coming weekend is very crucial," sources claimed.
There is a strong perception among the President's aides that the SC's verdict will be overwhelmingly against President Musharraf, hence the planning to impose emergency and PCO in order to disable the judiciary which most political analysts believe will not solve President Musharraf's problems. The relations between the judiciary and executive turned sour after the former had given a number of decisions which were embarrassing to the Presidency and the government."
In the above background, Mr. Hamid Khan, Sr. ASC, learned counsel for the petitioners in the instant petitions, who was one of the counsel for Wajihuddin Ahmed petitioner in Constitution Petition No. 73 of 2007, stated at the bar that on 2nd November, 2007 a miscellaneous application (later assigned CMA No. 2869 of 2007) was sought to be presented by Barrister Aitezaz Ahsan before the eleven-member Bench during the course of hearing, but it was directed that the same be filed in office. In the said miscellaneous application, it was stated, inter alia, that there were widespread reports in the print and electronic media, and some federal ministers had also stated, that the decision in the "disqualification case" would lead to imposition of martial law or emergency or some other unconstitutional steps including but not limited to a fresh Provisional Constitution Order, which would subvert the proceedings in the aforesaid case. It was prayed that the respondents may be directed to clarify their intent in this regard and may be restrained from taking any such step. The office brought the application on file with instruction to the Court Associate to bring it to the notice of the 11-member Bench when it resumed hearing of the petitions on 5 th November, 2007.
The speculations came true on 3rd of November, 2007, when General Pervez Musharraf in the capacity of the Chief of the Army Staff issued a Proclamation of Emergency, whereby he held the Constitution in abeyance and also issued PCO No. 1 of 2007 and Oath Order, 2007. Immediately thereafter, the Registrar placed the file of Wajihuddin Ahmed's case before the Chief Justice of Pakistan for taking up CMA No. 2869 of 2007 filed therein. Thus, a special Bench of 7 available Judges was immediately constituted and convened, which passed the following order:-
"This application was filed in Court on 2nd November 2007 praying that respondent-Government may change composition of Bench by adopting extra-constitutional measures, which could mean either by placing martial law or bringing PCO or by imposing emergency.
(i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary;
(ii) No judge of the Supreme Court or the High Courts including Chief Justice(s) shall take oath under PCO or any other extra-Constitutional step;
(iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts;
(iv) They are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces, under new development shall be unlawful and without jurisdiction;
(v) Put up before full Court on 5th November 2007.
Seen in the above perspective, the actions of General Pervez Musharraf dated 3rd November, 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneouvring another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf ...." used in it.
There is force in the submission of the learned counsel for the petitioners that the continuation in power of General Pervez Musharraf was all along the result of maneouvring. The holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the amendments so made in the Constitution were ultimately accepted and the Seventeenth Amendment to the Constitution was passed on 31st December, 2003 under the umbrella of an accord between the PML (Q) and the MMA, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th November, 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid Seventeenth Amendment. He promised to relinquish the office of Chief of Army Staff on or before 31st December, 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act, 2004. That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami's case, and later by the two rival candidates of the election of President in Wajihuddin Ahmed's case. The majority decision in Jamat-e-Islami's case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the petitioners. However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President.
As to the constitutionality and the legality of the acts/actions of 3rd November, 2007, General Pervez Musharraf himself, in an interview to a foreign TV news channel (BBC) admitted that he had taken unconstitutional steps. Relevant portion from his interview, as reported in the Daily DAWN of 18th November, 2007 is reproduced below:-
The daily DAWN, Islamabad, 18th November, 2007
NO ILLEGAL STEP TAKEN BEFORE NOV. PRESIDENT:
"Before March, I was very good. Suddenly did I go mad after March or suddenly my personality changed, am I Doctor Jekyll and Mister Hyde or what is it?" He said.
"Am I such a person?
"Please go into the details, the causes. What I am doing? Have I done anything unconstitutional, yes, I did it on Nov. 3.
"Did I do it before? Not once."
It is noteworthy that contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18th February, 2008, too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd November, 2007, which displayed their commitment to the rule of law and supremacy of the Constitution.
In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which this Court is entitled to, in the light of the law laid down in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Watan Party v. Federation of Pakistan (PLD 2006 SC 697) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130).
In the light of the above discussion, the actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. In pursuance of the aforesaid declaration, it is further held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notifications issued by the Ministry of Law in this behalf are declared to be null and void.
General Pervez Musharraf, during the period of the emergency from 3rd November, 2007 to 15th December, 2007, in pursuance of the instruments and measures of 3rd November, 2007, which have been held and declared to be unconstitutional, illegal and void ab initio in the preceding paragraph, promulgated some more instruments, which are noted hereinafter. On 15th November, 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO No. 1 of 2007 so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of 3rd November, 2007. 87. On 20th November, 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Articles 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Article 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Article 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Article 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution). By the same Order, he purported to add Article 270AAA in the Constitution (validation and affirmation of laws etc.).
On 14th December, 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Article 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Articles 194 and 208 (oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Article 270C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd November 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution.
By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th December, 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other Courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders etc. of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, etc., were provided.
By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th December, 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Article 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court. A Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office with effect from 3rd November, 2007 would not be entitled to pensionary benefits.
By the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Article 3 of Oath Order, 2007 would be entitled to full pension and other retirement benefits.
Finally, on 15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd November, 2007 was revoked on and with effect from 15th December 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution.
The learned counsel for the petitioners vehemently contended that General Pervez Musharraf could not have introduced his own amendments into the Constitution for self-service and benefit during the so called emergency. The surreptitious validation, affirmation and adoption made by him through insertion of Article 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Articles 238 and 239 of the Constitution. The unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment. The said amendments were unconstitutionally and illegally validated by the so called judgments in Tikka Iqbal Muhammad Khan's case. Therefore, all such instruments and measures including constitutional amendments along with the judgments were required to be done away with. They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani's case. We have considered this aspect of the matter. An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Articles 270C and 270AAA in the Constitution. The provision of Article 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, the elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the Seventeenth Amendment to the Constitution. Further, when the elections were held on 18th February, 2008, the Constitution was in force having already been revived on 15th December, 2007.
To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the Judicature and a High Court established for the Islamabad Capital Territory, to be known as the Islamabad High Court. Indeed, the establishment of a High Court or a Federal Court for the Islamabad Capital Territory was an act, which could have been done under and in accordance with the Constitution. It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein. Therefore, it was not possible to condone it. However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law. Even while making amendments relating to the Judicature, an amendment was made in Article 186A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf.
Again, in the second phase of amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court etc., which could be considered to "have been done for the ordinary orderly running of the State" were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd November 2007 and that the Judges including Chief Justices of Supreme Court, Fed eral Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution.
Last, but not the least, the objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on 15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd November, 2007 was revoked on and with effect from 15th December 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall take oath under the Constitution. On the pattern of Zafar Ali Shah's case, this was made to appear like "transactions which are past and closed, for, no useful purpose can be served by reopening them" as held in Asma Jilani's case.
As noted earlier, Proclamation of Emergency and PCO No. 1 of 2007 were issued by the Chief of Army Staff while Oath Order, 2007 was issued by the President in pursuance of the aforesaid two instruments. The learned counsel for the petitioners picked up the point that the above scheme of things of the acts/actions of 3rd November, 2007 was against the scheme of the Constitution under which the President was the supreme commander of the Armed Forces while the Chief of Army Staff, being the head of the Pakistan Army alone, occupied a position much down the ladder, therefore, in what manner the President would act in pursuance of instruments issued by the Chief of Army Staff? The answer to this question is found in Asma Jilani's case. Although by the Proclamation of Martial Law the office of President had ceased to exist yet General Yahya Khan, by another Proclamation of the 31st March, 1969, purported to assume that office with retrospective effect from the 25th of March 1969. Thereafter, on the 4th April, 1969 a Provisional Constitution Order was issued whereby the Constitution of 1962, was by and large restored, and it was provided that the country was to be governed as nearly as may be, in accordance with its terms, but subject to the Proclamation of Martial Law and subject to any Regulation or Order that may be made from time to time by the Chief Martial Law Administrator. The office of President was reintroduced by clause (2) of the same Article in the following terms:-
"The Chief Martial Law Administrator shall be the President of Pakistan hereinafter referred to as the President, and shall perform all functions assigned to the President of Pakistan by and under the said Constitution or by or under any law."
In the above context, Hamoodur Rahman, CJ, held as under:-
"This clearly indicated that the President was a subordinate functionary created by the Chief Martial Law Administrator, although he was himself to hold the same office, because, the powers of the President were limited to performing the functions assigned to him under the abrogated Constitution or under any law. By the other clauses almost all the fundamental rights were taken away and the Courts were debarred from issuing any order against any Martial Law Authority. Power was given to the President by Article 4 to issue Ordinances but provisions in law providing for reference of a detention order to an advisory Board were declared to be of no effect by Article 7 (2), and by Article 8 the President was also given the power to make orders for making such provisions "including constitutional provisions", as he may deem fit for the administration of the affairs of the State."
The above observations of Hamoodur Rahman, CJ, would sufficiently explain the scheme followed in the martial law imposed by General Yahya Khan. It is also noteworthy that such an arrangement was not confined to that case alone. At the time of every military takeover, the Army Chief, while abrogating or holding in abeyance the Constitution, as the case may be, would assume all the powers saying that "the Constitution had become unworkable", or "a situation had arisen for which the Constitution provided no solution"; make all offices including the office of President subservient to himself; take upon himself the exercise of giving a new Constitution to the country, or bringing reforms by making amendments in it before its revival; and would ultimately leave the country in a black hole, taking it once more to square one, i.e., virtually at the point where he had begun. So, after his departure, the country and the nation would be at a loss how and from where to resume their constitutional journey afresh. From a perusal of the documents made by the military commanders on the eve of five military takeovers in 1958, 1969, 1977, 1999 and 2007, it appears that on each subsequent occasion, the earlier documents were copied and the new document prepared with necessary modifications here and there to suit their own needs. The differences would be noticeable and would point only to a gradual journey. But, in the general scheme and the overall approach, there would be hardly any differences. In 1958, the Constitution was abrogated but the country started to be governed as per the old legal order in terms of the Laws (Continuance in Force) Order, 1958. In 1969, the Constitution was abrogated, and the governance of the country started with the Proclamation of Martial Law, followed by a Provisional Constitution Order. In 1977, the Proclamation of Martial Law was followed by the Laws (Continuance in Force) Order, 1977. In this case, the Judges of the Supreme Court were administered oath at the very outset. Later, PCO and Judges Oath Order were also issued in 1981. In 1999, instead of declaring martial law, emergency was proclaimed and a PCO issued the same day. The Oath Order in this case was issued later on 26th January, 2000. In 2007, all three documents were issued together and the power to amend the Constitution directly provided in the PCO, though in 1977 it was not explicitly done either in the Proclamation of Martial Law, or the Laws (Continuance in Force) Order, 1977, but practically it was exercised in issuing the said documents in derogation of the provisions of the Constitution, and later exercised at the time of annulment of the Sixth and the Seventh Amendments to the Constitution. In issuing Oath Order, 2007, the President having acted in pursuance of the two instruments issued by the Chief of Army Staff, an authority not authorized to do so under the Constitution, it only showed blatant disregard and violation of the Constitution to which General Pervez Musharraf, or for that matter any military ruler in the past, never paid any heed.
"The question now arises as to what is the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period for which he has taken control of the administration in Pakistan. It is contended by the learned Attorney-General that once the take-over is validated on the principle of necessity, then the Chief Martial Law Administrator would have the right to govern the country in any manner he thinks best, and the Courts in Pakistan will be bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as a supra-Constitutional instrument, binding all authorities in Pakistan. He seeks to re-enforce this submission by referring to the implications of Martial Law as described in Corpus Juris Secundum Vol. 93, and "Salmond on Jurisprudence", p. 190, 11th Edition."
He then held that it was not a case where the old Legal Order had been completely suppressed or destroyed, but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the Constitution of 1973. Thus, the imposition of martial law was validated on the doctrine of necessity, and the Chief Martial Law Administrator was held entitled to perform all such acts and promulgate all legislative measures, including amendment of the Constitution.
In the cases of Zafar Ali Shah and Tikka Iqbal Muhammad Khan, following the reasoning in Begum Nusrat Bhutto's case, the action of Chief of Army Staff was treated as a constitutional deviation of a temporary character, which was necessitated in the larger interest of the State and the welfare of the people in view of the facts and circumstances noted therein. He was also held entitled to perform all acts and promulgate all legislative measures, including the power to amend the Constitution.
It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. Why, because--
. Firstly, they were void ab initio because they were made by an authority not competent to do so under the Constitution;
. Secondly, Article 237, as presently worded, provides for indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person only in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan, and nothing else. It does not provide for validation of unconstitutional, illegal and void ab initio acts of usurpers of power by the Majlis-e-Shoora (Parliament). It is noteworthy that Article 278 of the Interim Constitution provided as under:-
"278. Nothing in this Constitution shall prevent the Federal Legislature from making any law indemnifying any person in the service of the Federal or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area. [Emphasis supplied]
However, the above provisions of Article 278 were not adopted in the Constitution of 1973, as they were, and the words "where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area" were omitted. On a consideration of the above two provisions, Ajmal Mian, CJ, in his leading judgment in Liaquat Hussain's case, held that imposition of martial law in connection with the maintenance or restoration of order in any area in Pakistan had been done away with in the Constitution of 1973. Thus, unless Article 237 was first amended, no validation, affirmation or adoption of unconstitutional, illegal and void ab initio acts of a usurper of power could be made by Majlis-e-Shoora (Parliament), otherwise one provision would render the other redundant and nugatory; the two of such provisions stand in an irreconcilable conflict, leaving no room for the Court except to ignore the one, or at the best to prefer one provision over the other, as it did in Al-Jehad Trust case and gave effect to Article 209 as against Article 203C, which was found to be violative of the independence of judiciary - a salient feature of the Constitution. By the Proclamations of Emergency of 14th October, 1999 and of 3rd November, 2007 only emergency was proclaimed (though it was nothing short of martial law as earlier imposed in the country), hardly realizing that emergency could be imposed by the President under Article 232 of the Constitution only in the given circumstances, which too would be justiciable as per the law laid down in Farooq Ahmed Khan Leghari's case (supra), and Chief of Army Staff had nothing to do with it - the activity and the functions of the Armed Forces being restricted within the parameters of Article 245 as discussed in the preceding paragraphs. We would hasten to observe that as a matter of fact, in the garb of emergency, same objectives were sought to be achieved as were previously done through the imposition of martial law up to 1977. A new dimension in 2007 was that this time, even the whole of Pakistan was not brought under the control of the Armed Forces and the executive and legislative organs of the State were kept intact. While proclaiming emergency throughout Pakistan, it was simply ordered and proclaimed that the Constitution of Pakistan shall remain in abeyance:
. Thirdly, the Constitution, for its amendment, has not envisaged any mode other than the one prescribed in Articles 238 and 239. Even if it were to be repealed, the same procedure would be required to be followed. These Articles, actually, provide the Constitution with the inner strength so as to withstand the invasions from within. On the eve of every military takeover, either it was said that the Constitution had become unworkable, or a situation had arisen for which the Constitution provided no solution. It was so, not because the Constitution had, in fact, become unworkable or in reality a situation had arisen for which indeed the Constitution provided no solution, but because of the fact that the people at the helm of affairs did not want to follow the Constitution;
. Fourthly, Article 6 provides that any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. As a matter of fact, Article 6 has built a stronghold around the body of the Constitution to safeguard it from any encroachment or violation from without. If each time an authority were to put it aside at his will, and do whatever he liked to do with it, that too, by the use or show of force or by other unconstitutional means, the provisions of Article 6 would be rendered redundant and nugatory, rather meaningless, which was not the intent, nor was the same permissible. Indeed, the Constitution is an organic whole and a living document meant for all times to come. We, therefore, are of the view that the holding in abeyance of the Constitution and/or making amendments therein by any authority not mentioned in the Constitution otherwise than in accordance with the procedure prescribed in the Constitution itself, is tantamount to mutilating and/or subverting the Constitution. Thus, so long as Article 6 is part of the Constitution, the Parliament is debarred from even condoning unconstitutional acts of a usurper, what to talk of validating, affirming and adopting the same, or deeming the same to have been made by the competent authority on any ground whatsoever. It is noteworthy that the acts of General Yahya Khan were neither validated nor condoned by the Parliament while framing Articles 269 and 270 of the Constitution. The language of Article 237, which opens with the words, "Nothing in the Constitution shall prevent Majlis-e-Shoora (Parliament) from making any law indemnifying any person ..." clearly points to the inhibitions contained in the Constitution itself, under which Majlis-e-Shoora (Parliament) might not be able to do certain things, such as, its inability to legislate against Fundamental Rights, the Injunctions of Islam as laid down in the Holy Quran and Sunnah, etc. Therefore, Majlis-e-Shoora (Parliament) is not supreme over everything else as is put in the common parlance, or as it is said of the Parliament of the United Kingdom, rather it is independent of other organs of the State, but it certainly operates within certain parameters. The validations, affirmations or adoptions made under the Eighth and the Seventeenth Amendments stand on a different footing and we would not like to go into the circumstances in which those amendments were passed. But, we would certainly observe that the amendments made by an authority not mentioned in the Constitution, and otherwise than in accordance with the procedure prescribed in the Constitution could hardly be given any sanctity vis-a-vis the amendments made by the Majlis-e-Shoora (Parliament) in accordance with the procedure laid down in Articles 238 and 239 of the Constitution, even on considerations such as the elected Parliaments were reduced to mere rubber stamps by the leaders of the Houses, or the representatives of the people, who were responsible for running the affairs of the State were themselves accused of massive corruption and corrupt practices, they had mis-declared their assets before the Election Commission and tax authorities, or they were resisting establishing good governance in the country, bank loans defaults were rampant, there was no economic or political stability, etc. etc. A wrong committed by one person does not furnish justification for, or give licence to, others to commit wrongs, even more blatant. In the above perspective, it is noteworthy that the Parliament elected in the General Elections of 18th February 2008 has not, and rightly so, put a seal of approval upon the unconstitutional, illegal and void ab initio acts/actions of General Pervez Musharraf of 3rd November, 2007 including the amendments made by him from that date up to 15th December, 2007. Unless such an approach is firmly entrenched into the body politic and the jurisprudence of this country, military takeovers previously in the name of martial law, and later in the garb of proclamation of emergency will continue to recur as heretofore, and there will be nothing stopping the repetition of the actions of the nature of 7th October, 1958, 25th March, 1969, 5th July, 1977, 12th October, 1999 and 3rd November, 2007 using unconstitutionally and illegally the cover of the Armed Forces. Such exercise of power, therefore, cannot be indemnified by the Parliament under Article 237 of the Constitution. There is no other provision in the Constitution under which they can be validated, affirmed or adopted on any consideration whatsoever;
. Fifthly, this Court, in Al-Jehad Trust case, has already given preference to the provisions of Article 209 over those of Article 203C on considerations, such as, Article 203C providing for appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court without his consent was violative of Article 209; Article 203C was incorporated by the Chief Martial Law Administrator while Article 209 was enacted by the framers of the Constitution, which was a beneficial provision promoting independence of judiciary, inasmuch as it guaranteed the tenure of a Judge, therefore, in case of conflict between the two, Article 209 would prevail over Article 203C, which detracted from the dominant intent and spirit of the Constitution, namely, the guarantee of tenure of a Judge of the Supreme Court or a High Court and the independence of judiciary and consequently, such an appointment would be void. Likewise, it is not possible to reconcile the provisions of the Constitution validating, affirming and adopting the amendments made by an authority not competent to do so under the Constitution with the provisions of Articles 6 and 237 as also Articles 238 and 239 of the Constitution. The provisions containing successive validations, affirmations and adoptions have defeated the dominant intent and spirit behind aforesaid Articles by which the framers of the Constitution, by consensus, desired to secure the inviolability and the sanctity of the Constitution. It should be noted that Articles 6 and 237 were framed in the backdrop of the successive abrogation of the Constitutions and imposition of martial laws in the country from time to time by the General commanding the Army at his will and whim. It is the bounden duty of all the three organs of the State to ensure the inviolability and the sanctity of the Constitution. Amendments made by an authority not mentioned in the Constitution cannot be validated by any Court including the Supreme Court. Even otherwise, none of the judgments ever laid down that in future the Army Chief would have the power to amend the Constitution and such exercise of power by him or by any other authority not mentioned in the Constitution would always be protected. In any case, it is clarified that neither the Supreme Court itself possesses any power to amend the Constitution, nor can it bestow any such power on any authority or any individual. The amendment of the Constitution is the exclusive domain of Majlis-e-Shoora (Parliament) in terms of Articles 238 and 239 of the Constitution and this Court only claims, and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.
(1) All transactions which are past and closed, for, no useful purpose can be served by reopening them;
(2) All acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order;
(3) All acts which tend to advance or promote the good of the people; and
(4) All acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, the objectives mentioned in the Objectives Resolution of 1954.
On a perusal of the above four categories of acts, it becomes clear that the exercise of power by the usurper was accepted and condoned in totality because, all transactions which were past and closed were protected. Next, all acts and legislative measures which were in accordance with, or could have been made under, the abrogated Constitution or the previous legal order were protected. Through this, absolute power of amendment of the Constitution, as exercised, was protected which, in the ordinary course, a duly constituted Parliament would find difficult most of the times to make for not having the requisite majority. In protecting all acts which tended to advance or promote the good of the people, every conceivable power exercised by the stroke of pen, at the will and whims of the person doing the same was protected. What the successive military rulers, on the strength of the above criteria, did was that they made amendments for their illegal and unlawful personal gain and then mixed the same with few amendments here and there giving them complexion of advancing or promoting good of the people. In our view, only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, as explained in this judgment, including passing of order dated 3rd November, 2007 by a seven - member Bench of this Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.
In the light of the above discussion, it is held and declared that the amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect.
The learned counsel for the petitioners vehemently contended that the law of necessity, as discussed in the cases of Begum Nusrat Bhutto and Zafar Ali Shah, was wrongly applied in Tikka Iqbal Muhammad Khan's case to the circumstances prevailing on 3rd November, 2007, inasmuch as the situations prevailing on 5th July, 1977 and 12th October, 1999 were entirely different to and distinct from the one prevailing on 3rd November, 2007, therefore, the aforesaid acts/actions of General Pervez Musharraf did not qualify to be validated or condoned on the touchstone of the doctrine of civil or state necessity and the maxim salus populi est suprema lex. The learned Attorney General for Pakistan had, at the very outset, stated that the rulings in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were never considered a good law and the same were required to be overruled. In a very recent case reported as Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), one of us, Sardar Muhammad Raza Khan, J, dilated upon the doctrine of necessity in the context of the submission of Mr. Abdul Hafeez Pirzada, who appeared in the said case as an amicus curiae, that if a writ were issued by this Court declaring General Pervez Musharraf as disqualified to contest the election of President on account of his holding an office of profit in the service of Pakistan, namely, Chief of Army Staff, it would impede smooth transition from the Army rule to a pure democratic rule. Therefore, according to the learned amicus curiae, allowing General Pervez Musharraf to contest the election of President in uniform was, so to say, justified on the touchstone of the law of necessity and the maxim salus populi est suprema lex. The learned Judge, having alluded to the writings of philosophers, scholars and intellectuals, and having referred to various verses of the Holy Quran, held that the doctrine of necessity as used to prevent the decision of cases on merits in the name of achieving smooth transition in the interest of State necessity, was neither just nor fair nor legal and was violative of the Injunctions of Quran. Paragraphs 57 to 66 of his opinion are reproduced below for ready reference:-
"57. I have gone through the judgment handed down by my learned brother Rana Bhagwandas, J., being reasons for the short order dated 28th September, 2007, whereby we had held, while dissenting with majority view, that the petitions are maintainable under Article 184 (3) of the Constitution and hence accepted in totality. I agree with the reasoning adhered to in the judgment aforesaid but would like to dilate upon the view taken by Mr. Abdul Hafeez Pirzada, learned amicus curiae.
He did not controvert the merits of the case. His placing reliance upon Haji Saifullah case (PLD 1989 SC 166) was tantamount to saying that even if the petitioners have a good case on merits, it would not be in the fitness of the things to issue writ in their favour, as it would, most likely impede smooth transition from uniform rule to the rule of pure democracy. The stance so taken is nothing but reiterating the import of doctrine of State necessity, altogether forgetting that the favour did not work in the past. The transition provided only a reinvigorating space for a new Uniform rule, bringing the Nation back again and again to the zero point the marvel of doctrine of necessity.
Doctrine of necessity is neither Law nor any rule nor regulation. It is a state of affairs where, in the given circumstances, unfair is justified in the name of expediency. Most of philosophers, scholars and pseudo-intellectuals in the west have been floating various ideas from time to time sparking debates the world over. Genuine things are adopted and promoted in the developed countries while underdeveloped are duped into the fantasies of in genuine, which unfortunately are followed a sacred commandments. Later category includes Hans Kelsen's doctrine of State necessity and Machiavelli's "Prince" cherished in the underdeveloped like Pakistan despite being damagingly hypocritical. The theories are by no means universally accepted nor do they form basis of modern jurisprudence. Borrowing words from Hamoodur Rehman C.J. (as his lordship then was); he while criticizing Muhammad Munir C.J. said that the latter "not only misapplied the doctrine of Hans Kelsen but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone.
What irks my mind most is not primarily the genuineness or otherwise of these draconian ideas of Kelsen or Machiavelli but whether or not we the Muslims have any legacy to follow or to refute or defy the evil ideologies though dead in the civilized countries yet flourishing in the third world. I firmly believe and hold that we the Muslims must seek ultimate guidance from the ultimate wisdom of revealed knowledge--The Holy Qur'an.
A book that has to last for all times should always avoid minor details and must always lay down the principles. It is essentially true about the Holy Qur'an. Before that we seek guidance from the Book, it is necessary to comprehend as to what the doctrine of necessity or those of Machiavelli are. Briefly those propound that truth and falsehood, permissible and impermissible have no such frontiers that cannot, under the circumstances, be violated. If expediency demands, impermissible can be made permissible regardless of good conduct, principles or values of life. Means are justified by the ends achieved. On the other hand, Holy Qur'an lays down certain restrictions on the conduct of man, which cannot be changed or violated.
Any deviation therefrom is a negation of
(The commands of your nourisher are complete with truth and justice. No person can bring about any change whatsoever in them.)
Almighty Allah has denounced even the mixing up of truth with falsehood, leaving no room for expediency. More explicit is the verdict in surah Al-Nisa where extremely strong and impulsive expediencies are shunned altogether in comparison to the greater values of truth and Justice . It says, "Believers be upholders of justice and bearers of witness to truth for the sake of Allah, even though it may be against yourselves or against your parents and kinsmen or the rich or the poor, for, Allah is more concerned with their well being than you are. Do not, then, follow your own desires lest you keep away from justice. If you twist or turn away from the truth, know that Allah is well aware of all that you do." (Al- Nisa)
Let us have a glance through a few other injunctions where deviation from truth for the sake of expediency is condemned. "Believe by upright bearers of witness for Allah and do not let the enmity of any people move you to deviate from justice. Act justly that is nearer to God-fearing. And fear Allah. Surely, Allah is well aware of what you do."
One has to restrict only to a few references from the Holy book, owing to the shortage of time, otherwise, one can write volumes on the subject that Qur'an has defied expediency in comparison to the truth. It is nothing but worst kind of hypocrisy, which had been the way of life of the nations who were eliminated and replaced by nations who followed the Divine Verdict, Duality of Conduct has been the hallmark of condemned people. Time is witness to it. History of mankind bears witness to it and the truth thereof is evident from Surah Al-Asr-(103), wherein the non-righteous are declared to be in a state of loss. In brief, every word of Qur'an abhors falsehood, hypocrisy, duality of character, duality of conduct, expediency and thus, the doctrine of necessity. Seen in the larger and wider perspective and applied to the entire society, the doctrine of necessity becomes one of State necessity. Whatever be the canvas, whether individual or collective, the doctrine is destructive either way. Rather at State level, it is devastating for the entire nation. Who should know it better than us?
Duality of conduct is always attributed to falsehood. Truthful never vacillate. Mingling of truth and falsehood is a negation of Divine Verdict. I, at this juncture, cannot avoid referring to a very apt quotation of Allama Iqbal, whose deep insight into the Holy Qur'an is evident from his poetry.
Idolatry has, in the present day, multifarious manifestations, Ideologies, doctrines, theories and hypothesis are invented, tailored and banked upon to please humans, at the cost of displeasing the Almighty. Quid pro quo is followed and maintained which may be relevant to politics but cannot, in the circumstances, be pressed into service in judicial matters while imparting justice, It is high time to following Greater Values of life rather than expedient. We should avoid being accused of--
For what has been dilated upon, though short to encompass the subject, I hold that the doctrine of necessity is violative of Quranic injunctions and withholding of decision on merits, in order to achieve smooth transition in the interest of State necessity, would neither be just, nor fair nor legal. The petitions being maintainable are hereby accepted, pursuant to our short order dated 28th September, 2007."
The doctrine of necessity, as discussed in the cases of Moulvi Tamizuddin Khan, Dosso, Asma Jilani, Begum Nusrat Bhutto and Zafar Ali Shah, in a nutshell, is that "necessity makes lawful which otherwise is unlawful". Applying the said doctrine, it was held in the cases of Begum Nusrat Bhutto and Zafar Ali Shah that though the takeovers were otherwise unlawful, but had become lawful in the interest of the civil and the State necessity, as also for the welfare of the people. In Asma Jilani's case, Hamoodur Rehman, CJ, commenting upon Tamizuddin Khan's case, observed that "the Court pronounced the judgment, undeterred by the disastrous consequences that were likely to ensue and claimed that it had the right to expound the law in complete indifference to any popular reaction, even if the result was disaster and declared a constitutional amendment made by the sovereign Constituent Assembly of Pakistan invalid on the ground that it had not received the assent of the Governor-General, although admittedly the consistent practice of the Constituent Assembly since its inception had been that constitutional provisions enacted by it were not put up for the assent of the Governor-General and no Governor-General had ever objected to such practice." Such practice had been acted upon in a large number of cases. Thereafter when the Governor-General attempted to validate retrospectively by an Ordinance a vast body of such constitutional legislation, which had been passed between 1947 and 1954, the Ordinance itself was struck down in Usif Patel's case. At this, the Governor-General invoked the advisory jurisdiction of the Federal Court under Section 213 of the Government of India Act vide Governor-General's Reference No. 1 of 1955 (PLD 1955 FC 435), and asked the Court to find a solution for the constitutional impasse created by the judgments of the Court itself. The Federal Court again came to his rescue and although no "law" of any kind could be found to meet the situation, it invoked in aid "the supreme principle of necessity embodied in the maxim salus populi est suprema lex", and on the basis thereof evolved a new political formula for the setting up of a new Constituent Assembly, even though this very maxim when sought to be invoked in support of the contention of Moulvi Tamizuddin Khan that the invalidation of a large number of constitutional laws merely on the ground of want of formal assent of the Govern or General would cause "disaster" and create a "Constitutional impasse" had not found favour with the Court. In coming to the conclusion that he did, Muhammad Munir, CJ, relied on the address of Lord Mansfield in the proceedings against George Stretton and others that "the principle clearly emerging from this address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law, and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful." In the words of Anwarul Haq, CJ, it was "a striking example of the invocation of the law of necessity to validate certain extra-constitutional measures dictated by the considerations of the welfare of the people and the avoidance of a legal vacuum owing to an earlier judgment of the Federal Court in Usif Patel's case." He next took into consideration a case from the Cyprus jurisdiction where a more or less similar situation had arisen owing to the difficulty of the Turkish members of the Cyprus Parliament participating in the passing of a law regarding the functioning of the Supreme Court itself. In the said judgment, after surveying the concept of the doctrine or law of necessity as obtaining in different countries the Court came to the conclusion that the Cyprus Constitution should be deemed to include in it the doctrine of necessity in exceptional circumstances which was an implied exception to particular provisions of the Constitution in order to ensure the very existence of the State. It was further stated that the following pre-requisites must be satisfied before this doctrine could become applicable:--
(a) An imperative and inevitable necessity or exceptional circumstances;
(b) No other remedy to apply;
(c) The measure taken must be proportionate to the necessity; and
(d) It must be of a temporary character limited to the duration of the exceptional circumstances.
It was further laid down that "A law thus enacted is subject to the control of this Court to decide whether the aforesaid pre-requisites are satisfied, that is, whether there exists such a necessity and whether the measures taken were necessary to meet it."
Anwarul Haq, CJ, next referred to the case of E.O. Lakanmi v. Attorney-General, West Nigeria [(1970) 6 N.S.C.C. 143] in which the question of the validity of a Decree issued by the Federal Military Government of Nigeria came up for examination. On 15th January, 1966 a section of the Army rebelled in different parts of the country. Two regional premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the Army were killed. The Council of Ministers met without the Prime Minister and decided to hand over the administration of the country to the Armed Forces before the situation got worsened. The Acting President of Nigeria himself announced the handing over of the administration of the country to the Armed Forces. This announcement was followed by a speech by the General Officer Commanding of the Nigerian Army in which he declared that he had accepted the invitation of the Acting President to form the interim military Government, and had suspended certain parts of the Constitution relating to the office of President, the establishment of Parliament and of the office of Prime Minister, and certain offices relating to the Regions. The Supreme Court of Nigeria distinguished the case before it from Dosso's case of our country and held that the Federal Military Government of Nigeria was not a revolutionary Government, as it had made it clear before assuming power that the Constitution of the country would remain in force excepting certain sections which were being suspended. They went on to say that "We have tried to ensure that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of a Constitution and Decrees. The necessity must arise before a Decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country ceases to have effect as a superior norm. From the facts of the taking-over, as we have pointed out that the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing with the situation which has arisen and its main object is to protect lives and property and to maintain law and order." It was further held that by recognizing the fact that there was a doctrine of necessity, they did not alter the law but applied it to facts as they existed and that the Decree in question was nothing short of a legislative judgment, an exercise of judicial power and, therefore, ultra vires and invalid under the Constitution of 1963, which envisaged a clear separation of judicial and legislative functions of the State. Anwarul Haq, CJ, also sought support from the statement made by Muhammad Munir, CJ, In Re: Reference by H. E. Governor-General to the effect that an act which would otherwise be illegal becomes legal if it was done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and also from a passage from Asma Jilani's case on the point relating to condonation of acts of the usurper, and held that the imposition of martial law on 5th July, 1977 was impelled by high considerations of State necessity and welfare of the people, and thus validated the extra-constitutional step taken by the Chief of Army Staff to overthrow the Government of Mr. Z.A. Bhutto as well as the Provincial Governments and to dissolve the Federal and the Provincial Legislatures. The learned counsel for the petitioners have questioned the correctness of the application of the doctrine of necessity as applied to the facts of the case of Begum Nusrat Bhutto and its being followed subsequently in Zafar Ali Shah's case and Tikka Iqbal Muhammad Khan's case, inter alia, on the ground that the circumstances prevailing on 5th July, 1977 were quite different from those prevailing on 3rd November, 2007.
With great respect to the late Chief Justice, the reference to Asma Jilani's case on the point of application of the doctrine of necessity to the facts and circumstances of Begum Nusrat Bhutto's case was inapt because, as he himself noted, Hamoodur Rahman, CJ, was dealing, ex post facto, with the acts of the usurper and he had adopted the principles enunciated by Lord Pearce, who delivered the dissenting judgment in the Privy Council in the Rhodesian case, namely:-
(i) So far as they are directed to and reasonably required for ordinary orderly running of the State;
(ii) So far as they do not impair the rights of citizens under the lawful Constitution; and
(iii) So far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful sovereign.
At page 708 of the report in Begum Nusrat Bhutto's case, the Chief Justice having noticed that the concept of condonation, as expostulated in Asma Jilani's case, had relevance not only to the acts of a usurper, but also to a situation which would arise when power had fallen from the hands of the usurper, and the Court confronted with protecting the rights and obligations which may have accrued under the acts of the usurper, during the time he was in power, suddenly came up with the proposition that in the case of an authority, whose extra-constitutional assumption of power was held valid by the Court on the doctrine of necessity, particularly when the authority concerned was still wielding State power, the concept of condonation would only have a negative effect and would not offer any solution for the continued administration of the country in accordance with the requirements of State necessity and welfare of the people. Therefore, according to him, once the assumption of power was held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity. Here, the Chief Justice surrounded himself in a cobweb of self-contradictions. He proceeded to reject the theory of Hans Kelsen by observing, inter alia, that the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, could not be judged by the sole criterion of its success or effectiveness as contemplated by Kelsen's pure theory of law, though the Armed Forces were in effective control of the administration; the theory of revolutionary legality could have no application or relevance to a situation where the breach of legal continuity was of a purely temporary nature and for a specified limited purpose; such a phenomenon could more appropriately be described as one of constitutional deviation rather than of revolution; the 1973 Constitution still remained the supreme law; certain parts of the Constitution had been held in abeyance on account of State necessity; the President of Pakistan and the superior Courts continued to function under the Constitution; the superior Courts would continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment; their powers under Article 199 of the Constitution thus would remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance; and so forth and so on. Thus, he impliedly resurrected the theory of Hans Kelsen, which was completely rejected in Asma Jilani's case.
Though Anwarul Haq, CJ, took note of the pre-requisites of the doctrine of necessity as given in the case from Cypress jurisdiction referred to above, but then made no attempt at all in the course of his leading judgment to test the action of 5th July, 1977 on the touchstone of those pre-requisites. Correct, that he noted the circumstances prevailing on or before the said date, but he did not take upon himself the examination of the provisions of the Constitution dealing with the type of situation presented by those circumstances, or the options with the government of Prime Minister Zulfikar Ali Bhutto, e.g., advising the President to dissolve the National Assembly, handing over power to an interim government for fresh elections, or holding fresh elections in the relevant constituencies to say the least, reference to the Supreme Court under Article 186, further recourse to political dialogue, etc. These options, and may be a host of others as well, as would have been available with the government under the Constitution, it could not be said that a situation had arisen for which the Constitution provided no solution. Constitutional remedies were there, but the same were neither explored nor allowed to be resorted to. As a matter of course, unfortunately from the year 1958, rather 1954, it had become the style to say that "a situation had arisen for which the Constitution provided no solution." Will there be an end to this rhetoric somewhere?
The factual matrix on which Proclamations of Emergency were based differed in every case. There were entirely different sets of facts and circumstances prevailing on each takeover. The ground for takeover on 5th July 1977 was an alleged widespread agitation against the rigging in elections held in March 1977 and the consequential huge loss of human life. On 12th October, 1999, it was alleged that the State machinery at the centre and provinces had completely broken down, the Constitution had been rendered unworkable and a situation had arisen for which the Constitution provided no solution. On 3rd November, 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the Courts, which negated the fundamentals of an adversarial system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular. Therefore, it was `a situation for which the Constitution provided no solution.' If we were to distinguish between these cases on the basis of facts and circumstances, they were all different from each other, and we would end up seeing each time a new scenario. Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the military takeover and thereby an unconstitutional and illegal act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more-up to what time, it is not possible to predict. Therefore, we have to pause for a while and see where the wrong lies, what options and remedies are available with us, and then make an objective analysis and reach some conclusion. Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable. On the first two occasions, it was abrogated, but thereafter it was held in abeyance. Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th October, 1958, 25th March, 1969, 5th July, 1977, 12th October, 1999 and 3rd November, 2007 really such that the Constitution provided no solution? Do similar situations not arise in other countries? Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries? Is there no corruption in the other countries? Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State? Does rigging in elections not take place in other countries? What was the wrong with the judiciary in 1958, 1969, 1977 and 1999? Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable? Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions. It is for the nation to address these questions in all earnestness.
As to the validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, in our view, it was wrongly examined earlier on the factual plane. On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle.
Anwarul Haq, CJ, validated the action of 5th July, 1977 applying the doctrine of necessity, the other pre-requisites of which were that the measure taken must be proportionate to the necessity and it must be of a temporary character limited to the duration of the exceptional circumstances. Was the action of 5th July 1977 proportionate to the necessity, was it of a temporary character, and was it limited to the duration of the exceptional circumstances were the questions never considered by the learned Chief Justice and to some - rather most of them, only time provided the answers that the entire process of reasoning was fundamentally flawed. Only time confirmed that the takeover was not of a temporary character, it was never intended to be, though announced at the beginning, but soon thereafter pushed back finding every now and then new justifications for prolonging the Army rule.
Further, he cited the principle of necessity, enunciated by Lord Mansfield in his address in the proceedings against George Stretton, as earlier noted by Muhammad Munir, CJ in his judgment in The Reference No. 1 of 1955, as "subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution", and as affirming Chitty's statement that "necessity knows no law", and the maxim cited by Bracton that "necessity makes lawful which otherwise is not lawful." In the first place, reference to the judgment in The Reference No. 1 of 1955 was off the mark. The Court there was confronted again with an ex post facto situation, the question of validation of the acts of Constituent Assembly, which had been rendered invalid by a decision of the Federal Court on account of lack of assent of the Governor-General being before it. The facts of the case were entirely different and the law laid down there was hardly attracted to the facts of Begum Nusrat Bhutto's case. Secondly, he never addressed the "condition of absoluteness, extremeness and imminence", or "the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution". Nothing was said about absoluteness, extremeness or imminence of the action of 5th July, 1977 and the principle of necessity was invoked for the destruction rather than preservation of the Constitution. The Constitution is the cementing force of the State and the society. By making a Constitution, the society has already used and applied such a force and brought into existence a State and has chosen to govern itself in accordance with the Constitution so made. It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means. Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution. That is the destruction of the Constitution and if the Constitution were to be destroyed, State and the society in the modern times could be preserved in no manner. Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the civil and the State necessity and the welfare of the people, or in the name of "expediency", as ably put by Sardar Muhammad Raza Khan J, in the case of Jamat-e-Islami, by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non-existing facts? It has already been held that the acts/actions of 3rd November 2007 of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court. It is held and declared that the doctrine of civil and state necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd November, 2007 until 15th December, 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people. It is further held and declared that the doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, Provisional Constitution Order, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, etc. issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court.
The learned counsel for the petitioners submitted that the actions of 3rd November, 2007, in the course of our history, were different from the previous military takeovers, inasmuch as they were never accepted or acquiesced by the Judges, lawyers, political activists and the people of Pakistan. He submitted that for the first time in the judicial history of Pakistan a restraint order was passed by a seven - member Bench of the Supreme Court in Wajihuddin Ahmed's case against the unconstitutional and illegal acts of a General whereby the Judges of the Supreme Court and the High Courts were directed not to make oath under the unconstitutional instruments. Resultantly, according to the learned counsel for the petitioners, as many as 61 Judges: 13 Judges of the Supreme Court out of 18 (17 permanent Judges including Chief Justice and one Ad hoc Judge), 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh and 6 out of 13 Judges including Chief Justice of Peshawar High Court did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case.
The submission of the learned counsel is well founded. In the instant case, none of the Judges who did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah's case. It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people. Even at the international level, grave concerns were expressed on the actions of 3rd November, 2007. Statements and resolutions were made by the Bar Associations across the globe, such as International Bar Association, American Bar Association, Australian Bar Association, Atlanta Bar Association, Beverly Hills Bar Association, Boston Bar Association, Bar Association of the District of Columbia, Connecticut Bar Association, Dupage County Bar Association, the Florida Bar, Hawaii Bar Association, Houston Bar Association, International Bar Association, Los Angeles County Bar Association, Maryland State Bar Association, State Bar of Michigan, National Association of Criminal Defence Lawyers, New Jersey State Bar Association, New York City Bar Association, New York State Bar Association, North Carolina Bar Association, Ohio State Bar Association, Tennessee Bar Association, Pennsylvania Bar Association, Philadelphia Bar Association, Vermont Bar Association and State Bar of Wisconsin. Furthermore, events in support of lawyers in Pakistan were organized by Austin Bar Association, Dane County Bar Association, Monroe County Bar Association, New York County Bar Association, and Bar Associations of San Francisco and Seattle. A few of the statements and resolutions so passed are noted here. The International Bar Association, in its report of November, 2007 on the "state of emergency threatening rule of law in Pakistan" said--
"The International Bar Association's Human Rights Institute (IBAHRI) is gravely concerned as Pakistan's constitution is suspended and judges and lawyers are arrested. The latest developments in Pakistan represent a serious negation of the rule of law, throwing the country into yet greater turmoil.
`The IBAHRI calls upon the Government of Pakistan to abide by the rule of law and reminds it that a state of emergency may only be called when the life of the nation is under threat. Until such time the constitution should be applied in full,' says Justice Richard Goldstone, IBAHRI Co -Chair.
He adds, `Although Pakistan's Constitution protects the independence of judges, the IBAHRI believes that the Government has subverted judicial independence by sanctioning the arrest of judges, instructing police to enter the Supreme Court and by making public statements undermining judicial authority.'
Ambassador Emilio Cardenas, IBAHRI Co-Chair says, `With respect to peaceful protests, the IBAHRI notes that the right to free speech and freedom of assembly are integral to democracy. Although these principles are found within Pakistan's constitution, today's demonstrations by the legal fraternity have been broken up using tear gas and batons.'
The IBAHRI is concerned that unless the constitution is restored and properly applied, the rule of law in Pakistan will continue to deteriorate leading to greater human rights abuses and further departure from the principles of democracy.
On 3 November 2007 President Musharraf issued a televised broadcast at which he said that a state of emergency had been introduced and the constitution suspended due to a rise in extremism and in response to what he claimed was the paralysis of government by Courts and judges.
In a wide-scale backlash against the Courts, judges and lawyers were arrested and soldiers entered the Supreme Court where Chief Justice Iftikhar Muhammad Chaudhry and six other judges had reportedly declared the state of emergency illegal. The Chief Justice, who had previously been suspended by President Musharraf and then reinstated earlier this year, is reportedly under house arrest.
Today, lawyers in Lahore, Karachi and Rawalpindi have held protests against the Government. Lawyers' associations across the country are understood to be calling for a three-day protest and boycott of Courts. It is reported that throughout Pakistan protests have been broken up by the police using tear gas and batons, and an estimated 200 lawyers have been arrested. There is a clampdown on media reporting with Pakistani TV news channels being prevented from broadcasting.
The past year has seen President Musharraf face various crises. Prior to the presidential elections and in light of his declining popularity, President Musharraf faced mounting public protests. Various legal challenges to his presidential candidacy were issued before the Courts and after the results in early October, in which President Musharraf received 98 per cent of the vote, a further petition was lodged with the Supreme Court challenging the result.
Critics are suggesting that the introduction of a state of emergency was acting to pre-empt the decision of the Supreme Court as to the legality of the Presidential elections. The past months have also seen a rise in extremist violence and suicide attacks.
The calls from IBAHRI to the Pakistani Government to reinstate the constitution are further to recommendations made in a recently released IBAHRI report addressing violations of the fundamental principles of the rule of law and the independence of the judiciary in Pakistan.
The report dealt specifically with the issues of General Musharraf preventing the Chief Justice, Iftikhar Muhammad Chaudhry, from carrying out his judicial day-to-day functions and the placing of Mr. Chaudhry incommunicado under house arrest for three days when he refused to resign his post. The report entitled, The Struggle to Maintain an Independent Judiciary: A Report on the Attempt to Remove the Chief Justice of Pakistan is available from the IBA website.
In its report to the House of Delegates, the American Bar Association, New York State Bar Association (Criminal Justice Section), the following resolutions were passed:-
RESOLVED, that the American Bar Association expresses its support for and solidarity with the Pakistani bar and Bench; and
FURTHER RESOLVED, that given the importance of an independent bar, an independent judiciary, and a just constitution as cornerstones of the rule of law, the American Bar Association calls upon President Pervez Musharraf to restore Pakistan's constitution as it existed before the November 3, 2007, emergency decree; reinstate Pakistan's Supreme Court justices and high Court judges who were removed from office and refused to take oaths of loyalty to the executive branch; and release all judges, lawyers and other people who were wrongly arrested.
The Australian Bar Association, in its media release of 3rd December, 2007 called for the return of the rule of law in Pakistan as under:-
"The Australian Bar Association yesterday joined with the leaders of the Bars of England and Wales, Scotland, Northern Ireland and Ire and in calling for the return of the Rule of Law in the Islamic Republic of Pakistan.
The President-Elect of the Australian Bar Association, Mr. Tom Bathurst QC said "The suspension of the Constitution, the interference with the independence of the judiciary and the legal profession and the denial of fundamental rights strike at the very heart of a fair and just society."
"The dismissal and detention of Chief Justice Iftikhar Chaudhry is of particular concern to the Australian Bar", he said. It is understood that 60% of Pakistan's appellate Court is currently under house arrest and thousands of lawyers have been imprisoned, some in solitary confinement. "It is a deplorable situation that cannot be allowed to continue", Mr. Bathurst said. He noted that "People are being imprisoned, denied their fundamental rights for doing no more than during their duty to the Constitution, ensuring the maintenance of the rule of law and the securing an independent voice for the people of Pakistan".
The Australian Bar Association called on the Commonwealth Government to use its best endeavours to ensure that diplomatic pressure was maintained on the military regime to respect the rule of law and to honour the promise of an overdue return to democratic rule in Pakistan."
"The ICJ therefore calls on the Human Rights Council to:
. Repeal the amendments to the Constitution and laws passed during State of, including post-Emergency laws reaffirming or continuing emergency measures;
. Release all judges and lawyers remaining in detention, reinstate the justices and judges dismissed during the State of Emergency, and restore the licenses of all lawyers suspended or disbarred during the State of Emergency;
. Restore all rights under the Constitution, withdraw charges arising from peaceful protest and lift restrictions on the media...."
"House of Delegates Chair Laurel Bellows, ABA President-elect H. Thomas Wells Jr., and I had a constructive dialogue with Ambassador Mahmud Ali Durrani.
In a conversation lasting nearly an hour, Ambassador Durrani agreed that the rule of law, including an independent judiciary, is crucial to his nation's future. In turn, we offered to help Pakistan develop a judiciary and bar free from political interest, as the ABA has done in other nations.
But as we made clear during the conversation, the core concerns of the ABA petition have not been addressed. As we told Ambassador Durrani, the ABA remains committed to three outcomes:
(1) Restoration of the Pakistani constitution (as it existed before the Nov. 3 emergency decree);
(2) Reinstatement of the Supreme Court justices and high Court judges who were removed from office;
(3) Release of all protesters wrongly arrested during the state of emergency.
While America's lawyers and judges are inspired by the bravery of their counterparts in Pakistan, we seek to serve the interests of the people of Pakistan, not just one professional group.
Since our meeting with Ambassador Durrani, the assassination of Benazir Bhutto has shaken Pakistan, and made the future of that nation even more uncertain.
The ABA continues to believe that the rule of law offers the best future for Pakistan, and is the path to lasting security. America's lawyers are committed to advancing the rule of law in Pakistan and other nations.
I am proud of, and grateful to, all American lawyers for your response.
Working together, we delivered our message with force. The ABA will continue to do so, until the rule of constitutional law is fully reestablished in Pakistan."
In his letter of 6th November, 2007 addressed to General Pervez Musharraf, Mr. William H. Neukom, President of the American Bar Association wrote as under:-
"Mr. President:
The American Bar Association (BA) is gravely concerned at the indefinite state of emergency you declared in Pakistan on November 3, particularly as it relates to your suspension of the constitution, dismissal of Chief Justice Iftikhar Muhammad Chaudhry, and detention of lawyers and human rights advocates.
The ABA is an independent, non-governmental organization representing more than 413,000 members worldwide. It regards the rule of law as the cornerstone of a free and fair society. It has a longstanding commitment to supporting the rule of law in the U.S. and abroad.
The Constitution of Pakistan and numerous international human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN Basic Principles on the Independence of the Judiciary, hold judicial independence and human rights indispensable to the just rule of law. While the ABA appreciates the serious challenges your government currently faces, it is in such situations that adherence to the rule of law is most important.
Indeed, judicial independence may be the most important element of the rule of law to preserve in trying times, as it ensures the legitimacy of government action in response to difficult circumstances.
Without an impartial judiciary, governmental claims of commitment to the rule of law, such as you made when declaring the state of emergency, ring hollow. Disbanding the Supreme Court, and arresting lawyers and human rights advocates, undermines popular support for the government.
The ABA therefore respectfully urges you to restore judicial independence in Pakistan, to heed the rulings of the Supreme Court and other judicial authorities, and to leave lawyers and human rights advocates free to do their vital work in defence of the rule of law.
Sincerely, William H. Neukom"
The support extended by the American Bar Association culminated in conferral of its most prestigious award i.e. the Rule of Law Award for the year 2008, "to those judges and lawyers in Pakistan who demonstrated courage in upholding the rule of law in their country." In August 2008 at New York, the American Bar Association held the Award giving Luncheon function which was participated among others by Judges of the Superior Courts from Untied States and leaders of the Bars from the world over. On behalf of the Judges, one of us (Tassaduq Hussain Jillani, J) was invited and on behalf of lawyers the President of Supreme Court Bar Association (Barrister Aitezaz Ahsan) was invited to receive the award. As a mark of solidarity with those courageous Judges in Pakistan, the speech sent by one of us (as Tassaduq Hussain Jillani, J, was unable to attend) was read out at the function by a sitting Judge of U.S. Court of Appeal (Judge Cliffard Wallace of U.S. Court of Appeal, 9th Circuit). It was a gesture unprecedented in the judicial history of the United States and was a tribute to independence of judiciary in our country.
We have waded through a momentous and inspirational period in Pakistan's constitutional history. If one were to distinguish a headline from a trend line in assessing change, the Movement launched was a pointer to a moral renaissance and augur ed well for the spiritual health of the nation. Never before has so much been sacrificed by so many for the supremacy of law and justice. The assertion of judicial conscience, the rise of a vibrant Bar, the emergence of a vigilant civil society imbued with a spirit of idealism, the bold and moral profile of an independent media and the support received from international civil society would ultimately strengthen constitutional democracy, stable political institutions and ensure an expanded enforcement of the rule of law.
We have taken judicial notice of the fact that there was a nationwide movement launched by the lawyers, members of the civil society, political workers and the common man took to the streets. Thousands of lawyers and political activists were arrested and detained. The learned Attorney General for Pakistan submitted that Mohtarama Benazir Bhutto, the slain leader of the Pakistan Peoples Party, the party in power presently, had herself led rallies to protest against the action of 3rd November, 2007 and on one such occasion had vowed to hoist the Pakistan Flag at the residence of the Chief Justice of Pakistan. The learned Attorney General further stated that he himself, as a lawyer and as a political worker, had participated in such protests and had received injuries on his head and other parts of his body and thus gave blood to this movement. To show how severely the people had reacted against the action of 3rd November, 2007 rather than acquiescing in or accepting the same, reference may be made to the press clippings of the relevant period as under:-
Civil society flays emergency, new PCO
The Daily Nation, November 05, 2007
KARACHI - The representatives of civil society organisations on Sunday strongly condemned the emergency and the new Provisional Constitutional Order (PCO) imposed by General Pervez Musharraf.
The human right activists also slammed the reported curbs that have been imposed on media and large-scale arrests of politicians and lawyers including SCBA president Barrister Aitezaz Ahsan.
The Sindh Democratic Forum, Human Rights Protection Organization, Lawyers Human Rights Legal Forum and other organisations in their statements condemning the second coup of Musharraf, alleged that PCO was imposed to save and prolong the Presidential office.
"The new PCO and emergency is an illegal and unconstitutional decision and an attempt by a dismissed General to continue his illegal and unconstitutional rule" they stated and further said, the action should be universally conde mned and the ambitious Generals in Pakistan should be forced to end their stranglehold on the country. We pay our compliments to a larger Bench of the Supreme Court that has taken up the issue and has declared the PCO and the imposition of emergency illegal and unconstitutional", they added. They said we pay homage to those judges who rejected PCO including Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice Bhagwandas, Mr. Justice Javed Iqbal, Mr. Justice Shakirullah Jan, Mr. Justice Ghulam Rabbani and Mr. Justice Nasir-ul-Mulk.
"We think the country is being held hostage by a dictator that could destroy the country. Such steps are against the will of the people and the law of the land and should be resisted on all the forums," he observed. Justice (Retd) Fakhrudin G. Ebrhim on Sunday said that there was no room for PCO in the constitution and that the judges who took oath according to it were also breaking the constitution.
Countrywide crackdown
The Daily Dawn, November 05, 2007
Police and other law-enforcement personnel launched a crackdown across the country on Sunday, apparently fearing a large-scale protest campaign against imposition of emergency.
Opposition politicians, prominent lawyers and rights activists were detained in large numbers in several cities and towns of the country.
Prominent among those detained included PML-N acting president Javed Hashmi, ANP Chief Asfandyar Wali Khan, former ISI Director-General Gen (Rtd.) Hameed Gul and human rights activists I.A. Rehman and Iqbal Haider and hundreds of other people on the second day.
Police detained over 600 people in Lahore. Javed Hashmi was arrested from Multan. I.A. Rehman and Iqbal Haider were lodged at Asma Jehangir's house. Ms. Jehangir has been under house-arrest since Saturday evening.
Around 70 civil society activists were arrested when they gathered at a Joint Action Committee meeting of the HRCP in Garden Town to discuss the situation after the imposition of emergency.
Lahore District Bar President Mohammad Shah, Lahore High Court Bar Association President Ahsan Bhoon, advocates Ashtar Ausaaf, Khalid Hussain and Iftikhar Bhatti were also arrested.
The Pakistan Mulsim League (Nawaz) and the Pakistan Tehrik-i-Insaaf claimed that over 1200 and 50 activists, respectively, had been detained in two days of crackdown.
In Rawalpindi, police rounded up nearly 60 people, including a retired judge, the former ISI Director-General, lawyers and human rights activists.
Officials said that around 400 preventive arrests had been made across the country.
Police baton-charge students rally.
The Daily The News, November 06, 2007
Hundreds of people including students, lawyers, political activists and members of the civil society staged a protest demonstration against the government policies and demanded restoration of deposed judges and lifting of ban on Geo TV.
The activists of Joint Students Movement and people belonging to different walks of life gathered at Aabpara Chowk and started chanting slogans against the government.
Police resorted to baton charge to disperse the mob when they reached near Aabpara Police Station causing injuries to many protesters. Angry people hurled stones at police and damaged two police vehicles while two police officials including the driver of a police vehicle were injured.
Demands of Pakistan's solidarity
The Daily The News, November 07, 2007
The writing is on the wall. At this juncture the numbers may not be large but public rejection and resistance to General Pervez Musharraf's imposition of martial law is growing. Despite the unrelenting crackdown by the State machinery to prevent all forms of protest public defiance is on the rise. The more the State applies coercive force the more it accentuates public anger. They know its 'dictatorship on a roll. That must be stopped at all costs. It is now just basic cause and effect cycle that is at work. The otherwise docile peaceful educated middle class is bracing itself to face the increasing State repression. If the March 9 dismissal of the Chief Justice of Pakistan was a trigger for political activism for the lawyer community, the November 3 imposition of technical martial law is the trigger for a much wider scale of political activism.
No matter what the Musharraf regime may call the November 3 action, it is martial law. Violating the constitutional process used for imposition of the PCO, Pakistan's army chief chose to declare emergency himself. The calculation must have been that the use of the term emergency' and use of the civilian law enforcement forces would dilute international opposition to his move to take Pakistan off the democratic path. Also by giving martial law a civilian facade General Musharraf and his advisors may have hoped to keep the army leadership out of thefiring line' of public resentment. But
Pakistanis are hardened realists. With a decade of free media, the growing realization that unaccountable power is at the core of the dysfunctional state and of continuing political turmoil and violence, their political senses cannot be blunted by facades and propaganda.
We cannot let our country be at the mercy of an individual's whims. The terrorism excuse for imposing martial law would have been amusing had it not been actually adversely affecting the future of a 160 million-strong nuclear-armed nation with tremendous strategic significance and unlimited economic potential. Equally preposterous is the argument that the judiciary's attitude made martial law inevitable.
The Daily Frontier Post
The Dynamics of Musharraf's Assault on Supreme Court
Now I will try to explain Musharraf's criminal assault on Supreme Court justices within the calculus of `Holy Trinity' of criminal investigation. Obviously Musharraf has the means and coercive tools for the perpetration of this crime. On November 3rd, Gen. Musharraf as chief of Army Staff, a grade 22 officers with help of his military gang, held in abeyance supreme law of the land i.e. the 1973 Constitution of the Islamic Republic of Pakistan second time. Government lackeys euphemistically call it an extra-constitutional act. Anything outside the constitution is unconstitutional and hence criminal. PCO (provisional constitutional order) cannot make it kosher or halal. If one recites the entire Quran before killing a khinzir (pig), the khinzir will still remain haram. PCO is illegal and somebody taking oath on an illegal document cannot legitimate a usurper. The legal doctrine of "Fruit of the Poisonous Tree" says, if source of law is illegal then anything emanating from that source will be illegal. Anybody aiding or abetting such an illegal dispensation is equally guilty of crime. Anybody trespassing on the domain of the 1973 constitution is engaging in a treasonous act. Treason is clearly defined in Article 6 of 1973 Constitution and it says: High treason. (1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason. The motive behind subversion of the constitution could be easily inferred from the crime scene i.e., the Supreme Court of Pakistan. In my opinion the Supreme Court of Pakistan was the primary target of this treasonous act. ....."
Lawyers keep up anti-govt protests
The Daily The News, November 07,2007
The lawyers throughout the country Tuesday vowed to continue their struggle for supremacy of the constitution as opposition leaders leave legal fraternity to protest alone for a second day and bear the brunt of a police crackdown.
Opposition politicians, including PPP Chairperson Benazir Bhutto, have denounced emergency rule but have taken no concrete action so far, leaving public protests to the lawyers-hundreds of whom have been beaten with police batons and arrested.
Unrest broke out in Multan, when hundreds of police blocked about 1000 lawyers from leaving a district Court complex to launch a street rally. Both sides pelted each other with stones and police swung batons to disperse the crowd.
Pakistan starves for information at a time
when news is the need of the hour
The Daily The News, November 07, 2007
Since the state of emergency, cable television has become mindless with all news channels off air people are getting news on the internet and demand for newspapers is going up as people look at print media to deliver real news of what is actually happening Television has been dumped down and the only thing accessible is the sanctimonious PTV which gives you the impression that everything is coming up roses, when this is not the case at all.
Journalists have coined the term Black Saturday' for this last weekend. While one agrees that it was a dark day that carries on interminably,Blank Saturday' seems a far more apt label for it. The horror of what had happened was driven home by TV screens going blank. The nation watched in muted shock as news was blocked out, at a time in history when the only thing you need and want is news real, reliable news, lively debate, opinions from every side. On Blank Saturday, PTV returned Pakistan to a time warp in the 1980s with the tilawat of Quranic verses, followed by the national anthem and then a speech by a military dictator, self styled President who hung up his army togs to doff an ominously black sherwani.
Crackdown on politicians continues across NWFP
(9 political leaders arrested; former PHC judge put under house arrest)
The Daily The News, November 07, 2007
Crackdown on politicians and lawyers continued across the Frontier province on third consecutive day as senior leaders of the Awami National Party (ANP) and Pakistan Muslim League-Nawaz (PML-N) were arrested from the capital city after clashes between police and protesters Tuesday.
Former provincial minister and senior leader of the ANP Bashir Ahmad Bilour and former Senator Syed Aqil Shah were arrested by police when they were going to lead a protest demonstration at Bacha Khan Chowk.
PUTA Offers Support To Lawyers
The Daily The News, November 07, 2007
The Peshawar University Teachers Association (PUTA) has condemned the imposition of emergency in the country and observed that it would result in deterioration of the situation instead of solving any problem.
A press release said the PUTA executive body in a meeting presided over by its President Dr. Shafiqur Rehman also condemned the suspension of the Constitution and basic rights. It strongly supported the members of the higher judiciary who sacrificed their positions for upholding the Constitution. The meeting also offered full support to the lawyers in their struggle.
The PUTA executive demanded of the government to hold general elections as per schedule, restore the democratic system in the country and lift the recently imposed curbs on the media.
Police disallow entry to Courts
The Daily The News, November 07, 2007
A heavy contingent of police besieged the district Courts here and did not allow anyone to enter the premises Tuesday while they arrested some seven junior lawyers but later released them.
Police locked all the three gates of the Courts and did not allow lawyers, staff persons and litigants to enter the premises. A large number of lawyers and litigants gathered in front of the gates from where police arrested seven junior lawyers but later they were set free. However, hide and seek between the lawyers and police continued till late noon.
It was learnt that police have a list of 21 senior members of the legal fraternity belonging to various political and religious parties. Lawyers have announced to boycott Courts till Thursday and the litigants faced difficulties because of non-availability of lawyers and the Court clerks had to extend dates.
Meanwhile, Central Vice President of Awami National Party (ANP) Khwaja Mohammad Khan Hoti condemned imposition of emergency and said it would plunge the country into darkness and uncertainty. He also criticized role of the political and religious parties who are avoiding agitation and resistance of the emergency.
Four lawyers arrested in Karak
The Daily The News, November 07, 2007
Police have registered FIR against 28 lawyers and arrested four of them while the rest went underground.
Amanullah, Ahmad Jan, Bahadur Sher and Sikandar advocates were arrested in raids at their residence and were shifted to Kohat. A total of 28 lawyers have been charged in the district but only four have so far been arrested.
Meanwhile, the lawyers completely boycotted the Courts proceedings on the second consecutive day on Tuesday.
Journalists, lawyers barred from entering SC
The Daily The News, November 07, 2007
Authorities Tuesday did not allow the media persons and lawyers community to enter the Supreme Court building on the second day and journalists were barred from covering the proceedings of the apex Court.
Despite the assurance given by Attorney General Malik Muhammad Qayyum the other day that media would be allowed to cover the proceedings of the Supreme Court, neither any media person nor any one from the lawyers community was allowed to enter the Supreme Court building.
The main Constitution Avenue remained blocked right from Radio Pakistan Chowk as barbed wire and heavy blocks were put on the main avenue and movement of all sorts of vehicles was banned on this main important road. Journalists approaching the Supreme Court building were stopped at Radio Pakistan Chowk and were not allowed to move towards the Parliament House area. Due to blockade of the Constitution Avenue, large number of government employees could not attend their offices in the locality.
Likewise the entrance to Constitution Avenue from the main Blue Area was also blocked and people were not allowed to go through the main road of Parliament Lodges, as a heavy contingent of police was deputed at the entrance and barbed wire and heavy blocks were placed on the road.
Representatives of Supreme Court Bar Association and Pakistan Bar Council were not allowed to enter the Supreme Court premises. The media person tried their best to prevail upon the law enforcing agencies to let them perform their professional duties, but they were told that they could not be allowed to enter the Supreme Court building.
No arrested leader can get bail under PCO
The Daily The News, November 07, 2007
President General Pervez Musharraf has quietly clipped the powers of the judiciary to grant bail to all those defiant political workers, leaders, lawyers and members of the civil society who were arrested after the imposition of emergency in the country on November 3 and are now in jail.
Most of the top leaders including Aitezaz Ahsan, Javed Hashmi, Lt. Gen (r) Hamid Gul and hundreds of others who were arrested during the last three days have been deprived of their basic human right to approach the Courts to seek justice.
Although a lot of hue and cry is being made all over the world over the arrests of lawyers and political leaders in Pakistan, no Court can take up their bail cases under the new laws.
The oath taken by the judges under the PCO has further made it constitutionally impossible for the judiciary to hear the cases of these leaders and workers. Under the PCO oath administered to these judges, every judge has declared that "I (judge) will abide by the provision of proclamation of emergency of November 3, the provisional constitutional order No. 1, 2007 and the code of the conduct issued by the supreme judicial council".
Sedition charges made lawyers see red
The Daily Dawn, November 09, 2007
Police on Thursday arrested four members of the Karachi Bar Association and at least one member of the Pakistan Bar Council from the steps of the Sindh High Court in an ongoing crackdown against lawyers outraged by the registration of sedition charges against members of the legal fraternity.
Over a hundred lawyers gathe red at the City Courts to demand the release of incarcerated colleagues and protest the emergency rule while police retaliated by subsequently storming the building.
Orders are also learnt to have been issued for the arrests of another PBC members and two former presidents of the Sindh High Court Bar Association (SHCBA).
Meanwhile, the SHCBA passed a resolution extending until Nov 12 the boycott of judges who recently took an oath under the Provisional Constitution Order.
"The cases of treason lodged against lawyers, who had merely been protesting, was what actually sparked Thursday's protest," said a senior KBA member who attended the protest meeting but escaped arrest. The impromptu gathering of concerned lawyers suggests that the legal fraternity is reorganizing and notching up the pace of its protest to the PCO imposed by General Musharraf on Nov 3. "The lawyers took the initiative themselves, after they came to know the offence their colleagues have been accused of" the KBA member told Dawn.
Resistance develops (Following the suspension of the Constitution, the resistance at home and pressure from the international community has been mounting) The Daily The News, November 11, 2007.
"Given the resistance at home against the so-called emergency and mounting pressure from the United States, it would not be surprising if Gen Pervez Musharraf backtracks on some of his recent steps by suspending the Constitution. The speculation is that Gen Musharraf is likely to remove his uniform by Nov 12 when he expects to get a favourable verdict on his election as president from the newly-installed judges of the apex Court under the Provisional Constitution Order (PCO).
"Political parties seem to have geared up their protest after initial lukewarm response to Gen Musharraf's second coup. PML-N and the Jamaat-i-Islami leaders are either under detention or underground. Only the PPP and the JUI-F have been spared the wrath of the administration. After the PCO, these two opposition parties had been high on rhetoric and short on action. Once the reports of postponing the general elections started pouring from the ruling Muslim League officials, Bhutto started putting heat on Gen Pervez Musharraf. She warned him that she would take to streets in protest if he does not retire as military chief till Nov 15 and does not announce holding of general elections till January 15. Once Musharraf quits the army, some PPP leaders expect the current assemblies would be dissolved and an interim government would be set up to hold elections.
"For many it is again doubtful that he would keep his word. It is also feared that he may leave the military post but under the PCO may acquire substantial powers of the army chief such as making transfers and posting-thus effectively keeping the army under his command without being the chief of army staff. For many the mass movement and protests on the streets could be the effective way to get constitutional and democratic order restored. In their protest against the imposition of PCO and the sacking of disobedient judiciary, lawyers have again shown unity and boycotted the judicial work countrywide. The first time in the history of the country, a large number of judges of the superior Courts who refused to take oath under the PCO have been detained at their homes that too without written orders.
"The long closure of the judicial system hurts not only the common man but the government and businesses as well. If this tempo continues for a few weeks, it will be hard for the government to run the business of state as usual. A section of university students in Lahore, Karachi and Islamabad have also joined the resistance movement by organizing demonstrations which is unprecedented in the recent history of the country. The media has so far not made any compromise on the newly introduced restrictions on its working and the journalists have started protesting against the media curbs."
GT Road turns into battlefield as Jamaat activists clash with police
The Daily The News, November 14, 2007
The main Grand Trunk (GT) Road turned into battlefield as the police swooped down upon Jamaat-e-Islami workers who were rallying against the imposition of emergency here Tuesday.
Over 100 political leaders and workers were arrested as police fired teargas shells and resorted to baton-charge to disperse the unyielding protesters.
The GT Road near Hashtnagri and Firdos as well as different nearby streets looked like a battlefield when Jamaat workers clashed with heavy contingent of law enforcers.
Chanting anti-government slogans, the Jamaat workers marched from Chowk Yadgar to Nishterabad and from there to Firdos throughout the day and police resorted to baton-charge them to open the main highway for traffic.
Police, according to eyewitnesses, fired teargas shells to disperse the protesters but failed as the demonstrators used to appear in other areas where there were no police cops. Demonstrators included young students as well as senior party workers in the 70s.
The infuriated Jamaat workers clashed with law enforcers on a number of occasions and pelted them with stones. The hide and seek between the cops and demonstrators continued for several hours that kept the GT Road blocked in intervals till evening.
Dozens of Jamaat workers were held during protest. Many of them were later released while several were taken to the lockups and then shifted to central prison.
The Awami National Party (ANP) also staged a protest demonstration in Malgu Mandai where nationalist workers chanted slogans demanding restoration of the Constitution. Police baton-charged the protesters and fired teargas shells in a bid to disperse the ANP supporters, ANP Provincial President Afrasyab Khattak and Khwaja Hoti were among few leaders who were arrested on the occasion. An ANP workers was also injured during the rally.
Lawyers hold protest rally at District Courts
The Daily The News, November 14, 2007
The lawyers of Rawalpindi Bar Association, members of civil society, students and leaders of some political parties staged a rally in District Courts premises here on Tuesday to mark their protest against the imposition of emergency in the country.
Hundreds of protesters including prominent lawyers, like President Rawalpindi Bar Association Raja Khalid Ismael Abbasi, Joint Secretary Shahbaz Rajpoot, senior lawyers Sardar Ishaq Khan, Sanaullah Zahid, Rafaqat Bhatti, Farooq Awan, Malik Rab Nawaz Noon, General Secretary, Jamaat-e-Islami, Rawalpindi Division, Sham-ur-Rehman, Amir Jamaat -e-Islami Dr Kamal, workers of PML-N and students of Quaid-e-Azam University attended the rally.
The protestors carrying black flags and placards inscribed with anti-government slogans condemned the imposition of emergency in the country.
The lawyers tried to leave the premises of District Courts to stage a demonstration outside, however, a heavy contingent of Punjab police cordoning the area did not permit them to do so.
Lawyers' protest gains momentum
The Daily Dawn, November 14, 2007
Lawyers anti-emergency protests here on Tuesday gained momentum as a number of workers of all opposition parties, students and media-persons joined their struggle.
As police crackdown on lawyers continued, more than 500 lawyers along with representatives of civil society, workers of political parties, students and media-persons staged rallies in the premises of the Courts. They were not allowed to come on the roads by the heavy police deployed at the gates of the district Courts.
The protesters chanted anti-Musharraf and pro -deposed judges slogans. They had black flags in their hands as sign of protest against the `unconstitutional' steps of the regime. The lawyers also boycotted district and high Courts on the call of Pakistan Bar Council.
Later, a protest meeting was held at the hall of District Bar Association (DBA) where speakers castigated the unconstitutional steps of the government and demanded immediate restoration of constitution in its real form, reinstatement of all deposed SC judges, release of all arrested lawyers, journalists, civil society members and political workers, formation of a Bench consisting of same 11 judges, to decide the case of eligibility of president, free and fair election under an independent election commission and end to blockade of all private TV channels.
PBC declares Monday `day of solidarity' with media
The Daily The News, November 17, 2007
The Pakistan Bar Council (PBC) Friday declared Monday, November 19, 2007, as a day of solidarity with the media and called upon lawyers to hold functions in honour of media-persons in the Bar Association building and joined them in their protest meetings and rallies.
Top KBA leader arrested
The Daily Dawn, Islamabad
The general secretary of the Karachi Bar Association, Naeem Qureshi, who escaped detention since the launch of an operation against protesting lawyers following the imposition of emergency rule by Gen Pervez Musharraf over two weeks back, was finally arrested when he emerged from hiding to address the association's general body meeting on Monday afternoon.
Lawyers continue hunger strike, protest.
The Daily The News, November 27, 2007
Lawyers, members of civil society, students and workers of different political parties here on Monday continued their hunger strike and protest against imposition of emergency in the country. During the protest, they demanded reopening of Geo TV.
The protesters welcomed the lawyers who were released from different jails late Sunday night. They included High Court Bar Association President Sardar Asmat -ullah Khan, Shaukat Aziz Siddiqui, Mustafa Kanwal and General Secretary High Court Bar Association Sajid Ilyas Bhatti. The lawyers showered petals on their colleagues who were released from different jails of Pakistan. Some lawyers were dancing to celebrate the release of their colleagues. Former MNA Zamarud Khan was also present on the occasion.
The lawyers held a protest march in the District Courts premises. A large number of lawyers, members of civil society and students took part in the rally. They raised anti-government slogans and condemned judges who took oath under the PCO. Expressing solidarity with the media, they raised slogans in favour of Geo TV and demanded reopening of its transmission as early as possible.
The emotionally-charged lawyers beat their chests during the protest march.
The protesters carried black flags and placards inscribed with slogans against the imposition of emergency rule in the country. The lawyers tried to leave the premises of District Courts to stage a protest demonstration outside, however, a heavy contingent of the Punjab Police did not allow them to do so. When lawyers were protesting in District Courts, many of their colleague and civil society representatives showered petals on them.
Musharraf unacceptable even as civilian president:
PHCBA
The Daily The News, November 29, 2007
The epoch-making movement of lawyers has made Gen Pervez Musharraf doff his uniform, which he dubbed as his second skin, Peshawar High Court Bar Association (PHCBA) said Wednesday.
"Hats off to the legal fraternity across the country, which compelled ... general to quit the post of chief of army staff...
We've succeeded in the second phase of our countrywide drive against military rule," said PHCBA President Abdul Lateef Afridi while addressing jubilant lawyers.
At a meeting held at the PHC building, Afridi said that Musharraf is not acceptable to the nation even as a civilian president. The NWFP Bar Council, PHCBA and Peshawar District Bar Association jointly arranged the meeting.
Lawyers' body calls for protest today
The Daily The News, November 29, 2007
Pakistan Bar Council (PBC) Wednesday asked the lawyers and Bar Associations throughout Pakistan to observe Thursday, the 29th November 2007 as a protest day against the illegal assumption of office of President by Pervez Musharraf.
President Pervez Musharraf who doffed his military uniform Wednesday is scheduled to take oath as civilian President today (Thursday). "As the legal fraternity does not recognize Gen Musharraf as qualified to hold the office of president, we call upon the lawyers and Bar Associations across the country to observe today (Thursday) as protest day against the illegal assumption of office of president by Pervez Musharraf," said Mirza Aziz Akbar Baig, vice chairman PBC
Lawyers observe completed strike
(Stage rallies, hold meetings, demand reinstatement of deposed judges)
The Daily The News, December 14, 2007
The lawyers on Thursday took out rallies and boycotted Courts proceeding throughout the country to protest against the imposition of emergency, Provisional Constitution Order (PCO) and removal of the judges.
In Lahore, Lahore Bar Association and High Court Bar Association staged a joint protest rally against the imposition of emergency and sacking of the judges.
The rally started from Aiwan-e-Adal and terminated in front of the Punjab Assembly building.
The protesters were carrying placards and banners inscribed with different slogans in favour of independence of judiciary and supremacy of law.
The rally was also joined by the members of the civil society at the GPO Chowk where its participants staged a sit-in for half an hour.
The bar leaders urged all the political parties to boycott the upcoming elections for the sake of democracy and independence of the judiciary in the country.
In Karachi, the lawyers boycotted Sindh High Court, City Court and Malir Court on the call of Pakistan Bar Council (PBC) against the imposition of emergency and deposition of the judges.
The lawyers held a protest rally in Sindh High Court, which was led by President Sindh High Court Bar Association Rashid Rizvi.
The protesting lawyers carried banners and placards inscribed with the slogans. They chanted slogans against the government.
Another protest rally led by President Karachi Bar Association Iftikhar Javed Qazi and General Secretary Naeem Qureshi was held in the premises of the City Court. The lawyers attended the rally in large number. The demonstrators called for immediate reinstatement of the deposed judges.
The general body meetings of Sindh High Court Bar Association and Karachi Bar Association were held in Lahore High Court and City Court.
The leading lawyers while addressing the meetings said their struggle would continue till the reinstatement of the deposed judges
Bars ask PBC to resume week -long Court boycott
The Daily The Nation, January 25, 2008
All four provincial bar councils and Azad Jammu Kashmir Bar Council have raised a common demand to restore the weeklong boycott of the PCO-Judges.
As per reports, the lawyers, through their movement, would press the government to restore neutral national government to hold fair and transparent elections.
Talking to the newsmen here on Thursday, members of Bar Council demanded that General (Rtd.) Pervez Musharraf should quit immediately because his further stay in power would be a security risk for the country.
Vice Chairman Punjab Bar Council Ch. Tariq, vice Chairman NWFP Bar Council, Qazi Muhammad Naeem, representatives of Sindh Bar Council, Aqil Lodhi, Chairman Executive Committee of the Bar, BC Arbab Syed, Chairman Ex Committee NWFP BC, Saeed Akhtar Khan, and Mian Imran, Chairman Co-ordination Committee also addressed a press conference.
After the meeting, they asked the PBC to review its January 13 decision regarding the boycott of the PCO judges.
They said the lawyer's community would never accept the PCO judges as they were not constitutional ones.
Lawyers march for restoration of judges
The Daily The Nation, January 25, 2008
Lawyers, civil society, human rights activists and politicians on
Thursday held a joint protest rally from Aiwan-e-Adl Courts to Punjab Assembly building to press their demand for the restoration of deposed judges and release of detained lawyers.
Lahore High Court Bar Association (LHCBA) and Lahore Bar Association (LBA) held their separate general house meetings at their respective buildings and later took out rallies.
They were chanting slogans against the government and in favour of the deposed judges and their detained leaders-Barrister Aitezaz Ahsan, Munir A Malik, Tariq Mahmood and Ali Ahmed Kurd.
Police tear-gas lawyers
The Daily The Nation, January 25, 2008
Several lawyers were injured when police baton-charged and teargassed to disperse them here Thursday at judges Colony. They had gathered to show solidarity with deposed Chief Justice Iftikhar Muhammad Chaudhry.
A number of lawyers belonging to Rawalpindi, Talagang, Taxila and Chakwal Bar Associations brought out rallies from the residence of President Supreme Court Bar Association, Aitezaz Ahsan, for expressing solidarity with the deposed judges who had refused to take oath under the PCO.
A heavy contingent of police besieged the rally when it reached outside the Judges colony. Waving black flags and chanting anti-Musharraf slogans, the lawyers tried to break through a barricade outside Judges Colony. Police first baton charged and then teargassed to disperse lawyers. Several lawyers got injured in the incident.
Two coups in a row
The Daily Dawn
GENERAL Musharraf has once again imposed `martial law' in the country and suspended the Constitution of Pakistan. Eight years ago when the elected prime minister had dismissed him from the office of COAS, he had responded by overthrowing the government and placing the Constitution in abeyance.
Now in 2007 he has once again put the Basic Law aside in what is believed to be an attempt to pre-empt the judgment of the Supreme Court which may have found him ineligible and disqualified to be re-elected as President of Pakistan.
With this coup, he has achieved the distinction of overthro wing the Constitution twice over - which even General Ayub Khan and General Ziaul Haq did not do. He is likely to even surpass the legacy of General Yahya Khan.
While his first coup in 1999 was aimed at displacing the parliament and the elected government, his second coup is aimed at the judiciary. As usual the media also took the brunt of this coup and all independent television channels were immediately restrained from broadcasting within the country.
The 1973 Constitution of Pakistan, the judiciary and the media were the major obstacles in the road to power. With the Proclamation of
Emergency, the Provisional Constitution Order and amendment to the PEMRA Ordinance, the general has achieved all his goals in one stroke or so he believes.
A simple reading of the proclamation reveals that its allegations against the judiciary are misleading. It is equally intriguing in its reference to the sources of the general's action. It is declared to be his deliberations with the prime minister, the provincial governors and the military leadership of the country.
It completely omits any reference to his consultations with the source of much of his strength namely the Americans. It also attributes this action to deliberations with the prime minister who, only hours before the coup, had categorically dispelled rumours of emergency or martial law. So much for the authenticity of the proclamation.
The Oath of Office (Judges) Order, 2007, has been promulgated with the effect that most of the judges of the Supreme Court and the provincial high Courts have either refused to take oath under the PCO or were considered too independent and dangerous to be invited to join the new compliant judiciary. The new dispensation does not need judges, it needs judicial actors following the military rulers' line.
It was indeed heartening to see that judges with unimpeachable integrity, dignity and ability led by the Chief Justice flatly refused to be part of this drama enacted in the name of the rule of law. Their names will be forever engraved in the hearts and minds of the people.
The Proclamation of Emergency and the PCO are not only unconstitutional instruments but are patently misconceived. Contrary to the false and frivolous allegations made in the proclamation against the judiciary, the primary motive behind this coup was to subdue and silence the Courts which were beginning to redeem the constitutional pledge of an independent judiciary.
From a perusal of the above excerpts from the print media, it is evident that the nation had stood up against the unconstitutional and illegal acts of 3rd November, 2007. Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt. All this was a healthy sign in the nation's journey on the path of rule of law, constitutionalism and democracy.
However, we are inclined to take the view that in a situation where people did not show any reaction or failed to hold even pea ceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and apathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases. Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievances of the people against the denial of their Fundamental Rights guaranteed under the Constitution. It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence. Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved. It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence. It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and October 1999 by certain quarters, which would always be politically motivated. We hold and declare that the unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a Court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, etc. This country owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam Muhammad Ali Jinnah within the constitutional and legal framework. We, thus, disapprove the approach adopted in the said cases.
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se having been found to be unconstitutional, illegal and ultra vires, the next limb of the contention of Mr. Hamid Khan, Sr. ASC was that all the acts based upon, or flowing from, the actions of 3rd November, 2007 were too, unconstitutional, illegal and ultra vires, therefore, all such acts including the appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan, the oath made by other Judges of the Supreme Court and High Courts, including Chief Justices, etc., and the appointment of Judges of the Supreme Court and High Courts in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case and the appointments made in consultation with Abd ul Hameed Dogar, J, were a nullity in the eye of law and of no legal effect and were liable to be so declared by this Court and such Judges had also rendered themselves liable for action under and in accordance with the Constitution and the law including action for contempt of Court.
We have considered this aspect of the matter in depth. Indeed, the 3rd of November, 2007 was not the first time that the Constitution was violated and unconstitutional and illegal Proclamation of Emergency, PCO and Oath Order issued. In a similar setting of imposition of martial laws in the country in 1958 and 1969, the superior Courts were continued under the new dispensation with restriction on their powers to issue any writ against the Chief Martial Law Administrators. In Dosso's case, it was held that the legality of the actions taken under the martial law regulations and other laws was to be judged on the basis of the new law creating fact, viz., the Laws (Continuance in Force) Order, 1958, and not on the touchstone of the old legal order (Constitution of 1956), which had effectively been suppressed. In Asma Jilani's case, the Proclamation of Martial Law and the PCO of 1969 held the field until they were declared to be unconstitutional and illegal in the said case in 1972. There is no report that any Judge refused to abide by the above new dispensations. In 1977, the superior Courts were continued on the above pattern, but the Judges of the Supreme Court were required to make oath, which they made en bloc. In 1981, a Pr ovisional Constitution Order was issued in pursuance whereof certain Judges of the Supreme Court and the High Courts ceased to hold office, while few others including Fakhruddin G. Ebrahim (now Senior Advocate Supreme Court) did not make oath under it. In 1999, a somewhat similar pattern was followed. On 26th January 2000, Saiduzzaman Siddiqui, CJ, with five Judges of the Supreme Court did not make oath under PCO No. 1 of 1999 and Oath Order, 2000 while a few of the Judges of the High Courts also did not make the said oath. All such Judges including Saiduzzaman, CJ, were declared to have ceased to hold office. However, all the Judges so not making oath were left to fend for themselves, without the unprecedented outpouring of support which Judges have received from the public before and after 3rd November, 2007. Justice Dorab Patel, a leading light and respected figure of our constitutional history, has been quoted by Mr. Muneer A. Malik, Sr. ASC, in his book "The Pakistan Lawyers' Movement
"PM Yusuf Gilani orders detained judges freed ISLAMABAD, March 24 (Reuters): Newly elected Pakistani Prime Minister Yousaf Raza Gilani ordered on Monday the immediate release of all judges detained by President Pervez Musharraf after he imposed emergency rule in November. "I order the immediate release of detained judges of the superior judiciary," Gilani told the National Assembly, shortly after it overwhelmingly voted for him to become prime minister. Gilani also appealed to judges to resolve disputes through parliament, not through protests. The prime minister also said he will ask parliament to pass a resolution seeking a U.N. probe into the assassination of Benazir Bhutto."
While The Voice of America reported as under:-
"Mr. Yousaf Raza Gilani, in his first act as prime minister, ordered all deposed judges to be freed from house arrest. Barricades and barbed wire were moved aside in the judges' enclave in the capital. The deposed chief justice of Pakistan and 60 other judges had been under house arrest in the compound and elsewhere for more than four months. Mr. Musharraf had replaced them with judges he considered less likely to invalidate his re -election as president. Mr. Musharraf, who came to power in a 1999 military coup, was also army chief when the election was held last October."
Thus, on 3rd November, 2007 certainly it was the first time in the history of Pakistan that the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past. A seven-member Bench of this Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed's case. This was the most striking distinction between the action of 3rd November, 2007 on the one hand and those of 12th October, 1999, 5th July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In pursuance of the said order, a vast majority of the Judges of the superior Courts rejected the actions of 3rd November, 2007 and did not make oath in pursuance with the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case. The lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country. Abdul Hameed Dogar, J, and some other Judges violated the aforesaid order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case. These Judges, whether they were in this Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the aforesaid order of 3rd November, 2007.
The learned counsel for the petitioners also submitted that there was no vacancy either in the office of Chief Justice of Pakistan or any other Judge of the Supreme Court, therefore, the said appointments were unconstitutional, illegal and ultra vires. The learned counsel attacked the increase of number of Judges of Supreme Court from 16 to 29 on the ground that the same was unconstitutionally and illegally effected through Finance Act, 2008, rather than doing it by an Act of Majlis-e-Shoora (Parliament) in terms of Article 176 of the Constitution. The learned Attorney General for Pakistan submitted that much water having flown under the bridge in the interregnum, the de facto doctrine would call for judicial restraint because complete annulment would create chaos and confusion of great magnitude. Regarding the increase of strength, he took up the position that the objection with regard to increase of number of the Judges of the Supreme Court was neither part of the pleadings nor was any prayer made for annulment of Section 13 of the Finance Act, 2008; in law, the striking down of a legislative instrument could not be pleaded collaterally; the Money Bill even otherwise was simultaneously sent to the Senate of Pakistan and their recommendations solicited; money bill as a matter of fact was unanimously passed by the National Assembly in terms of Article 73 of the Constitution after consideration of the Senate and was duly assented to by the President of Pakistan; the Finance Act, 2008 was passed in line with the consistent and constant practice, inasmuch as laws were amended through the Money Bills so as to work out the financial implications and to budget the expenditure from the national exchequer, hence, no exception could be taken to it.
To appreciate the above contention, it is necessary in the first instance to examine the relevant provisions of the Constitution. To begin with, Article 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President. Thus, there is a provision of one Chief Justice of Pakistan alone. Next provision relating to the office of Chief Justice of Pakistan is Article 180. It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint t he most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan. On 3rd November, 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office. Mr. Akram Sheikh, Sr. ASC was right in contending that the Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed. On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice. Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Article 180. Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan. In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice. For the same argument, it may be mentioned that in case of a temporary vacancy, he could not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him. The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution. Therefore, it is held and declared that the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd November, 2007. In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, J, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice. His purported appointment as Chief Justice of Pakistan per se is, therefore, declared to be unconstitutional, illegal and ultra vires. It is further held and declared that Abdul Hameed Dogar, J, was never a constitutional Chief Justice of Pakistan.
Under Article 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e-Shoora (Parliament). Until the number of Judges is so determined, it may be such as may be fixed by the President. By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen. However, by Section 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words "be sixteen", the words "not be more than twenty-nine" were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of November, 2007. We have considered the contention of the learned counsel for the petitioners and the submission made in reply by the learned Attorney General for Pakistan. Clearly, under Article 176, the number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President. An Act of Parliament is different to and distinct from a Finance Act. All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Article 50 of the Constitution. On the other hand, a Finance Act, in general, is concerned with fiscal matters. Since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Article 176 of the Constitution. Increase of number of Judges in such a manner also militates against the independence of the judiciary. Strength of Judges is only to be increased keeping in view its needs. It is also to be ensured that the Courts are not packed with persons in disregard of merit. It may be noted that after 3rd November, 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not men of integrity, were appointed on quid pro quo basis. Against one such appointee, there were serious allegations of misconduct and impropriety. However, after restor ation of the Judges to the position they were holding prior to 3rd November, 2007, he resigned from office. Thus, it is declared that the number of Judges of the Supreme Court for purposes of the said Article 176 would continue to remain sixteen.
At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges. Even one Ad hoc Judge, namely, Ghulam Rabbani, J, had also been appointed as such. Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, J, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law.
Further, the purported app ointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan also stood vitiated by virtue of Notification No. F.12(4)/2007-A.II dated 17th March, 2009 whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd November, 2007. For reference, the notification is reproduced below:-
"Islamabad, the 17th March, 2009
NOTIFICATION
WHEREAS the Prime Minister of Pakistan was pleased to announce on 16th day of March, 2009 that the deposed Judges of the Supreme Court and High Courts including Mr. Justice Iftikhar Muhammad Chaudhry, the deposed Chief Justice of Pakistan, shall be restored to the position they were holding immediately before 3rd day of November, 2007.
NOW, THEREFORE, the President of Pakistan is pleased to restore Mr. Justice Iftikhar Muhammad Chaudhry, CJ, the deposed Chief Justice of Pakistan to the position he was holding immediately before 3rd day of November, 2007. Mr. Justice Iftikhar Muhammad Chaudhry will assume office of Chief Justice of Pakistan on 22nd March, 2009, after retirement of Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan on 21st March, 2009.
Sd/- Justice Agha Rafiq Ahmed Khan Secretary"
By a separate Notification No. F.12(4)/2007-A.II of even date, following Judges were restored to the position they were holding immediately before 3rd November, 2007:-
SUPREME COURT OF PAKISTAN
(1) Mr. Justice Javed Iqbal
(2) Mr. Justice Khalil-ur-Rehman Ramday
(3) Mr. Justice Raja Fayyaz Ahmed
(4) Mr. Justice Ch. Ijaz Ahmad
LAHORE HIGH COURT
(1) Mr. Justice Khawaja Muhammad Sharif
(2) Mr. Justice Ijaz Ahmed Chaudhry
(3) Mr. Justice Iqbal Hameed-ur -Rehman
HIGH COURT OF SINDH
(1) Mr. Justice Mushir Alam
(2) Mr. Justice Maqbool Baqar
PESHAWAR HIGH COURT
Mr. Justice Ejaz Afzal Khan
By Notification No. F.12(4)/2007-A.II dated 13th April, 2009, the following deposed/retired Judges of the Supreme Court were restored to the position they were holding immediately before 3rd November, 2007 so that they drew their salaries and other benefits as per their entitlement in accordance with law during the intervening period:-
(1) Mr. Justice Rana Bhagwandas
(2) Mr. Justice Falak Sher
(3) Mr. Justice Ghulam Rabbani
By Notification No. F.12(4)/2007-A.II. dated 4th June, 2009, following Judges of the Supreme Court and High Courts were restored to the position they were holding immediately before 3rd November, 2007 so that they drew their salaries and other benefits as per their entitlement in accordance with law:-
SUPREME COURT
(1) Mr. Justice Mian Shakirullah Jan
(2) Mr. Justice Tassaduq Hussain Jilani
(3) Mr. Justice Syed Jamshed Ali
(4) Mr. Justice Sardar Muhammad Raza Khan
(5) Mr. Justice Nasir-ul-Mulk
LAHORE HIGH COURT
(1) Mr. Justice Mian Saqib Nisar
(2) Mr. Justice Asif Saeed Khan Khosa
(3) Mr. Justice Sh. Azmat Saeed
(4) Mr. Justice Umar Ata Bandial
HIGH COURT OF SINDH
(1) Mr. Justice Anwar Zaheer Jamali
(2) Mr. Justice Khilji Arif Hussain
(3) Mr. Justice Amir Hani Muslim
(4) Mr. Justice Faisal Arab
(5) Mr. Justice Sajjad Ali Shah
(6) Mr. Justice Zafar Ahmed Khan Sherwani
(7) Mr. Justice Salman Ansari
(8) Mr. Justice Abdul Rasheed Kalwar
(9) Mr. Justice Sarmad Jalal Osmany
(10) Mr. Justice Gulzar Ahmed
(11) Mr. Justice Muhammad Ather Saeed
The learned counsel for the petitioners contended that notwithstanding the restoration of the Chief Justice of Pakistan to the position he was holding before 3rd November, 2007, by the terms of the said notification a wrong impression was created that the appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan could be interpreted to have been recognized on the de facto doctrine, because the assumption of office by the incumbent Chief Justice of Pakistan was made effective from 22nd March, 2009, i.e. after the retirement of Abdul Hameed Dogar, J, which was taking place on 21st March, 2009. In the first instance, the purported appointment of Abdul Hameed Dogar, J, or for that matter the appointments of other Judges have already been declared to be unconstitutional, illegal and void ab initio. Further, the above recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd November, 2007. It was a loud and clear recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Article 209 of the Constitution and the said position, on the same considerations, was reversed in totality. A wrong stood declared wrong with no mincing of words, for all times to come.
The learned counsel contended that Abdul Hameed Dogar, J, and other Judges could not be regarded even as de facto Judges under the Constitution and the law. In this behalf reference was made, inter alia, to the following cases:-
Muhammad Ayub Khuhro v. Pakistan (PLD 1960 SC 237 at 251)
"When a person is not competent to take cognizance of an offence, the entire proceedings before him would be void and coram non judice."
At page 248 of the report, it was observed as under:-
"A judgment is void if it is pronounced by an incompetent Tribunal."
Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98 at 127)
"An officer de facto is defined by Cooley in his book on Constitutional Limitations, Vol. 2, page 1355 as "one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact". An intruder is defined in the same book at p. 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence."
Mahmood Khan Achakzai v. Federaion of Pakistan (PLD 1997 SC 426 at 435)
"The acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were the acts of officers de jure. This doctrine can be applied if the Parliament is declared to be illegally constituted and an enactment passed by such Parliament is declared unconstitutional. It is only such situation that to preserve continuity, prevent disorder and protect private rights, this doctrine can be pressed in service."
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161)
"142. From the above discussion, it follows that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the de facto holder of the office. However, in the present cases only the acts done and orders passed by Respondent No. 2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan."
Re James (an insolvent) [(1977) 1 All ER 364, at 378-379]
"In my judgment, it is immaterial whether the Rhodesian judges were appointed before or after UDI. The Court whose jurisdiction they were exercising in 1974 was not a British Court but one established by persons who had cast off their allegiance with the British Crown. I think the High Court of Rhodesia was and is a Court but not a British one."
Coppard v. C & E Commissioners [(2003) 3 All ER 351 at p. 356]
"A de facto judge cannot be someone who knows that he is not a judge even if the world believes him to be a judge. The person who knows that he lacks authority includes a person who has shut his eyes to that fact when it is obvious. Such a person is a usurper."
The ratio of the above case-law fully fits Abdul Hameed Dogar, J, and other Judges. They all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers. They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence. Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio. The same are so held and declared.
DATE TIME NO CALLED DURATION
03.11.2007 19:25:29 0219203263 00:00:29 [Sindh High Court]
03.11.2007 19:29:51 0429212279 00:01:02 [Lahore High Court]
03.11.2007 19:40:18 0919210482 00:02:14 [Peshawar High Court]
03.11.2007 20:19:51 0819201365 00:01:12 [Balochistan High Court]
The TV channels repeatedly televised the contents of the aforesaid order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges. That continued even after 4th November, 2007. As seen above, the order was also published in the newspapers of 4th November, 2007. It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows. Reference is here made to excerpts from the news clippings of 4th November, 2007 and onward, as also excerpts of the records of TV programmes:-
EXCERPTS FROM THE NEWSPAPERS
Seven judges reject PCO before being sent home
The Daily Dawn, November 04, 2007
ISLAMABAD, No. 3: In an unprecedented move, seven judges of the Supreme Court on Saturday overturned the Provisional Constitutional Order and restrained the Chief of Army Staff, corps commanders, staff officers and other civil and military officers from acting under the decree.
The judges restrained President Gen Pervez Musharraf and Prime Minister Shaukat Aziz from taking actions contrary to the independence of the judiciary and asked the judges of the Supreme Court and the high Courts, including their chief justices, not to take an oath under the PCO or follow any other extra-constitutional step.
Headed by Chief Justice Iftikhar Muhammad Chaudhry, the Bench that handed down the unanimous two page order consisted of Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakiullah Jan, Justice Nasir-ul-Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.
Anticipating something unusual, the judges remained in the Supreme Court till late afternoon on a day when the Court never assembles. It otherwise would not have been possible for them to pass the order. "We feel that the government has no ground or reason to take extra constitutional steps, particularly for the reasons being published in newspapers that a high-profile case is pending and is not likely to be decided in favour of the government, although the matter is still pending, " the order said.
Appointment of the chief justice or judges of the Supreme Court or chief justice of the high Courts under the new PCO would be unlawful and without jurisdiction, it said.
Copies of the order were sneaked out to the awaiting newsmen outside the Court premises.
The order came on an application of Supreme Court Bar Association president Barrister Aitezaz Ahsan. The application was fixed for Monday to be taken up by a full Court.
A constitutional expert, who wished not be named, said the oath taking of the new chief justice was illegal because the PCO was struck down the moment it was issued.
More than seven judges of the Supreme Court were required to reverse the restraining order, he said, adding that to the best of his knowledge only four judges were available in the capital till late Saturday night.
SC turns down PCO
The Daily News, November 04,2007
ISLAMABAD: Setting aside the Provisional Constitution Order (PCO), a seven member Bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry here on Saturday evening barred the president and prime minister from taking any action contrary to the independence of the judiciary.
It may be mentioned here that President General Pervez Musharraf by imposing emergency in the country suspended the constitution by issuing Provisional Constitutional Order Saturday evening.
A copy of the two page Supreme Court order, which was handed over by an unidentified man on behalf of the Court to journalists including The News, noted that no judge of the Supreme Court or high Courts including chief justice should take oath under the PCO or any other extra constitutional step.
A chit carrying names of the chief justice and judges signing the order was afterwards provided to media persons, keenly waiting close to a small gate adjacent to the parking lot of the Supreme Court to see a glimpse of the chief justice. Other members of the Bench were Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasir-ul-Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.
Till the filing of this report, it was widely believed that the chief justice and other members of the Bench were inside the Court building. Heavy security was around and no one was allowed to step in or step out of the SC premises.
The Bench also said that the chief of army staff, corps commanders, staff officers and all concerned of the civil and military authorities were thereby restrained from acting under the PCO, which has been issued, or from administering fresh oath to the chief justice of Pakistan or judges of the Supreme Court, and chief justice or judges of the high Courts.
They were also restrained from undertaking any such action, which was contrary to the independence of judiciary.
Any further appointment of the chief justice and judges of the apex Court and chief justices of high Courts or judges of provinces under the new development shall be unlawful and without jurisdiction, the order said.
Earlier, after the unidentified person gave a copy of the order to journalists, a few minutes later he asked the policemen to let them inside as the honourable chief justice wanted to talk to the media. But the cops declined to do so saying they could not allow them until they got clearance from their seniors.
One of them did talk to someone for advice and later told media persons that they were not given permission to let them inside the apex Court.
All the road leading to the Constitution Avenue, on which besides the apex Court, the Parliament House, Prime Minister House and other important offices are located, were blocked with boulders and barbed wire.
Only jeeps and trucks of rangers and the police were allowed to ply on the Constitution Avenue, which were seen carrying security personnel and rolls of barbed wire.
Following is the text of the 2-page Supreme Court order:-
"This application was filed in Court on 2nd November 2007 Put up before full court on 5th November 2007."
EXCERPTS FROM RECORDS OF ELECTRONIC MEDIA
DAWN NEWS
3rd November, 2007: 18:00 hours
"We had just received report that as Aitezaz Ahsan ... it is probably find out ... into as he was into ...the announcement that a warrant of his arrest has also have been made. So it is to sum up what is being going on this last hour or hour and hour an half been arrived this team might explore surely things are moving in the direction of the imposition of an emergency Chief Justice along with number of his judges are still in the Supreme Court our correspondence Kamran Yousaf is saying that there was a large number of security forces arsenal movement have been seen inside the federal capital now a high level meeting of the president along senior PML-Q leadership is taking place ..... we also heard that there would be cabinet meeting now a lots going on here in federal capital so go over to our correspondent Mateen Haider for the latest updates. Mateen we just have heard this a warrant of arrest has been issued for Aitezaz Ahsan and we were just speaking to him short a while ago what details you have observed and anything which make transform in next ....."
18:02 hours
"Yes you are right Chief Justice of Pakistan Iftikhar Muhammad Chaudhry along with some of the judges .... And we tried to go into the Supreme Court right now along with the main gate of Supreme Court of Pakistan two military personal there are two soldiers from the Pakistan Army they are right at the front gate of the Supreme Court of Pakistan along with police right to we have just witnessing number of cameras, photographers who are capturing that short. Two soldiers from the Pakistan Army they are at the Supreme Court's main gate so the media and the cameramen and reporters they are not being allowed to go inside the Supreme Court of Pakistan then we contacted to the security staff they've said that they've got instructions from the higher that no media person should be allowed to come inside in the Supreme Court and earlier in the day full fledge media entry has been banned into the Supreme Court right now."
18:03 hours
"So the meeting at the presidency which general Pervez Musharraf for chairing right now is come to at end and the decision about the imposition of emergency that is been checked in now. But the formal announcement will be made right by some top governed functionaries and there are report that president general Pervez Musharraf may address to the nation shortly in which he will announce definitely the position of emergency will make formal announcement and the there are also report about the extra ordinary emergency cabinet meeting which is chaired by prime minister Shoukat Aziz at prime minister house security on the constitution avenue is still tight there is police van which is patrolling and at number of important entry points there is definitely a deployment of security personals.
OK. Mateen Haider, thank you for that update."
18:04 hours
"Just for anyone who may have joined or tuned on the Dawn News that there wide speculated in that the state of emergency is very eminent now and cable operators have incidentally and they have taken a large number of private television channels off and there is lot of different reports coming in different part of the country there is a slow build up of the security personal entry and exit point in and around Islamabad have been tightened up and most interesting news which is coming out now recently from Mateen Haider that he just told us the Chief Justice of Pakistan along with number of his judges is inside in the Supreme Court building he says that there is at least two army officials standing outside guard of the front of the Supreme Court building and entry for the media personals have been gathered outside the Supreme Court building have been prevented from entering."
18:12 hours
"The government has imposed a state of emergency plus following cabinet meeting in capital there are reports that a new PCO is being introduced this would mean judges in the Supreme Court of Pakistan will have to take a new oath for office. The Chief Justice of Pakistan is out the Supreme Court Attorney General is now with him. Pickets are being set up by the army key positions across the country. The broadcast of independent channels has been stopped in the capital. Now the PCO has been passed by the president as his capacity of the Chief of the Army Staff that is the latest breaking news it has been confirmed that the state of emergency has been imposed in Pakistan. The state of emergency can't be challenged in any Court of law. There are reports coming in the Chief Justice and other judges are reportedly being removed by the armed forces from the Supreme Court building a short while ago our spokesman correspondent Mateen Haider reported at the steps of the Supreme Court where he said that at least two to three military officials there is now been confirmed that the Chief Justice of Pakistan and number of judges are being escorted out of the Supreme Court building by army officials this is the latest development."
18:16 hours
"Let's go to our senior correspondent Mubashar Zaidi for the latest developments. Mubashar what do you understand in this latest situation has there been informal announcement yet? Formal announcement still being awaited which PTV has already announced that Chief of the Army Staff that is president general Pervez Musharraf has proclaimed emergency in the country and he has issued a PCO but all the development right now happening in the Supreme Court where Chief Justice Iftikhar Muhammad Chaudhry along with couple of judges are still present inside and written orders have been issued from the interior ministry by the chief commissioner to police to remove the Chief Justice and other judges from the Supreme Court and Army troops have already entered the Supreme Court building and they are trying to remove the staff of the Chief Justice, Registrar and other staff and they are unlikely to remove the Chief Justice and other judges who are present in the Court......
20:01 hours
"President General Pervez Musharraf who is also the Chief of the Army Staff of Pakistan has imposed a state of Emergency and suspended the Constitution and introduced Provisional Constitutional Order however several judges who are inside the Supreme Court building in the time of the imposition of the emergency declared the PCO has unconstitutional and at least eight of those judges have refused to take oath under this new PCO. Un-official announcement is to at some point later on in the evening but there is a fact that a state of emergency obvious hasn't officially announced it is quit evidently in place throughout the whole of Pakistan. Right time now go over twelve studio in Islamabad where Zafar Abbas the Editor of Dawn standing by with Farhan Bukhari to discuss what this means and what had happened today over the course of the whole of today when November the 3rd two thousand seven is the moment of the day when the state of emergency has been declared in Pakistan. Well Farhan obviously what the general mood like in the federal capital commentator is saying ? well Addel it is obviously very tense time in Islamabad last couple of hours since it became clear that another state of emergency has been imposed lots of people are comparing this to 12th October 1999 the day the coup when president Musharraf took over and lots of people are saying that more than eight years later this is a replay of what happened on that day troops are reports... moment that people are waiting for its president Musharraf's speech which would come later any time I am joined in our Islamabad studio by Zafar Abbas resident editor of Dawn. Zafar just for the sake of this discussion if we tried to compare what is happened today or what is happening today with 12th October 1999? In somewhere yes mainly in terms of the kind of action that has been taken but it is really a very different situation it is situation where a government is not being removed and army is not stepping in to remove the government general Pervez Musharraf was already the presid ent of Pakistan prime minister Shoukat Aziz was working under him what he is done is to impose emergency rule acting as the Chief of the Army Staff to prolong his stay in power because of the fear that the supreme Court may declare his move to get himself elected for the second time as unconstitutional or illegal so it is an attempt to prolong his rule it is not attempt to remove a government which on 12th October 1999 that is the main different and the other difference is that this emergency rule has been brought in or imposed at the time when we have witnessed unprecedented action by the country superior judiciary and even as we speak some of the senior most judges are sitting inside the supreme Court refusing to go away and as you all know they have already passed an order Chief Justice of Pakistan Chaudhry Iftikhar and other senior judges have passed an order declaring the emergency rule as illegal."
20:04 hours
"Zafar a very interesting aspect of this situation; it is almost an eyeball to eyeball type of a situation. What is being well finally happened to the judges I mean they can't stay inside the Supreme Court indefinitely they have passed an order which legal experts say in time would have its on significance but what do you think what will happen to the judges? You there are two things one is the judicial side of the whole matter the legal side of the whole matter and the other is administrative side. Obviously when we talk about the administrative side of this matter president Musharraf is also the Army Chief, the army is behind him and the security forces are with him the government is with him so the Supreme Court Chief Justice can't do much about it; to be very honest. He and some of his brother judges as they are halt may continue to sit in the Supreme Court for a while and they will have to go to their respective residences and in all probability they will not be asked to take oath under the new PCO and they as the system had been in the past whenever marshal law has been imposed or emergency rule or this kind of an extra constitutional order has been imposed new set of judges have come and new Chief Justice has been appointed and this may happen again........."
Dawn News
03rd November, 2007: 21:08 hours
Correspondence 2
"Well first of all let me explain that no body is allow to access in the Supreme Court and media is standing outside and we are depending on whatever information we are getting to our sources within the Supreme Court that we just got report that Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry has constituted full Court to hear the case of position of emergency in one day so Chief Justice is still resisting and he denied that the Government Pressure that his services are no more required because after issuing the Provision Constitution Order the General Musharraf the Chief Justice and some Judges who are belief to be who have given the decision against the Musharraf in the case were asked that their services are no more required by the government and it was expected that those judges included Chief Justice, Justice Rana Bhagwandas Justice Shakirullah Jan and few other judges would not be invited by the Government to take a fresh oath under the PCO right now the pressure is being mounted on the Chief Justice of Pakistan and he was asked by the Government that he must accept the decision he must accept the position of emergency in which General Musharraf has issued this evening so but we have got reports that full Court was constituted by the Chief Justice and we have seen a convoy coming out of Supreme Court and going towards the Judge's residences and we are not sure whether the Chief Justice was inside the car or not but it quite confusing situation in which no body is allow access to Supreme Court and we are relying on these information......"
21:16
Correspondence
"Absolutely the situation is evolving here as you can hear the reports that Justice Abdul Hameed Dogar has taken oath as Acting Chief Justice of Pakistan so this is indeed very significant development after Government's decision to impose emergency in the country and somewhat its seems that Chief Justice Iftikhar Muhammad Chaudhry opposed the decision and some other Judges as well."
(i) Where direct evidence is not available;
(ii) Where it is sought to be proved that a person has notice of the contents of the newspaper report;
(iii) Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him;
(iv) In cases of defamation; and
(v) If the issue/occurrence is rather old and eyewitnesses are either wanting or less reliable.
Even CMA No. 2874 of 2007 was moved by the Federation in Wajihuddin Ahmed's case on 6th November, 2007 seeking clarification regarding the order dated 3rd November, 2007 passed by a seven -member Bench of this Court in the said case stating, inter alia, therein that certain news items had appeared in the newspapers that after issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, "some of the former Judges, reportedly seven in number including the then Chief Justice" had passed some order restraining, inter alia, the Judges of the Supreme Court and High Courts, including Chief Justices from making oath under PCO or any other extra-constitutional step. Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order. In fact, all and sundry in the length and breadth of the country knew about it. All such Judges, therefore, willfully violated the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case.
We next take up the purported appointments of Judges post 3rd November, 2007. Mr. Muhammad Akram Sheikh, Sr. ASC, contended that having unconstitutionally and illegally installed Abdul Hameed Dogar, J, in the office of the Chief Justice of Pakistan, General Pervez Musharraf unconstitutionally and illegally made purported appointments of Judges in the Supreme Court in a so-called consultation with Abdul Hameed Dogar, J, and `packed the Courts' with dozens of persons on and after 3rd November, 2007 in disregard of merit, competence or repute. According to the learned counsel, since the said appointments were made in consultation, not with the Chief Justice of Pakistan who was holding office under the Constitution, but with Abdul Hameed Dogar, J, who was holding office under PCO No. 1 of 2007 and Oath Order, 2007, and was not authorized to be consulted for appointment of Supreme Court and High Court Judges under Articles 177 and 193 of the Constitution, for which even a duly appointed Acting Chief Justice was not authorized as laid down in Al-Jehad Trust case, therefore, the same too, were of no legal effect.
The appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. It was held in Al-Jehad Trust case that the consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/ confirmation of a Judge in the superior Court shall be invalid. It was further held that the independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. It was also held that an Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Accordingly, at declaration No. (xiii) of the Short Order passed in Al-Jehad Trust case, it was held that since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid. In the instant case, the permanent Chief Justice of Pakistan was very much available and able to perform the functions of his office. At page 528 of the cited case, it was unequivocally held that to have access to free, fair and independent Court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Articles 9 and 25 of the Constitution.
We, therefore, uphold the contention of the learned counsel that Abdul Hameed Dogar, J, who was holding office in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, was not authorized to be consulted for such appointments. All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd November, 2007 to 21st March, 2009 were violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, are held and declared to be unconstitutional, illegal, void ab initio and of no legal effect.
Besides, the purported appointment of four persons as Judges on 5th November, 2007, noted above, two such Judges, namely, Muhammad Akhtar Shabbir, J, a retired Judge of the Lahore High Court and Zia Pervez, J, a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, were appointed vide Notification No. F.1(1)/2007-A-II(A) dated 12th November, 2007 in this Court. Three such Judges, namely, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, sitting Judges of the Lahore High Court and Syed Zawwar Hussain Jaffery, a retired Judge of the High Court of Sindh were appointed vide notification No. F.1(1)/2007-A.II. dated 9th December, 2007. All these appointments stood vitiated on account of the above declaration. Out of the above, the Judges who were sitting Judges of the High Courts violated the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, which was enforceable and binding upon them under Articles 187, 189 and 190 of the Constitution, particularly after it had come to their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution.
As to the remaining Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution, as discussed hereinabove. Furthermore, all these Judges were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office. Accordingly, the appointments of all the above Judges are held and declared to be unconstitutional, illegal and void ab initio.
Similarly, the appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till 22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Two such Judges, namely, Sh. Hakim Ali, J, a sitting Judge of the Lahore High Court and Muhammad Farrukh Mahmood, J, a retired Judge of the Lahore High Court were appointed vide Notification No. F.2(1)/2008-A-II(A) dated 7th February, 2008. Two Judges, namely, Sabihuddin Ahmed, CJ, and Sarmad Jalal Osmany, J of the High Court of Sindh, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, were appointed vide Notification No. F.2(3)/2008-A-II. dated 19th September, 2008. One Judge, namely, Sardar Muhammad Aslam, CJ, Islamabad High Court was appointed vide Notification No. F.2(1)/2009-A.II dated 7th March, 2009. Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution, as discussed hereinabove. All the aforesaid Judges shall immediately cease to hold office forthwith. However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, J, shall revert to their respective High Courts subject to their age of superannuation.
Another category of appointments made during the period from 15th December, 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time. However, the actions of 3rd November, 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Article 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself. They continued to be such Judges throughout without interruption of a single day.
Zia Parwez J did not make oath as a Judge of High Court on or after 3rd November, 2007 after the order dated 3 rd November, 2007 was passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, and was deposed from office. But his subsequent appointment as a Judge of the Supreme Court was made, firstly, in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation. Therefore, his appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio. Accordingly, he would cease to hold office of Judge of the Supreme Court.
The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd November, 2007 to 15th December, 2007, or thereafter, shall be governed in the same terms. However, any of such Judges who was District & Sessions Judges prior to his appointment as Judge of High Court shall revert to his original positions subject to age of superannuation.
Now we proceed to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd November, 2007 and who made oath in violation of order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J. The actions of 3rd November, 2007 have already been held and declared to be unconstitutional, illegal and ultra vires. The appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case all have been held to be unconstitutional, illegal and ultra vires. Therefore, as rightly contended by Mr. Hamid Khan, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court. It has also been held that they exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts. As such, the decisions rendered by them would be illegal and nullity in the eye of law.
A prime contention of the learned counsel for the petitioners on the status of the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case and the decisions rendered in Tikka Iqbal Muhammad Khan's case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd November, 2007. They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed's case, which lay at the root of the actions of 3rd November, 2007. That is why, according to Mr. Hamid Khan, the anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case. The said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again maneouvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff. In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of 3rd November, 2007. On 5th November, 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available at Islamabad, therefore, they could not pass any order in the said case on that day. However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength. Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of 5th November, 2007, four persons, namely, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Mohammad Moosa K. Leghari and Ch. Ejaz Yousaf were purportedly appointed as the Judges of this Court. With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of 3rd November, 2007. Accordingly, on 6th November, 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed's case stating, inter alia, that--
. An application was sought to be submitted in Court on behalf of petitioner Wajihuddin Ahmed in Constitution Petition No. 73 of 2007 during its hearing, seeking a restraint order against the respondents, but it was not entertained, rather it was directed that the same be filed in the office and the same would be heard when the matter was fixed;
. To the utter surprise of the applicant, a news item was reported in a section of the press that after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, some of the former Judges including the Chief Justice of Pakistan had passed the aforesaid order;
. To the best of the knowledge of the applicant, no such order was passed, or if passed, the same was non est because the said Judges had ceased to hold office in view of the actions of 3rd November, 2007 and they had no right or authority to pass any such order;
. No notice was given to the applicant nor any hearing had taken place, therefore, the order was totally without jurisdiction; and
. Since the "so-called" order was published in the press, it had created confusion and had the potential of creating complications:
Thus, a clarification was sought that no such order as aforesaid had been passed, and if there was such an order, it was a nullity in the eye of law, having no legal value or binding force. By order of even date, it was held that in pursuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, Judges of the Supreme Court, Federal Shariat Court and High Courts inclu ding Chief Justices of those Courts immediately on Promulgation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, ceased to hold office and could not have performed their functions or exercised judicial powers and consequently, the Chief Justice and Judges who passed the order in question, could not have passed such an order as they had ceased to be the Judges. It was further held that the order in question was even otherwise not a valid order because it was passed without notice to the parties, or to the Attorney General for Pakistan under Order 27-A CPC read with Order XXIX of the Supreme Court Rules, 1980. It was also held that the perusal of the order dated 3rd November, 2007, prima facie, showed that the question of validity or otherwise of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, was not as such examined and their operation was also not suspended, therefore, they were not called upon to express any opinion on those questions at that stage. Placing reliance on the case of Federation of Pakistan v. Aitezaz Ahsan (PLD 1989 SC 61), it was held that in presence of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the order dated 3rd November, 2007 was a nullity in law. And finally, allowing the application, the prayed for clarification issued was that the impugned order dated 3.11.2007 was declared to be illegal and without jurisdiction and that the same would be deemed to have never been passed. [Underlining is for emphasis]
In the first place, since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case as well as those in Tikka Iqbal Muhammad Khan's case were coram non judice and a nullity in the eye of law.
Secondly, the order dated 6th November, 2007 marked the presence of Mr. Arshad Ali Chaudhry, ASC/AOR on behalf of the Federation (applicant), and the learned Attorney General for Pakistan was shown to have appeared on Court's call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, though one of them, namely, Barrister Aitezaz Ahsan was in respondent Government's own custody and it was quite convenient to procure his attendance. Therefore, this order suffered from the very flaw, which was wrongly alleged in respect of order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, i.e. it was passed without notice to the other side.
On 22nd July, 2009, when the above aspect was highlighted in the course of arguments, it was noticed that repeated references were being made by the learned counsel for the petitioners to the factual background of the pre and post 3rd November, 2007 events revolving around the person of General Pervez Musharraf. Therefore, it was inquired from Mr. Hamid Khan, Sr. ASC, as to whether it would not be fair and proper to issue notice of the instant proceedings to General Pervez Musharraf? He stated that as the Federation of Pakistan was a party in Constitution Petitions Nos. 8 & 9 of 2009 and was being represented by the learned Attorney General for Pakistan, there was no need to issue the aforesaid notice. At this, the learned Attorney General made a categorical statement at the bar that he was neither representing General Pervez Musharraf nor had he received any such instruction from the Government. He further stated that the party in power (Pakistan Peoples Party) had all along been opposing dictatorial/repressive regimes and anti-people forces getting into the corridors of power through backdoor channels, therefore, the present democratic government led by their Party would not justify/support the action of 3rd November 2007. Therefore, vide order of the said date, in terms of Rule 9 of Order XXV of the Supreme Court Rules, 1980, notice of the instant proceedings was issued to General Pervez Musharraf at his residential address in Islamabad, leaving it up to him to appear before the Court or otherwise and the hearing of the case postponed to 29th July, 2009. In the order dated 22nd July, 2009, it was noted that the instant proceedings were going on for several days and were being widely publicized in the print and electronic media, therefore, anyone interested therein or concerned with the promulgation of Proclamation of Emergency and other measures of 3rd November 2007 had ample notice/knowledge and was at liberty to appear before the Court. The process serving officer was deputed to deliver a copy of the order at the residential address of General Pervez Musharraf, viz. C-1-B, Park Road, Chak Shahzad, Islamabad, who reported that the person present there, namely, Muhammad Hussain son of Amir, refused to receive the notice. The factum of issuance of the afore-referred notice, too, was widely covered in the electronic and print media. However, no one appeared on his behalf.
However, we did not issue notices to the concerned Judges of the Supreme Court and High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case, as also the Judges who were appointed in consultation with Abdul Hameed Dogar, J, inter alia, on a consideration of the law laid down in Supreme Court Bar Association's case where this Court examined the question of issuance of notice in a somewhat similar situation with reference to the law laid down in the cases of Al-Jehad Trust and Asad Ali (supra) and Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 SC 179). It was held that the principle of natural justice would not be violated if no notices were issued to the concerned Judges. Relevant portion from the judgment is reproduced below:-
"32. This brings us to the next common contention that the senior Judges of the Lahore High Court were condemned unheard and even in these petitions notices have not been issued to them. It is rather unnecessary to consider the contention as we have already held that the recommendations of the judicial consultee are not justiciable. Be that as it may, the contention is misconceived. The recommendations in question were manifestation of subjective satisfaction of the judicial consultee, therefore, the principle of natural justice `audi alteram partem' was not attracted. Moreover, the contention in essence is identical with contentions Nos. (iv) and (vii) raised in the case of Ghulam Hyder Lakho which read as under:
"(iv) That the petitioners were de-notified or the appointments were nullified by the Government without hearing them and as such the action of Government nullifying their appointments as Judges of the High Court offended against the principles of natural justice."
"(vii) That the removal of the petitioners from the office of Judges of the High Court in the above manner amounted to a stigma and as such the petitioners were entitled to be heard."
The above contentions were held to be devoid of force as is evident from the following observations at page 196 of the judgment:--
"In these circumstances, we are inclined to hold that where the Chief Justice of the High Court concerned and the Chief Justice of Pakistan do not recommend a particular incumbent for confirmation or appointment as a Judge of the High Court and these recommendations are accepted by the President/Executive the same cannot be brought under challenge in the Court on the ground that the incumbent was not `heard before making such recommendations."
"It must be borne in mind that Judges of superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every Judge of the superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the Judges of superior Courts can only express their disapproval, resentment or reservations' on an issue either in their judgment or order if the opportunity so arises....."
Coming to the invalidity of the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case, it is noteworthy that the order of 3rd November, 2007 was passed in an entirely different setting. The application was presented before the Bench on 2nd November, 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz. 5th November, 2007. Since the apprehensions expressed in the application came true and Proclamation of Emergency was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of 3rd November, 2007 and the order was passed thereon, as prayed earlier. It was not something, which was cooked up in the meantime. The filing of application was an already existing fact to the notice of all parties, including the learned Attorney General for Pakistan. No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court. In any case, it was not a final order and the matter was ordered to be put up before the Full Court on 5th November, 2007. However, the situation on 6th November, 2007 was entirely different. The unconstitutional acts of 3rd November, 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceedings, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th November, 2007, as it existed on 3rd November, 2007. But the point was that if the order of 6th November, 2007 was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J, and other Judges would not have been served.
Now, two orders are before us. One was passed on 3rd November, 2007 by a seven - member Bench of this Court in Wajihuddin Ahmed's case, i.e. by the Judges appointed under the Constitution, and the other of 6th November, 2007 passed by Abdul Hameed Dogar, J, and other Judges. The former order was passed to preserve, protect and defend the Constitution and the law. The latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of November, 2007, PCO No. 1 of 2007 and the law. The one had constitutional and moral authority and power behind it. The other had the gun at its backing. The Judges in the former case were bound to abide by the code of conduct issued by the Supreme Judicial Council. The Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct. There is no manner of doubt left that the order dated 6th November, 2007 was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of 3rd November, 2007 and onward. By all recognized principles, the order dated 6th November, 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case. Therefore, the order dated 6th November, 2007 is declared to be unconstitutional, illegal and void ab initio.
While considering the question of validity of the aforesaid order dated 6th November, 2007, we also discovered a grave error when we examined the record and proceedings. It appeared that Constitution Petition No. 73 of 2007 along with another petition viz. Criminal Original Petition No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th November, 2007 by a subsequently constituted ten-member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLD 2008 SC 13 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v. Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad and others). The relevant portions from the order are reproduced as follows:-
"4. When the petition was taken up for hearing today i.e. 19-11-2007, Mr. M.S Khattak, learned Advocate -on-Record for the petitioner presented before the Full Court two applications dated 10-11-2007 and 19-11-2007, wherein, prima facie, derogatory and contemptuous language was used. Soon after the learned Advocate-on-Record had started addressing the arguments in support of the applications he realized that he was running a risk of being proceeded against. He, therefore, tendered unconditional apology in writing as well as orally for submission of both the applications and withdrew the same with permission of this Court. He further stated that he had no instructions to argue Constitutional Petition No. 73 of 2007 and Criminal Original Petition No. 51 of 2007. He was repeatedly asked to argue the same but he showed his inability to perform his legal duty which he owed to the Court as laid down in the cases of Messrs Pearl Builders (Pvt.) Ltd. v. Ardsher Cowasjee and others (PLD 2003 SC 946), Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others (2003 SCMR 965) and Habib-Al-Wahab Alkhairi and others v. Commissioner, Rawalpindi Division and others (PLD 1992 SC 587).
"It was also urged that under Article 62 of the Constitution, which contains qualifications for being elected as a member of the National Assembly, which are also the qualifications for election to the office of the President, cannot be read into Article 41 (2) of the Constitution. The said Article only provides that the President must be a person qualified to be elected as Member of the National Assembly. The disqualifications listed in Article 63 cannot be read into Article 41 (2) in view of the judgment of this Court in Aftab Shaban Mirani v. President of Pakistan (1998 SCMR 1863) which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). The same view was also expressed in Muhammad Shahbaz Sharif v. Muhammad Iltaf Hussain (PLD 1995 Lahore 541)."
In Pakistan Lawyers Forum (supra), it was laid down that:-
"69. The provisions of Article 63 (1) (d) have been made applicable to the continuation in office of the President after 31 December, 2004 by virtue of the proviso to clause (7) of Article 41, which was inserted by the 17th Amendment.
Any other clause or paragraph of Article 63 of the course does not apply, to the President since it is settled law that the President is only required to be qualified to be a member of Parliament (as Provided by the Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the President is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in the Qazi Hussain Ahmed's case.
The argument that the COAS could not have assumed the office of the President because of the definition of the "Service of Pakistan" in Article 260 and the disqualific ations in respect of such persons contained in Article 63 is untenable as these have no application to the President.
The argument that on account of the oath made by him as a member of the Armed Forces under Article 244 read with the Third Schedule to the Constitution disqualified the COAS from being the President is misconceived. It overlooks the fact that clauses (7) and (8) of Article 41 carry non obstante clauses and these are to have effect notwithstanding anything contained in the Constitution. Clauses (7) and (8) of Article 41, therefore, override Article 244 and the oath in the Third Schedule like they override Articles 43 and 260 of the Constitution.
Since Article 63 (1) (d) has now been made specifically applicable to the continuance in office by the President after 31st December, 2004 through the proviso, it is, therefore, clear that the President would be disqualified from continuing in office qua President if he was to hold an office of profit in the service of Pakistan, except an office declared by law not to disqualify its holder'. All that has happened in the instant case is that by virtue of Another Office Act, parliament has declared that the office of the COAS is an office, which does not disqualify its holder. The President is, therefore, not barred by the proviso to clause (7) of Article 41 from continuing in office as both the Chief of Army Staff (COAS) and the President because the position of COAS has been declared by law not to disqualify its holder as expressly contemplated by Article 63(1)(d)."
In our opinion, the President General Pervez Musharraf, the Respondent No. 3 was qualified for and did not suffer from any disqualification, under the Constitution or/and the law, for presidential election, 2007. The view taken by the Chief Election Commissioner is unexceptionable.
As to the question of maintainability of this petition, it would suffice to follow the majority judgment of this Court in the recent case of Jamat-e-Islami v. Federation of Pakistan (Constitutional Petition No. 59 of 2007, decided on 28-9-2007) (PLD 2008 SC 30) wherein it was held that "the questions involved in the matter of election of the President did not relate to any of the fundamental rights guaranteed in Part-II, Chapter I of the Constitution (Articles 8 to 28). Therefore, the petitions under Article 184(3) of the Constitution were not maintainable." Even otherwise, in view of clause (6) of Article 41 of the Constitution, the validity of the election of the President cannot be called in question by or before any Court.
For the foregoing reasons, Constitutional Petition No. 73 of 2007 and Criminal Original Petition No. 51 of 20007 are hereby dismissed. Consequently, the interim stay order dated 5-10-2007 of withholding the issuance of final notification of the result of election of the returned candidate to the office of the President is hereby vacated. The Chief Election Commissioner of Pakistan and Federal Government are directed to take all the necessary steps by 1st December, 2007, for final announcement of the result of the presidential election and issuance of public notification in accordance with the Constitution and the law. As already undertaken in writing on 18-9-2007 before this Court by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court for `the Respondent No. 3 and Malik Muhammad Qayyum, learned Attorney General for Pakistan, the President General Pervez Musharraf shall relinquish the office of the Chief of Army Staff before taking oath of office of President of Islamic Republic of Pakistan, for the second term." (Emphasis supplied)
The record, however, showed that the same day the same Bench had already dismissed the above mentioned two petitions for want of instructions. Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame anew the above-noted order, surprisingly without making any reference to, rather ignoring its own earlier order so passed.
On 10th November, 2007 Mr. M. S. Khattak, the Advocate-on-Record for the petitioner had made an application with the following prayer:-
"It is therefore submitted that this Constitution Petition should not be listed for hearing unless and until the Honourable Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry and other Constitutional judges of Honourable Supreme Court resume their duties and functions under the Constitution."
Record showed that the said application was returned by the office with the remarks, "Presented today. However, the prayer made in this application is without any basis. Hence, returned as not entertainable." Nevertheless, Mr. M.S. Khattak, AOR for petitioner, moved a fresh application along with a copy of previous application dated 10th November, 2007 with the following prayer:-
"That under the express instructions of the petitioner, it is submitted as follows:
A. That the titled constitution petition has been filed under Article 184(3) of the Constitution which has been put in abeyance. The aforesaid Constitution Petition could not be heard by a Bench of this Hon'ble Court constituted under PCO.
B. That the petitioner does not recognize the Bench constituted under PCO.
C. That the petitioner's counsel has already completed his arguments and no further argument is necessary.
D. That all counsel for the petitioners have been arrested except one whose whereabouts is not known.
E. That the office should not have returned the application. It should have been entertained and considered by the competent authority, allowed or rejected.
The above submissions are put up for consideration by this Hon'ble Court for orders in the titled petition."
"That I withdraw applications dated 10.11.2007 and 19.11.2007 filed on behalf of the petitioner in the titled matters which are fixed before larger Bench of this Hon'ble Court today the 19th Nov. 2007. I apologize for submission of those applications. As regards the original Const. Petition No. 73/2007 and Cr.O.P. No. 51/2007, I have no instructions to argue the case."
From contents of above application it is quite obvious that Mr. Khattak, learned AOR for the petitioner had unequivocally expressed his inability to argue the case of the petitioner warranting the disposal of the petition as per normal practice, such as when a counsel appearing for a party pleaded no instructions, the lis would be disposed of as "dismissed for want of instructions". In the instant case, although, the concerned Bench, in actual effect, did the same; to say, dismissed the petition for want of instructions, as is confirmed by the relevant record, an altogether new order was framed whereby the petitions were decided on merits (reported supra). The fact that the two petitions stood already dismissed for want of instructions was also evident from the noting made by the Court official (Court Associate) on the file cover of Petition No. 73 of 2007 as well as in the Court Register. Copies of the file cover and Court Register with notes of Court Associate duly scanned are as follows:-
The fact that above petitions were dismissed for want of instructions gets further support from the press reports appearing in the newspapers of 20th November, 2007, excerpts wherefrom are given below:-
Daily Dawn, dated 20.11.2007
"A pre-emergency 11-judge Bench had on Oct 5 declined to stay the presidential election, but directed the Election Commission not to notify the results till the Bench gave its final verdict.
The main petitions of former Supreme Court judge Wajihuddin Ahmed, who also contested the presidential election against Gen. Pervez Musharraf, and of Advocate A.K. Dogar of the Pakistan Lawyers Forum were dismissed for non-prosecution. A contempt of the Court petition of Mr. Wajihuddin against the CEC also stood dismissed for non-prosecution."
"The pre-emergency Supreme Court Bench had heard the petitions for two weeks, but seven judges in the Bench were sent home under the PCO after the emergency was imposed.
On Monday, an application filed by Advocate-on-Record (AOR) M.S. Khattak on behalf of Mr. Wajihuddin annoyed the Court and it asked the applicant to tender an apology in writing for moving what appeared to be a contemptuous application. The AOR withdrew the application and tendered an apology in writing.
Though the Attorney-General accused the petitioner of maligning the judiciary, he advised the Court to accept the apology. "Being an important case, it should be properly argued by the petitioners," he said, adding that the advocate-on-record being a former deputy registrar should have been careful.
Mr. Khattak was also asked to argue the petition of his client in the absence of counsel Barrister Aitezaz Ahsan and Hamid Khan. The AG told the Bench that although Aitezaz Ahsan was under solitary confinement, Hamid Khan, who had originally argued the case, was not under custody.
The AOR said he had no instructions to argue the case, adding that the whereabouts of Hamid Khan were not known. When he tried to clarify that the counsel had already argued the case for two weeks before the Supreme Court, Justice Faqir Mohammad Khokhar observed that nothing had been argued before this Bench. Justice M. Javed Buttar also observed that this was a new Bench."
The Daily The News, Isla mabad, 20th November, 2007 "Earlier, when the Court took up the petitions, Advocate -on-Record (AOR) M.S. Khattak told the Court that whereabouts of Hamid Khan, counsel for Justice (Rtd.) Wajihuddin, were not known. He also moved an application, which carried some contemptuous material against the SC judges, who took oath under the Provisional Constitution Order (PCO).
The Bench admonished Mr. Khattak for filing such an application carrying derogatory remarks against the judiciary. But he said he was instructed by the petitioner to file the application. However, on the order of the Court, Khattak tendered an unconditional apology and withdrew the application. The Court asked Khattak to withdraw the main petition, but he declined stating that he was not instructed to do so.
Meanwhile, the Court dismissed the petition of Justice (Rtd.) Wajihuddin Ahmed for want of instructions, stating that it would be considered dismissed as withdrawn. Attorney General Malik Muhammad Qayyum while appearing before the Court submitted that the AOR was trying to malign the Court, wondering how he could refuse to argue the case. He said Hamid Khan was free and not in the custody of any one."
"The Court, however, asked him to argue the case, but he declined. Thus the Court dismissed the petition due to no prosecution and treated it dismissed as withdrawn."
The Frontier Post
"Earlier, when the Court took up the petitions, Advocate-on-Record Mr. Khattak told the Court that whereabouts of Hamid Khan, counsel for Justice (Rtd.) Wajihuddin, were not known. He also moved an application which carried some contemptuous material against the SC judges, who took oath under the Provisional Constitutional Order (PCO). The Bench admonished Mr. Khattak for filing such an application carrying derogatory remarks and asked him to argue the case. He, however, said that he has been instructed by the petitioner to only file the application. Meanwhile on the Court orders, Mr. Khattak tendered an unconditional apology for moving such a contemptuous application and withdrew his application. However, the Court asked Mr. Khattak to withdraw the main petition, but he declined stating that he was not instructed to do so. The Court then dismissed the petition for non prosecution stating that it would be considered dismissed as withdrawn. Malik Muhammad Qayyum, Attorney General said Mr. Khattak was trying to malign the Court, adding that how he could refuse to argue the case. He said Hamid Khan was free and not in the custody of any one. The PPP vice chairman Makhdoom Amin Fahim's counsel Shafqat Abbasi also moved an application requesting the Court to take up his petition after restoration of constitution. His application also contained some contemptuous substance against the SC judges. The Court however asked him either to argue the case or withdraw the petitions under unconditional reasons. Thus he also withdrew the petitions, which the Court dismissed as withdrawn." (Emphasis supplied)
It will be noteworthy to state that in Petition No. 73 of 2007, the petitioner had, inter alia, sought a declaration that "General Pervez Musharraf be declared ineligible, lacking in qualifications under Article 62 and other provisions of the Constitution and is disqualified under Article 63 of the Constitution to contest the election of the office of the President of Pakistan." On 5th October, 2007, the Bench passed an injunctive order, reproduced in the earlier part of the judgment, whereby it was directed that final notification of the election of the returned candidate would not be issued till the final decision of the petitions. The Bench had been hearing learned counsel for parties on day-to-day basis till 2nd November, 2007 i.e. a day before General Pervez Musharraf proclaimed emergency, held the Constitution in abeyance and issued PCO and Oath Order, 2007.
After the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 on 3rd November, 2007, Abdul Hameed Dogar, J, and other members of the Bench again took up Petition No. 73 of 2007, dismissed th e same for want of instructions, as is evident from record yet framed the order supra without issuance of notice to the petitioner. The order dated 19th November, 2007 so passed reflects that a host of learned counsel, namely, Malik Muhammad Qayyum, Attorney General for Pakistan, Mst. Nahida Mehboob Ellahi, DAG, Raja Niaz Ahmed Rathore, DAG, and five other advocates appearing for Respondent No. 2, Federation of Pakistan, and Syed Sharifuddin Pirzada, Sr. ASC, and Mr. Muhammad Ibrahim Satti, ASC, appearing for Respondent No. 3, General Pervez Musharraf, were present, but surprisingly, not a single argument is recorded in the order as if they had said nothing at the hearing, yet, this petition along with Original Petition No. 51 of 2007 was dismissed on merits. Palpably, the object appears to be, as is evident from the order, to hold General Pervez Musharraf immune from any disqualification under the Constitution, for the Presidential Election 2007 and also to vacate the interim stay order dated 5th October, 2007 earlier passed by a 10 member Bench thereby enabling the Chief Election Commissioner of Pakistan and the Federal Government to make final announcement of the result of the election of President and to issue the necessary notification.
In our estimation, the above order was framed for no consideration other than for ulterior purposes, in a bid to please General Pervez Musharraf, with whose blessings Abdul Hameed Dogar, J, and other Judges were holding office unconstitutionally, unlawfully and illegally. In such a situation, we are of the opinion that Constitution Petition No. 73/2007 was dismissed for want of instructions, as is borne out from the official record of this Court duly supported by the press reports of 20th November, 2007.
Mr. Hamid Khan submitted that the judgments/orders in Tikka Iqbal Muhammad Khan's case were rendered in violation of the provisions of the Constitution and in complete disregard of the law governing the issues discussed therein. He strenuously contended that Constitution Petitions Nos. 87 & 88 of 2007 filed by Tikka Iqbal Muhammad Khan and Watan Party were mala fide and collusive, which was apparent from the proceedings being conducted in the matter. The said petitions, which were filed on 10th & 12th November, 2007 respectively, were taken up on 15th November, 2007 initially by a ten-member Bench including Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar and M. Javed Buttar, JJ. Covering the Court proceedings of the first day of hearing, the Daily Dawn of 16th November, 2007 reported, inter alia, a dialogue between the lawyer of petitioner Tikka Iqbal Muhammad Khan, namely, Mr. Irfan Qadir saying, " this is a difficult case" and a member of the Bench, namely, Faqir Muhammad Khokhar, J, observing, "Yes, it is a difficult case, (but) should we take it to be a case of friendly fire?" and later encouraging him to be bold by saying "Why don't you take a definite stand?". However, subsequently Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar and M. Javed Buttar JJ recused themselves from the proceedings. Thereafter, the petitions were heard by the remaining seven Judges and were decided by the Short Order dated 23rd November, 2007.
The learned counsel submitted that the petitioners in the earlier cases of military takeovers had a genuine cause and a viable and visible interest in the proceedings, which was conspicuously absent in the instant petitions. In Asma Jilani's case, the petitions were filed by the daughter and wife of the detenus respectively. In Begum Nusrat Bhutto's case, the petition was filed by the wife of the detenu, the deposed Prime Minister while in Zafar Ali Shah's case, the petition was filed by Syed Zafar Ali Shah, a leading lawyer and an MNA of Pakistan Muslim League (N), the political party in power at the time of the military takeover and ousted thereby. On the other hand, according to the learned counsel, the antecedents of Tikka Iqbal Muhammad Khan petitioner in Constitution Petition No. 87 of 2007 were not known to anybody whereas the petitioner in Constitution Petition No. 88 of 2007, namely, Watan Party through its Chairman Mr. Zafarullah Khan had already been found to be not competent to invoke the jurisdiction of this Court under Article 184(3) of the Constitution in the case of Watan Party v. Chief Executive/President of Pakistan (PLD 2003 SC 74) wherein the vires of the Legal Framework Order, 2002 were challenged, notwithstanding the law laid down in Manzoor Elahi's case (PLD 1975 SC 66), Benazir Bhutto's case (PLD 1988 SC 416), Asad Ali's case (PLD 1998 SC 161), etc. that the question raised before the Court under Article 184(3) must be one of public importance with reference to the enforcement of Fundamental Rights contained in Chapter 1, Part II of the Constitution and that the person desiring to invoke the jurisdiction of this Court under Article 184(3) of the Constitution need not necessarily be an aggrieved person, but the person approaching the Court under the aforesaid provision must demonstrate that the question raised concerned the public at large.
According to the submissions of the learned counsel, the petitions in Tikka Iqbal Muhammad Khan's case were collusive rather than bona fide. In these two petitions, the validity of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 was questioned, inter alia, seeking a direction that the deposed Judges of superior Courts and the fundamental rights be restored; the general elections to the National Assembly and Provincial Assemblies be held within the period stipulated by the Constitution; detenus held under preventive detention be released forthwith; and the restrictions on the media be withdrawn. The nexus between the direction sought to restore the Judges deposed under Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 and a direction to hold the elections was not understandable other than that the petitioners were alluding to an activity, which would detract the public opinion from the issue of restoration of Judges, etc. Even otherwise, it had not been possible for the Courts constituted under the PCO and having taken oath thereunder to adjudge the validity of the PCO or other unconstitutional instruments on the touchstone of the provisions of the Constitution. It had never been done. The futility of such exercise has been dilated upon in earlier part of the judgment.
The learned counsel for the petitioners next submitted that the decisions in Tikka Iqbal Muhammad Khan's case were rendered in violation of the provisions of Articles 209 and 2A of the Constitution and were also per incuriam in view of the law laid down in Zafar Ali Shah's case wherein at page 1211 it was laid down in clear terms that the Judges of the superior judiciary enjoyed constitutional guarantee against arbitrary removal. They could be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise.
There is force in the submissions of the learned counsel. The decision appears to have been rendered in haste to confer validity on the acts of 3rd November, 2007 and onward for the illegal and unlawful personal benefit of General Pervez Musharraf and for the illegal and unlawful personal benefit of the persons rendering it, without application of judicial mind . Borrowing the relevant passage from Zafar Ali Shah's case, it was held, mutatis mutandis, that the learned Chief Justices and Judges of superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and High Courts), who had not been given, and who had not made, oath under PCO No. 1 of 2007 and Oath Order, 2007 had ceased to hold office on 3rd November 2007 and their cases could not be re-opened being hit by the doctrine of past and closed transaction. Again, borrowing another passage from Zafar Ali Shah's case, it was said that the Judges of the Supreme Court and High Courts could not be removed without resorting to the procedure prescribed in Article 209 of the Constitution. Abdul Hameed Dogar, J, and other Judges paid no heed to a clear pronouncement in the aforesaid case that the appropriate course of action for the Court in those proceedings was to declare the law to avoid the recurrence in future. They conveniently ignored the words "to avoid the recurrence in future" and went on to put a seal of approval on the actions of 3rd November, 2007. They also failed to notice the observation made in that case that none of the Judges took any remedial steps and accepted pension as also the right to practice law and thereby acquiesced in the action, which was not the position in the instant case. In the instant case, the Judges did not accept pension or in any way acquiesced in the action of 3rd November, 2007. Dealing with the unconstitutional and illegal removal of the Chief Justice of Pakistan and the Judges of the Supreme Court and High Courts, at Para 61 of the decision, the action of General Pervez Musharraf under PCO No. 1 of 2007 and Oath Order, 2007 was reaffirmed, upheld and validated in the light of the law laid down in Zafar Ali Shah's case. It was a total misreading of the latter judgment, inasmuch as, it was nowhere laid down in Zafar Ali Shah's case that whenever in future, Proclamation of Emergency, PCO and Oath Order would be issued, the Judges would cease to hold office. They also failed to appreciate that in pursuance of the action of 12th October, 1999, all the three organs of the State, namely, executive, legislature and judiciary were targeted, whereas the action of 3rd November, 2007 was directed at the replacement of the existing judiciary alone. The learned counsel referred to a number of countries where emergencies or martial laws were imposed, but nowhere the judiciary alone was targeted. The action of 3rd November, 2007, therefore, was unique in the history of the whole world. If anyone had made oath earlier, it did not mean that he would continue to make similar oaths in future as well. It was not so laid down in Zafar Ali Shah's case. What was laid down was that the action under the Oath Order, 2000 was a past and closed transaction, which could not be reopened. Again, it was not laid down that if such an event occurred in future, that too would be treated as past and closed transaction and would not be reopened and the persons, who had made oath then, would continue making similar oaths. Nothing could be more fallacious. Enough is enough. There has to be an end to it somewhere. Fortunately, the end to a vicious circle came on 3rd November, 2007. The order dated 3 rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case built a stronghold around the Constitution, so as to save it from its further mutilation and subversion at the hands of General Pervez Musharraf.
As mentioned at Para 15 of the main decision in Tikka Iqbal Muhammad Khan's case, Proclamation of Emergency was founded on two main grounds, viz., the security situation prevalent in the country and the alleged erosion of trichotomy of powers in consequence of increased interference in the Government policies by some Judges of the superior Courts, particularly the Chief Justice of Pakistan, which adversely affected the economic growth and the law and order situation in the country.
Surprisingly, not a single incident was discussed in the decision so as to conclude that it was the result of the suo motu actions, which were being taken by the Chief Justice of Pakistan. Syed Sharifuddin Pirzada, learned counsel for the Federation in the said case referred to certain incidents of terrorism that had taken place in the months of April to July, 2007. He further referred to the incident of 18th October, 2007 when in two bomb blasts on the rally of a former Prime Minister of Pakistan, who had returned to Pakistan after an exile of 7 - 8 years, about 150 people were killed and 350 seriously injured. It was stated by him that the said incident had posed serious threat to the national security and also lowered the image of Pakistan before the international community. He referred to the cover story with the title "The Most Dangerous Nation in the World isn't Iraq. It's Pakistan", published in the Newsweek of 29th October 2007 where following comments were made:-
"Today no other country on earth is arguably more dangerous than Pakistan. It has everything Osama bin Laden could ask for: political instability, a trusted network of radical Islamists, an abundance of angry young anti-Western recruits, secluded training areas, access to state-of-the-art electronic technology, regular air service to the West and security services that don't always do what they're supposed to do. (Unlike in Iraq or Afghanistan, there also aren't thousands of American troops hunting down would-be terrorists.) Then there's the country's large and growing nuclear program. "If you were to look around the world for where Al Qaeda is going to find its bomb, it's right in their backyard," says Bruce Riedel, the former senior director for South Asia on the National Security Council. "The conventional story about Pakistan has been that it is an unstable nuclear power, with distant tribal areas in terrorist hands. What is new, and more frightening, is the extent to which Taliban and Al Qaeda elements have now turned much of the country, including some cities, into a base that gives jihadists more room to maneuver, both in Pakistan and beyond."
On the above, Abdul Hameed Dogar, J, observed as under:-
The Pakistani nation needs to rise above all prejudices and stand together against the menace of terrorism as well as the misleading propaganda aimed at harming the vital interests of Pakistan at the international level. The sovereignty, integrity and solidarity of the nation need to be preserved and protected internally as well as externally. The unabated gruesome terrorist activities worsened the security as also the law and order situation in the country, which called for zero tolerance approach. It is also clear from the letter of the Prime Minister that the Government's efforts to combat terrorism on the civil side unfortunately bore no fruit. It was an extraordinary situation that called for taking such measures, which were not provided by the Constitution.
One fails to understand what connection the above incidents referred to by Mr. Sharifuddin Pirzada, or the cover story relied upon by him in the same terrain had with the erosion of trichotomy of power, which was made a ground for the unconstitutional and illegal Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. On the other hand, as rightly pointed out by the learned counsel for the petitioners, the law and order situation had worsened and much deteriorated during the currency and even after Proclamation of Emergency was revoked on 15th December, 2007.
The learned counsel for the petitioners were hard pressed to find a connection between the deteriorating law and order situation on the one hand, and the action of 3rd November, 2007 on the other whereby an unconstitutional, illegal and void ab initio action was taken against the judicial organ of the State. The learned counsel contended that if any action was called for, it would be against the executive branch of the government and not the judiciary, that too, under and in accordance with the Constitution by the authority designated therein. The learned counsel submitted that the incidents of terrorism, extremism and militancy, after Proclamation of Emergency, had neither come down after the imposition of emergency and the sacking of the judiciary nor was there any improvement in the overall law and order situation in the country. He requested that a list of incidents of terrorism during the period of emergency, i.e. from 3rd November, 2007 to 15th December, 2007 may be obtained from the Secretary, Ministry of Interior, Government of Pakistan. Accordingly, on the Court's direction, the Secretary Interior submitted a list and details of such incidents of that period, which was placed on record. According to the said report, 160 incidents of terrorism occurred during the above period. There were 116 casualties [45 Law Enforcing Agencies (LEAs) personnel and 71 others] while 279 persons were injured (125 LEAs and 154 others). Important personalities killed in the incidents included one officer of the law enforcing agencies, Pir Muhammad Khan, ex-MPA from Peshawar, Moulvi Masoodur Rehman from FATA and one DSP from Khuzdar, Balochistan. The injured included two officers of the law enforcing agencies, Lt. Col Raja Tahir Yaseen and one Inspector of Police from Quetta. As per annexure A of the report, 3 incidents occurred in Punjab, 78 in NWFP, 38 in Balochistan and 41 in FATA. Complete details of the incidents were given in Annexures B, C & D to the report of the Secretary, Ministry of Interior.
It is noteworthy that in the post emergency period, the law and order situation had further deteriorated. As is apparent from the report of the Interior Secretary, terrorism, extremism, militancy and suicide attacks continued to rise to such an extent that the Government was required to call the Armed Forces in aid of civil power. But even in such a situation, emergency as permitted by the Constitution was not proclaimed in the terrorism affected areas of Swat, Malakand, etc.
Be that as it may, the remedies for curbing terrorism, extremism and militancy lay el sewhere and not in imposing an unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate the existing Judges of the Supreme Court and High Courts and bring in their place compliant Judges under the PCO and the Oath Order. As noted earlier, Proclamation of Emergency, if any, could be promulgated within the ambit of the Emergency Provisions contained in Part X of the Constitution by the authority mentioned therein. For facility of reference Articles 232 to 234 are reproduced below:-
Proclamation of emergency on account of war, internal disturbance, etc.
(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.
(2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,--
(a) Majlis-e -Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;]
(b) the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised, and
(c) the Federal Government may by Order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the province:
Provided that nothing in paragraph (c) shall authorize the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(3) The power of [Majlis-e-Shoora (Parliament)] to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter.
(4) Not hing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make but if any provision of a Provincial law is repugnant to any provision of an Act of [Majlis-e-Shoora (Parliament)] which [Majlis-e-Shoora (Parliament)] has under this Article power to make, the Act of [Majlis-e-Shoora (Parliament)], whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long only as the Act of [Majlis-e-Shoora (Parliament)] continues to have effect, be void.
(5) A law made by [Majlis-e-Shoora (Parliament)], which [Majlis-e-Shoora (Parliament)] would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.
(6) While a Proclamation of Emergency is in force, [Majlis-e-Shoora (Parliament)] may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months afte r the Proclamation has ceased to be in force.
(7) A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and,--
(a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting; and
(b) shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total memberships of the two Houses in joint sitting.]
(8) Notwithstanding anything contained in clause (7), if the National Assembly stands dissolved at the time when a Proclamation of Emergency is issued, the Proclamation shall continue in force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.
(1) Nothing contained in Articles 15, 16, 17, 18, 19, and 24 shall, while a proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force.
(2) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan.
(3) Every Order made under this Article shall, as soon as may be, be laid before a joint sitting for approval and the provisions of clauses (7) and (8) of Article 232 shall apply to such an Order as they apply to a Proclamation of Emergency.
(1) If the President, on receipt of a report from the Governor of a Province or otherwise, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may, or if a resolution in this behalf is passed at a joint sitting shall, by Proclamation, (a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, other than the Provincial Assembly;
(b) declare that the powers of the Provincial Assembly shall be exercisable by, or under the authority of, [Majlis-e -Shoora (Parliament)]; and
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the Province:
Provided that nothing in this Article shall authorize the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in, or exercisable by, a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(2) The Provisions of Article 105 shall not apply to the discharge by the Governor of his functions under clause (1).
(3) A Proclamation issued under this Article shall be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period it has been approved by resolution of the joint sitting and may by like resolution be extended for a further period not exceeding two months at a time; but no such Proclamation shall in any case remain in force for more than six months.
(4) Notwithstanding anything contained in clause (3), if the National Assembly stands dissolved at the time when a Proclamation is issued under this Article, the Proclamation shall continue in force for a period of three months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.
(5) Where by a Proclamation issued under this Article it has been declared that the powers of the Provincial Assembly shall be exercisable by or under the authority of [Majlis-e-Shoora (Parliament)], it shall be competent--
(a) to [Majlis-e-Shoora (Parliament)] in joint sitting to confer on the President the power to make laws with respect to any matter within the legislative competence of the Provincial Assembly;
(b) to [Majlis-e-Shoora (Parliament)] in joint sitting, or the President, when he is empowered under paragraph (a), to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Federation, or officers and authorities thereof;
(c) to the President, when [Majlis-e-Shoora (Parliament)] is not in session, to authorize expenditure from the Provincial Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, pending the sanction of such expenditure by [Majlis-e-Shoora (Parliament)] in joint sitting; and
(d) to [Majlis-e-Shoora (Parliament)] in joint sitting by resolution to sanction expenditure authorized by the President under paragraph (c).
(6) Any law made by [Majlis-e-Shoora (Parliament)] or the President which [Majlis- e-Shoora (Parliament)] or the President would not, but for the issue of a Proclamation under this Article, have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation under this Article has ceased to be in force, except as to things done or omitted to be done before the expiration of the said period."
"Notwithstanding the ouster of jurisdiction of the Court and the fact that the formation of opinion in terms of the relevant provision of the Constitution or of a statute is to be based on the satisfaction of a State functionary mentioned therein, the Court has the jurisdiction to examine whether the prerequisites provided for in the relevant provision of the Constitution/statute for the exercise of the power thereunder existed, when the impugned order was passed. If the answer of the above question is in the negative, the exercise of power will be without jurisdiction calling for interference by the Court.
The satisfaction provided for in clause (1) of Article 232 of the Constitution is the subjective satisfaction of the President. The said subjective satisfaction of the President is final subject to judicial review to the limited extent. The satisfaction of the President is a condition precedent to the exercise of power and if it can be shown that there was no satisfaction of the President at all, or that the satisfaction was absurd or perverse or mala fide or based on extraneous or irrelevant grounds, it would be no satisfaction."
The learned counsel contended that the other ground for imposing unconstitutional and illegal emergency, PCO No. 1 of 2007 and Oath Order, 2007 was the alleged erosion of trichotomy of powers enshrined in the Constitution as a result of suo motu actions taken and orders passed in some cases by some of the Judges of the Supreme Court and High Courts, particularly the Chief Justice of Pakistan and the Supreme Judicial Council having been rendered ineffective and redundant by the Supreme Court. The learned counsel vehemently contended that such flimsy and baseless grounds for the unconstitutional and illegal acts of 3rd November, 2007 could only be pleaded before, and upheld and approved by, a forum comprising Abdul Hameed Dogar, J, and other Judges of the same hue. Had the matter been heard by the Judges appointed under the Constitution, they would certainly have acted independently to preserve, protect and defend the Constitution. Such flimsy grounds would not have found favour with them as a basis for the decision of the case. In Tikka Iqbal Muhammad Khan's case, the scope of the exercise of power of judicial review by the superior Courts was examined in an unconstitutional perspective and the material relied upon was either irrelevant or would lend support to the contrary view, viz., the jurisdiction of the Courts would be used to further the rights of the people against arbitrary infringements by the executive.
At this stage, it is necessary to elucidate through our own jurisprudence and that of other jurisdictions the principle of trichotomy of powers and the power of judicial review vested in the superior Courts. Case-law from the Indian jurisdiction is particularly instructive on account of the common origins of constitutionalism springing from the Government of India Act, 1935 read with the Indian Independence Act, 1947. The Supreme Court of India, in the case of Minerva Mills Ltd v. Union of India (AIR 1980 SC 1789) held that the judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. It may be advantageous to reproduce below relevant excerpts from the judgment of the Indian Supreme Court delivered by Bhagwati J, in the said case:-
"92. ........ Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so amend the Constitution as to alter its basic structure or to change its identity. Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. It will therefore be seen that the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament.
"If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance". (CAD debates, Vol. VII, p, 953) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure. and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would. in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause (4) of Article 368 is unconstitutional and void as damaging the basic structure of the Constitution.
In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of an action of an authority functioning under the Indian Constitution was discussed as under:-
"The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the constitution in order to ensure that the authority exercising the power conferred by the constitution does not transgress the limitations placed by the Constitutions on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as non-justiciable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable."
"651. We have a written Constitution which confers powers of judicial review on this Court and on all High Courts. In exercising power and discharging duty assigned by the Constitution, this Court has to play the role of a `sentinel on the qui vive' and it is the solemn duty of this Court to protect the fundamental rights guaranteed by Part III of the Constitution zealously and vigilantly.
It may be stated that initially it was contended by the respondents that thi s Court has no power to consider a complaint against any action taken by Parliament and no such complaint can ever be entertained by the Court. Mr. Gopal Subramaniam, appearing for the Attorney General, however, at a later stage conceded (and I may say, rightly) the jurisdiction of this Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a co-ordinate organ of the State which has the jurisdiction to regulate its own proceedings within the four walls of the House. Unless, therefore, this Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House.
In my opinion, the submission is well-founded. This Court cannot be oblivious or unmindful of the fact that the Legislature is one of three organs of the State and is exercising powers under the same Constitution under which this Court is exercising the power of judicial review. It is, therefore, the duty of this Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important consideration that the Court is not a superior organ or an appellate forum over the other constitutional functionary. This Court, therefore, should exercise its power of judicial review with utmost care, caution and circumspection."
It was further held as under:-
"656. In this connection, I may only observe that in
Searchlight [Pandit Sharma (1)] as well as in Keshav Singh, it has been observed that there is no doubt that Parliament/State Legislature has power to punish for contempt, which has been reiterated in other cases also, for instance, in State of Karnataka v. Union of India, (1977) 4 SCC 608, and in P.
V. Narasimha Rao v. State, (1998) 4 SCC 626. But what has been held is that such decision of Parliament/State Legislature is no t 'final and conclusive'.
This Court in all earlier cases held that in view of power of judicial review under Articles 32 and 226 of the Constitution, the Supreme Court and High
Courts have jurisdiction to decide legality or otherwise of the action taken by
State- authorities and that power cannot be taken away from judiciary. There lies the distinction between British Parliament and Indian Parliament. Since
British Parliament is also the High Court of Parliament', the action taken or decision rendered by it is not open to challenge in any Court of law. This, in my opinion, is based on the doctrine that there cannot be two parallel Courts, i.e. Crown's Court and also a Court of Parliament (the High Court of
Parliament') exercising judicial power in respect of one and the same jurisdiction. India is a democratic and republican State having a written
Constitution which is supreme and no organ of the State (Legislature, Executive or Judiciary) can claim sovereignty or supremacy over the other. Under the said
Constitution, power of judicial review has been conferred on higher judiciary
(Supreme Court and High Courts)."
In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), while referring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] and S.R. Bommai v. Union of India [(1994) 3 SCC 1], it was held that the judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was further held that it was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution.
Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341 at p. 369)
"The Constitution provides for separation of Judiciary from the Executive. It aims at an independent Judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the Judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the Executive Officers. This is merely a semblance of establishing Courts which are authorised to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry: Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and well-being. The Constitution envisages independent Judiciary separate from the Executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25.
"The lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separated from the executive and `High Court shall supervise and control all Courts subordinate to it'. Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people."
Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)
"Adverting to the above second peculiar feature that our country has Federal system of Government which is based on trichotomy of power, it may be observed that each organ, of the State is required to function/operate within the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. I may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. At this juncture, it may be stated that a written Constitution, is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people; Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that `it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.
"24. The above principles will have to be kept in view while construing the, provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary.
"The Constitution contemplates trichotomy of power inter se the pillars of the State, namely, Legislature, Executive and the Judiciary, each of the organs of the State has to function within the limits provided in Constitution. The Constitutional provisions relating to the appointments transfers of Judges of the superior Courts, therefore, need to be examined in light of the Islamic concept of justice. Islam had always attached unparalleled importance to the concept of justice."
Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445)
"(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and. therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution;
"(vi) That the right of access to justice to all' is a fundamental right, which right cannot be exercised in the absence of an independent Judiciaryproviding impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by Executive Authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution;
"(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions."
Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504)
"Now take up the main controversy arising in these petitions, whether setting up of Military Courts for trial of civilians for offences not connected with the Armed Forces, is constitutionally valid? As stated above, our Constitution is based on the theory of trichotomy of power which makes the three limbs of the State, the Legislature, the Executive and the Judiciary, independent of each other in their respective spheres. Chapter I of Part VII of the Constitution deals with the judicature. The judicature according to Article 175(1) of the Constitution, consists of the Supreme Court, a High Court for each Province and such other Courts as may be established by law. The Courts created under Article 175(1) (ibid) exercise such jurisdiction which is conferred on them either by the Constitution or by or under any law as provided in Article 175(2) ibid. The judicature stands separated from the executive as provided in Article 175(3) of the Constitution. Creation of Courts outside the control and supervision of Supreme Court or the High Courts, therefore, not only militates against the independence of Judiciary but it also negates the principle of trichotomy of power which is the basic feature of the Constitution."
Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869)
"It is also mentioned in the Objectives Resolution that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be enabled to order their lives in accordance with teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and independence of judiciary shall be fully secured. Objectives Resolution was even retained in the Interim Constitution of 1972 as Preamble.
"Independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve .this objective. Article 175 provides that "the Judiciary shall be separated progressively from the executive".
"In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens' inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society.
The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent eno ugh to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast; creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development."
Darshan Masih v. State (PLD 1990 SC 513 at page 544)
"It is necessary at this stage to clarify certain aspects of this case. It is indeed necessary because, this being the first case of its nature, the procedural and other elements thereof are likely in due course, to come under discussion.
(i) True, a telegram, it has never been earlier made the basis by the Supreme Court of Pakistan for action, as in this case; but, there is ample support in the Constitution for the same. Under Article 184 (3) "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." The questions of procedural nature relating to the entertainment of proceedings and/or cognizance of a case under this provision, have been dealt with in the case of Miss Benazir Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this case is covered by the said authority as also by the due extension of the principles laid therein. Such extension/s would depend upon the facts and circumstances of each case and nature of public interest involved and importance thereof. The element of "public importance" in this case now stands demonstrated by the resume (a part only) of the proceedings, given earlier.
It needs to be mentioned that in our Supreme Court, though letters and telegrams are sent to individual Judges, but it is not considered as an appropriate and proper method of initiating proceedings. Some times it leads to embarrassment. Accordingly such an information has to go to the Hon'ble Chief Justice for initiating proceedings. In this case the telegram was addressed directly to him and he marked it to me.
As to what other form/s of taking cognizance of a matter under Article 184 (3) are possible, will depend upon the nature and importance thereof.
(ii) The "nature" of the orders which can be passed in such cases is also indicated in Article 184 (3); that is: such as can be passed under Article 199. Even if for the time being it be assumed that the "nature" of the order is confined only to the Orders under sub-clause (c) of Arti cle 199(l) and not to the other Orders under "Article 199", it would be seen that any conceivable just and proper order can be passed in a case like the present one. The principle of extension involved in the relevant phrase used in Art. 199(1)(c): "an order giving such directions to any person or authority ------- as may be appropriate for the enforcement of the Fundamental Rights cannot be abridged or curtailed by the law. As to how far it can be extended, will depend upon each case.
It is so also because of the other provisions of the Constitution, the rules of this Court and the principles and Rules comprising the Constitutional set up of Pakistan. For instance, according to Article 187 (1) this Court some times has to satisfy the dictates of "Complete Justice". What goes with it, is the subject or ample authority as well as of future application in given cases. When this power is exercised the Court will have the necessary additional power to "issue such directions, orders or decrees as may be necessary." Besides the binding effect of the judgment/order of this Court on all other "Courts" when it "decides" a question of law or it is based upon or enunciates a principle of law under Article 189; another provision Art. 190, gives a similar command to all executive and judicial "authorities" throughout Pakistan". This is, so as to act "in aid of Supreme Court". When Art. 199(l) (c) is read together with Articles, 187, 189 and 190, as stated above, it becomes clear that in a fit case of enforcement of Fundamental Rights, the Supreme Court has jurisdiction, power and competence to pass all proper/ necessary orders as the facts justify.
(iii) The question as to whether this is a case of enforcement of Fundamental Right/s has not been raised. Everybody accepted that it is so. The provisions of Article 9 relating to security of person; Article 11 in so far as it relates to forced labour, traffic in human beings and child labour; Article 14 relating to dignity of man; Article 15 ensuring freedom of movement; Article 19 relating to freedom of trade, business or profession; and Article 25 relating to equality, particularly in the protection of law and bar against discrimination on the basis of sex, as also the safeguards for women and children, amongst others, are applicable to the various aspects of the matter. However, it is a different matter that some Fundamental rights are more directly attracted than the others and some elements involved in any one of them are relevant while the others are meant for other situations. In view of lack of contest on this issue it is not necessary to go into a detailed discussion in this behalf. It is, however, remarked that for purposes of convenience of all concerned, it might be necessary to define the expression "forced labour with illustrations of its different forms; in such a manner, so as to minimize any confusion about its real purport as also the resultant unproductive litigation. For the same purpose the other important elements in these Fundamental Rights may be collected together and put in a self-contained Code. It might cover all aspects of human dignity, deprivations and misery, including those rights in this behalf which are ensured, in addition, as basic human rights in Islam. This Court has in the Shariat jurisdiction dealt with some of them. There is no bar in the Constitution to the inclusion in such law of these rights, in addition to the Fundamental rights contained in Chapter I Part II thereof. This comprehensive law should deal with the compulsory education of the classes concerned for making them aware of their rights; the detection of the infringement thereof as the duty of the State; and providing remedial mechanism also at the instance of the State whenever the will to assert or exercise them is lacking on the part of a citizen. These aspects of the enforcement of Fundamental rights guaranteed by the Constitution and other basic human rights ensured by Islam can, by law be made also into an independent inalienable right, with self-operating mechanism for enforcement as well.
Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 Supreme Court 473 at page 805)
"First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter 1 of Part II. This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The power conferred depends upon two questions; one, that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights. It is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. This provision confers a further safety and security to the fundamental rights conferred and guaranteed by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. It confers a power to make an order of the nature mentioned in Article 199. The word `nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour and the same scheme without any restrictions imposed under it. Article 184 is an effective weapon provided to secure and guarantee the fundamental rights. It can be exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs can be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie established facts which can be determined by filing affidavits. Evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance.
Shehla Zia v. WAPDA ( PLD 1994 SC 693 at page 712)
"The learned counsel for the respondent has raised the objection that the facts of the case do not justify intervention under Article 184 of the Constitution. The main thrust was that the grid station and the transmission line are being constructed after a proper study of the problem taking into consideration the risk factors, the economic factors and also necessity and requirement in a particular area. It is after due consideration that planning is made and is being executed according to rules. After taking such steps possibility of health hazards is ruled out and there is no question of affecting property and health of a number of citizens nor any fundamental right is violated which may warrant interference under Article 184. So far the first part of the contention regarding health hazards is concerned, sufficient discussion has been made in the earlier part of the judgment and need not be repeated. So far the fundamental rights are concerned, one has not to go too far to find the reply.
Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word life' is very significant as it covers all facets of human existence. The wordlife' has not been defined in the
Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law, be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward and this has happened so in the present case.
In Black's Law Dictionary, `life' means "that state of animals, humans, and plants or of an organised being in which its natural functions and motions are performed, or in which its organs are capable of performing their functions. The interval between birth and death, the sum of the forces by which death is resisted, "life" protected by the Federal Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful knowledge, the right to marry, establish a home and bring up children, freedom of worship, conscience; contract, occupation, speech, assembly and press".
The
Constitutional Law in America provides an extensive and wide meaning to the word life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge to establish home, the freedoms as contemplated by the
Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the wordlife' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable.
Dr. Pervez
Hasan, learned counsel has referred to various judgments of the Indian Supreme
Court in which the term life' has been explained with reference to public interest litigation. In Kharak Singh v. State of UP (AIR 1963 SC 129) for interpreting the wordlife' used in Article 21 of the Indian Constitution, reliance was placed on the judgment of Field, J. in Munn v. Illinois (1876) 94
US 113 at page 142 where it was observed that life' means not merely the right to the continuance of a person's animal existence but a right to the possession of each of his organs --his arms and legs etc." In Francis Corgi v. Union
Territory of Delhi (AIR 1981 SC 746) Bhagvati, J. observed that right to life includes right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading and writing in diverse form". Same view has been expressed in Olga Tellis and others v. Bombay Municipal Corporation
(AIR 1986 SC 180) and State of Himachal Pradesh and another v. Umed Ram Sharma and others (AIR 1986 SC 847). In the first case right to life under the
Constitution was held to mean right to livelihood. In the latter case the definition has been extended to include the "quality of life' and not mere physical existence. It was observed that "for residents of hilly areas, access to road is access to life itself. Thus, apart from the wide meaning given by US Courts, the Indian Supreme Court seems to give a wider meaning which includes the quality of life, adequate nutrition, clothing and shelter and cannot be restricted merely to physical existence. The wordlife' in the
Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Under our
Constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to `life' under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment.
Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involving such specific questions.
Dr. Pervaz Hasan has also referred to several judgments of the Indian Supreme Court in which issues relating to environment and ecological balance were raised and relief was granted as the industrial activity causing pollution had degraded the quality of life. In Rural Litigation & Entitlement Kendra and others v. State of UP and others (AIR 1985 SC 652) mining operation carried out through blasting was stopped and directions were issued to regulate it. The same case came up for further consideration and concern was shown for the preservation and protection of environment and ecology. However, considering the defence need and for earning foreign exchange some queries were allowed to be operated in a limited manner subject to strict control and regulations. These judgments are reported in AIR 1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 SC 594. In Shri Sachidanand Pandey and another v. The State of West Bengal and others (AIR 1987 SC 1109) part of land of zoological garden was given to Taj Group of Hotels to build a five-star hotel. This transaction was challenged in the High Court without success. The appeal was dismissed. Taking note of the fact that society's interaction with nature is so extensive that "enviro nmental question has assumed proportion affecting all humanity", it was observed that:--
"Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public."
In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note of the fact that the municipal sewage and industrial effluents from tanneries were being thrown in River Ganges whereby it was completely polluted, the tanneries were closed down. These judgments go a long way to show that in cases where life of citizens is degraded, the quality of life is adversely affected and health hazards are created affecting a large number of people, the Court in exercise of its jurisdiction under Article 184(3) of the Constitution may grant relief to the extent of stopping the functioning of factories which create pollution and environmental degradation.
Employees of the Pak. Law Commission v. Ministry of Works ( 1994 SCMR 1548 at page 1551)
"Before dealing with the merits of the case, it seems necessary to first dispose of the preliminary objection raised by the learned Standing Counsel. The learned counsel for the respondents contended that the Court has no jurisdiction to grant the relief under Article 184 (3) of the Constitution and the present case is not covered by the said provision. The scope and object of Article 184 (3) has been comprehensively discussed in several judgments of this Court including Ms. Benazir Bhutto's case (PLD 1988 SC 416) and Mian Muhammad Nawaz Sharif s case (PLD 1993 SC 473). It is now well-settled that if there is violation of fundamental rights of a class of persons who collectively suffer due to such breach and there does not seem to be any possible relief being granted from any quarter due to their inability to seek or obtain relief, they are entitled to file petition under Article 184 (3). The dispute should not be mere an individual grievance, but a collective grievance which raises questions of general public importance. In Benazir Bhutto's case it was observed as follows:--
"The plain language of Article 184 (3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated."
It was further observed that "the inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184 (3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights and the directive principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam". While further dilating upon the provisions of the Constitution, particularly Articles 3, 37 and 38 of the Constitution, which enshrine socio-economic principles, it was observed that "these provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy". In this background it was observed as follows:--
"The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961 in the World Peace Through Law Conference:
`Adequate levels of living are essential for full enjoyment of individual's freedom and rights. What is the use of freedom of speech to under-nourished people or of the freedom of press to an illiterate population? The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations'."
"The Court will be in a position, if the procedure is flexible, to extend the benefits of socio-economic change through this medium of interpretation to all sections of the citizens.
"This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to Constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the population.
"It is thus clear that Article 9 of the Constitution which guarantees life and liberty according to law is not to be construed in a restricted and pedantic manner. Life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights. In this background the petitioners' claim to be provided accommodation during tenure of service, which is necessary for maintaining adequate level of living, in our opinion, is covered by Article 9. It is true that the terms and conditions of service perhaps do not require the respondents to provide residential accommodation to the petitioners, but if other Government servants similarly placed are being provided accommodation there is no reason to deprive the petitioners from such relief. In this view of the matter petition under Article 184(3) is competent."
General Secretary v. Director, Industries (1994 SCMR 2061 at page 2071)
"It is well-settled that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court. This Court has vast power under Article 184(3) to investigate into questions of fact as well independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has the power to make order of the nature mentioned in Article 199. This is a guideline for exercise of jurisdiction under this provision without restrictions and restraints imposed on the High Court. The fact that the order or direction should be in the nature mentioned in Article 199, enlarges the scope of granting relief which may not be exactly as provided under Article 199, but may be similar to it or in the same nature and the relief so granted by this Court can be moulded according to the facts and circumstances of each case."
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161 at 294)
"It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and in expensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situation. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the remedy' that makes the right real. It is often said that withoutremedy' there is no right.
It is for this reason that Constitution-makers provided a long list of
Fundamental Rights and the machinery for their enforcement. That machinery is the Superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan."
Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at page 1005)
"It will not be out of context at this stage to observe that our country has a Federal System of Government which is based on trichotomy of power, each organ of the State is required to function/operate within the bounds specified in the Constitution. Though one can say that Judiciary is the weakest limb as it does not have the resources or powers which the Legislature or the Executive enjoy, but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or any other law and because of the above nature of work entrusted to the Judiciary, the framers of the Constitution envisaged an independent Judiciary. However, I may add that the Judiciary is also constitutionally obliged to act within the limits of its jurisdiction as delineated by the Constitution inter alia in Article 175 thereof. Clause (2) of the above Article provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law. In this view of the matter, the relevant Constitutional provisions are to be construed in a manner that neither the Judiciary nor the Legislature transgresses its own limit and an equilibrium is to be maintained inter se between the three organs of the State. However, at the same time, it should not be overlooked that our Constitution has enshrined and emphasised independence of Judiciary and, therefore, the relevant provisions are to be construed in a manner which would ensure the independence of Judiciary. We have a written Constitution, which is an organic document designed and intended to cater to the needs for all times to come. It is like a living tree; it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus the approach while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen effectively. The interpretation cannot be narrow and pedantic but the Courts' efforts should be to construe the same broadly, so that it may be able to meet the requirements of an ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from the context."
Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page 717)
"19. Syed Sharif-ud-Din Pirzada learned counsel for the Privatization Commission contended that to invoke jurisdiction of this Court under Article 184(3) of the Constitution, two conditions are required to be fulfilled namely infringement of the fundamental rights and absence of alternate remedy. In the case in hand no fundamental right has been infringed and under the scheme of Privatization Commission Ordinance No. LII, 2000 (hereinafter referred to as "Ordinance"), two alternate remedies are available in terms of Section 27 and Section 28 of the Ordinance. According to learned counsel the judgment relied upon by the petitioner in S.P. Gupta's case ibid, in the circumstances of the instant case is not applicable because thereafter the Indian Supreme Court in the case of BALCO Employees Union (Regd.) v. Union of India (AIR 2002 SC 350) has explained the scope of the public interest litigation.
"20. Learned Attorney General, however, at the outset contended that after hearing the case at length by this Larger Bench for a long period, it will not be fair on his part to say that, "no point of public importance is involved in this case", therefore, he will not be questioning locus standi of the petitioners particularly in view of the judgments in the cases of Multiline Associates and Ardeshir Cowasjee ibid.
"21. This Court in the referred cases and the Indian Supreme Court in the case of S.P. Gupta ibid have laid down a rule namely that any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision.
"In the case of Benazir Bhutto ibid, it was held that only when the element of public importance is involved, the Supreme Court can exercise its power to issue the writ while sub Article 1(c) of Article 199 of the Constitution has a wider scope as there is no such limitation therein.
"In Al-Jehad Trust ibid, it has been held that, "question of locus standi is relevant in a High Court but not in the Supreme Court when the jurisdiction is invoked under Arti cle 184(3) of the Constitution.
"In Malik Asad Ali ibid it was observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I Part II of the Constitution even suo motu, without having any formal petition.
"In Multiline Associates ibid this Court held that requirement of the locus standi in the case of pro bono publico (public interest litigation is not so rigid) has extended scope. This principle has been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263)."
At page 739, it is further held--
"Thus it is held that in exercise of the power of judicial review, the Courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter. However, action taken can always be examined on the well established principles of judicial review."
It is clear from the above survey of the case law that it is a fundamental principle of our jurisprudence that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd November, 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution.
Though the exercise of suo motu powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision - except a bald reference in Para 2(ii) of the short order - to point to any undue interference in the functioning of the other branches of the government. In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court. But, no such step was ever taken in any case whatsoever. Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan's case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3 rd November, 2007. It was a contradiction in terms.
As to the institution of the Supreme Judicial Council, which was allegedly rendered ineffective, the argument was not available in view of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578. Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally and constitutionally debarred from commenting upon the matter.
As seen above, the whole grievance was nurtured against the Judges of the Supreme Court who were hearing the disqualification case of General Pervez Musharraf, but in issuing the unconstitutional and illegal Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 all Judges of the Supreme Court, Federal Shariat Court and High Courts were declared to have ceased to hold office and only such Judges were allowed to occupy the seats of Judges who made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case.
The detailed reasons in support of the short order passed in Tikka Iqbal Muhammad Khan's case were released on 13th February, 2008. The same day, Civil Review Petition No. 7 of 2008 was filed, which was heard on 15th February, 2008 by a thirteen-member Bench and was dismissed by a short order of even date. The learned counsel for the petitioner contended that the entire proceedings lacked in bona fides, which were conducted by persons who were acting in collusion with General Pervez Musharraf and consequently in their own interest. We find force in the submission of the learned counsel. A perusal of the record of the aforesaid review petition shows that the office had raised objection that the Constitution Petition was not entertainable, inasmuch as the main petition was argued by Mr. Irfan Qadir, ASC, whereas Mr. Arshad Ali Chaudhry, who had drawn, and was filing, the review petition, was only AOR at the main petition stage and had not argued the matter. Further, security amount of Rs.10,000/- was also not deposited. However, on 14th February, 2008, the security amount was deposited and Abdul Hameed Dogar, J, granted the learned AOR special permission to draw and file the review petition contrary to the provisions of Order XXVI rule 6 of the Supreme Court Rules, 1980 and the law laid down in Muhammad Younas v. State (PLD 2005 SC 93), Mukhtar Ahmad v. State (PLD 2003 SC 126) and Feroze Din v. Mehr Sardar Muhammad (2002 SCMR 1993). It is noteworthy that no application was filed by the learned AOR seeking permission to draw and file the review petition or argue the same in absence of the learned counsel who had argued the main petition. In the circumstances, the entire exercise was done in haste with the sole objective of purportedly conferring validity and legitimatization on the unconstitutional and illegal actions taken by General Pervez Musharraf on 3rd November, 2007 and onward.
It has already been held that Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people.
In the light of the above discussion, the judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan's case and Wajihuddin Ahmed's case, that is to say, the short order dated 23rd November, 2007 passed in Tikka Iqbal Muhammad Khan's case, reported as PLD 2008 SC 6, the detailed reasons in support of the aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th February, 2008 passed in Civil Review Petition No. 7 of 2008 in the said case, reported as PLD 2008 SC 615 and the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case, reported as PLD 2008 SC 25 are hereby declared to be illegal, mala fide, coram non judice and void ab initio.
However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd November, 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case (supra).
All the acts/actions done or taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent acts/actions done or taken in pursuance thereof, having been held and declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned. These include Proclamation of Emergency and the PCO No. 1 of 2007 issued by him as Chief of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the aforesaid two instruments, all dated 3rd November, 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th November, 2007; Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007 dated 20th November, 2007); Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007 dated 14th December, 2007); Islamabad High Court (Establishment) Order 2007 (President's Order No. 7 of 2007 dated 14th December 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President's Order No. 8 of 2007 dated 14th December, 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President's Order No. 9 of 2007 dated 14th December, 2007). The aforesaid actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan's case. The said decisions have themselves been held and declared to be coram non judice and nullity in the eye of law. The amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd November, 2007 till 15th December, 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Article 270AAA.
The Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: (1) the amendments introduced in the relevant Articles of the Constitution under which they were appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of the acts/actions of General Pervez Musharraf of 3rd November, 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President's Order No. 7 of 2007 dated 14th December, 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Article 193 of the Constitution, as held in the Al-Jehad Trust case. However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court, he shall stand repatriated to his respective High Court subject to the age of superannuation. The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd November, 2007 and had made such an oath.
However, the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day-to-day business of the Islamabad High Court from 15th December, 2007 till 31st July, 2009, i.e. the date of announcement of this judgment, would not be affected on the principle laid down in Asad Ali's case. All judicial matters pending before the erstwhile Islamabad High Court at the passing of this judgment, whether they were transferred to the said Court from any other Court, or were instituted before it, shall stand transferred to the Courts which had jurisdiction in such matters before its establishment.
The Islamabad High Court having ceased to exist as mentioned above, all posts on its establishment stand abolished. In consequence, all the officers and employees of the said Court have become surplus. They, therefore, shall become part of the Federal Government Surplus Pool for their further appointment/posting/ absorption in accordance with law. However, if any such officer or employee was an officer or an employee of some other Court, department or office, such officer or employee shall revert to his respective Court, department or office to which he belonged before joining service in the Islamabad High Court, subject to his age of superannuation.
Under Article 37 of the Constitution, State is obliged, inter alia, to ensure inexpensive and expeditious justice. In Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341), it was held that the right of access to justice was a human right universally recognized, which was being implemented and executed by granting relief under the provisions of the Constitution. Similarly, in the case of Al-Jehad Trust (supra) and Sharaf Faridi v. Federation of Pakistan (PLD 1989 Karachi 404) it was held that the right to have access to justice through an independent judiciary was a Fundamental Right. The establishment of the Islamabad High Court was a commendable step in aid of the right of access to justice in line with the above constitutional mandate and the law laid down in the aforesaid cases. However, it was unfortunate that the said Court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, as held in the preceding paragraphs, mixed up his mala fide acts of removal of Judges of the superior Courts in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Article 270AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament, as had happened in the cases of Begum Nusrat Bhutto and Zafar Ali Shah. Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to protect it. It is, therefore, added that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a Court in accordance with the Constitution and law.
This brings us to the question of protection, if any, of other acts done during the period of the unconstitutional and illegal Proclamation of Emergency, i.e. from 3rd November, 2007 to 15th December, 2007 (both days inclusive). A distinct feature of the instant case was that though on 3rd November, 2007 the Constitution was held in abeyance and Pakistan made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No. 1 of 2007 and any other Order issued by General Pervez Musharraf as President, the fact remained that the other two branches of the government, namely, the executive and the legislative were continued. The Federal and the Provincial Governments, i.e. Prime Minister, Federal and State Ministers, Chief Ministers and Provincial Ministers all continued in office. The Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker, National Assembly also continued in office. The National Assembly and the Provincial Assemblies continued and were dissolved on completion of their term of five years. Thereafter, caretaker governments at the Federal and Provincial levels were formed and ultimately the election of 18th February, 2008 was held. Thus, all along the day-to-day business of the executive and legislative branches of the government was carried on under and in accordance with the Constitution. Therefore, all acts/actions of the said branches of the government from 3rd November, 2007 to 15th December, 2007, as aforesaid, were done in the ordinary orderly running of the State under and in accordance with the Constitution and the law. Thus, they would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground. The umbrella of Proclamation of Emergency and PCO No. 1 of 2007 was an eyewash and a blackmailing tool. Though emergency as purportedly proclaimed was in force and the Constitution was held in abeyance, General Pervez Musharraf made oath of President under the Constitution and not under PCO No. 1 of 2007. The Proclamation of Emergency having been revoked on 15th December, 2007, the acts/actions done or taken from 16th December, 2007 onward until the swearing in of the elected representatives and formation of governments at the federal and the provincial levels were even otherwise done or taken under and in accordance with the Constitution and the law, and were, therefore, valid and were not affected in any way.
It may be noted that Article 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to aforesaid limitations. As a result, all the Ordinances, which were in force on 3rd November, 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 up to 15th December, 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution.
Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.
It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and Section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.
In the light of the above, the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.
Referring to the holding of general elections of February, 2008, the swearing in of the elected members and the formations of the governments at the Federal and the Provincial levels, the learned Attorney General for Pakistan submitted that the people had spoken and the mandate so given by them needed to be respected, therefore, any declaration by the Court, which would, in any way, affect the democratic system would not be in the interest or welfare of the people. In a somewhat similar situation, in Asma Jilani's case, the Court held as under:-
"The National Assembly has met and ratified the assumption of power by the new President who is an elected representative of the people and the leader of the majority party in the National Assembly as now constituted."
We make it clear that the present decision is confined to the questions in issue before this Court, namely, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. It is noteworthy that the elections of 18th February, 2008 were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution. Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed. Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007. The fact that the initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of 3rd November, 2007 in no way affects the process whereby elections were held and the people of Pakistan expressed their will. Nor are the elections affected by Article 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled, and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general elections. We, therefore, hold that the elections of 18th February, 2008 were held in accordance with the Constitution and the law. This Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically elected government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law.
This Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and self-enrichment, and will devote themselves to the service of the people. Needless to add that the Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises.
In any case, it is made clear that any declaration made in this judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions. However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground.
Reverting to the cases of the Respondents Nos. 3 & 4, it may be noted that they were appointed as Additional Judges of the High Court of Sindh for a period of one year vide notification dated 15th September, 2007 on the recommendation of the then Chief Justice of High Court of Sindh and the Chief Justice of Pakistan. They took oath of their office on 18th September, 2008. However, in pursuance of the actions of 3rd November, 2007 they were declared to have ceased to hold office vide notification dated 3rd December, 2007 because they complied with the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case and as a consequence did not make oath under PCO No. 1 of 2007 read with Oath Order, 2007. In pursuance of the declaration made in this judgment in respect of the actions of 3rd November, 2007, all Judges who were declared to have ceased to hold office, are to be deemed never to have ceased to be such Judges. Moreover, all such Judges including the Respondents Nos. 3 & 4 have been restored to the position they were holding prior to 3rd November, 2007. Their reappointment vide notification dated 26th August, 2008 and extension of tenure for a period of six months vide notification dated 15th September, 2008 were of no consequence because such purported appointments were made in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for the said appointments. Accordingly, their reappointment and extension of tenure for a period of six months have been declared to be unconstitutional and of no legal effect. So, the tenure of their original appointment as Additional Judges expired on 17th September, 2008. The recommendations made by the Chief Justice, High Court of Sindh (Anwar Zaheer Jamali, CJ,) vide his letter dated 10th September, 2008 for extension of the tenure of the Respondents Nos. 3 & 4 as Additional Judges for a period of one year, and subsequently by letter dated 25th February, 2009 and further reiterated in letter dated 13th March, 2009, for their appointment as Judges of that Court under Article 193 of the Constitution were also invalid and of no consequence because his own appointment as Chief Justice was not proper on account of invalid consultation by Abdul Hameed Dogar, J. In this view of the matter, the judgments and orders passed and the proceedings taken in the cases and/or any other acts done by the Respondents Nos. 3 & 4 during the period from 17th September, 2008 onward until they worked as such Additional Judges would not be affected on the principle laid down in Asad Ali's case (supra). It may be observed here that the matter of appointment of the Respondents Nos. 3 & 4 as permanent Judges, or extension in their tenure as Additional Judges was never considered by the proper judicial constitutional consultees, viz. Chief Justice of High Court and the Chief Justice of Pakistan.
An important issue raised in these proceedings requires to be determined at this stage. The Chief Justice of the High Court recommended extension in the tenure of the Respondents Nos. 3 & 4 for a period of one year, but the Governor of Sindh and Abdul Hameed Dogar, J, who was occupying the office of Chief Justice of Pakistan, though illegally and unconstitutionally, recommended six months' extension, which was acted upon. In the judgment passed by the High Court of Sindh in Constitution Petition D-40 of 2009 (Sindh High Court Bar Association through its Honorary Secretary v. Federation of Pakistan through Secretary, Ministry of Law and Justice) a Full Bench of that Court held that in the event where there was no identity of views between the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, the recommendations of the Chief Justice of Pakistan would not be binding on the executive and if the executive accepted his views without the supporting views of the Chief Justice of the High Court concerned, the action of the executive would become justiciable. According to the learned High Court, it was so because in the Judges' case it was held that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan could not be rejected arbitrarily for extraneous consideration, and if the executive wished to disagree with their views, it had to record strong reasons which would be justiciable, and that a person found to be unfit by the Chief Justice of High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of High Court, could not be appointed and it would not be a proper exercise of power under the Constitution. It was further held that an appointment made without adhering to the recommendation of the Chief Justice of High Court and giving no reasons for such non-adherence would not be based upon mandatory consultation as required by the Constitution and the law laid down in Al-Jehad Trust case, which laid down that there should be participatory consultative process between the consultees and also with the executive and it should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play and that the views of each of the consultees were binding on the executive and if the executive/government wished to disagree with the views of any of the consultees, they would be required to give strong reasons for it. Mr. Rashid A. Rizvi, learned counsel for the petitioners supported the judgment of High Court. According to him, the question was required to be determined by this Court, as the same was not covered by the law laid down in Al-Jehad Trust case inasmuch as the said case proceeded on the premise of consensus between the Chief Justice of High Court and the Chief Justice of Pakistan, whose recommendation would prevail as against the views of the executive/government if the same were contrary to the recommendation made by the two judicial consultees. The learned Attorney General for Pakistan submitted that the opinion of the Chief Justice of Pakistan, being the pater familias, deserved primacy, which was not justiciable in view of the law laid down in Supreme Court Bar Association's case (supra).
We have given our anxious consideration to this aspect of the matter. The learned High Court appears to have misread the law laid down in the cases of Al-Jehad Trust and Supreme Court Bar Association. In the latter case, analyzing the law laid down in the cases of Al-Jehad Trust and Ghulam Hyder Lakho, this Court held as under:-
"28. It was held in the Judges' case that the views of the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the executive wished to disagree with his views, it has to record strong reasons which will be justiciable. In the present case while making the impugned appointments the President of Pakistan had fully adhered to the recommendations made by the Chief Justice of Pakistan. The main and vital question which arises for decision, therefore, is whether the recommendations of the Chief Justice of Pakistan in the process of Constitutional consultation in the matter of appointment of Judges of the Supreme Court are justiciable. This question had arisen in the Judges' case as well and was determined with the observation that the recommendations of the Chief Justice were not justiciable. The opinion rendered by Ajmal Mian. J. (as he then was) reads as under:--
"In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by sub-clause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not? It is a matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan."
This question had again arisen in Ghulam Hyder Lakho's case and was answered in the negative by reiterating the law on the subject laid down in the Judges' case. The observations made in this context are worded thus:--
"In view of the above-quoted observations of Ajmal Mian, J. it is quite clear that the recommendations of the Chief Justice of the High Court and that of Chief Justice of Pakistan are not justiciable."
The rationale behind making the recommendations of the Chief Justice of Pakistan non-justiciable is multifaceted. The main justification is contained in the above-quoted observations of Ajmal Mian. J. (as he then was) in the Judges' case that the recommendations are the outcome of subjective satisfaction of the Chief Justice of Pakistan. The other dimensions are that if the recommendations are made justiciable the primacy of the opinion of the Chief Justice of Pakistan will be undermined directly or indirectly, embarrassment will be caused to the judicial consultee as well as the recommendees, independence of judiciary and smooth working of the Court will be affected, pressure groups will emerge at different levels and we will go back to the situation prevailing before the Judges' case, which will be more unsavoury than the one portrayed in these petitions."
"33. In India the controversy arose inter alia on the question, as to whe ther the opinion of the Indian Chief Justice has primacy over the opinion of other Constitutional functionaries, inter alia in the case of S.P. Gupta (supra). The majority consisting of Bhagwati, Desai, S.M.F. Ali and Venkataramiah, JJ. held against the primacy though they were of the view that the consultation contemplated by the Constitution must be full and effective and by convention the views of the concerned Chief Justice and Chief Justice of India should also always prevail unless there are exceptional circumstances which may impel the President to disagree with the advice given by the above Constitutional authorities. Desai, J. in his opinion opined that independence of judiciary under the Constitution has to be interpreted within the framework and parameters of the Constitution and that there are various provisions in the Constitution which indicate that the Constitution has not provided something "hands off" attitude. P.N. Bhagwati, J., while concurring with the opinion of S.M.F. Ali J., opined that clause (1) of Article 217 provides that the appointment of a High Court Judge shall be made after consultation with all the three Constitutional functionaries without assigning superiority to the opinion of one over that of another. He further opined that "it is true that the Chief Justice of India is the head of the Indian Judiciary and may be figuratively paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important Constitutional functionary and it is not possible to say so far as the consultation process is concerned, in any way, less important than the Chief Justice of India". The other questions as to the right of Additional Judges and the validity of transfer of certain High Court Judges were also considered. At this stage, it is not necessary to refer the same.
"44. Judicial Review is a part of the basic Constitutional structure and one of the basic features of the essential Indian Constitutional policy. This essential Constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate. On the contrary what is necessary is an interpretation sustaining the strength and vitality of Judicial Review.
The correctness of the opinion of the majority in S.P. Gupta's case (AIR 1982 SC 149), relating to the state is an importance of consultation, the primacy of the position of the Chief Justice of India and the view that the fixation of Judge-strength is not justi ciable shoul d be reconsidered by a larger Bench.
As a result of the above reference made by the aforesaid Judges, the aforementioned points came up for consideration before a larger Bench consisting of nine Judges which resulted in the above judgment in the case of Supreme Court Advocates-on-Record Association and another Petitioner v. Union of India Respondent (supra). In the said case elaborate arguments were advanced by the lawyers of standing/repute for and against the question of primacy. The majority of the Judges comprising seven Judges held inter alia that the Chief Justice of India's opinion has primacy in the matter of appointments of the High Court and Supreme Court Judges. "
J.S. Verma, J., who wrote his opinion for himself and also on behalf of his four learned brethren, namely, Yogeshwar Dayal, G.N. Ray, A.S. Anand and S.P. Bharucha, JJ, recorded inter alia the following reasons for the majority for holding that the Chief Justice of India's opinion has primacy:--
"474. It is obvious, that the provision for consultation pith the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior Judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a Judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the
Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is that in the choice of a candidate suitable for appointment, the opinion of the Chief
Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief
Justice of India, to achieve the Constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word consultation' instead ofconcurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of
India as an individual, muchless to the executive, which earlier had absolute discretion under the Government of India Act.
The case of Supreme Court Advocates-on-Record Association was considered In Re: Special Reference No. 1 of 1998 [(1998) 7 SCC 739] wherein it was held that the majority view in the former case was that in the matter of appointments to the Supreme Court and High Courts, the opinion of the Chief Justice of India had primacy because it was reflective of the opinion of the judiciary. It was further held that for an appointment to be made, it had to be in conformity with the final opinion of the Chief Justice of India.
On a perusal of the above case-law, some propositions emerge very clearly: The Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association's case reproduced above; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Articles 177 and 193 of the Constitution, as interpreted in Al-Jehad Trust case, has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary. At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus-oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates. However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. The law laid down in Al-Jehad Trust case that "the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference" admits of no other interpretation. In this view of the matter, the view taken by the learned High Court, being contrary to the independence of judiciary cannot be sustained. Accordingly, the same is set aside.
In Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), it was held that in respect of appointments of Judges as contemplated under Articles 177 and 193 of the Constitution, advice of the Cabinet or Prime Minister under Article 48(1) would be attracted, but the same would be further qualified by, and subject to the ratio decidendi of the judgment passed in AI -Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324). Following the principles enunciated in the aforesaid two judgments, it is declared that in the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the recommendations of the Governor in the case of the Respondents Nos. 3 and 4 acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J.
Before parting with this judgment, we would like to place on record our appreciation for the valuable assistance rendered by the learned counsel appearing on behalf of the petitioners and the learned Attorney General for Pakistan, Deputy Attorney General and Advocate General Sindh to the Court in the decision of the instant petitions involving issues having far reaching effects.
The petitions are disposed of accordingly.
Sd/- Iftikhar Muhammad Chaudhry Chief Justice
Sd/- Sardar Muhammad Raza Khan Judge
Sd/- Khalil-ur-Rehman Ramday Judge
Sd/- Mian Shakirullah Jan Judge
Sd/- Tassaduq Hussain Jillani Judge
Sd/- Nasir-ul-Mulk Judge
Sd/- Raja Fayyaz Ahmed Judge
Sd/- Ghulam Rabbani Judge
Sd/- Sarmad Jalal Osmany Judge
Sd/- Muhammad Sair Ali Judge
Sd/- Mahmood Akhtar Shahid Siddiqui Judge
CONST. PETITIONS NOS. 8 AND 9 OF 2009 DECIDED ON 31.7.2009
Ch. Ijaz Ahmed, J.--I have had the benefit and privilege of going through the judgment recorded by Hon'ble Chief Justice of Pakistan and generally agree therewith. In view of importance of the case, I deem it prudent to add few words in support thereto.
Society cannot exist without justice and justice cannot prosper without independent judges. Justice is a holy romance and, therefore, every goodness emanates from it. Human history is replete with events that whenever, justice was shackled, the result was chaos. The genesis of Pakistan is based on justice and for its enunciation I recapitulate some historical events. It was the injustice prevailing in the Sub-continent which compelled the Muslims to come to the rescue of Muslim women who were disgraced and confined in Daibal by Raja Dahir. Governor Hujjaj Bin Yousif sent some force under the judicious command of young General Muhammad Bin Qasim who not only got the women released from the clutches of Raja Dahir but also captured Sindh and area upto Multan. His good behaviour and dispensation of equal justice persuaded non-Muslims to embrace Islam. Adherence to the principles of justice enabled Muslim to establish its rule in Sub-continent. The young Soldier's just governance, humility and attitude towards the non-muslim, magnetized them towards Islam and its teachings. Consequently a large number of non-muslim inhabitants of the land embraced Islam. Meanwhile, with the change of Governor, Muhammad Bin Qasim was called back. Having known the consequences of his return in view of his relationship with the previous Governor Hajjaj Bin Yousif, he showed complete obedience to the orders. Though people insisted and requested him to stay back but he refused for the supremacy of law.
Subsequently, British established its rule in the sub-continent with active support and connivance of Hindus and few Muslim phonies. Bal Gangadhar Tilak, first popular independence fighter after war of Independence of 1857 was convicted and sentenced by the trial Court where Founder of Pakistan appeared as his counsel. Interestingly, Bal Gandadhar Tilak again engaged Quaid-e-Azam at the appellate stage in the High Court where Quaid-e-Azam for the first time distinguished between the offence against the state and the offence against public functionaries on ground of which appeal was accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916 Bombay 9). This episode of Muslim counsel of a Hindu convict gave birth to a little lived assumption that both the nations can together toil hard for self rule.
British Government gave India its first constitution by promulgation of Government of India Act, 1919 which was repealed by Government of India Act, 1924. The discriminatory provisions, injustice and bias compelled the Muslims to start a movement for the creation of separate homeland where they could live according to principles of justice. Finally, Government of India Act, 1935 was promulgated which was adopted by both Pakistan and India by virtue of Independence Act, 1947, portioning sub-continent and justifying two nation theory.
Human life may be conveniently divided into three segments i.e. social, economic and political, and, therefore, the Constitution of Islamic Republic of Pakistan, 1973 guarantees social justice, economic justice and political justice. In fact the basic salient feature of our Constitution is justice and independence of judiciary. The glance of Constitutional history of Pakistan reveals that our political leaders could not frame a constitution in accordance with the principles enshrined in the Objective Resolution. They committed a mistake of accepting the bureaucrats and Generals as members of the Cabinet due to which Mr. Ghulam Muhammad, Mr. Sikandar Mirza and Field Marshal Muhammad Ayub Khan had got opportunity and thereby created an imbalance in the tracheotomy of powers of State and as a result thereof Constitution of 1956 was abrogated in 1958. The Constitutional derailment got Pakistan into trouble and anarchy prevailed. Extra-constitutional step was got approved by the judiciary and in this regard, following extract from Shahabnama ( ) of Qudurat Ullah Shahab is cited:
Thereafter, Field Marshal Muhammad Ayub Khan promulgated Constitution of 1962 but unfortunately he himself abrogated the Constitution and handed over the power to Chief of Army Staff General Muhammad Yahya Khan. However, elections were held in 1970 and on the basis of which two political parties secured majority of the seats in West and East Pakistan. Political decision rendered by the people of Pakistan was ignored and as a result thereof we lost East Pakistan. Finally, the Constitution of Islamic Republic of Pakistan, 1973 was promulgated. Our leaders forgot the motto of Quaid-e-Azam Muhammad Ali Jinnah i.e. Unity, Faith and Discipline and pursued their vested interest instead of national interest which rendered every attempt abortive for creating and maintaining a system of legal rules. Now corruption is rampant, administration is weak and law and order is abnormal. In this perspective the judicial activism is a window of relief to the oppressed and depressed people of Pakistan. The judiciary, the lawyers, the civil society, the media and the people of Pakistan are now conscious of their duties and obligations and they have realized the following words of our celebrated poet Faiz Ahmed Faiz:-
The purpose and object to highlight the legislative history is to understand the events and perspective under which Constitution of Pakistan was framed and, therefore, I intend to reproduce following extract from a book `Understanding Statute' by Mr. S.M. Zafar wherein basic rules of interpretation of Constitution have been highlighted:-
(i) Legislative history is relevant for interpreting Constitutional Provisions (Historical Modality). See M/s Syed Bhaies Pvt. Ltd's case (1999 PCTLR 1328) & Seven-Up Bottling Company Pvt. Ltd's case (2003 CLC 513).
(ii) While interpreting the Constitution the Court is entitled to apply well recognized principles of Islamic Common Law (Ethical Modality).
(iii) Any interpretation which seeks to comply with or advance principle of policy enumerated in the Constitution should be adopted as against an interpretation which goes against such principles (Structural and Ethical Modality).
(iv) In case of a Federal Constitution the powers of Government established there under are enumerated i.e. that the Government can exercise only the powers granted to it and any other exercise of power could be invalidated as colorable exercise of legislative power (Structural Modality). But the legislative list is not to be interpreted in any narrow pedantic senseand should be construed in broader manner Pir Sabir Shah's case (PLD 1995 SC 66 at 179, 193).
(v) What cannot be done directly cannot be done indirectly applies more rigorously to the Constitutional provision. So, it was held in 'Cumming V. Missoori' 71 US (4 Wall) 277, 325 (1867) that 'constitution deals with substance not shadows' (Structural Modality). Also see Nawaz Sharif's case (PLD 1993 SC 473).
(vi) The principle that the enumeration of certain specified things in a provision will exclude all things not so included, would not apply to Constitutional provision Pir Sabir Shah's case (PLD 1995 SC 66 at 179 to 193) & Messrs Haider Automobile Ltd. Vs. Pakistan (PLD 1969 SC 623); Corpus Juris Secundum Vol. 17, pp. 86 and 89).
The efforts of Supreme Court of Pakistan to revitalize the judiciary for ensuring social justice, economic justice and political justice for the welfare of the people of Pakistan did not find favour with General (Retd) Pervaiz Musharraf who despite Order dated 3.11.2007 passed by this Court but following ill-advice, in his capacity as Chief of Army Staff, promulgated Provisional Constitution Order No. 1 of 2007 followed by the oath of Office (Judges) Order, 2007, the details whereof and their aftermath have been narrated in the erudite judgment of the Hon'ble Chief Justice, hence, reiteration is not required. However, certain facts are necessary to highlight circumstances for imposition of emergency. The late Chief Justice of Lahore High Court Sardar Muhammad Iqbal had granted bail to Ahmed Raza Kasuri on phone and such type of decisions of the Court could not be accepted by the government by the core of the heart. Due to which 5th and 6th amendments were passed according to which tenure of Chief Justice of Pakistan and the Chief Justices of High Courts was restricted to 5 years with the option either to accept the elevation to the Supreme Court or accept, stepping down as senior pusine Judger otherwise he would seized to be judge of superior Court. Late Sardar Muhammad Iqbal exercised the last option and returned home inspite of the fact that he would have remained as a judge of superior Court for 11 years and in case of acceptance of elevation of Supreme Court, he would have been Chief Justice of Pakistan for a very long time. The amendment had finally shown its obvious results and resultantly it has to be omitted through item No. 34 and 37 of the Schedule to the President Order No. 14/1985. When General Pervaiz Musharraf was enjoying in full swing of his power when he had restricted the Chief Justice of Pakistan to perform judicial and administrative work by filing reference against him by violating provisions of the Constitution. The Chief Justice of Pakistan filed a constitutional petition before apex Court which was fixed before a 5 member bench consisting of Justice (r) M. Javed Buttar, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Ch. Ijaz Ahmed and Justice (r) Hamid Ali Mirza who directed Supreme Judicial Council not to proceed in the matter till the decision of the Court. This was the first order in the history of Pakistan which was passed in the time when the General Pervaiz Musharraf was enjoying a power in full swing. Subsequently bench of 13 judges restored him vide judgment dated 20 July, 2007. Similarly in Qazi Hussain Ahmed's case, where in it was challenged that General Pervaiz Musharraf could not hold two offices i.e. President of Pakistan and Chief of Army Staff, therefore, it was prayed that he was disqualified to contest the election of President on account of his holding the office of Chief of Army Staff in service of Pakistan, before the Supreme Co urt. This was fixed before a bench consisting of 9 judges. Six judges had dismissed the petition as not maintainable whereas 3 judges had observed that petition was not only maintainable but also accepted the same on merits that General Pervaiz Musharaff could not hold two offices. It is proper to note that out of 6 judges, one of the judges, Mr. Justice Falak Sher (as then he was) had accepted the petition on merits but dismissed the petition as not maintainable. On 3rd of November, 2007 seven member bench of Supreme Court has restrained all the authorities not to take any action including imposition of emergency over and above the Constitution.
History repeats itself. The purpose and object of reading history is to understand the events of past and to analyze the present and future for making right path by removing the mistakes committed in the past. In this Perspective, it is better and appropriate to reproduce the relevant Articles of the Constitution to resolve the controversy in question between the parties:
Preamble
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith worship and association, subject to law and public morality;
Wherein the independence of the judiciary shall be fully secured.
2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.
Elimination of exploitation.
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) No person shall be compelled to do that which the law does not required him to do.
(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan
No person shall be deprived of life or liberty save in accordance with law.
Safeguards as to arrest and detention.
(1)The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose of extracting evidence.
Every citi zen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.
Principles of Policy.
Responsibility with respect to Principles of Policy.
Promotion of social and economic well-being of the people.
(3) The President shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of--
(a) the members of both Houses; and
(b) the members of the provincial Assemblies.
(4) Election to the office of the President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office:
Provided that, if the election cannot be held within the period aforesaid because the national Assembly is dissolved, it shall be held within thirty days of the general election to the Assembly.
(7) The Chief Executive of the Islamic Republic of Pakistan--
(a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the judgment of the Supreme Court of Pakistan of the 12th May, 2000 and
(b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly:
Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004.
Term of office of President
President to act on advice etc.
There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to be known respectively as the National Assembly and the Senate.
(1)
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
(i) before th e National Assembly if it (contains provisions dealing with all or any of the matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution.
(ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the Provincial Assembly shall be deemed to be a Bill introduced in the Provincial Assembly 175. Establishment and jurisdiction of Courts.
The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President.
(1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.
The President shall appoint the most senior of the other judges of the Supreme Court to act as Chief Justice of Pakistan.
The President may, in the manner provided in clause (1) of Article 177, appoint a Judge of a High Court who is qualified for appointment as a Judge of the Supreme Court to act temporarily as a Judge of the Supreme Court.
184(3): Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.
Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.
All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.
(1) A Judge of a High Court shall be appointed by the President after consultation--
(a) with the Chief Executive of Pakistan;
(b) with the Governor concerned; and
(c) except where the appointment is that of Chief Justice, with the Chief Justice of the High Court;
197 (c):- for any reason it is necessary to increase the number of Judges of a High Court, the President may, in the manner provided in clause (1) of Article 193, appoint a person qualified for appointment as a Jud ge of the High Court to be Additional Judge of the Court for such period as the President may determine, being a period not exceeding such period, if any, as may be prescribed by law.
203C. The Federal Shariat Court.
233: Power to suspend Fundamental Rights etc., during emergency period.
234: Power to issue Proclamation in case of failure of constitutional machinery in a Province.
235: Proclamation in case of financial emergency.
236: Revocation of Proclamation etc.
237: Majlis-e-Shoora (Parliament) may make laws of indemnity etc.
238: Subject to th is Part, the Constitution may be amended by Act of Majlis-e-Shoora (Parliament).
239: A bill to amend the Constitution may originate in either House and, when the Bill has been passed by the votes of not less than two-thirds of the total membership of the House, it shall be transmitted to the other House.
(1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President.
(2) The President shall subject to law, have power--
(a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces, and
(b) to grant Commissions in such Forces.
(3) The President shall in consultation with the Prime Minister, appoint
(a) the Chairman, Joint Chiefs of Staff C ommittee;
(b) The Chief of the Army Staff;
(c) The Chief of the Naval Staff; and
(d) the Chief of the Air Staff and shall also determine their salaries and allowances.
Every member of the Armed Forces shall make oath in the form set out in the Third Schedule.
The Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and subject to law, act in aid of civil power when called upon to do so.
260: `Chief Justice' in relation to the Supreme Court or a High Court, includes the Judge for the time being acting as Chief Justice of the Court.
`Consultation' shall, save in respect of appointments of Judges of the Supreme Court and High Courts, means discussion and deliberation which shall not be binding on the President.
`Judge' in relation to the Supreme Court or a High Court includes the Chief Justice of the Court and also includes--
(a) in relation to the Supreme Court, a person who is acting as a Judge of the Court;
`President' means the President of Pakistan and includes a person for the time being acting as, or performing the functions of, the President of Pakistan and, as respects anything required to be done under the Constitution before the commencing day, the President under the Interim Constitution of the Islamic Republic of Pakistan.
`Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly.
Third Schedule: Oaths of Office President: That, as President of Pakistan, I will discharge my duties and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan;
"The sun and the moon move along their computed courses. The shrubs and the trees prostrate in adoration. He has raised the heaven on high and created the balance; don't ever tamper with this balance. Therefore, you also establish weight with justice and do not give less measure" (See Eng. Translation of the meaning of Al-Qur'an by Muhammad Farooq-e-Azam Malik)
1) Legislature
2) Executive
3) Judiciary
4) People of Pakistan
It is the paramount duty and obligation of first organ of the State to perform duties for the welfare of the people of Pakistan. But unfortunately since the creation of Pakistan this principle has not been acted upon in letter and spirit and that is why the nation has not pro gressed in real sense in every sphere of life. This Court has laid down a law by interpreting Article 5(2) of the Constitution read with Article 4 of the Constitution that no body is above the Constitution. Even the Chief Executive of the Country is bound to obey the command of the Constitution as law laid down by this Court in Ch. Zahoor Ellahi's case (PLD 1975 SC 383).
What is constitution. Constitution is a social binding contract. Conduct of all organs has to be in terms of the constitution subject to the condition that you accept the constitution from the core of your heart. Nobody is above the constitution and cannot imagine to do anything in violation of the constitution and rule of law. Rule of law defined by Roberto M. Unger is as under:-
"Governmental power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformally applied".
"O ye who believe!
Obey Allah and obey the Apostle, And those charged with authority among you".
Hazrat Abu Bakr Siddique (R.A.A) in his first speech as Caliph explained the above words; the nub of it is that obedience to persons in authority is an obligation only if what they require you to do so is in accordance with the Holy Quran and Sunnah of the Holy Prophet (S.A.W.S). See Chapter-4, Judicial Review of Public Actions by Justice (r) Fazal Karim. This is the highest authority in the power to judicial review Haq Nawaz & Others Vs. Province of Punjab thr. Chief Secretary, Lahore & 2 others (1997 MLD 299 at 374).
The President has to appoint the judges of the superior Courts after consultation with the following consultees--
(i) According to Article 177 Chief Justice of Pakistan is appointed by the President and each of the other Judges are appointed by the President after consultation with the Chief Justice of Pakistan whereas judges of the High Court are appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and except appointment of the Chief Justices of the High Courts, with the Chief Justices of the High Courts. The consultation must be meaningful and executive has no authority whatsoever to ignore the recommendations of the chief justices. The Governor has no right to disagree with the recommendations of the chief Justice. However executive has authority to judge/evaluate the antecedents of the appointees. See:-
i) P.L. Lakhanpal V. Ajit Nath Ray Chief Justice of India (AIR 1975 Delhi 66 at 73).
ii) Tara Singh and others V. The State of Punjab (AIR 1991 SC 63 at 640 to 641, 645 to 646).
iii) L. Kalra and others Vs. President of India and others etc (AIR 1982 SC 149).
iv) Presidential Reference. (AIR 1999 SC 1)
v) S.P. Gupta V. Union of India (AIR 1994 SC 268 at 437, 342, 431, 434, 438, 439, 356)
vi) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1996 SC 324).
vii) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1997 SC 84).
viii) Malik Asad Ali and others V. Federation of Pakistan thr. Secretary, Law, Justice & Parliamenmt Affairs, Islamabad & others (PLD 1998 SC 161).
ix) Mr. Justice Ghulam Hyder Lakho, High Court of Sindh, Karachi & others Vs. Federation of Pakistan thr. Secretary Law, Justice and Parliamentary Affairs, Islamabad & others (PLD 2000 SC 179).
"The judge occupies a pre-eminent position in the modern state. He is the guardian of the rights and privileges of the people against the encroachment of private persons and the aggression of executive officers. His function consists in interpreting the laws of the country and applying them to individual cases. He has got to settle not only private disputes but to bring under review executive action. The way he discharges his duty is of vital importance to the people. The legislature may lay down good and wholesome laws. But they would not be of any avail if they are not ably, promptly and impartially applied. Without right administration of justice, good government is out of the question (1) "There is, `says Lord Bryce, "no better test of the excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen".
"Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from executive or legislative or from the parties themselves or from the superiors and colleagues"
(2) Article under the heading `Judicial Independence' written by me and published in PLJ 2007 Mag. 162 at 163):
"The respect for the judiciary is significant in Pakistan due to the beneficent legacy of the Islamic concept of justice, the predominance of the legal spirit and the concept of sovereignty. The legislature being astute, taking cue from the precedents of Khulfa-e-Rashidin has provided provisions for administrating justice for people of Pakistan in the Constitution of Islamic Republic of Pakistan, 1973 i.e. Preamble, Art 2-A, Art. 37, Art. 175, Art. 177, Art. 193, Art. 209 in view of aforesaid provisions of the Constitution a very heavy duty is cast on the Chief Executive of the country to deliver justice to the people of Pakistan by establishing independent judiciary keeping in view their qualifications, duties and obligations which have already been highlighted by me in my book "Separation and independence of judiciary" and my Article under the caption of "Methods of educating newly appointed judges" (PLD 2005 Journal 1).
(3) Article under the heading `Methods of Educating newly appointed Judges) written by me and published in (PLD 2005 Journal 1):
"Islam, as a way of life, provides comprehensive legal code for justice apart from general exhortation of justice. The salient features in Judicial System in Islam are discussed apart from other high values and principles".
(4) Passage from Book "Separation and Independence of Judiciary" authored by me:
"The Supreme Court assumed the power, notably by the historic decision of Chief Justice Marshall in Marbury Vs. Madison of declaring both the acts of the legislature and the acts of the President to be unconstitutional"
"The notion that the third arm of constitution, the Judiciary, should be entirely separated from both the legislative and executive powers, seemed, however, to be based on mere solid foundations than the some what arbitrary division between the legislature and the executive".
i) The personnel of the armed forces are under the final administrative control of the Federal Government.
ii) Every member of the armed forces has to take oath in the term stated in the 3rd Schedule in term of "Article 244 which has already been reproduced hereinabove.
a) Armed forces which owe allegiance to Pakistan cannot be used for political motive by the party in power.
b) It not only is violative of the oath prescribed in the third Schedule which prohibits engagement of the army in political activities and further tarnishes the image of the Army.
It is pertinent to mention here that the Constitution of 1973 for the first time has prescribed Oath for the members of the armed forces. Earlier they only took oath prescribed in the Army Act, 1952. Article 245 was also interpreted by this Court reported as Mehram Ali & others Vs. Federation of Pakistan & others (PLD 1998 SC 1445) and laid down a principle that military Courts cannot be equated with the original Courts on the basis of well known principle that establishment of military Courts militates the independence of judiciary. The aforesaid Articles of the constitution do not show that the Chief of Amy Staff has any authority whatsoever to impose emergency which is in violation of Articles 232 to 236. Even the emergency which was imposed by Chief of Army Staff cannot be imposed by the President of Pakistan in terms of the aforesaid provisions of the Constitution. There are certain parameters and restrictions upon the President to impose emergency wherein fundamental rights were suspended. The President of Pakistan had no authority whatsoever to interfere or remove the judges of the superior Courts through extra constitutional instruments i.e. Proclamation of emergency, PCO and oath of judges order. It is also interesting to note that President of Pakistan is the supreme commander of the forces. Chief of Army Staff has imposed emergency through extra constitutional measures and thereafter delegated powers to the President.
It is settled law that delegation ought not to be permitted unless it is authorized by Statute or by necessary implication meaning thereby whereas specific officer or authority is authorized to exercise his discretion, exercise of that power by a different body in the absence of statutory provision to the effect. See Ghulam Mohi ud Din Vs. Chief Settlement Commissioner (Pakistan) Lahore etc. (PLD 1964 SC 829), M/s Oberoi Motors & another Vs. The Union Territory Administration, Chandigarh and others (AIR 1978 Punjab Haryana 294). In view of the rules of business Minister has authority to delegate power to any Officer of that department. See H Lavender and Son Ltd. Vs. Minister of Housing and Local Government (1970 Vol. III AELR 871) R v Police Complaints Board, (1983 Vol. II AELR 353), B.Rajagopala Naidu V. The State Transport (AIR 1964 SC 1573), Ellis Vs. Dubowski (1921 Vol. 3 KB 621). It is not known to any cannon of justice in any part of the world that subordinate can dele gate powers to superior. Extra constitutional steps were taken by Gen. Musharraf when his own case for the candidature for the office of the President was fixed before this Court. Bench was constituted by the Hon'ble Chief Justice of Pakistan consisting of 11 judges. Counsel of the petitioner had concluded their arguments and according to the newspapers till 16.10.2007 Government was happy qua the performance of the Supreme Court of Pakistan. Thereafter, it appears that views of the government were changed qua performance of apex Court. This fact was borne out from the order especially as his counsel did not want to conclude the case. In spite of the request of the Bench that the Bench was ready to hear the case even after Friday Prayer. The counsel did not agree. Therefore, case of Justice (r) Wajjahuddin was adjourned for 5.11.2007 vide order dated 2.11.2007. Justice (r) Wajjahuddin has filed application in main case with the prayer that General Pervez Musharraf and other authorities be restrained to impose emergency or any action beyond the parameters of the Constitution. This application was heard by a Bench consisting of 7 Judges and the restraining order was passed on 3.11.2007 which was communicated immediately to all concerned.
Actions of 3-11-2007 are based on mlafide therefore they are not sustainable in the eyes of law. In fact it was admitted by the Gen. Pervez Musharaf that he had taken extra constitutional actions which tantamounts to amend the constitution, which is not permissible. It is pertinent to mention here that power to amend the Constitution is vested in the parliament by part II vide Articles 238 and 239. Constitution may be amended by Parliament vide Article 238 whereas Article 239 prescribes procedure for amending the Constitution. Even the parliament cannot change the salient features of the constitution to destroy one organ of the judiciary in view of Article 238 and 239 of the Constitution. See Mehmood Achakzai's case (PLD 1997 SC 426).
In case all the three instruments be read together then emergency plus, does not remain within the parameters of emergency as constitution was in fact abrogated under the garb of emergency coupled with the fact that action was taken by him for his personal benefit which does not fall in the category of good faith. Pakistan is a very rich country where in short span of 52 years three martial laws were imposed i.e. by late Muhammad Ayub Khan, Gen. Yayha Khan and Zia-ul-Haq whereas Musharaf had imposed martial law firstly on 14-10-1999 and subsequently on 3-11-2007.
The said actions were taken by him at night in spite of the fact that the order date d 3-11-2007 of this Court was communicated to all concerned as is evident from news clippings, published on, all electronic media and the daily evening news papers dated 3.11.2007 which contained this news. This fact was further borne out that all the daily news papers contained this news in the news papers published on 4-11-2007. Almost more than 60 judges had refused to take oath under the provisions of Proclamation of Emergency, (PCO ) and Oath of Office of Judges order, 2007. Mr. Abdul Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of Pakistan and 4 other judges of this Court had taken oath on the said night as judges of the Supreme Court under PCO inspite of the restraining order and the fact that post of Chief Justice was not vacant as the chief justice had not resigned or removed or had gone out of the country. Four other judges had also taken oath as the order dated 3-11-2007 was passed by seven judges Bench, therefore new four judges were also appointed with the consultation of Chief Justice Abdul Hameed Dogar for the purpose to complete the quorum. The said application was taken up for hearing on 6-11-2007 wherein the said order set-aside by the Court and subsequently petition was also dismissed. The case was decided by the Court which was coram non judice in terms of Articles 175, 177 and 184(3). See Chittaranjan Cotton Mills Ltd. Vs. Staff Union (PLD 1971 S.C 197). The relevant observation is as follows:
"Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existence in the eye of law. There can also be no doubt that in such circumstances `it could never be too late to admit and give effect to the plea that the order was a nullity' as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone V. Chief Kwame Tawia (9 DLR 686 (PC))", 25. The judges who had not taken oath under the command of the Chief of Army Staff, were detained in their houses. This fact was also known to every one. Not only in this country but also in the whole world it was considered a unique action that the judges of the superior Courts were detained. According to me Judges and Advocates are two parts of one body i.e. Judiciary. Every part of the body had played un precedented historical role for the supremacy of Constitution & law. The ir struggle was highly supported by media without fear and favour by showing their courage for the welfare of the country and for supremacy of Constitution & law, duly supported by the civil society. People of Pakistan had also joined hand in the struggle of the lawyers. On account of this unprecedented struggle by sacrificing even lives of the Advocates, consequently the dictator had to go and the Prime Minister of Pakistan had restored the judges of the superior Courts vide notification dated 17.3.2009. All the appointments of the judges of the Superior Courts from 3-11-2007 to 24-3-2009 were made with the consultation of Chief Justice Mr. Abdul Hameed Dogar which was not in terms of the mandate of the Constitution. He was not even holding status of Acting Chief Justice as he was not senior puisne Judge on 3-11-2007, therefore, appointees were appointed after consultation with a stranger in terms of the law laid down by this Court as well as Indian Supreme Court. See:-
i) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1996 SC 324 at 408).
ii) Malik Asad Ali and others V. Federation of Pakistan thr. Secretary, Law, Justice & Parliamenmt Affairs, Islamabad & others (PLD 1998 SC 161).
iii) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1997 SC 84).
iv) L. Kalra and others Vs. President of India and others etc (AIR 1982 SC 149).
v) S.P. Gupta V. Union of India AIR 1994 SC 268)
vi) Pre sidential Reference. (AIR 1999 SC 1 at 1).
i) Wajihuddin Ahmed Vs. Chief Election commissioner & others (PLD 2008 SC 25)
ii) Jamat e Islami thr. Amir and others Vs. Federation of Pakistan and others (PLD 2008 SC 30)
iii) Tika Iqbal Muhammad Khan's case Vs. General Pervez Musharaf and others (PLD 2008 SC 178)
iv) Tika Iqbal Muhammad Khan Vs. General Pervez Musharraf, Chief of Army Staff, Rawalpindi and 2 others (PLD 2008 SC 615).
a) Rs. 10,000/- as security have not been deposited.
b) Review was time barred by 39 days
c) Certificate by the Sr. Counsel was not filed alongwith the review petition.
d) Review petition was not signed by Sr. Counsel.
Inspite of the aforesaid objections review petition was entertained in the Chambers. After filing one objection regarding fee as security was removed as the Rs. 10,000/- were deposited on 14.11.2007 whereas review petition was filed on 13-12-2007. Review petition was argued by the AOR without securing permission from the Court in violation of Supreme Court Rules and the law laid down by this Court. Finally review petition was dismissed by merely re-affirming earlier order by observing that judges who had not taken oath under the PCO ceased to be the judges of the superior Courts. Main order was passed by seven judges Bench in violation of the dictum laid down by this Court by 12 judges Bench in Zaffar Ali Shah case (PLD 2000 SC 869) wherein it was categorically without ambiguity held that judges of the superior Courts cannot be removed without adopting the procedure prescribed in Article 209 of the Constitution. Simply rectifying that mistake, review was filed which was dismissed by 13 judges of this Court. This fact shows that the matter was not decided in good faith. Even if review was competent and while deciding by 13 judges bench and re-affirming the judgment/order of the seven judges bench cannot be termed as decided by 13 judges bench. The main order remains passed by seven judges bench, who had decided the same in violation of the dictum laid down in Zaffar Ali Shah's case Supra particularly without adverting to the relevant paragraphs of the judgment of the Zafar Ali Shah case, therefore, both the orders/judgments in Tikka Muhammad Iqbal's case are judgments per incurrium. This Court has ample power to review such type of orders/judgments which are not sustainable in the eyes of law. It is settled principle of law that judgment of larger Bench of this Court has binding effect on the bench consisting of lesser number. See Multinine Associates Vs. Ardeshir Cowasjee and others (PLD 1995 SC 423) and Ardeshir Cowasjee and 10 others Vs. Karachi Building Control Authority & others (1999 SCMR 2883 at 2912) & N.S. Giri Vs. The Corporation of City of Mangalore and others (AIR 1999 SC 1958). The aforesaid judgments/orders of this Court are not sustainable in the eyes of law and in terms of well known maxim per incurrium and Sub-silentio. These doctrines parted as exceptions to the rule of precedents.
It is also settled principle of law that decision which is not based on reason is not judgment in the eyes of law. See:-
i) State of U.P. and another Vs. Synthetics Chemicals Ltd. & another (1991 Vol. 4 SCC 139), ii) State of Manipur Vs. Thingujam Brojen Meetei (AIR 1996 SC 2124).
iii) Ajit Kumar Rath Vs. State of Orissa & others (1999 Vol. 9 SCC 596 para 32).
iv) State of Gujarat & another Vs. S.S. Murthy and others (AIR 1998 SC 2735 para 2).
v) Gouranga Mohan Sikdar Vs. The Controller of Import and Export and 2 others (PLD 1970 SC 158).
vi) Mollah Ejahar Ali Vs. Government of East Pakistan and others (PLD 1970 SC 173).
a) Findings of fact both direct and inferential.
b) Statement of principles of law applicable to the legal terms disclosed by the facts.
c) The judgment passed on the combined effect of the above ingredients. See Uttaranchal Road Transport Crop. Vs. Manseram Nainwal (2006 Vol. 6 SCC 366 at 370)
a) It decides a question of law
b) It is passed upon the basis of law
c) It enunciates a principle of law. See Maj. Gen. (Retd) Mian Ghulam Jilani Vs. The Federal Government Thr. The Secretary, Govt. of Pakistan, Interior Division, Islamabad (PLD 1975 Lahore 65).
To determine whether the decision has `declared law', it is immaterial whether the Supreme Court gave the decision ex-parte or after a hearing. But no law is laid down when a point is disposed of on the concession. Lakshmi Shanker Srivastava Vs. State (Delhi Administration) (AIR 1979 SC 451). However, if the Supreme Court is satisfied that the earlier judgments have resulted in deprivation of fundamental right of a citizen or rights created under any substantive law; it can take a different view not withstanding the earlier judgments; Lily Thomas etc. Vs. Union of India and others (AIR 2000 SC 1650).
Since the judgment of Tikka Muhammad Iqbal's case is under review, therefore, I intend to highlight certain principles for the purpose of re-visiting/re-examining the judgment of the aforesaid case.
i) REVIEW.
"This Court has ample power to reconsider, revise its earlier decisions, nothing in the constitution to prevent the Supreme Court from departing from a previous decision of its own if it is satisfied of its error particularly constitutional or other matters, its effect on the general interests of the public as perpetuation of a mistake will be harmful to public interests. This power vests in this Court in terms of Article 188 of the Constitution. See K. Mills Co. case (AIR 1965 SC 1636 at 1643 and 1644), Corporation of Calcutta case (AIR 1967 SC 997 at 1001 para 5), Lt. Col. Nawabzada Muhammad Ameer Khan's case (PLD 1962 SC 336), Asima Jillani's case (PLD 1972 SC 139), Greater Bombay Municipality's case (AIR 1974 SC 2009 at 2043 and 2044 paras 44 & 45), Dwarkadas'case (AIR 1954 SC 119 at 137), State of Bihar's case (AIR 1955 SC 661 at 672), State of Washington Vs. Dasen and Com {1924 (264) U.S. 219}, London Street Tram Ways Com.Ltd. Vs. London City Council (1898 A.C.375), Municipal Committee Amritsar Vs. State of Punjab (AIR 1969 SC 1100) and Sajjan Singh's case (AIR 1965 SC 845 at 855 para 21)".
"Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well being in the light of the surrounding circumstances of each case brought to our notice but we do not consider it right to confine our power with rigidly fixed limits as suggested before us. If on a re-examination of the question we come to the conclusion as indeed we have that the previous majority decision was plainly erroneous then it will be our duty to say and not to perpetuate our mistake even when one learned Judge who was party to the previous decision considers it incorrect on further reflection. We should do so all the more readily as our decision is on constitutional question and our erroneous decision has imposed illegal tax burden on the consuming public and has otherwise given rise to public inconvenience or hardship, for it is by no means easy to amend the Constitution. This Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty, it is a fundamental right of the people of Pakistan to have an independent judiciary".
ii) MAXIM "PER INCURRIUM".
`Incuria' literally means "carelessness". In practice per incurrium is taken to mean per ignoratium and ignored if it is rendered "in ignoratium of a statute or other binding authority.
What is mean by giving a decision per incurrium is giving a decision when a case or a statute has not been brought to the attention of the Court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Nirmal Jeet Kaur's case {2004 SCC 558 at 565 para 21}, Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113,1131), Watson's case {AELR 1947 (2) 193 at 196}, Morelle Ltd.'s case (LR 1955 QB 379 at 380), Elmer Ltd.'s case {Weekly Law Reports 1988 (3) 867 at 875 and 878}, Bristol Aeroplane Co.'s case {AELR 1944 (2) 293 at page 294} and Morelle Ltd.'s case {AELR 1955 (1) 708}.
The ratio of the aforesaid judgments is that once the Court has come to the conclusion that judgment was delivered per-incurrium then Court is not bound to follow such decision on the well known principle that the judgment itself is without jurisdiction and per-incurrium, therefore, it deserves to be over-ruled at the earliest opportunity. In such situation, it is the duty and obligation of the apex Court to rectify it. The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, this Court, as mentioned above, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Article 4, 5 (2) read with Article 189 and 190 of the Constitution.
iii) MAXIM "SUB-SILENTIO ".
When the particular point of law involved in the decision is not perceived by the Court or present to it its mind. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. See State of U.P's case {1991 (4) SCC 139 at 163}, State of Punjab Vs. Baldev Singh etc. (AIR 1999 SC 2378) and Lancaster Motor Co.'s case {AELR 1941 (2) 11 at page 13}.
The ratio of the aforesaid principle on the basis of the mentioned judgments is that decisions rendered, without reference to crucial words of rule and without any citation of authority are not binding and would not be followed.
iv) "LARGER BENCH"
Principle laid down by any provision of law or constitution by the larger Bench has binding effect over the smaller Bench. See All Pakistan Newspapers Society's case (PLD 2004 SC 600 at 618), Multilines Associates' case (PLD 1995 SC 423), Muhammad Saleem's case (1997 SCMR 314), Babar Shahzad's case (1999 SCMR 2518), Union of India's case (AIR 1976 SC 2433 at 2437 para 12), Trilok Nath Mehrotra's case {1982 (2) SCC 289 at 290 para 4}, Abdullah Kunhi's case (AIR 1991 SC 574).
The ratio of the aforesaid judgments is that it is a long standing convention that decision of the larger Bench is binding upon the smaller Bench. It is also duty and obligation of the larger Bench in the circumstances if, however, the decision of the smaller Bench is erroneous the larger Bench has necessarily to interfere with the decision as this Court will not permit a wrong decision to operate as a good law of the land.
v) "SOURCE AND AUTHORITY OF JUDICIAL PRECEDENTS HAVE A BINDING EFFECT".
The binding nature of judicial decisions may be derived either from a constitutional or statutory provision or it may be derived from the conventions which the Courts observe in the administration of justice. The judgment of this Court is binding on each and every organ of the State by virtue of Article 189 and 190 of the Constitution whereas the judgment of the High Court is binding on each and every organ except this Court by virtue of Article 201 of the Constitution. In case there is a conflict between the judgment of this Court and the High Court, then the judgment of this Court is binding on all state organs. See Judgment Debtor Vs. Central Bank of India Ltd, Bombay {AIR 1943 Nag 340 (345) (FB)} & Kishori Lal Potdar Vs. Debi Prasad Kejriwal and another {AIR 1950 Pat 50 (FB)}.
Decision of this Court is binding not only under Article 189 of the Constitution but also with the doctrine of binding precedents with one exception that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as contemplated in terms of the aforesaid Article.
vi) "PRECEDENTS"
Judgment is a precedent for what has been decided therein and cannot become precedent what can be inferred from it. The purpose and object of principle of precedent is to achieve consistency in judicial pronouncements, the Courts have evolved the role of precedents, principle of stare decises etc. which are based on public policy and if these are not followed by Courts and not implemented in letter and spirit by the other Organs of the State then there will be chaos in the administration of justice.
A classic example of administration of justice and its verbatim implementation found in the annals of Islamic History is reproduced which portrays scenario prevalent similar in our country:
"The ills, the weaknesses of the nation and society have been diagnosed. There may be any good legislation but it would not bear fruit unless it receives whole hearted implementation from all organs of the State without any nepotism, hesitation and reservation. Mere rendering good Court judgment, a well worded constitution and suitable legislation will not work unless all the organs of the State ensure its implementation and thus shun the hypocracy and contradictions prevailing in the society. The antedote, I venture to suggest is to act upon "Law of Torts" thus ensuring that all organs, agencies and functionaries are kept within the laid down and reasonable parameters. Before I conclude, I present a precedent of implementation of Court judgment from Islamic History:
"Samarkand was conquered by Muslims and this occupation was hated by the sons of the soil and especially their clergy. The priests sent their ambassador to the Caliph (Umar Bin Abdul Aziz, R.A), who met the Caliph and presented a petition against the Mulsim Army Chief Qateeba Bin Muslim who allegedly invaded Samarkand without declaring Jehad or inviting them to
the fold of Islam. The Caliph wrote a message to be conveyed to his Army Commander. Then petition was put before the Qazi. A freak looking Qazi summoned the Commander and explicitly asked him:-
Did you give them a choice to embrace Islam?
Alternatively did you ask them to agree on payment of Jizia.
On the negative answer to these questions, did you ask them to fight against you?
The Commander replied in the negative. Qazi's verdict surprised people of Samarkand, especially their religious leaders (Kahans) who ordered the Muslim Army to vacate the city forthwith. After vacation of occupation, offered them the above said three conditions. The judgment was implemented without raising an eyebrow. The justice and its straight implementation had the heartfelt effect on the people and history is witness that there was no Jehad as every one including the Kahans embraced Islam voluntarily.
(Extract from the book Suneray Faislay' under the heading 'Adul ka Krishma' written byAl-Sheikh Ali Al-Tnatawi R.A'. in his book `Qasus mun
Al-Tareek')".
It is pertinent to mention here that in case two irreconcilable decisions of this Court are consisting of two different Benches i.e. earlier judgment of larger Bench subsequent judgment of smaller Bench, not considering decision of earlier larger Bench - Latter decision, per incurrium in that important aspect of the matter considered by earlier Bench not considered by latter Bench.
I have examined the judgment of Tikka Iqbal's case keeping in view the aforesaid principles and maxims. Judgment in Tikka Iqbal's case is not sustainable in the eyes of law inspite of the fact that in the latter judgment reference was made to Zafar Ali's case which was rendered by a larger Bench. The judgment was delivered in Tikka Iqbal's case in violation of ratio of Syed Zafar Ali Shah's case. The relevant paragraphs were not even noted specially paragraphs No. 282 and 283. The judgment of Tikka Iqbal's case is not sustainable in the eye of law on any canon of justice. The action of 3rd November, 2007 by General Pervaiz Musharraf former Chief of Army Staff is not within the parameters of the constitution as highlighted herein above and also accepted by him, therefore, the same is declared to be void and is hereby set-aside.
For what has been discussed above, I agree with the judgment of the Hon'ble Chief Justice of Pakistan.
Sd/- Ch. Ijaz Ahmed Judge
Jawwad S. Khawaja J.--I have gone through the judgment proposed to be delivered by Hon'ble the Chief Justice. It forcefully asserts the independence of the Judiciary as a cardinal principle of our Constitution. I respectfully agree with the conclusions arrived at, but wish to record this additional note in support of this dominant theme of the judgment.
In my humble opinion, the whole case before us can be reduced to one foundational question. Can Constitutional legitimacy flow from the force of arms or - as is more graphically put at times - from the barrel of a gun? This is the basic issue here because General Musharaf, on 3rd November, 2007 took actions in his capacity as the Chief of Army Staff (and then purportedly, as President) without the slightest pretence that these actions were permitted to him by the Constitution. As noted in the main judgment, he was also afforded an opportunity to appear in the case, personally or through counsel, to justify his actions of 3rd November, 2007. He, however, chose not to avail this opportunity.
For reasons which have been spelt out in the main judgment, there can be no doubt at all that the aforesaid actions of 3rd November, 2007 were un- Constitutional. It is for this obvious reason that General Musharaf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command. This constituted a frontal attack on the Constitution and directly undermined the writ of the State. It is only through the unremitting struggle by the people, for their right to be governed in accordance with the Constitution, that the assault on their guaranteed rights, was thwarted. If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan.
It is not for this Court to embark on a discussion on questions which do not directly arise in this case. It would, however, be for the representatives of the people and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today. I can only venture to say that the causal connection very strongly suggests itself.
In the main judgment, a letter addressed by the then Prime Minister of Pakistan, Mr. Shaukat Aziz to the President, General Pervez Musharaf has been reproduced. The contents of the letter have also been commented upon but at this stage I would like to make a few observations in relation to the same. At two places in the said letter the term "writ of the government" has been used and interference with the said 'writ' by the judiciary has been criticised. It is a measure of the abysmal lack of understanding of Constitutional rule on the part of the then Prime Minister and President, that the distinction between the writ of the government and the writ of the State has not been recognized by the m. It is the writ of the State which has to be enfo rced and not the writ of the government because the government represents only the executive organ of the State and in that capacity it can and must be checked by the Judiciary if it starts acting in violation of the Constitution.
It has to be noted that in a constitutional system such as ours, it is the duty of Courts to call in question all executive measures which transgress and are not in line with constitutional norms. Instead of complaining of judicial interference, any politically responsible government committed to the rule of law would have been appreciative of a Court which had identified any shortcomings of the government, and in response would have adopted measures to improve governance and adherence to co nstitutional principles. The wholly specious and untenable reasoning in the Prime Minister's letter was used by General Musharaf with the sole object of launching an unashamed attack on the Constitution and in particular on the judicial organ of the Sta te. On 3.11.2007, with utter disdain for the Constitution and in a manner which was brazenly imperious, General Musharaf arrogated on himself the right to decide what was good for the people of Pakistan and the manner in which they ought to be governed. This was an anachronistic throw-back to the notion (discredited in all civilized dispensations) where an absolutist ruler could say "l'Etat, c'est moi." Surely, as President of Pakistan, General Musharaf cannot be presumed to have been ignorant of the Constitution of the country. The people of Pakistan have consciously chosen the method for their own governance. The Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State. The initial lines appearing in the preamble to the Constitution stipulate, inter alia, "that it is the will of the people of Pakistan to establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people." The operative part of the preamble in the clearest possible terms, states that "we the people of Pakistan ... do hereby adopt, enact and give to ourselves this Constitution." In this context it was nothing but haughty arrogance on the part of General Musharaf to claim to be above the Constitution and to assume the power of arbitrarily amending it. Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people of Pakistan who had chosen their own method of governance, were incapable of knowing what was best for them. There can be no other explanation for the actions of 3rd November, 2007 when these are examined in the context of the contents of the preamble referred to above. Fortunately for the people of Pakistan, the troubled events starting on 9th March, 2007 enabled them to see behind the false face and deceptive veneer of an essentially anti-people dispensation. These events also enabled the people to realize, what heretofore had been mere rhetoric, viz. that they were the sarchashma (fountain-head) of power. This heady realization must, however, be tempered with the awareness that judges can exercise constitutional and moral authority, but they alone cannot thwart un-Constitutional forces without the people actively standing up in defence of their Constitution. As upholders of constitutional rule, and in the context of the present case, Judges and society must have faith in themselves and take courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol horde:
Sd/- Jawwad S. Khawaja Judge
(R.A.)
PLJ 2010 SC 388
[Appellate Jurisdiction]
Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan & Syed Zawwar Hussain Jaffery, JJ.
SHOUKAT ALI--Appellant
versus
STATE--Respondent
Crl. Appeal No. 12 of 2009, decided on 16.6.2009.
(On appeal from the judgment dated 11.3.2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Crl. A. No. 209/2001 and MR No. 148/2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-F(ii) & 337-L(ii)--Conviction and sentence recorded against accused by trial Court--Challenge to--Appreciation of evidence--Recovery of churri was affected after 16 days--Looses its credence which could not have been used as a circumstantial evidence corroboratory in nature--Injured witnesses were not produced at the trial, which cast serious doubt on the prosecution story--Accused after commission of the offence had absconded and after his arrest on his pointation pursuant to his disclosure blood stained churri was recovered--Ocular witnesses--Held: Prosecution witnesses had suffered injuries caused by sharp-edged weapon on different parts of their bodies which correspond to their versions--The witnesses were which correspond to their versions--The witnesses were cross-examined by defence but their testimony remained un-shattered and could not be discredited--Version of the complainant, as to nature of the injuries suffered by PWs corresponds to one given by the complainant in her statement recorded by Police Officer pursuant to which FIR was registered--Prosecution case rested on piece of evidence, motive, ocular account, medical evidence, recovery of blood stained churri, absconsion of the accused after commission of offence coupled with the other pieces of evidence, such as, blood stained earth secured from the place of occurrence by the I.O., blood stained last worn clothes of deceased--Further held: No justification committed qatal-e-amd of deceased and caused injuries on the person of the ocular witnesses, who intervened to rescue the injuries all empty handed but successively fell prey to accused one after the other for no fault of theirs, hence, the accused was rightly found guilty on the charge and appropriately punished--Appeal was dismissed. [Pp. 393, 394 & 395] A, B & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Pakistan Penal Code, (XLV of 1860)--Ss. 302, 324, 337-F(ii) & 337-L(ii)--Plea taken by accused in his statement u/S. 342, Cr.P.C. did not OPT to make statement on oath nor produced any witness in defence--Plea introduced was indicative of the fact--Accused did not dispute his presence at given venue of crime though he claimed that the occurrence did not take place in the manner in which it was narrated by ocular witnesses, which stand fully corroborated by other pieces of evidence concurrently believed by Courts below. [P. ] C
Mr. Arshad Ali Ch., ASC for Appellant.
Mr. Shahid Abbasi, DPG for State.
Date of hearing: 16.6.2009.
Judgment
Raja Fayyaz Ahmed, J.--This Criminal Appeal with the leave of the Court has been directed against the judgment dated 11.3.2008 passed by the learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No. 209 of 2001 filed by appellant Shoukat Ali s/o Ghakhar Khan against his conviction under Sections 302, 324, 337-F(ii) and 337-L(ii) PPC recorded by the Additional Sessions Judge, Rawalpindi sentencing him lo death, as well as; to various other terms of imprisonment has been dismissed and the Murder Reference No. 148 of 2002 forwarded to the learned High Court alongwith record of the case for confirmation of the death sentence, as required under Section 374 Cr.P.C. has been affirmed.
The appellant was found guilty by the learned trial Court for committing Qatl-e-Amd of Munir Hussain under Section 302(b) PPC and sentenced to death, as well as; directed to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. in default whereof to further undergo six months S.I. He was also convicted and sentenced as under:--
(i) Under Section 324 PPC for attempting to the life of PW Mst. Sakina Bibi and sentenced to 10 years R.I. with a fine of Rs.20,000/- or in default to payment of fine to further under go SI for six months.
(ii) Under Section 324 PPC for attempting to life of Mst. Zarina Bibi (PW-4) sentenced to 10 years RI with a fine of Rs.20,000/- or in default of payment of fine to further undergo SI for six months and further convicted under Section 337-L(ii) for causing hurt to Mst. Zarina Bibi
(PW-4) and sentenced to two years R.I
(iii) Under Section 324 PPC for making an attempt on the life of Zaheer Ahmed PW and sentenced to 10 years R.I. with a fine of Rs.20,000/- or default whereof to further SI for six months and under Section 337-L(ii) PPC sentenced to two years R.I. for causing hurt to PW Zaheer Ahmed.
(iv) Under Section 324 PPC for attempting on the life of Tanvir Ahmed PW sentenced to 10 years R.I. with a fine of Rs.20,000 and in default whereof to further undergo six months S.I. Also sentenced to two years R.I. under Section 337-L (ii) for causing hurt to PW Tanvir Ahmed.
(v) Under Section 324 PPC for attempting on the life of PW Wahid Mehmood and sentenced as above. He was further sentenced to pay Daman of Rs.20,000/- to injured PW Wahid Mahmood under Section 337-F (iv) PPC in default whereof to further undergo SI for six months.
FIR in the case was registered on the basis of written complaint made by Safina Bibi (PW-2). In her complaint, it was alleged by Safina Bibi PW/complainant that on the above said date at about 9.00 a.m. when she was present in front of her house, appellant Shoukat committed a mischief with her, which she rebuked and remarked that he (appellant) should have first taken care of his sister (Mst. Zahida Parveen), who was abducted by a co-villager Tariq. She further alleged that on the same day at about 5.00 p.m. she alongwith Munir Hussain younger brother of her husband, Mst. Zarina Begum wife of elder brother of her husband and Sakina Bibi were present in the lane in front of her house when accused Shoukat (appellant) armed with a churri by exhorting lalkara came there and in a loud voice asked her that he would teach lesson for the sarcastic remarks, whereupon Munir Hussain attempted to save her, to whom accused Shoukat inflicted churri blow on the right side of his abdomen and he fell down. Mst. Zarina came ahead to intervene and she was also stabbed on the left of her back by Shoukat and she fell down on which Mst. Sakina attempted to rescue her who was also subjected to churri blow by accused Shoukat on her right calf. According to the complainant, on her hue and cry PWs Zaheer Ahmed and Tanvir Ahmed, the sons of her sister came to the spot to rescue them on which Shoukat accused stabbed Zaheer Ahmed on the left side of his back, as well as; inflicted churri blow on the back of Tanvir Ahmed. In the meanwhile, PW Wahid Muhammad son of Muhammad Banaras nephew of her husband reached on the spot to rescue them on which Shoukat stabbed Wahid at his left buttock and left elbow.
The appellant was indicted in view of the accusation and the incriminating material submitted before the learned trial Court with the report filed under Section 173 Cr.P.C. for causing Qatl-e-Amd of Munir Hussain deceased, attempted murderous assault and causing injuries to the PWs to which he did not plead guilty. The prosecution in order to substantiate the accusation produced 15 witnesses. Ghulam Murtaza, constable was examined as Court witness.
Muhammad Ashraf SI (PW-13) was entrusted with the investigation of the case. He received information that the accused was apprehended by Police of P.S. Dhumman, Chakwal, so he proceeded to Chakwal on 15.1.1998 for obtaining his custody but on the said date the District Magistrate was not available and on the following day, custody of the accused was handed over to him under orders of the District Magistrate from District Jail, Jhelum and was formally arrested in the instant case.
During interrogation, Shoukat Ali on 19.1.1998 disclosed that he can effect the recovery of churri (P-1) used by him in the commission of reported crime pursuant to which blood stained churri in the presence of Tanvir Ahmed (PW-5) and Saeed Ahmed (PW-6) was recovered on his pointation from his house concealed in a box.
"Babar, Saeed, Banaras, Zaheer, Tanvir and Ejaz etc. were involved in the abduction of my sister Zahida Bibi whose whereabouts could not be traced since long. I intended to initiate proceedings against them but in order to prevent me from doing so they involved me falsely in this murder case and on the day of occurrence while I was present in the house of my uncle Lehrasib situated in the neighborhood of complainant's house where I was seen by the complainant as she was on the roof top of the house and as I came out from the house of my uncle Munir Hussain deceased caught hold of me from my back side and in the meantime PW Saeed inflicted blow in order to cause injury at my person, but the same landed at the person of the deceased when I defended myself and prevented the blow. Thereafter, they caused serious injuries at my person I rescued by the respectable of the locality who then shifted me to my house, Munir deceased was discharged from the hospital after 2/3 days and he was admitted again in the hospital on 3.8.1996 due to infection of his wounds. The PWs are interested witnesses being close relative interese and inimical towards me."
The accused did not opt to make his statement in disproof of charge within the meaning of Section 340(2) Cr.P.C. nor produced any witness in defence.
The learned ADA tendered in evidence injuries statements of the injured PWs and the deceased as Exh-PR to Exh-PW. The reports of Serologist Exh-PLL and Exh-PMM, as well as; the reports of Chemical Examiner Exh-PKK and Exh-PNN were produced by the learned State counsel, which pertained to the articles i.e. blood stained clothes of the injureds and the blood stained earth secured by the I.O. from the scene of occurrence. These pieces of circumstantial evidence in support of the versions of the ocular witnesses were produced at the trial.
As injured PWs namely, Zaheer and Abdul Wahid were not produced at the trial by the prosecution, therefore, for the reasons recorded in the impugned judgment convictions and the punishments awarded to the appellant for attempting murderous assault and causing injuries to these PWs were set aside.
The learned ASC for the appellant and Mr. Shahid Mahmood Abbasi, learned DPG for the State have been heard. The impugned judgment, as well as; the one passed by the learned trial Court have been perused and considered in the light of the entire evidence available on record with their assistance.
According to the learned counsel for the appellant, recovery of churri was affected after 16 days of the alleged occurrence, which in the circumstances of the case, looses its credence which could not have been used as a circumstantial evidence corroboratory in nature, moreover; injured PWs Zahid and Wahid were not produced at the trial by the prosecution, which cast serious doubt on the prosecution story. According to the learned counsel, had the prosecution evidence been appraised in its true perspective, it would not have resulted in the conviction of the appellant on the charge, which the prosecution failed to establish beyond shadow of any reasonable doubt.
Controverting the above noted arguments, the learned DPG vehemently contended that the presence of the ocular witnesses namely, Mst. Safina Bibi (PW-2) complainant and the injured PWs Sakina Bibi, Mst. Zarina Bibi and Tanvir Ahmed at the place of occurrence i.e. the lane in front of their house was quite natural and their presence at the given time and venue of the offence could not be doubted out of whom the above mentioned PWs even suffered injuries caused by the sharp-edged weapon fully corroborated by medical evidence. The prosecution case, as reflected from the report lodged by PW Safina Bibi, finds support from the evidence of the above said PWs coupled with- the statement of the second I.O. who found the complainant and the other injured PWs on their way to the hospital in the given conditions. The learned State counsel pointed out that the accused after commission of the offence had absconded and after his arrest on his pointation pursuant to his disclosure blood stained churri in presence of the PWs was recovered by the I.O. and as per report of the Serologist, the same was stained with blood including the clothes of the deceased taken into possession by the Investigating Officer. He maintained that evidence on all material particulars led by the prosecution was consistent, straightforward and reliable. Similarly, the ocular account of the PWs despite lengthy cross-examination remained firm, natural and convincing duly corroborated from the other pieces of circumstantial evidence, which the defence failed to impeach or discredit, hence; the impugned judgment is unexceptionable.
The contentions put forth on behalf of the parties by their learned counsel have been considered and the record of this case, as above noted, perused minutely and carefully.
It is an undisputed feature of the case that the complainant Safina Bibi, (Zaheer and Abdul Wahid injured PWs not produced) and all the PWs including the injured witnesses, who appeared at the trial were empty handed. The site-map prepared by the Investigating Officer on his first visit to the place of occurrence lend further support to the version of the complainant with regard to the venue of the alleged offence being the lane in front of her house. The injured PWs are related to the complainant, as disclosed by her in her statement recorded by the police officer on the basis of which formal FIR was registered, hence; presence of these PWs in the lane could not be doubted. These PWs undisputedly had no ill-will, malice or any animosity to falsely depose against the appellant. Dr. Muhammad Ilyas (PW-10) on the date of occurrence i.e. 24.7.1996 at about 7.10 p.m. examined Sakina Bibi
(PW-3) and thereafter examined Mst. Zarina Begum (PW-4), Tanvir Ahmed (PW-5), Zaheer Ahmed PW and Wahid Mahmood PWs one by one, who issued their respective MLRs, tendered in evidence by the said medical officer. According to which, these PWs had suffered injuries caused by sharp-edged weapon on different parts of their bodies mentioned in such reports which correspond to their versions. These witnesses were cross-examined by the defence but their testimony remained un-shattered and could not be discredited. The version of the complainant, as to the nature of the injuries suffered by the PWs corresponds to the one given by the complainant in her statement recorded by the police officer pursuant to which formal FIR was registered.
The deceased Munir Hussain was also examined by Dr. Muhammad Ilyas (PW-10) on 24.7.1996 at about 7.00 p.m. when he was brought to him in Tehsil Headquarter Hospital, Gujar Khan in injured condition. He found that injured Muneer Hussain had suffered stab wound of 1.0 x .5 cm with sharp margins on lower part of the right side of his abdomen, 3 cm from midline and 7 cm above from right pubic tubercle and depth was not probed in order to avoid injury to peritoneal cavity and abdominal viscera. He also noted corresponding hole on his wearing shirt. His pulse was 100 per minute. Blood pressure 100/70 m.n. and sweating was present whereas abdomen was found rigid on examination. The injured expired on 9.8.1996 due to endotoxic shock which resulted to peritonitis on account of above noted injuries, ante-mortem in nature sufficient to cause death of the deceased in the ordinary course of nature. His postmortem report was tendered in evidence by PW-10, who conducted autopsy on the same day at about 3.15 p.m. The nature of the injury suffered on his abdomen by the deceased also lends necessary support to the version of the complainant that the deceased was subjected to churri blow on his abdomen. The prosecution case rested on the pieces of evidence i.e. motive, ocular account, medical evidence, recovery of blood stained churri, absconsion of the accused after commission of offencecoupled with the other pieces of circumstantial evidence, such as; blood stained earth secured from the place of occurrence by the I.O., blood stained last worn clothes of the deceased, Serologist and Chemical Examiner reports and site-map. So far as, the motive is concerned, the complainant in her statement at the trial has proved the same consistent to her initial version which the defence failed to discredit despite lengthy cross-examination. The ocular account was furnished by Mst. Sakina Bibi, Mst. Zarina and Tanvir Ahmed (Injured PWs) and the complainant herself. Their versions on all material particulars remained firm, consistent, straightforward and worthy of credence which get due corroboration from the medical evidence mentioned above to the extent of nature of the injuries and the kind weapon used for causing such injuries and their duration, as well as; the autopsy report tendered in the evidence at the trial by PW-10. It was proved by the prosecution that the injuries suffered by the deceased on his abdomen were sufficient in the ordinary course of nature to cause his death, which the defence failed to discredit. The recovery of churri was proved through the evidence of PWs 5, 6 and 13, who were subjected to cross-examination by the defence which failed to discredit their evidence though subjected to searching cross-examination. It was substantiated by the prosecution that after commission of the offence, the accused absconded whose non-bailable arrest warrants were handed over to the Sabir Hussain Shah (PW-15), who entrusted the same for execution to Shafqat Abbas (PW-14). The application for issuance of the arrest warrants and unexecuted warrants were tendered in evidence by the said PW at the trial.
Despite as noted above in support of the plea taken by the accused in his statement under Section 342 Cr.P.C, he did not opt to make statement on oath nor produced any witness in defence, inasmuch as; the plea so introduced is indicative of the fact that the accused did not dispute his presence at the given venue of the crime though he claimed that the occurrence did not take place in the manner in which it was narrated by the ocular witnesses, which stand fully corroborated by the other pieces of circumstantial evidence concurrently believed by both the learned Courts i.e. the learned trial Court and the High Court. The findings of the guilt recorded by the learned Courts; on appraisal of evidence made by us have been found to be perfectly in accordance with the principles laid down by this Court for the safe administration of criminal justice which thus, is not open to any interference. The appellant in the circumstances of the case, for no justification committed Qatal-e-Amd of deceased Munir Hussain and caused injuries on the person of the ocular witnesses, who intervened to rescue the injureds all empty handed but successively fell prey to the accused one after the other for no fault of theirs, hence; in our considered opinion, the appellant was rightly found guilty on the charge and appropriately punished.
Thus; for the foregoing reasons, this appeal having no merits, is dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 395
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J, Ch. Ijaz Ahmed & Ghulam Rabbani, JJ.
CHAIRMAN Dr. A.Q.KHAN RESEARCH LABORATORIES
& another--Petitioners
versus
Malik MUHAMMAD HAMIDULLAH KHAN--Respondent
Civil Petition No. 1508 of 2009, decided on 21.8.2009.
(On appeal from the judgment dated 29.6.2009 passed by the Federal Service Tribunal, Islamabad in Appeal No. 33(R)CE/2004).
Service Tribunals Act, 1973--
----S. 5--Constitution of Pakistan, 1973, Art. 212--Leave to appeal--Civil servant--Absent from duty--Service Tribunal assumed jurisdiction to modify the penalty of dismissal from service to compulsory retirement--Question of lawful authority to allow appeal by keeping his past service and mitigating circumstances--Validity--No doubt tribunal enjoys powers to modify any order but such power is to be exercised judiciously--It was a case wherein the penalty had been imposed by departmental authority on basis of established charge that respondent was absented from his duty and major penalty of dismissal from service was imposed upon him according to relevant law and rules--Held: Where Tribunal had derived the authority to exercise in favour of respondent/civil servant and it seems that without any lawful authority the appeal had been allowed which was not permissible under law--Further held: Tribunals seized with matter are required to pass order strictly within parameters of the constitution and the law and rules and have no jurisdiction to grant arbitrary relief in favour of any person--Service Tribunal had exceeded their authority in granting the relief to the civil servant thus order was not sustainable in law--Appeal was allowed.
[Pp. 398 & 399] A, B & C
Mr. Muhammad Aslam Uns, ASC and Mr. Mehmood A. Sheikh, AOR for Petitioners.
Respondent in person.
Date of hearing: 21.8.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed under Article 212 of the Constitution of the Islamic Republic of Pakistan, for leave to appeal against the judgment dated 29.6.2009. Relevant para therefrom reads as under:
"Reading of the charge sheet/statement of allegations and reply of the appellant, establish absence from duty. Civil servants are not expected to absent themselves from duty without getting the leave sanctioned. Surely, unauthorized absence constitutes misconduct. The Hon'ble Supreme Court in case reported as 2004 PLC (CS) 744 held as follows:
"We may mention here that there is no "automatic process" to get the leave sanctioned but the procedure as contemplated in the Revised Leave Rules, 1980 must be followed to get the leave sanctioned otherwise the leave availed without getting it sanctioned would be equated to that of willful absence amounting to misconduct."
The departmental authority proceeded against the appellant against his established absence. However, keeping in view his part service and mitigating circumstances, the impugned penalty of dismissal from service is modified to compulsory retirement."
"In year 1997, my only Nephew died in the age of 45 in village Chak 99 due to Heart attack. He has been indulged in false murder case and Honorable Court order his free. Due this false case he was heart patient and ultimately dies. After the death of my father he was the only family member in village looking after agriculture land. And people after his death local people and family members started creating problems to our families. This was great loss to my family and me as he was the only person in village to look after our village matter and agriculture land of about two and half Morabba. He was Number Dar of the village and also look after an Government land (Ghori Pal Morabba). He has only one kid of 7 years old who could not manage these matters. People of the area/localities start great problems by land capturing, distorting cultivated land. Mean while some person of my family started intervene in my family matter and start torturing me through my wife and kids. This was against great shock to me and I could not performing my duties regularly and effectively with peace of mind, but I continuous with hope, that some day my Allah help me and solve my problems. Due to my family problems/mental tension I got 2nd marriage to get mental satisfaction, which was my religious right.
To solve all problems my presence in village was must. I have to be present in village to look after my cultivated land and followed the Court cases. I have to train and search for an honest person to look after my hand and help my family in my absence."
Inquiry was conducted and vide inquiry report dated 1st October, 2003 respondent was found guilty of remaining absent from duty and recommendations were made for his dismissal from service under Removal from Service Special Powers Ordinance, 2000 with immediate effect. The department issued a Show Cause Notice to the petitioner and ultimately vide order dated 12th November, 2003 he was dismissed from service. Appeal filed before the appellate authority was rejected on 12th December 2003 as such a Writ Petition was filed in the Lahore High Court, Rawalpindi Bench which was also dismissed as the petitioner wanted to avail opportunity before the Service Tribunal. Accordingly appeal was filed before the Service Tribunal which was allowed vide the impugned judgment relevant para of which has been reproduced herein above.
Learned counsel for the petitioner stated that the members of the Tribunal on having concluded that absence from duty established against the respondent, had no lawful authority to allow the appeal by keeping in view his past service and mitigating circumstances. On the other hand respondent has stated that he could not attend the office for the reasons which he has already mentioned in the reply of the charge sheet, therefore, the Service Tribunal had granted relief to him in peculiar circumstances of the case.
We have heard the learned counsel for petitioners as well as respondent in person and have gone through the relevant record reference whereof has been made herein above.
It is quite surprising that the Service Tribunal on declaring that the absence of respondents from duty was established assumed jurisdiction to modify the penalty of dismissal from service to the compulsory retirement. No doubt under Section 5 of the Service Tribunals Act, the Tribunal enjoys powers to modify any order but such power is to be exercised judiciously. It is a case wherein the penalty has been imposed by the departmental authority on the basis of established charge that the respondent was absent from his duty and the major penalty of dismissal from service was imposed upon him according to the relevant law and rules, we fail to understand that from where the Tribunal has derived the authority to exercise in favour of the respondent and it seems that without any lawful authority the appeal has been allowed in a manner which is not permissible under the law.
The Courts/tribunals seized with the matter are required to pass order strictly within the parameters of the constitution and the law and the rules and have no jurisdiction to grant arbitrary relief in favour of any person. Therefore we are of the opinion that the observation of the Service Tribunal which is incorporated in the judgment in two lines is without any reason, law on the subject, as well as under the rules, is not sustainable. Had the members of the Tribunal decided to do so they could have referred the previous record of the respondent to show indulgence; whereas fact is that past service record of the respondent has been mentioned in one of the grounds of the charge sheet that:
"it is further noted that during your service three Warnings/Discipline violation letters dated 27.4.1992, 14.12.1992 and 16.8.2001 were issued to you on account of your un-authorized absence."
Therefore, we are of the opinion that in such view of the matter Members of the Service Tribunal had exceeded their authority in granting the relief to the respondent thus the order is not sustainable in law. As a result whereof this petition is converted into appeal and allowed. Impugned judgment is set-aside. Parties to bear their own costs.
(R.A.) Appeal allowed.
PLJ 2010 SC 399
[Appellate Jurisdiction]
Present: Javed Iqbal & Mahmood Akhtar Shahid Siddiqui, JJ.
CHIEF EXECUTIVE OFFICER, QUETTA ELECTRIC SUPPLY COMPANY (QESCO) & others--Petitioners
versus
RANA SHAMIM AKHTAR & another--Respondents
Civil Petition No. 26 of 2009, decided on 28.7.2009.
(On appeal from the judgment dated 3.11.2008 passed by Federal Service Tribunal, Islamabad, in Appeal No. 10(Q) CE/2004).
Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978--
----R. 5(4)--Civil servant--Question of jurisdiction of Federal Service Tribunal--Civil servant was imposed major penalty of compulsory retirement--Allegations that the civil servant installed a 25 KWA transformer without approval of the competent authority and received as illegal gratification from the consumer--Without holding any regular inquiry, the penalty of stoppage of annual increments was imposed--In pursuance of departmental appeal the major penalty of dismissal from service was withdrawn--Second show-cause notice was issued to the civil servant wherein it was proposed that the case of civil servant needed review--Challenge to--Federal service tribunal was not justified to entertain and decide the time barred appeal for the reason that question qua condonation of delay falls within the jurisdiction domain of service tribunal and no restriction whatsoever had been imposed by any law and condonation can be granted in suitable cases and question of suitability is to be assessed by Federal Service Tribunal. [P. 402] A
1986 SCMR 1086, 1976 SCMR 262, 1976 SCMR 268 &
1990 SCMR 1513, rel.
Constitution of Pakistan, 1973--
----Art. 212(3)--Pakistan WAPDA Employees (E&D) R. 5(4)--Leave to appeal--Civil servant--Major penalty of compulsory retirement was imposed--Civil servant installed a 25 KVA transformer without approval of competent authority and received as illegal gratification from consumer--Question of--Whether any incriminating material was available qua receiving of an amount as illegal gratification for installation of 25 KVA transformer but no incriminating evidence or material could be pointed out--Major penalty of compulsory retirement could be justified--Held: All proceedings had been conducted in haphazard, careless and highly irresponsible manner which speaks of malafides and depicts inefficiency and lack of knowledge of the authorities regarding services laws under what authority various disciplinary actions were taken on different occasions after one another and order passed were either reversed or reviewed by competent authority without having gone through the entire record and diligent application of mind which speaks a volume about the good governance of QESCO--No infirmity or illegality could be pointed out in judgment which being un-exceptionable did not warrant interference--Leave refused. [P. 403] B, C & D
Raja Muhammad Ibrahim Satti, Sr. ASC, for Petitioners.
Mr. Haider Hussain, ASC a/w Mr. M.S. Khattak, AOR for Respondent No. 1.
Date of hearing: 28.7.2009.
Judgment
Javed Iqbal, J.--Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect "that the appellant was working as Line Superintendent-II when he was suspended from service vide Office Order dated July 2000. Later a letter of explanation under rule 5(4) of the Pakistan WAPDA Employees (E&D) Rules, 1978 was issued on 12.09.2000 which contained the allegation that the appellant installed a 25 KVA Transformer without the approval of the competent authority and received Rs.60,000/- as illegal gratification from the said consumer. The appellant submitted his reply to the said show cause notice on 29.09.2000 wherein the allegation regarding the alleged unauthorized installation of the Transformer was explained. The allegation of receiving illegal gratification was totally denied. Without holding any regular inquiry into the said allegations a show cause notice dated 03.10.2000 was issued to the appellant wherein it was provisionally suggested to impose the penalty of stoppage of two annual increments falling due on 01.12.2000 and 01.12.2001. Vide Order dated 07.10.2000 the penalty of stoppage of two annual increments was accordingly imposed. On 31.10.2000 another show cause notice was issued to the appellant whereby the competent authority proposed to convert the earlier penalty into the major penalty of dismissal from service. The appellant replied to this show cause notice on 13.11.2000 and reiterated his defence which he had earlier submitted. Vide Office Order dated 20.11.2000 the major penalty of dismissal from service was imposed upon the appellant. The appellant filed a departmental appeal against the said major penalty on 26.12.2000. In pursuance of this appeal an Office Order dated 28.05.2001 was passed whereby the major penalty of dismissal from service was withdrawn and the appellant stood reinstated in service from the date of the dismissal order. The matter did not end there. Another show cause notice dated 31.07.2001 was issued to the appellant wherein it was once again proposed that the case of the appellant needed review and once again it was suggested to impose a minor/major penalty on account of same allegations. The appellant once again submitted a detailed reply on 31.08.2001. While the above proceedings were still pending, the appellant was promoted as LS-I vide Office Order dated 06.06.2002. Despite the above, the appellant was issued a letter of personal hearing on 18.11.2003 and lastly vide the impugned order dated 06.01.2004, the appellant awarded the penalty of compulsory retirement from service", which was assailed before the learned Federal Service Tribunal by way of appeal and acceptance thereof has been challenged by filing this petition for leave to appeal under Article 212(3) of the Constitution of Islamic Republic of Pakistan.
Heard Raja Muhammad Ibrahim Satti on behalf of petitioner, who mainly argued that legal and factual aspects of controversy has not been dilated upon and decided in accordance with the law which resulted in serious miscarriage of justice. It is argued that learned Federal Service Tribunal was not justified to entertain and decide the time barred appeal without condonation of delay and on this score alone the judgment impugned is liable to be set aside. It is next argued that after the creation of QESCO, which is a private limited company, its employees cannot invoke the jurisdiction of learned Federal Service Tribunal and accordingly the judgment delivered is ab initio, void and illegal. It is conceded that the question of jurisdiction was never raised before the Service Tribunal but it should have been decided by the Tribunal itself as it is for the forum concerned to decide the question of jurisdiction prior to initiation of any proceedings, which could not be done by the learned Federal Service Tribunal for the reasons best known to it. It is also pointed out that major penalty of compulsory retirement was in accordance with the relevant rules and justified, hence the question of its reversal without any lawful justification does not arise as a very serious charge of corruption was levelled against the respondent who had obtained an amount of Rs. 60,000/- as illegal gratification for the installation of 25 (twenty five) KVA Transformer. It is argued that if full-fledged inquiry was not conducted the matter could have been remanded to the Department for doing the needful and the respondent should not have been exonerated from all the allegations, which were serious in nature.
We have carefully examined the contentions as agitated on behalf of petitioners in the light of relevant provisions of law and record of the case. We have minutely perused the . judgment impugned. We have not been persuaded to agree with the prime contention of learned ASC on behalf of petitioner that learned Federal Service Tribunal was not justified to entertain and decide the time barred appeal for the simple reason that question qua condonation of delay squarely falls within the jurisdictional domain of learned Service Tribunal and no restriction whatsoever has been imposed by any law and condonation can be granted in suitable cases and question of suitability is to be assessed by the learned Federal Service Tribunal itself. In this regard we are fortified by the dictum laid down in the following authorities:--
1986 SCMR 1086
1976 SCMR 262
1976 SCMR 268
1990 SCMR 1513
1990 SCMR 1519 and
1990 SCMR 1504
The contention that after creation of QESCO the learned Federal Service Tribunal had no jurisdiction seems to be devoid of merit as this question was never agitated before the learned Federal Service Tribunal and now it is too late in the day to resolve such academic question which otherwise would have no substantial bearing on merits of the case.
We have also adverted to the plea that major penalty of compulsory retirement as imposed by the competent authority was in accordance with law and it could not have been reversed by the learned Federal Service Tribunal seems to be devoid of merit because Raja Muhammad Ibrahim Satti, learned ASC on behalf of petitioners was asked pointedly that as to whether any incriminating material was available qua receiving of an amount of Rs. 60,000/- as illegal gratification for installation of 25 KVA Transformer but no incriminating evidence or material could be pointed out on the basis whereof the major penalty of compulsory retirement could be justified. It may be pointed out that heinousness or gravity of accusation caries a little importance unless substantiated by cogent and concrete evidence which is absolutely lacking in this case. It is observed with grave concern that all the proceedings have been conducted in haphazard, careless and highly irresponsible manner which speaks of malafides and depicts inefficiency and lack of knowledge of the concerned authorities regarding services laws. It is astonishing that at a first occasion the Office Order dated 28.05.2001 regarding the dismissal order of respondent was withdrawn and he was reinstated in service. Fresh show cause notice thereafter was issued on 31.7.2001 on the same grounds and once again minor penalty of stoppage of two increments was imposed. It is not understandable as to how the respondent was promoted from LS-II to LS-I when various serious charges were levelled against him and disciplinary proceedings were initiated. Raja Muhammad Ibrahim Satti could not explain that as to how and under what authority various disciplinary actions were taken on different occasions after one another and order passed were either reversed or reviewed by the competent authority without having gone through the entire record and diligent application of mind which speaks a volume about the good governance of QESCO. No infirmity or illegality could be pointed out in the judgment impugned which being unexceptionable does not warrant interference. The petition being devoid of merit is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2010 SC 403
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, M. Javed Buttar &
Muhammad Qaim Jan Khan, JJ.
PETROSIN CORPORATION (PVT.) LTD. & others--Appellants
versus
OIL & GAS DEVELOPMENT COMPANY LTD. ISLAMABAD through its Managing Director--Respondent
Civil Appeals No. 1241 & 1242 of 2007, decided on 24.9.2008.
(On appeal from judgment dated 27.9.2006 of the Lahore High Court, Rawalpindi Bench, passed in Writ Petitions No. 2055 and 2056 of 2006)
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Technical and commercial bids were submitted--Oil and Gas Development company in order to develop Tando Allahyar Natural Gas Development Project--Appellants participate in tender for Design, Engineering, Procurement, construction, installation/erection, precommissioning start-up and commissioning of project--Appellants submitted performance bond in the sum equivalent to 10% of contract price by way of a bank guarantee--Performance guarantee and bid bond were returned--Question of validity of withdrawal and tenders to re-advertise--Held: General letter of intent merely implies an intention to enter into a contract in anticipation of signing of the contract with a right to contractor with authority to the contractor to start the work before completion of the contract for compensation of the work, if any, he already done--Letter of intent could be treated to be synonymous to a complete contract--The instant ones are not the cases in which bid of any other bidder had been accepted. [Pp. 408 & 409] E
Interpretation of Statute--
----Statutory law--Writ jurisdiction--Although no hard and fast rule can be laid down but ordinarily writ jurisdiction is not to be treated to be a substitute for a suit for specific performance of a general contract not governed by statutory law. [P. 408] A
1998 SCMR 2268, ref.
Final Contract--
----Re-advertise the tender--Question of validity of withdrawal of T.A.Y--Final contract had not come into existence although certain steps towards the same had been taken by respondent. [P. 408] B
Promissory Estoppel--
----Principles of--Principles of promissory estoppel or legitimate expectancy were not attracted in facts and circumstances of the cases.
[P. 408] C
Principle of Natural Justice--
----Principle of natural justice was not attracted in absence of infringement of any vested rights of appellants. [P. 408] D
PLD 2001 SC 116, ref.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Question of maintainability--In appropriate case whether or not a writ could be issued against company u/Art. 199 of Constitution--Impugned judgment of High Court is plainly correct to which no exception can be taken. [P. 409] F
Mr. Abdul Hafeez Pirzada, Sr. ASC, Mian Gul Hassan Aurangzeb, ASC and Mr. Mehr Khan Malik, AOR for Appellant (in both cases).
Mr. Waseem Sajjad, Sr. ASC and Ch. Akhter Ali, AOR for Respondents (in both cases).
Dates of hearing: 9.9.2008, 10.9.2008, 12.9.2008 17.9.2008, 23.9.2008 & 24.9.2008
Judgment
M. Javed Buttar, J.--These appeals, by leave of the Court, are directed against judgment dated 27.9.2006, passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, whereby Writ Petitions No. 2055 and 2056 of 2006 of the appellants were dismissed.
The respondent -- Oil & Gas Development Company Ltd. in order to develop Tando Allahyar Natural Gas Development Project of setting up of surface and gas process facilities in addition to the Kunar L.P.G Plant invited as many as 9 companies including the Appellant No. 2 to participate in the tender for Design, Engineering, Procurement (Supply), Construction, Installation/Erection, Pre-commissioning startup and Commissioning of Project (hereinafter called as the T.A.Y Project). By letter dated 21.11.2005, the respondent asked the Appellant No. 2 i.e Petrosin Engineering (Pvt.) Limited to collect the lumpsum turnkey tender document for the T.A.Y project. The Petrosin Consortium of the appellants was one of the three consortiums of companies, bidding for the contract. The other two being Messrs C.P.E.C.C Consortium and Messrs O.P.D.I.L Consortium. They submitted their technical and commercial bids. After examination and evaluation of the technical bids, the respondent by letter dated 7.3.2006, called upon the appellants to ensure the presence of their representative at the time of opening of commercial bids on 8.3.2006. The Board of Directors of the respondent in its 74th meeting held on 14.4.2006, decided to approve the T.A.Y Project as recommended by the management, followed by letter dated 19.4.2005 of intent to award the contract at a cost of $ 38,499,408.00. The appellants were further called upon to submit performance bond in the sum-equivalent to 10% of the contract price by way of a bank guarantee, as required by clause 9.5 of the I.T.B. The performance guarantee. dated 19.4.2006 was provided for an amount of Rs. 325,000,000/- being equivalent to 10% of the contract price. However, by letter dated 16.8.2006, the respondent informed the appellants to withdraw T.A.Y project and to re-advertise the tender. The performance guarantee and bid bond were returned to them.
A some-what similar was the position of Sinjhoro project for which the respondent issued, on 19.4.2006, a notification of intent to award under clause 9.3 of I.T.B for award of Contract on lumpsum turnkey basis at a cost of $ 61,023,189 and Pak Rs. 1,643,183,892/-. The appellant furnished performance guarantee dated 19.4.2006 for an amount of Pak Rs. 531,000,000/- equivalent to 10% of the contract price. The respondent, however, informed the appellants vide letter dated 16.8.2006 to withdraw the Sinjhoro project tender for its re-advertisement. Consequently, the performance guarantee and bid bond were returned to the appellants.
The appellants filed Writ Petitions No. 2055 and 2056 of 2006 calling in question the validity of withdrawal of T.A.Y and Sinjhoro Projects tenders to re-advertise them, which as already stated, were dismissed, by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, vide impugned judgment dated 27.9.2006. Hence these appeals.
Mr. Abdul Hafeez Pirzada, learned Sr. ASC assisted by Mian Gul Hassan Aurangzeb, ASC, for the appellants submitted that "the intent to ward a contract" by itself was a complete contract enforceable at law and that the same operated as a promissory estoppel against the respondent. It was further argued that the bank guarantees furnished by the appellants pursuant to the letters of intent would constitute vested right of the appellants to get the contract carried out. It was further submitted that the withdrawal of the letters of intent in both cases was not sustainable on legal and factual grounds and that such withdrawal would be tantamount to revocation of contract for which the respondent was bound to issue a prior notice to the appellants. He maintained that such like contractual rights and obligations could be enforced by invoking the constitutional jurisdiction of a High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his submissions, he relied on the cases of Ramna Engineering Pipelines v. Sui Gas Pipelines Limited (2004 SCMR 1274), British Steel Corporation versus Cleveland (1984) (1 All.E.R 504), Pakistan Industrial Development Corporation versus Aziz Qureshi (PLD 1965 Karachi 202), Mai (R) Ahmed Khan Bhatti versus Mst. Masooda Fatima (PLD 1981 Karachi 398), (AIR 1933 P.V 29), Michael Richards Properties Ltd, versus Corporation of Wardens of St, Saviour's Parish (1975) (3 All.E.R 416), Messrs Hotel Summer Retreat, Nathiagali versus Government of N.W.F.P (1999 MLD 2418), M/s. Dadabhoy Investments (Pvt), Limited, Karachi through Abdul Dadabhoy versus Federation of Pakistan through Secretary, Ministry of Finance (PLD 1995 Karachi 33), M/s. Poddar Steel Corporation versus M/s. Ganesh Engineering Works (AIR 1991 SC 1579), British Steel Corp. versus Cleveland Bridge and Engineering Co. Ltd. (1984) (1 All E.R 504), Dresser Rand S.A versus M/s. Bindal Agro Chem Ltd. (AIR 2006 S.C 871), Messrs Bagh Construction Company versus Federation of Pakistan (2001 YLR 2791) and City Schools (Pvt.) Ltd. versus Privatization Commission, Government of Pakistan and others (2002 SCMR 1150). He further submitted that the process of determination of the award of contract was flawed because the evaluator Messrs Enar Engineering Consultants were removed on the application of the appellants and that a distinction was to be made between the essential and non-essential conditions to be fulfilled by the contracting parties. It was lastly submitted that the action of the respondent suffered from lack of procedural proprieties, violation of principles of natural justice, failure in duty to act fairly and violation of doctrine of legitimate expectancy on account of furnishing of performance bonds of the amount equivalent to 10% of the contract consideration and that the High Court did not act in consonance with the settled principles of law while dismissing the writ petitions of the appellants.
On the other hand, Mr. Wasim Sajjad, Sr.ASC, learned counsel for the respondents submitted that in both the cases, concluded contract had not come into existence between the parties. Therefore, the appellants could not claim to have any vested right for the award of the contract. Moreover, the appellants were not the aggrieved persons within the meaning of Article 199 of the Constitution for invoking writ jurisdiction. A contract was a solemn commitment for which both the parties should agree on all the terms of contract and no party could be forced to enter into a contract. The appellants had sought specific performance of a contract which did not fall within the scope of Article 199 of the Constitution. He further submitted that no writ of mandamus could be issued against the respondents whose commercial activities were not controlled by the Government. Some disputed questions of fact were involved in both the cases for which remedy of writ was not proper. The respondent by withdrawing their letter of intent to award a contract had acted within its rights under the tendering process. The appellants could not claim any right under the statute as it was a case of normal tendering in which the process could not be treated to be without lawful authority. The withdrawal of tender did not require issue of prior notice with reasons. The Board of Directors in its 76th meeting held on 21.6.2006 had taken into consideration that the proceedings of 75th meeting of the Board of Directors of the respondent had held in abeyance for both the projects. It was further submitted that the Enar Engineering Consultants, who were to evaluate the bid were unjustifiably excluded on the so-called ground of conflict of interests. It was through 77th meeting of the Board of Directors of the respondent held on 15.8.2006 that the bidding process was competently and validly annulled by the respondents. He pointed out that the Managing Director of the respondent had relinquished the charge of his office on 19.4.2006 on acceptance of his resignation. He made a reference to the cases of Lahore Cantonment Co-operative Housing Society Limited, Lahore Cantt. versus Dr. Nusrat Ullah Chaudhry (PLD 2002 SC 1068), The Chandpur Mills Ltd. versus The District Magistrate, Tippera (PLD 1958 SC 267), Messrs Momin Motor Company versus The Regional Transport Authority, DACCA (PLD 1962 SC 108), M/s. Padmavathi Constructions versus The A.P Industrial Infrastructure Corporation Ltd. (AIR 1997 A.P 1), The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. versus Sipahi Singh and others (AIR 1977 S.C 2146), State of Gujarat versus Meghji Pethraj Shah (1994) (3 S.C.C 552), Moulvi Iqbal Haider versus Capital Development Authority (PLD 2006 SC 394), and Administrative Law by Wade 9th Edition. He contended that a dispute arising out of a general law of contract was not determinable in writ.
We have heard the learned counsel for the parties at length and have also perused the available record. Although no hard and fast rule can be laid down but ordinarily writ jurisdiction is not to be treated to be a substitute for a suit for specific performance of a general contract not governed by the statutory law. Reference may usefully be made to the case of Messrs Airport Support Services versus The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268). After going through the voluminous record concerning the tenders in both the cases, we are of the opinion that a final contract had not come into existence although certain steps towards the same had been taken by the respondents. The principles of promissory estoppel or legitimate expectancy were not attracted in the facts and circumstances of these cases. The mere letters of intent to award the contract in present cases would not constitute a concluded contract. There may be cases in which a contract may involve a number of documents including exchange of correspondence between the parties in the process of finalization of the award of a contract. The principle of natural justice was not attracted in the absence of infringement of any vested rights of the appellants. Reference may usefully be made to the case of Ittehad Cargo Services versus Syed Tasleem Hussain Naqvi (PLD 2001 SC 116). Since the bids of the appellants had not been confirmed finally, therefore, the contract could not be said to have been completed. Reference may be made to the cases of Union of India versus Bhimsen Walaiti Ram (AIR 1971 SC 2295) and Babu Parvez versus Settlement Commissioner (1974 SCMR 337), Even the lowest bid would not confer an absolute title for award of a contract. In such like mega projects host of other considerations become relevant to avoid any unnecessary risk. The general letter of intent merely implies an intention to, enter into a contract and authority to the contractor to start the work before completion of the contract in anticipation of the signing of the contract with a right to the contractor for compensation of the work, if any, he already done. Therefore, the letter of intent could be treated to be synonymous to a completed contract. The present ones are not the cases in which bid of any other bidder had been accepted. Rather the respondent had decided quite justifiably to re-advertise the tenders. We leave the question open for consideration in some other appropriate case whether or not a writ could be issued against the respondent company under Article 199 of the Constitution. In our opinion, the impugned judgment of the High Court is plainly correct to which no exception can be taken.
For the foregoing reasons, we do not find any merit in these appeals which are dismissed but with no order as to costs.
(R.A.) Appeals dismissed.
PLJ 2010 SC 409
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ghulam Rabbani & Sarmad Jalal Osmany, JJ.
MURREE BREWERY COMPANY LIMITED--Petitioner
versus
COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS HOUSE KARACHI--Respondent
Civil Petition No. 906 of 2009, decided on 28.7.2009.
(On appeal from the order dated 17.3.2009 passed High Court of Sindh at Karachi in Special Customs Reference Application No. 190 of 2006).
Custom Act, 1969--
----S. 196--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Concurred findings--Custom reference--Goods chargeable to customs duty under different PCT heading--Catalogue the classification of imported goods was declared under PCT heading--Refund claim was filed before the collector--Customs goods imported by petitioner were shaped like shell as well as Tube--Validity--Adjudicating Officer had correctly classified the imported goods chargeable under PCT--Customs Appellate Tribunal and High Court rightly dismissed the appeal and Customs Reference of petitioner--Concurrent findings were unexceptionable--Leave refused. [P. 411] A
Mr. Sohail Muzaffar, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 28.7.2009.
Judgment
Ghulam Rabbani, J.--The petitioner had imported two consignments consisting of Radiation Recuperator Equipment claiming that the imported goods fell under PCT Heading 8419.5090 chargeable to Customs duty at 10%. The available Shed staff, on first examination, declared the goods chargeable to same Customs duty under a different PCT Heading 8419.8990. On further examination, in the light of Manufacturer's Catalogue the classification of imported goods was declared under PCT Heading 8419.5010 chargeable to 35% Customs duty which the petitioner paid under protest. Later, the petitioner filed a refund claim which, ultimately, came up before the Collector of Customs (Appraisement), who observed that the goods were essentially a Shell type Recuperator equipped with cylindrical tube bundles; therefore, they were rightly made chargeable to Customs duty at 35% vide order in original dated 13.5.2005. Petitioner preferred there-against an appeal which was dismissed by Customs Appellate Tribunal under order dated 5.4.2006. Feeling aggrieved petitioner made a Customs Reference Application under Section 196 of the Custom Act, 1969 that, too, was dismissed by a learned Division Bench of High Court of Sindh vide order dated 17.3.2009 against which the petitioner has, now, sought leave to appeal.
Learned counsel for petitioner contended that under Heading 8419.5010 classifiable as "Shell or Tube type" only those goods would fall which were shaped either like a "Shell" or "Tube" type and not those which were shaped like "Shell and Tube" both, According to him the Radiation Recuperator imported by the petitioner was like "Shell and Tube", therefore, the same fell under the description of "other" chargeable to 15% duty under PCT Heading 8419.5090. Learned counsel contended that the Customs Appellate Tribunal and learned Division Bench of High Court, as well, did not apply their judicial mind and failed to appreciate the factual and legal position correctly.
We have given due consideration to the submissions of learned counsel for petitioner and with his assistance we have examined the record made available before us. Learned counsel for petitioner has admitted that the goods imported by petitioner were shaped like Shell as well as Tube, therefore, it does not appeal to a prudent mind to take the same out from description "Shell or Tube type" and put it under description "other" not akin to relevant description. We, therefore, do not feel persuaded to agree to the proposition advanced by learned counsel for petitioner. The Adjudicating Officer had correctly classified the imported goods chargeable under PCT Heading 8419.5010. So also, the Customs Appellate Tribunal and Learned Division Bench of High Court rightly dismissed the appeal and the Customs Reference of petitioner. The concurrent findings, seen in the above perspective, are unexceptionable. This petition merits no consideration and the same is dismissed accordingly. Leave refused.
(R.A.) Leave refused.
PLJ 2010 SC 411
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Raja Fayyaz Ahmed & Mahmood Akhtar Shahid Siddiqui, JJ.
HAMIDA BEGUM--Petitioner
versus
GOVERNMENT OF PAKISTAN, MINISTRY OF EDUCATION through its Secretary and others--Respondents
Civil Petition No. 1587 of 2008, decided on 4.8.2009.
(On appeal from the judgment dated 11.11.2008 of the Islamabad High Court, Islamabad passed in ICA No. 93 of 2004).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Civil servant repatriated to her parent department--Petitioner was working as PET on deputation as PTI for a period of 3 years--After completion of her tenure she was repatriated to her parent department--Order was challenged in writ petition--Allowed to continue her duty--Civil Servant was remained on deputation for a period of 9 years could not be retained for further period as she was not qualified according to recruitment rules--Order was challenged--Question of entitlement to be permanently absorbed in Federal Government under rules for time being--Validity--Parent department of the province could not be absorbed permanently in Education Department for want of occurrence of Provincial Government nor such a concurrence pre-requisite for absorption as claimed was conveyed to Federal Government which had not been done--Held: Service of the civil servant could not be absorbed in department of Federal Government even if the civil servant holds the requisite qualifications and eligibility for such absorption--Civil servant did not approach to Provincial Government for purpose for grant of NOC and consequently, in terms of order passed by Supreme Court--Leave refused. [P. 416] A & B
Raja Abdul Ghafoor, AOR/ASC for Petitioner.
Mr. Shah Khawar, DAG, Mr. Arshad Anjum, AD (FDE) and Mr. Hadayatullah, SO (Education), Peshawar for Respondents.
Date of hearing: 4.8.2009.
Judgment
Raja Fayyaz Ahmed, J.--In the earlier round of litigation culminating in the filing of Civil Petitions Nos. 918, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 984, 996, 961, 1142, 1143 & 1230 of 1998 by the petitioner and others against the orders dated 25.5.1998, 26.5.1998 & 16.7.1998, whereby ICA Nos. 40 to 48 of 1998, 50, 52, 55, 53, 59, 61 & 94 of 1998 dismissed by the learned High Court, Rawalpindi Bench, Rawalpindi were disposed of by this Court vide order dated 4.12.1998 in the terms specified therein reproduced hereunder in extenso:--
"Ajmal Mian, CJ.--Petitioners in above petitions are School Teachers who were on deputation in the Federal Ministry of Education, Islamabad, from the Provinces of Punjab, Sindh and NWFP. Their husbands are working in various Government Department at Islamabad/Rawalpindi. The deputation period of the petitioners have expired. They do not wish to go back to their respective Provinces on the ground that their husbands are still posted at Islamabad/Rawalpindi. Mr. Abdul Karim Khan Kundi, ASC appearing the petitioners has produced a copy of Office Memorandum No. 10/1/84-R-5, dated 26th November, 1998 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad, addressed to the Ministry of Education, Islamabad, which reads as follows:--
OFFICE MEMORANDUM
Subject: ABSORPTION OF FEMALE TEACHERS ON DEPUTATION TO FEDERAL GOVERNMENT SCHOOLS, ISLAMABAD FROM PROVINCIAL EDUCATION DEPARTMENTS.
The undersigned is directed to refer the Ministry of Education's O.M. MO.D-1281/98-CEI, dated 12th October, 1998, on the above subject and to request that the following information/documents may be supplied to this Division:--
(i) A copy of formal concurrence of the provincial governments to the permanent absorption of its employees in the Federal Government.
(ii) A certificate/confirmation to the effect that husbands of the lady teachers proposed to be absorbed are working under the Federal Government at Islamabad.
SD/-
(Muhammad Arshad)
Section Officer
When the above petitions came up for hearing before this Court on 26.11.1998, Mr. Abdul Karim Khan Kundi, ASC, has pointed out that Provincial Governments are not accepting the petitioners as their employees. We had issued notices to the learned Deputy Attorney General, Advocate Generals of the Provinces. In response to the above notice Maulvi Anwarul Haq, Dy, AG., Mr. M. Sardar Khan, AG NWFP, and Mr. Muhammad Zaman, ASC representing AG Punjab, are present. They state that the petitioners have still lien over their respective posts in the Provinces.
In our view, it will be appropriate if no further action is taken against the petitioners for a period of three months. In the meantime, if some action is taken pursuant upon above OM the same may be implemented, otherwise they will be repatriated to their respective Provinces. Petitions are disposed in the above terms."
Vide Office Order dated 3.10.2003 the petitioner was repatriated to her parent Department and relieved from duty with immediate effect by the Federal Directorate of Education, Government of Pakistan. The contents of the Office Order reads as under:--
"Consequent upon the decision of Supreme Court on Civil Petition No. 984 etc dated 4.12.1998 and amendment in Recruitment rules for absorption/appointment through transfer Mrs. Hamida Begum, PTI, (Junior) (deputationist) Federal Government Girls Primary School, Humak (FA), Islamabad is hereby repatriated to her parent department and relived from duty with immediate effect.
As she as been on deputation since 2.6.1994 i.e. more than 09-years and she could not be retained/absorbed for further period as she is not qualified according to the recruitment rules i.e. FA/FSc IInd Division with junior diploma in physical Education.
This is issued with the approval of the Competent Authority."
Petitioner Hameeda Begum was working as Physical Education Teacher (PET) in the Government Girls High School, Nakot, District Mansehra and was taken on deputation from NWFP as PTI for a period of 3 years. She joined Federal Directorate of Education on 2.6.1994. On completion of her tenure she was repatriated to her parent Department on 22.5.1997. Thereupon, she challenged her repatriation order in Writ Petition before the learned Lahore High Court, Rawalpindi Bench, Rawalpindi. She was allowed to continue her duty in the light of the stay order issued by the said learned Court. Eventually, her Writ Petition No. 3093 of 2003 was dismissed vide judgment dated 14.5.1997 whereafter, her repatriation order with effect from 20.7.1998 were again issued which was unsuccessfully, assailed in ICA, before the learned Division Bench of the Lahore High Court. After the dismissal of her ICA as abovenoted, the petitioner alongwith others filed Civil Petitions before this Court which were disposed of vide order dated 4.12.1998. Subsequently, vide Office Order dated 3.10.2003 the Federal Directorate of Education, Government of Pakistan repatriated the petitioner to her parent department on the ground that she remained on deputation for a period of 9 years could not be retained/absorbed for further period as she is not qualified according to the recruitment rules i.e FA/FSc 2nd Division with Junior Diploma in Physical Education. This order was challenged in Writ Petition No. 3093 of 2003 by the petitioner before the Lahore High Court, Rawalpindi Bench, Rawalpindi dismissed by the learned Single Judge in the Chambers on 5.4.2004. The petitioner feeling dissatisfied with the dismissal of her Writ Petition filed ICA No. 93 of 2004, which met the same fate vide impugned judgment dated 11.11.2008 passed by the learned Division Bench of the Islamabad High Court, Islamabad. The operating part of the impugned judgment is reproduced hereinbelow:--
"9. Appellant petitioner's Constitution Petition No. 3093 of 2003 was dismissed by the learned Judge in Chamber of Lahore High Court, Rawalpindi Bench, Rawalpindi. CPLA was filed before the Hon'ble Supreme Court of Pakistan, which was disposed of on 4.12.1998. Appellant lacks requisite qualification and was not absorbed by respondent on that count. Appellant availed the remedy through constitution petition by invoking the jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan which was dismissed and the decision was affirmed by Hon'ble Supreme Court of Pakistan. After the decision of Hon'ble Supreme Court of Pakistan, appellant cannot seek the remedy once again on the same cause of action. The constitution petition is not maintainable on this score. Even otherwise the appellant has failed to establish her case, as she does not possess requisite qualification for acclaimed absorption. The absorption or extension of period in deputation falls within the domain of departmental authority, which has exercised its discretionary power in accordance with law. No interference is called for in the judgment passed by the learned Judge in Chamber. This appeal being meritless, is dismissed."
The earlier Civil Petition on the same subject was disposed of by this Court vide order dated 4.12.1998 whereafter the petitioner filed complaint with the Wafaqi Mohtasib where her claim was that she may not be repatriated unless the rules for permanent absorption of deputationists are not approved by the Establishment Division. Vide O.M. No. 10/1/84/-R-5 dated 26.6.2003 the Establishment Division accorded approval for the amendment of the recruitment rules.
The learned counsel for the petitioner and Mr. Shah Khawar, DAG for Respondent Nos. 1 to 4 have been heard. The learned counsel for the petitioner contended that during the pendency of the 1CA, the petitioner was successful in obtaining Master Degree in Physical Education in the year, 2005 which stand on a high pedestal being a higher qualification than the Junior Diploma in Physical Education. As regards the second objection of the pay scale of PET remained uncontested as the NWFP Government upgraded the Post from BS-12 to BS-14 for the holders of BA degrees. Accordingly, the petitioner was placed to the upgraded post with effect from 11.1.2001 and petitioner's pay scale thus, became equivalent to the scale of PTI in the Federal Government and besides a number of employees have been absorbed in the Federal Government, Education Department but discrimination has been meted out to the petitioner.
The learned counsel when confronted to the operating part of the order passed by this Court on 4.12.1998 submitted that it was the duty of the Government to have issued NOC with regard to the permanent absorption of the service of the petitioner in the Federal Government, Education Department or at least reference for the purpose to have been made to the Provincial Government by the Education Department, Government of Pakistan. The learned counsel further contended that the petitioner still holds her lien of service in her parent department of NWFP, unless NOC is issued by the Provincial Government.
On the other hand, the learned DAG argued that subsequent to the decision of this Court, after due consideration and examining the case of the petitioner vide Office Order dated 3.10,2003, she was repatriated to her parent department and relieved from duty as she was deputationist for a period of more than 9 years with the Federal Government and could not be absorbed for being not qualified as per recruitment rules i.e FA/FSc 2nd Division with Junior Diploma in Physical Education. According to the DAG since action has been taken with regard to the repatriation of the petitioner to her parent department in the light of the OM reproduced in the order dated 4.12.1998 passed by this Court, therefore, in terms of the said order and the repatriation order passed on 3.10.2003 needs be acted upon as the formal concurrence of the Provincial Government for the permanent absorption of the petitioner in the Federal Government has not been given.
Notwithstanding the ground with regard to the improvement of qualifications of the petitioner and the question of her entitlement to be permanently absorbed in the Federal Government under the rules for time being inforce; admittedly, the petitioner who holds lien in her parent department of the Province could not be absorbed permanently in the Education Department, Government of Pakistan for want of concurrence of the Provincial Government nor such a concurrence pre-requisite for absorption as claimed was conveyed to the Federal Government which till date has not been done. Vide Office Order dated 3.10.2003 the petitioner was repatriated to her parent department with a copy thereof forwarded to the Director Public Instructions, Peshawar, the District Education Officer/the Executive District Officer, Mansehra, and the District Accounts Officer, Mansehra to which no response was shown by the parent department of the petitioner nor concurrence of Provincial Government for permanent absorption of the petitioner in Education Department of the Federal Government was conveyed in absence whereof, obviously the petitioner's service could not be absorbed in the concerned department of the Federal Government even if she holds the requisite qualifications and eligibility for such absorption. The petitioner also did not approach to the Provincial Government for the purpose for grant of NOC and consequently, in terms of the order passed by this Court on 4.12.1998 reproduced hereinabove the Office Order issued by the Federal Government for repatriation of the petitioner holds the field. Hence; the impugned judgment in our considered opinion is not open to any exception.
Thus, for the foregoing reasons this Civil Petition having no substance is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2010 SC 417
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
YAROON KHAN--Petitioner
versus
LAL ZADA--Respondent
Civil Petition No. 751-P of 2004, decided on 23.4.2009.
(On appeal from the order dated 6.10.2004 of the Peshawar High Court, Peshawar passed in C.R. No. 1139/2004).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal was granted--Deficient Court fee--Contention--Petitioner had not committed default willfully--High Court had not appreciated the matter in its true perspective while upholding the concurrent findings of two Courts below and even if opportunity is given, petitioner is ready to make up deficient Court fee. [P. 417] A
1989 SCMR 58 & 2003 SCMR 157, rel.
Mr. Maazullah Barkandi, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 23.4.2009.
Order
Ijaz-ul-Hassan, J.--Mr. Maazullah Barkandi, Advocate for the petitioner, contended that petitioner had not committed default willfully; that learned trial Court had not directed the petitioner to deposit a specific Court fee; that learned trial Court as well as learned appellate Court has not granted reasonable time to the petitioner to deposit the Court fee; that learned High Court has not appreciated the matter in its true perspective while upholding the concurrent findings of the two Courts below and even now if opportunity is given, petitioner is ready to make up deficient Court fee. Reliance in this context was placed on Mian Khan vs. Aurangzeb and 12 others (1989 SCMR 58) and Memon Educational Board and Society, Karachi, Karachi vs. Munawar Hussain (2003 SCMR 157).
(R.A.) Leave granted.
PLJ 2010 SC 418
[Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman;
Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhri, JJ.
SULTAN MUHAMMAD and another--Appellants
versus
STATE--Respondent
Crl. Appeal No. 37(S) of 2001 in Jail C.P. No. 30(S) of 1998, decided on 24.4.2009.
(On appeal against the judgment dated 9.10.1998 passed by the Federal Shariat Court in Crl. A.58/Q/1996/M.R. No. 03/Q of 1996).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 392 & 396--Offences Against Property (Enforcement of Hadood) Ordinance, 1979--S. 17(4)--Conviction and sentence recorded against accused by trial Court--Appeals were dismissed by Federal Shariat Court--Leave to appeal--Deceased lost his life due to injuries mentioned in medical certificate--Where the occurrence had seen by the witnesses and deceased lost his life within their view--Dead body was found lying on a road with some injuries on its person--Validity--Without the post mortem examination it could not be said with certainty that deceased lost his life due to injuries on his person--Held: In the instant case the postmortem examination of the dead body was a must in order to establish the cause of death--It was not a case where the witnesses had seen the occurrence. [P. 422] A
PLJ 1999 SC 86, ref.
Medical Evidence--
----Medical evidence merely provides corroboration or support to substantive or circumstantial evidence--Acceptability of medical evidence obviously depends upon grounds or cogency of reasoning--Held: Medical evidence does not advance the prosecution case at all.
[P. 422] B
Identification Test--
----Accused were not known to them previously and they identified the two accused during the identification test--Why the identification test was conducted after 10 days of the arrest--Both the accused were mixed with six other persons--Report does not reveal whether the six dummies were identical or had similar features as the accused--Identification parade was held three times and each time eight persons were lined up with the accused--Held: Accused were given in custody of prosecution witness and they remained at police station till their identification--Possibility that the accused were shown to prosecution witnesses could not be ruled out. [P. 423] C & D
Appreciation of Evidence--
----Only substantive piece of evidence against the accused was judicial confession which was discarded--Other pieces of evidence are only supportive or corroborative in nature and can only be based for conviction if these come through unimpeachable source, which is lacking in instant case. [P. 424] E
Presumption--
----It is well settled that presumption, however, strong it may be, could not take shape of proof. [P. 424] F
Sheikh Muhammad Naeem, ASC for Appellants.
Mr. Azam Khan Khattak, Addl. A.G. Balochistan for State.
Date of hearing: 24.4.2009.
Judgment
Muhammad Farrukh Mahmud, J.--Sultan Muhammad through Criminal Appeal No. 37(S) of 2001, by leave of this Court, has assailed judgment dated 09.10.1998, handed down by learned Federal Shariat Court in case FIR No. 39 of 1993, registered at Police Station Levies Tehsil Dalbandin, Hudood "B" on 12.10.1993 at 09.30 a.m. for offence under Section 302 PPC read with offence under Section 17(4) of the Offences Against Property (Enforcement Hadood) Ordinance 1979, whereby the appellant and his co-convict Baz Muhammad were convicted for offence under Section 302(b) PPC and sentenced to death. They were also convicted for offence under Section 392 PPC and sentenced to 5 years R.I. each with fine of Rs. 1,00000/- each and in default of payment whereof the convicts were to suffer 2 years R.I. each.
The appellant Sultan Muhammad and Baz Muhammad faced trial in the above noted case. Vide judgment dated 01.10.1996 both of them were convicted for offence under Section 396 PPC and sentence to death. They were also directed to pay Rs. 1,00000/- each as fine or to suffer 2 years R.I. each. Half of the fine if recovered was to be given to legal heirs of the deceased (Abdul Rehman).
The appeals filed by Sultan Muhammad and Baz Muhammad were dismissed by the learned Federal Shariat Court and their death sentences were confirmed in the above noted terms.
Both the convicts filed petitions seeking leave to appeal. Vide an order dated 09.01.2001 leave was granted in following terms:--
"It was submitted that the confessions made by the petitioners have been excluded from consideration by the learned Federal Shariat Court holding it to be involuntary and the result of coercion, therefore, the remaining evidence consisting of the statements of PW-4 Rehmat Ullah and PW-6 Haji Khan and the alleged recovery of knife could not form basis for conviction.
We grant leave to consider whether evidence on record was sufficient enough to sustain conviction and sentence of death of the petitioners."
During pendency of the appeals Baz Muhammad was released by the learned trial Court on the basis of compromise effected between him and the legal heirs of the deceased. So the learned counsel did not press the appeal of Baz Muhammad before us which has been dismissed through separate order dated 24.04.2009.
"It is submitted that today morning at about 9:30 a.m. I was collecting wood at same distance from Kuchaki Wadh. I saw one pick up of oil going from Kacha Road to Pacca Road of Dalbandin Noushaki. Three persons were boarding in it. I saw that at some distance this pick up stopped and after stationing for some time it returned back. When after collecting wood I was going for Kacha Road towards Pacca Road for Kuchki Post. I saw a lot of blood at that place and at some distance I saw a dead body who was thrown in the bushes after murder. I came to post and informed. I request that action may be taken in this connection. 12.10.1993. On receipt of information the same was reduced into writing and was read over to the complainant. From the contents of Report Offence U/S 302 (Qisas & Diyat Ordinance) and 17(3) seem to have been committed. Copy of FIR be sent to Assistant Commissioner Dalbandin. I, Muhammad Hanif Shahwani, is investigation the matter."
In their statements recorded under Section 342 Cr.PC both the accused claimed to be innocent and stated that they were involved in a false case due to enmity. The accused did not appear in their defence and also did not lead any defence evidence.
The learned counsel for the appellant, while referring to the leave granting order, re-produced above, submitted that the statements of PW-4 and 6 were not trust worthy, their identification of the accused was also not worthy of any credence and that the learned appellate Court had convicted the appellant on insufficient evidence and that the recovery of knife could not be used against the appellant.
Conversely it has been argued that prosecution successfully proved the case against the appellant through circumstantial evidence and that PW-4 and 6 who had seen the accused soon after the occurrence were independent witnesses and that the appellant led to the recovery of blood stained knife which was sufficient to connect him with the crime.
We have heard learned counsel for the parties and gone through the relevant record of the case. As far as the judicial confession of the appellant before PW-8 is concerned, that was rightly discarded by the learned appellate Court, which remained unchallenged. Even otherwise the statement of Investigating Officer PW-10 reveals that after the confession the accused was handed back to him, so it could not be said that the confession was voluntarily made.
According to prosecution case the deceased lost his life due to injuries caused by sharp edged weapon. In order to prove it they relied upon the statement of Dr. Nazir Ahmad (PW-7). Perusal of statement reveals that no postmortem examination was conducted on the dead body of Abdul Rehman. According to doctor he conducted only external examination of dead body. He placed on record medical certificate Ex.P/7 which is available on page 114 of the paper book. The perusal of the certificate reveals that it was not mentioned therein that the injuries were antimortem. In addition to that it has not been mentioned in the certificate that the deceased lost his life due to injuries mentioned in the certificate. It is not a case where the occurrence was seen by the witnesses and the deceased lost his life within their view. In the instant case a dead body was found lying on a road with some injuries on its person. Without the postmortem examination it could not be said with certainty that the deceased lost his life due to injuries on his person. The report also does not reveal that the injuries were antimortem in nature. In our opinion, in the instant case the postmortem examination of the dead body was a must in order to establish the cause of death. As already noted above that it was not a case where the witnesses had seen the occurrence. We may refer to the judgment of this Court in case of Abdur Rehman Khan vs. State (PLJ 1999 SC 86) wherein it was observed that:-
"We are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injures sustained without being any element of negligence or other intervention, the non-performance of post-mortem would not be fatal."
We are conscious of the fact that medical evidence merely provides corroboration or support to substantive or circumstantial evidence. Acceptability of medical evidence obviously depends upon grounds or cogency of reasoning. After considering circumstances of the case, we are of the opinion that the medical evidence does not advance the prosecution case at all.
The conviction has been maintained by the learned appellate Court mainly on the statements of PW-4 and 6. The learned appellate Court failed to consider that both of them were residents of Nushki which was at a distance of 150 miles from the place where they allegedly met the accused. Their statements were recorded on 11.11.1993 after about a month of the occurrence. According to these two PWs the accused were not known to them previously and they identified the two accused during the identification test. Undeniably the identification test was conducted at Police Station Dalbandin, on 11.11.1993, while according to PW-10 the accused were handed over to him and were in custody since 01.11.1993. There is no explanation as to why the identification test was conducted after 10 days of the arrest. Perusal of the identification test report, available on page 112 of the paper book, reveals that both the accused were mixed with six other persons. The report does not reveal whether the six dummies were identical or had similar features as the accused. PW-10 on this regard stated before the learned trial Court that the identification parade was held three times and each time eight persons were lined up with the accused persons. However, he did not remember how many of the 8 persons were keeping beard. He also did not remember as to how many participants were tall and how many were of short height. He denied that during identification parade the accused were wearing handcuffs. On the same points PW-4 stated that during identification parade there were people who were keeping beard while some of them were not keeping beard. He further stated that he did not remember whether the accused were wearing hand cuffs or fetters. According to him the identification parade was held only once. According to PW-6 at the time of identification test the accused were in hand cuffs and were wearing fetters. It may be added here that the statements of these two PWs were recorded on 11.11.1993. There is no plausible explanation as to why the statements of these PWs were not recorded when they first met the levies. This speaks volumes against their testimony and against the authenticity of the identification test. Similarly, the accused were given in the custody of PW-10 on 01.11.1993 and they remained at Police Station till their identification on 11.11.1993. In these circumstances the possibility that the accused were shown to the PWs at the Police Station could not be ruled out.
Admittedly the pickup allegedly used during the occurrence was not recovered from either of the accused. As far as recovery of blood stained knifes is concerned, PW-3 conceded in cross examination that it was Baz Muhammad, since released, who had led to the hut and the hut belonged to him. It is also note worthy that the alleged recovery of knives was affected on 14.11.1993 while they were received at forensic science laboratory on 22.06.1994 after more than 7 months. The report further reveals that the entry of knife was made by pen after the completion of sentence which was typed. It is also interesting to note that according to PW-9 who was produced as Chemical Expert, he received two parcels on 19.06.1996 i.e. after more than three years and seven month of the occurrence.
We may mention here that only substantive piece of evidence against the appellant was judicial confession which was discarded. The other pieces of evidence are only supportive or corroborative in nature and can only be based for conviction if these come through unimpeachable source, which is lacking in this case.
On the contrary the prosecution case is replete with doubts. It is well settled that presumption, however strong it may be, could not take shape of proof.
(R.A.) Appeal allowed.
PLJ 2010 SC 424
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Rahmat Hussain Jafferi, JJ.
ABDUL KAREEM--Appellant
versus
STATE--Respondent
Crl. Appeal No. 441 of 2008, out of Crl. Petition No. 412 of 2008, decided on 28.10.2009.
(Against the judgment dated 25.9.2008 of the Lahore High Court, Lahore passed in Crl. A. No. 1215 of 2002 & M.R. No. 514 of 2002).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 121--Plea of self defence--Require to prove--Accused admitted the time and place of incident--Causing fire-arm injury to deceased was also admitted--Held: Under Art. 121 of Qanun-e-Shahadat Order, the accused is required to prove such plea. [P. 427] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence was recorded against accused by trial Court--Co-accused who were alleged of making lalkara and ineffective firing had been acquitted--Causing of murder of the deceased by means of firearm weapon was admitted but took the plea that he had made such firing in his self defence--Accused had failed to furnish any documentary or oral evidence to show that such case was challenged or pending at the time of incident of the instant case--Held: Accused involved in a case was presumed to be innocent unless proved guilty--Mere filing of one case against the deceased which was the motive of the present case did not labeled him a person of questionable character--Thus the authority was not applicable to the facts and circumstances of the instant case--Supreme Court did not interfere with the sentence as it is function of the trial Court and High Court to determine the same--Appeal was dismissed. [P. 428] B
1976 SCMR 338, 1971 SCMR 378 & 1973 SCMR 327, ref.
Mr. Mazhar Iqbal Sindhu, ASC for Appellant.
Mr. M. Siddique Baloch, DPG, Punjab for State.
Date of hearing: 28.10.2009.
Judgment
Rahmat Hussain Jafferi, J.--The appellant Abdul Kareem was charged for causing murder of deceased Muhammad Rafi in the Bazar of village Machike by causing firearm injury on his person on 31.8.2001 at 10:30 a.m. The appellant was accompanied by four other acquitted persons namely Sabir Ali, Muhammad Naseeb, Fazal Din alias Baggi and Muhammad Javed who were alleged of making lalkara and ineffective firing at the place of incident. The incident was witnessed by the complainant Shahid Rafi PW 7, Muhammad Sharif PW 8 brother of the deceased, and Muhammad Sharif, cousin of the complainant, (not examined). The matter was reported to the police on the same day at 11:55 a.m.
The alleged motive was that acquitted-accused. Fazzal Din @ Baggi got a case registered vide FIR No. 484/2001 under Section 324, PPC at Police Station Saddar, Sheikupura against the father of complainant and others and during the course of investigation, they were found innocent, therefore, the accused were annoyed.
At the trial, the prosecution examined 10 witnesses including two eyewitnesses PWs 7 and 8 and the Medical Officer. The appellant admitted the causing of murder of the deceased by means of firearm weapon but took the plea that he made such firing in his self-defence. While recording his statement under Section 342, Cr.PC, the appellant made the following statement:--
"I am innocent, the motive is false; PWs and the complainant did not see the occurrence and the occurrence did not happen as alleged by the prosecution. On the day of occurrence i.e. 31.8.2001 after having been free my duty as during the days of occurrence I was serving in police department and was posted in P.S Lower Mall, Lahore and came to my house alighted at Adda Machike. It was about 10.20 a.m. and was going to my house on the way Muhammad Rafi deceased met me per chance near the PCO at Adda Machike, upon seeing me the deceased gave me a taunt by saving that nothing could be pulled out of him by implicating the deceased in a criminal case and the deceased showered filthy abuses and made obnoxious expressions and signs to me to which 1 also replied in the same coin; due to which grappling took place between me and the deceased and Muhammad Rafi deceased pulled out a pistol and tried to shoot upon me but I snatched said pistol from the deceased and in the heat of passion under the impulse of grave and sudden provocation made one shot upon the deceased who fell down on the ground in front of the PCO, No other accused person was with me at the time of occurrence and my act was not intentional. Nobody abetted me ever. The complainant party with due deliberation and consultation after having in league with the police by suppressing the true version of the occurrence got a false case registered. On the day of occurrence I appeared before the police and also produced a pistol to the police. I also narrated the facts under which this incident took place but the police intentionally and dishonestly due to collusion with the complainant party did not bring the same on the record. It was not an intentional and pre- mediated occurrence. I did not want to commit the murder of Muhammad Rafi and no fire was repeated by me. The 1.0 intentionally and deliberately did not investigate the case on the true facts in which the occurrence has taken place and I have narrated to the police. Pistol has been falsely planted upon me, I am innocent and no conspiracy was ever hatched or any punchayat was ever convened at the dera of Mukhtar Ahmad Lumberdar".
The trial Court after considering the prosecution evidence and defence plea, while acquitting the co-accused named above convicted the appellant for offence punishable under Section 302(b), PPC and sentenced him to death with direction to pay Rs. 2,00,000/- as compensation to the legal heirs of the deceased or in default thereof to suffer R.I for six months. The trial Court sent reference for confirmation of sentence to the Lahore High Court at Lahore. The appellant preferred appeal but the same was dismissed and murder reference was answered in the affirmative under the impugned judgment dated 25.9.2008. The appellant preferred petition for grant for leave to appeal before this Court which was allowed to consider as to whether defence plea raised by the petitioner was properly appreciated by the Courts below or not and to reappraise the evidence in detail for safe administration of justice. Hence this appeal.
The learned counsel for the appellant has argued that the appellant has no motive to commit the offence; that all the family members of the appellant have been involved; that the PWs 7 and 8 are chance witnesses, hence, their evidence requires corroboration but the prosecution has failed to furnish such evidence, as such their evidence is untrustworthy; that the occurrence took place at a thickly populated area, surrounded by shops situated at Ghang Road but no independent witness has been examined; that the witnesses are closely related to the deceased; that the defence plea of the appellant has not been properly considered; that if the defence plea is accepted, then this is not a case of capital punishment, therefore, his sentence may be reduced to imprisonment for life. He has relied upon the case of Mushtaq Ahmad v. The State, PLD 2004 SC 150. Conversely, the learned State counsel has stated that ocular testimony is confidence inspiring; that there is no material contradiction in their evidence; that the witnesses are consistent on all the material particulars; that the appellant has admitted that he caused firearm injury to the deceased; that the appellant took the plea of self defence but no evidence has been led to prove such plea, therefore, the learned High Court has rightly discarded the defence plea and that the impugned judgment does not suffer from any illegality or irregularity.
Having heard the learned counsel and reappraised the evidence with the assistance of the learned counsel for the appellant, we find that the ocular evidence was furnished by PWs. 7 and 8 who specifically stated that on 31.8.2001 at 8:30 a.m. they alongwith deceased Muhammad Rafi were standing by the side of the PCO, waiting for a bus for going to Farooqabad and they were busy in talking with each other when suddenly the appellant armed with mauzer and the acquitted accused with firearm weapons reached there. The acquitted accused Fazal alias Baggi raised lalkara and the appellant fired a shot at the deceased which hit him on his left flank thereafter he fell down in the PCO. One of the accused fired at the deceased which was missed and thereafter they fled away. In order to test the veracity and credibility of witnesses they were subjected to lengthy cross-examination but nothing came on record to discredit their evidence or bring any infirmity in it. The evidence is unanimous on all the material aspects of the case. These witnesses can not termed as chance witnesses as the incident took place at a public place. Reference is invited to Muhammad Ashraf and another v. The State (PLD 1977 SC 538).
The appellant admitted the time and place of the incident. He also admitted causing firearm injury to the deceased but took the plea that it was in his self-defence. Under Article 121 of Qanun-e-Shahadat Order, 1984 the appellant is required to prove such plea. The said Article reads as under:--
"When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence, of such circumstances".
In support of his statement under Section 342, Cr.P.C. the appellant did not lead any evidence to prove his assertion, even from the cross-examination he was unable to prove such plea. On the contrary, such plea, was not put to the witnesses so as to obtain any admission to get some support to his plea. Thus the Court is required to presume that such plea was not in existence. The entire statement of the appellant could have been accepted if there would have been no evidence of the prosecution to support the case but when the prosecution evidence is relied upon then incriminating part of the statement of the accused can be taken into consideration. Thus the case of the prosecution is proved against the appellant.
As regards the sentence, learned counsel for the appellant has argued that the deceased has questionable character because he was involved in several cases, therefore, this may be treated as a mitigating circumstance to reduce the sentence. He has relied upon the case of Mushtaq Ahmad v. The State (PLD 2004 SC 150). In the reported case the complainant admitted that the deceased was involved in 5 or 6 cases which were pending in the Court. Whereas in the present case the facts are different. Firstly the complainant has admitted that the deceased was involved in Crime No. 484/2001 under Section 324, PPC as an abeter. The incident of said offence took place about two moths prior to the incident. This is the cause which has been shown as motive of the present incident. It has also come on the record that when this incident took place at that time the investigation of the said case was going on and the deceased was on bail in the said case. The second case as admitted by the complainant pertains to the year 1992 in which a person died in police custody, but the deceased was involved in the case. The complainant further admitted that deceased was found innocent during the investigation. There is no evidence on the record to show that the said case was challaned in the Court. The appellant has failed to furnish any documentary or oral evidence to show that such case was challaned or pending at the time of incident of this case. It is well settled that accused involved in a case is presumed to be innocent unless proved guilty. Mere filing of one case against the deceased which is the motive of the present case does not labeled him a person of questionable character. Thus the above authority is not applicable to the facts and circumstances of the present case. Normally this Court does not interfere with the sentence as it is the function of the trial Court and the High Court to determine the same. Reference is invited to Ameer Umer v. The State (1976 SCMR 338), Muhammad Rafiq v. The State (1971 SCMR 378) and Rehmuddin v. The State (1973 SCMR 327). Keeping in view the facts and circumstances of the case both the Courts below have awarded normal sentence to the appellant. We do not find any mitigating or special circumstance to interfere with the sentence.
In the light of what has been discussed above, the appeal is dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 429
[Appellate Jurisdiction]
Present: Ghulam Rabbani, J.
ABDUL HAMEED DOGAR--Appellant
versus
FEDERATION OF PAKISTAN & others--Respondents
C. Misc. A. No. 120/2009 in C. Review P. No. Nil of 2009 in Cons. P. Nos. 9 & 8/2009 and C. Misc. A. 121/2009 in Cons. P. Nil of 2009, decided on 11.11.2009.
(Appeals under Order V, Rule 3 of the Supreme Court Rules, 1980 against the order of Institution Officer/Assistant Registrar
dated 28.10.2009).
Supreme Court Rules, 1980--
----O. XXVI, R. 6 r/w O. XXXIII--Constitution of Pakistan, 1973, Art. 185(3)--Appellant sought special leave to file review petition--Several Judges had filed review petitions--Matter sought special leave of Court--Validity--Applications were heard by a 14 Members Bench of Supreme Court and were dismissed on the same day--Second review petition was not permissible--Question of validity of objection--Held: Proposition advanced was not tenable for, on dismissal of Review Petition, attained finality--No second review petition filed by appellant was permissible--Objections on the civil review petition accompanied by application for special permission, were rightly raised, and were sustainable--Evaluating the question of validity of objections on the touchstone of the principle, the petition u/Art. 184(3) was not entertainable. [Pp. 434 & 439] A & J
Supreme Court Rules, 1980--
----O. XXVI, R. 6 r/w. XXXIII--Appellant sought special leave to file review petition--Applications were heard by a 14 member bench of Supreme Court and were dismissed on the same day--Question of limitation--Civil revision petition was filed against the detailed reasons which the appellant wants to be reviewed--Wherein no challenge the computing the prescribed time is thrown to the short order being a final verdict for all intents and purposes in a lis remaining no more pending, appears to be illogical misconceived, baseless, frivolous and unconscionable proposition to reckon the time from the date of detailed reasons--Date which matters for computing the period of limitation viz. 30 days in filing review petition is to be reckoned from the pronouncement of judgment or the making of the order--Review petition was filed on 28.10.2009, therefore, the same was time barred. [P. 434] B
Review Petition--
----Limitation--Power of Court--Question of--Contentions--Review petition was time barred is to be determined by Court and not by institution--Validity--Supreme Court is empowered to see that a petition had been filed in time, equally it cannot be said that it is not the function of Registrar/Scrutiny Officer to reckon the time and see that the petition had been filed within prescribed period of time.
[P. 434] C
Supreme Court Rules, 1980--
----O. XXVI, R. 2--Constitution of Pakistan, 1973--Art. 184(3)--Review Petition--Function to compute the period of time on filing of a Review Petition--Question of limitation--Validity--According to Order XXVI, Rule 2 an application for review is to be filed in Registry within 30 days after pronouncement of judgment which is sought to be reviewed--Held: Petition was filed beyond the prescribed period of limitation and the petition having not been filed in accordance with the mandate of Rule 2 was rightly so, refused to be received--Question of limitation would not come in the way of the appellant as after objections were raised, an application for condonation of delay was filed--Objections raised on the point of limitation were untenable. [P. 435] D
Supreme Court Rules, 1980--
----O. I, R. 2(i)--Entitlement to appear and plead before Supreme Court--Application for condonation of delay was filed with signatures of Advocates--Advocate on record who had put his stamp on the instant application had not signed that application--No affidavit in support of that application had been filed--Held: Both advocates fall within definition of the "Advocate" as provided under Order I Rule 2 (i) of Supreme Court Rules, meaning a person entitled to appear and plead before Supreme Court--Thus they can only appear and plead and are not permitted to act, which is the sole function of Advocate on record--Further held: Authorized performance of the two persons is different--Signing and presentation of the petitioner neither falls within the terminology of appearing nor in pleadings. [P. 435] E
PLD 1964 Dacca 543, ref.
Supremacy of Law--
----General Pervez Musharraf had conferred that what he had done on 3.11.2007 was unconstitutional--Large lauded the restoration of judges--In recognition of his services to the rule of law and his struggle regarding supremacy of law and Constitution in Pakistan, so on so forth Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan had been conferred upon many awards within and outside the country. [P. 436] F & G
Words and Phrases--
----Scandalous matter--According to Black Law Dictionary, English Edition the words scandalous matter means a matter that is both grossly disgraceful and irrelevant to the action of defence. [P. 437] H
Constitution of Pakistan, 1973--
----Art. 184(3)--Supreme Court Rules, 1980, O. XXVI, R. 6 r/w. O. XXXIII--Sough special leave to file review petition--Refusal to receive on valid objections--Principle of law--Supreme Court did not inclined to agree with him for the reason next to follow, Firstly, it may be stated that side by side the instant petition, the appellant also filed a separate review petition--Essentially the objective of filing the instant petition was an attempt to achieve the same object as that of his review petition to subvert the judgment dated 31.7.2009 passed by Judge rightly appointed--On dismissal of host of review petitions filed against the judgment, it has attained finality and review petition filed by appellant had not been entertained and rightly so by refusing to receive the same on valid objections--Held: Settled principle of law is that what cannot be achieved directly cannot be permitted to be achieved indirectly. [P. 439] I
Mr. Naeem Bukhari, ASC Assisted by Mr. Muhammad Afzal Siddiqui, ASC, Mr. Yousaf Anjum, Mr. Ejaz Janjua, Mr. Kashif Siddiqui & Mr. Hammad Khan, Advocates for Appellant (in both cases).
Nemo for Respondents.
Dates of hearing: 5, 10 & 11.11.2009.
Order
Ghulam Rabbani, J.--Civil Miscellaneous Appeals Bearing Nos. 120 of 2009 and 121 of 2009, filed by appellant, are directed against the orders dated 28.10.2009 passed by the Institution Officer and the Assistant Registrar, respectively, on Civil Review Petition No. Nil of 2009 accompanying application under Order XXVI, Rule 6 read with Order XXXIII of the Supreme Court Rules, 1980 (hereinafter to be called as the Rules) and Constitution Petition No. Nil of 2009 under Article 184(3) of the Constitution filed by appellant, whereby the same were returned. Both the appeals involve common questions of facts and law as also appears from statement of appellant in Para 7 of petition under Article 184(3) of Constitution that "reasons given in the petitioner's petition for review, which is attached with this petition and whose contents may be read as part of the same". Both the appeals are, therefore, disposed of by this single Judgment.
"it is, therefore, prayed that the judgment issued on 30.9.2009 be set aside, restoring the state of affairs that existed prior to 31.7.2009, leaving the whole matter to be addressed by the parliament".
While by his application under Order XXVI, Rule 6 read with Order XXXIII of the Rules, the appellant has sought special leave to file review Petition.
In view of the aforesaid it is respectfully prayed that it be declared that the so called restoration of office of Respondents Nos. 2 to 6 and the Notification dated 17.3.2009 are without lawful authority and of no legal effect and any judgment to the contrary has been issued without jurisdiction.
Any other relief which deemed fit and appropriate in the circumstances of the case may also kindly be granted".
At the outset, it may be noted that learned counsel while arguing the case of appellant stated that some of the objections, palpably, forming the basis of order dated 28.10.2009, such as appearing at SI. Nos. ix and xii on civil review petition, were subsequently, complied with; therefore, no longer the same existed and speaking on Objection No. x which relates to the point of limitation, learned counsel stated that the petition was in time, yet if it was considered to have been filed beyond the period of limitation; an application for condonation of delay was, later filed; therefore, it could alone be decided by the Court. As regards petition under Article 184(3) of the Constitution learned. counsel stated that objection at SI. Nos. iv, vii, viii and ix raised thereon were, too, subsequently, sorted out. In such circumstances, without prejudice to what follows next, it may be stated that the omissions supplied subsequently; ex-facie, reflect that both the above petitions were not filed in accordance with rules and the relevant objections were rightly raised.
On civil review petition, among others, following objections have been raised:--
I. Review petitions filed earlier against the same impugned judgment dated 31.7.2009 passed by this Court in Constitution Petition Nos. 8 & 9 of 2009 have already been dismissed by this Court and the judgment has attained finality, therefore, after disposal of the same this Review Petition against the same impugned judgment amounts to Second Review which is not permissible under Rule 9 of Order XXVI of Supreme Court Rules, 1980.
II. This review petition is against the same judgment dated 31.07.2009 passed by 14 Members Bench of this Court in which review petition and Misc. Applications for permission to file the review petitions have already been dismissed, therefore, the judgment dated 31.07.2009 has attained finality.
III. The date of impugned judgment is 31.07.2009, whereas 30.09.2009 is incorrectly mentioned as date of impugned judgment in Index, Title, Prayer Clause and Notice.
IV. This review petition is barred by 13 days and no application for condonation of delay has been filed with this review petition.
V. Scandalous and contemptuous, language has been used against the Hon'ble Chief Justice of Pakistan and Judges of this August Court hence the same is not entertainable under Rule 5 of Order XVII of Supreme Court Rules, 1980.
In the first instance, I will deal with Objection No. I & II. In this, it may be stated that Constitution Petitions Nos. 9 and 8 of 2009 filed by Sindh Bar Association and one Nadeem Ahmad, Advocate, respectively were disposed of by a short order dated 31.7.2009 for reasons to be recorded later, which were accordingly released. Several Judges had filed review petitions and for that matter sought special leave of Court within terms of rule 6 of Order XXVI of the Rules. Many of these Judges withdrew petitions/applications so made by them and the remaining contested their petitions/applications viz. CMA Nos. 2745/2009 (filed by Justice Khurshid Anwar Bhinder), CMA 2747/2009 (Justice Hasnat Ahmed Khan), CMA 2748/2009 (Justice Zafar Iqbal Chaudhry & another), CMA 2750/2009 (Justice Syed Shabbar Raza Rizvi), CMA 2776/2009 (Syed Sajjad Hussain Shah), CMA 2779/2009 (Mrs. Yasmin Abbasi), CMA 2782/2009 (Syed Sajjad Hussain Shah), CMA 2788/2009 (Muhammad Ahsan Bhoon), CMA 2790/2009 (Anwar-ul-Haq Pannu), CMA 2825/2009 (Syed Hamid Ali Shah) and CMA 4002/2009 (Barrister Jahanzeb Rahim). These applications were heard on 13.10.2009 by a 14 Members Bench of this Court and were dismissed vide Short Order passed on the same day. Learned counsel argued that since the appellant had not filed previously any review petition, the one filed by him now, could not be treated a second review petition. In my humble opinion the proposition advanced is not tenable for, on dismissal of afore-referred review petitions, the Short Order/Judgment dated 31.7.2009 attained finality, therefore, no second review petition filed by appellant was permissible. Thus, the Objections Nos. I and II noted in Para 5 supra on the civil review petition accompanied by application for special permission, were rightly raised, and are sustainable.
The other objections noted at SI. Nos. Ill & IV in Para No. 5 supra relate to the question of limitation. While furnishing reply to Objection No. III, reproduced above, the appellant has advanced a novel proposition by observing that "the civil review petition is against the detailed judgment which was released on the internet on 30.9.2009 and given the date dated 31.7.2009." In his arguments, too, learned counsel for him was insistent that the civil review petition was filed against the detailed reasons which the appellant wants to be reviewed, therefore, the review petition needs to be considered as having been filed in time reckoning the same from the date of detailed reasons. In my humble view, the averments of appellant and the contention of his learned counsel, wherein no challenge vis-a-vis the computing the prescribed time is thrown to the short order being a final verdict for all intents and purposes in a lis remaining no more pending, appears to be illogical, misconceived, baseless, frivolous and unconscionable proposition to reckon the time from the date of detailed reasons. The date which matters for computing the period of limitation viz. 30 days in filing review petition is to be reckoned from the pronouncement of judgment or the making of the order which in this case is 31.7.2009. The review petition was filed on 28.10.2009, therefore, on the face of it, the same was time-barred.
Learned counsel for appellant argued that the review petition is time-barred or otherwise is to be determined by Court and not by the Institution Officer. In this, it may be stated that there is no cavil to the proposition that the Court is empowered to see that a petition has been filed in time or otherwise; equally it cannot be said that it is not the function of the Registrar/Scrutiny Officer to reckon the time and see that the petition has been filed within prescribed period of time. Initially, it is his function to compute the period of time on filing of a review petition. According to Order XXVI, Rule 2 an application for review petition is to be filed in the Registry within 30 days after pronouncement of judgment/order which is sought to be reviewed. At the initial stage, the time was, as such, reckoned and it was found that the petition was filed beyond the prescribed period of limitation and the petition having not been filed in accordance with the mandate of above rule was, rightly so, refused to be received. Learned counsel for the appellant, next argued that the question of limitation would not come in the way of the appellant as after objections were raised, an application for condonation of delay was filed. The question whether that application has been competently filed shall be dealt with in paragraphs next to follow; nonetheless, seen in the light of foregoing discussion, it cannot be said that the objections raised on the point of limitation are untenable.
Coming to the application for condonation of delay, it has been noted that the said application has been filed with signatures of Advocates, namely, Sahibzada Ahmed Raza Kasuri, Advocate Supreme Court and Mr. Naeem Bukhari, Advocate Supreme Court. The Advocate-on-Record, namely; Mr. Ejaz Muhammad Khan, who has put his stamp, on this application has, however, not signed that application. This application is available in the file at Pages 466-A & B. No Affidavit in support of that application has been filed. Both the learned Advocates fall within definition of the "Advocate" as provided under Order 1, Rule 2 sub-rule (1) of the Rules meaning "a person entitled to appear and plead before the Supreme Court". Thus they can only appear and plead and are not permitted to act, which is the sole function of Advocate-on-Record. According to same rule the "Advocate-on-Record" means "an Advocate" who is entitled under these rules to act and plead for a party in the Supreme Court". Thus the authorized performance of the two persons is different. Signing and presentation of the petitioner neither falls within the terminology of "appearing" nor in "pleading". It is obviously an "act" which can alone be performed by the Advocate on record. In case of Abdul Wadud v. The State (PLD 1964 Dacca 543) it has been held that:
"To act or apply for a client in Court, is to take on his behalf in the Court or in the offices of the Court the necessary steps that must be taken in the course of the litigation in order that the case may be properly laid before the Court. Thus "acting" includes applying; so that a Pleader, who makes an application on behalf of a litigant, acts for him but he cannot do so unless he is authorized in writing....."
In the light of above discussion it becomes evident and so is held that the objections raised at SI. Nos. III and IV in Para 5 supra are tenable.
Coming to remaining objection noted at SI. No. V in Para 5 supra, it may be stated that the same is to the effect that scandalous and contemptuous language has been used against the Chief Justice of Pakistan and Judges of this August Court. I have gone through the petition. The language used therein, on the face of it, is scandalous and contemptuous. In this, reference is, specifically, made to Paragraphs 3, 4, 8,17, 35 of the petition, wherein, the order dated 3.11.2007 passed by seven member Bench of this Court has been contemptuously and scandalously criticized, by observing, beside other averments, that, "the order dated 3.11.2007 passed by strangers is not even a judicial order and being the foundation of the detailed Judgment, the same is not sustainable." and that "which was itself a nullity, had been set aside on 6.11.2007, but resurrected on 31.7.2009 and declared to have been always in the field, alive and enforceable."
It may be observed that General Pervez Musharraf (retired) had himself confessed that what he had done on 3.11.2007 was unconstitutional as was reported in the Daily DAWN of 18th November, 2007 which fact finds place in the judgment dated 31.7.2009 passed by fourteen members Bench of Judges of this Court. Beside that the nation in particular and the whole world at large lauded the restoration of Judges. For brevity's sake, as an illustration, reference is made to Daily Dawn dated 18th March, 2009, quoting "The United Nations human rights chief Tuesday welcomed the Pakistani Government's decision to reinstate the former Supreme Court Chief Justice and other Judges" and that "Reinstating all of the 60 judges who had been sacked by the previous administration was an important step in the process of restoring the rule of law in Pakistan." Similar statements were also made in Daily Nation, Islamabad dated 18.3.2009 and the Daily News Islamabad dated 19.3,2009 quoting national and the International sources.
Besides, in recognition of his services to the rule of law and his struggle regarding supremacy of laws and Constitution in Pakistan, so on so forth Mr. Justice Iftikhar Muhammad Chaudhry, the Hon'ble Chief Justice of Pakistan has been conferred upon many awards within and outside the country. Some of the awards are as follows:--
(i) The "Medal of Freedom" by the most prestigious universities in the world, Harvard, which is an honour bestowed only on two other persons before him--South Afirca's Nelson Mandela and Thurgood Marshal--in the over--two hundred year history of the university.
(ii) The New York Bar, the world's largest bar, had also awarded a lifetime honorary membership.
(iii) Award by Doctors for Democracy (DD) and Association of Pakistan Physicians of North America (APPNA)."
The language, therefore, used in the review petition against the person of such a high stature the Hon'ble Chief Justice of Pakistan enjoys, is on the face of it, very bad, grossly disgraceful spreading scandal. According to Black's Law Dictionary Eighth Edition the word "Scandalous matter" means "A matter that is both grossly disgraceful (or defamatory) and irrelevant to the action or defence" and in the Webster Comprehensive Dictionary Encyclopedic Edition "Scandalous" means "1. Causing, or tending to cause, scandal; being a scandal; opprobrious; disgraceful; shocking to the sense of truth, decency, or propriety, 2. Consisting of evil or malicious reports; tending to inure reputation". Seen the language used in Review Petition, as referred to above, it can safely be inferred that it is nothing but scandalous. The objection in question, has therefore, been rightly raised and is, accordingly, sustainable.
On Constitution Petition under. Article 184(3) of the Constitution similar objections were raised in the following terms:--
"(iv) That the judgment dated 31.07.2009 passed by this Court in the Constitution Petition Nos. 8 & 9 of 2009 has been maintained in Review Petitions by 14 Members Bench of this Court and has attained finality, hence the petitioner is filing collateral proceedings and wants to join the proceedings indirectly, therefore, the aforementioned judgment i.e. 31.07.2009 cannot be challenged now under Article 184(3) of the Constitution."
"(v) That this Constitution Petition is based on mala fide intents, scandalous as evident from its contents. Therefore, office cannot entertain the same under Order XVII, Rule 5 of the Supreme Court Rules, 1980."
"20. The judgment purported to have been delivered in Constitutional Petitions Bearing No. 87 and 88 of 2007 in the case titled as Tika Iqbal Muhammad Khan v. General Pervez Musharraf and others (PLD 2008 SC 615 and PLD 2008 SC 178) and the judgment, dated 15-2-2008, purported to have been passed in C.R.P. No. 7 of 2008 titled as Tika Iqbal Muhammad Khan v. General Pervez Musharraf and others and any other judgment/judgments passed on the strength of the said two judgments are hereby declared to be void ab initio.
The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No. 1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him likewise on 15-11-2007; the Constitution (Amendment) Order, 2007 being President's Order No. 5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No. 6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order, 2007 dated 14th December, 2007 being the President's Order No. 7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President's Order No. 8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No. 9 of 2007 dated 14th December, 2007 are hereby, declared to be unconstitutional, ultra vires of the Constitution and consequently being illegal and of no legal effect.
As a consequence thereof--
(i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their re-appointment or restoration;
(ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was unconstitutional; void ab initio and of no legal effect."
Learned counsel for appellant emphasized in his arguments that judgments in Tika Iqbal Muhammad Khan's case were, in like petitions filed by Sindh High Court Bar Association and another, taken up and declared void ab-initio, therefore, the appellant's petition could also be also entertained. To strengthen his submission, he referred to the very judgment dated 31.7.2009 passed by 14 Members Bench of this Court in Constitution Petitions Nos. 9 & 8 of 2009. I regretfully state that do not feel myself inclined to agree with him for the reason next to follow. Firstly, it may be stated that side by side the instant petition, the appellant also filed a separate review petition. Essentially the objective of filing the instant petition is an attempt to achieve the same objective as that of his review petition i.e. to subvert the judgment dated 31.7.2009 passed by the Judges rightly appointed under the Constitution before 3rd November, 2007. On dismissal of host of review petitions filed against the judgment dated 31.7.2009, it has attained finality and the review petition filed by appellant has not been entertained and rightly so by refusing to receive the same on valid objections discussed in the earlier part of this judgment. The settled principle of law is that what cannot be achieved directly cannot be permitted to be achieved indirectly. Evaluating the question of validity of objections reproduced above, on the touchstone of the cited principle, the petition under Article 184(3) is also not entertainable. Secondly, the instant petition also contains scandalous and malicious material. The above-noted objections were, therefore, rightly taken. The same are tenable.
(R.A) Appeals dismissed.
PLJ 2010 SC 439
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
REHMAT ALI (deceased) through L.Rs. , etc.--Appellants
versus
ALLAH DITTA, etc.--Respondents
Civil Appeals No. 1857 & 1883 of 2001, decided on 2.12.2009.
(On appeal from judgment of Lahore High Court, Lahore dated 10.4.2001, passed in Civil Revision No. 578 of 1987).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 90--Reconstruction of file--Legal status of a certified copy of registered adoption deed--Resumption of--Such copy furnished under the signatures of sub-registrar was fully admissible under Art. 90 of Qanun-e-Shahadat Order--Presumption of genuineness is attached to it--Secondly, it is a public document, more than 80 years old and hence a second presumption is available to it under Art. 100 of Order, 1984--Held: Such presumptions though rebutable, have not only been rebutted but contents have, rather been admitted--Relationship between the vendor and the preemptor is fully proved through oral as well as documentary evidence. [P. 442] A & B
1980 SCMR 760 rel.
Mr. Saeed-ur-Rehman Farrukh, Sr. ASC for Appellants.
Rana Nasrullah Khan, ASC for Respondent No. 1.
Date of hearing: 2.12.2009.
Judgment
Sardar Muhammad Raza Khan, J.--These two appeals had already been heard and dismissed by a Full Bench of this Court on 23.2.2007. The appellants filed Civil Review Petitions No. 85 & 86 of 2007, which were accepted on 19.3.2008 to the extent that the appeals be fixed for rehearing. Today, the cases were reheard extensively.
The legal heirs of Rehmat Ali and another Muhammad Ibrahim (vendees in the original suit for pre-emption) have filed these appeals against the judgment dated 10.4.2001, passed by a learned Judge in Chambers of Lahore High Court, whereby, Allah Ditta stood granted a decree for possession through pre-emption of the suit land.
One Muhammad Boota happened to sell the disputed land measuring 22-kanals 18-marlas in Khata No. 195-196-197 through registered deed dated 29.6.1976 for a sum of Rs. 1,21,561/- Allah Ditta brought a suit for pre-emption on the grounds that he was a collateral of Muhammad Boota, that he was a co-sharer in khata as well as owner in the estate. A decree, dated 10.1.1985 was granted by the trial Court recognizing his right of being collateral as well as owner in the estate.
Both the parties went into appeal. The pre-emptor claimed that a charge of Rs. 20,000/- regarding mortgage amount had wrongly been imposed because the so-called mortgage was fictitious. The vendee also filed an appeal which was partially accepted, holding, that Allah Ditta was not a collateral and that he was a co-sharer in khata No. 197 alone and hence he could pre-empt only a property measuring 1-Kanal 2-Marlas situated in that khata. Both the parties again went in revision, That of the pre-emptor was accepted through the impugned judgment on the ground that Allah Ditta was a collateral of Muhammad Boota, the vendor and hence entitled to pre-empt the entire property. The revision of vendee was dismissed. Hence these appeals.
The question of pre-emptor Allah Ditta being collateral of Boota, the vendee, was the only question addressed during arguments on rehearing. Following is the relevant portion of pedigree table, Ex-P/1:--
Allah Din
Wali Dad Maula Jiwan
(Adopted son) Sardar Hakim Aroora
Allah Ditta (pre-emptor) Boota (vendee)
It has come in evidence, as proved by the pre-emptor, that he was the son of Sardar who, in turn, was the adopted son of Wali Dad. The deed of adoption under custom dated 11.7.1928 is on record as Ex-P/3. The evidence as well as the recital of the deed would indicate that Sardar, the father of Allah Ditta, pre-emptor, besides being the adopted son of Wali Dad, was also the real son of Jiwan, the real brother of Wali Dad. Whether he is considered to be an adopted son of Wali Dad or real son of Jiwan, in either case, the vendor happens to be the real nephew of Sardar and the first cousin of Allah Ditta, the pre-emptor. Thus being a collateral, he was rightly granted decree for possession of the entire land.
Learned counsel for the appellant has challenged the adoption deed Ex-P/3 on the ground that it being certified copy was not admissible due to non-production of the original. It was claimed from the opposite side that the original was placed on record but when summoned, it transpired that the entire record has been burnt in a fire where the Record Room was set ablaze.
This argument can be countered by two very important facts. Firstly, that even if the adoption deed is excluded, the collateral relationship between the parties is proved on record and is, rather, admitted by one of the witnesses of the appellants, namely Allah Rakha (DW-2). The learned counsel for the appellant dubbed the statement of Allah Rakha as obliging and hence not to be relied upon in view of our judgment in Farrukh Jabin v. Mapbool Hussain (PLD 2004 SC 499). In order to decide as to whether the statement is obliging or a simple narration of true facts depends upon the circumstances of that case, the status of the witness and the manner in which he deposed. In the instant case, the case of the pre-emptor rests on the question of his collateral relationship for which he himself appeared in the witness box and also produced pedigree table as a public document from Revenue Record. He verbally supported the pedigree table describing the exact relationships ascending to Allah Din, the common ancestor. By doing so, the pre-emptor had seriously shifted the burden of proof. In their turn, the vendees could not discharge the shifted burden, rather, Allah Rakha, DW-2 admitted such relationship. In view of the overwhelming evidence, the admission of Allah Rakha can be treated as the true statement of facts and not at all obliging.
The original record is admittedly destroyed. The reconstruction of file has not yet taken place. Even if the file is reconstructed, it would be the copy of copies and hence would not serve the purpose of the learned counsel for the appellants. We would, therefore, confine ourselves to the legal status of a certified copy of registered adoption deed, Ex-P/3. This copy furnished under the signatures of Sub-Registrar Sialkot is fully admissible under Section 90 of the Qanun-e-Shahadat Order, 1984. Presumption of genuineness is attached to it. Secondly, it is a public document, more than 80 years old and hence a second presumption is available to it under Section 100 of Qanun-e-Shahadat Order, 1984. Needless to say that such presumptions though rebutable, have not only been rebutted, but contents thereof have, rather been admitted. Our judgment in Khuda Bakhsh v. Amir (1980 SCMR 760) further supports the case of pre-emptor. We, therefore, hold that the relationship between the vendor and the pre-emptor is fully proved through oral as well as documentary evidence.
Being collateral, Allah Ditta, pre-emptor was rightly granted decree of the entire land through pre-emption. The evidence appreciated by the learned High Court is perfectly correct. There being no force in the instant appeals, both are hereby dismissed.
(R.A.) Appeals dismissed.
PLJ 2010 SC 442
[Review Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain &
Muhammad Sair Ali, JJ.
MUHAMMAD SIDDIQ-UL-FAROOQ--Petitioner
versus
STATE--Respondent
Crl. Rev. P. No. 45 of 2004 in Crl. P. No. 232 of 2001, decided 30.9.2009.
(On review against the judgment dated 13.9.2004 passed by Supreme Court of Pakistan in Criminal Appeal No. 232 of 2001).
As per Muhammad Sair Ali, J.--
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a)(iii)(iv)(vi) r/w. S. 10(a)(b)--Pakistan Penal Code, (XLV of 1860), S. 409--Constitution of Pakistan, 1973--Art. 184(3)--Conviction for commission of corruption and corrupt practices u/S. 9(a)(iii)(vi) of Ordinance, 1999 and sentenced to five years were recorded against accused by Accountability Court--Assailed--Conviction u/S. 9(a)(iii) was maintained by High Court while maintaining conviction, High Court reduced the sentence of five years to period of imprisonment--Challenge to--Validity--Chairman NAB filed a reference against former Chairman/M.D H.B.F.--Petitioner recruited 88 persons without adhering to mandatory procedure and without approval of the competent authority thereby causing wrongful loss to state exchequer--Criminally misappropriated the entertainment funds by sending gifts of fruit and nimco to persons unconnected with HBFC--Being holder of a public office allegedly committee offences u/Ss. 9 (a)(iii)(iv)(vi) r/w. S. 10(a)(b) of NAB Ordinance and S. 409 of PPC--It is for prosecution to initially prove existence of dishonesty, fraud, misappropriation on conversion of entrusted property for bringing and an accused with in the mischief of offence under S. 9(iii)--Held: Case under NAB Ordinance are strict liability cases--Prima facie case has to be established by prosecution before drawing a presumption or inference against the accused--Accused committed misappropriation deceptively or fraudulently or dishonestly with ulterior purpose--No evidence of appropriation or misappropriation of discretionary entertainment fund by accused as chairman with dishonest or fraudulent object to make some wrongful gains or to convert the funds to his own use--In such absence of such proof no offence u/S. 9(iii)(a) can be said to have been made out. [Pp. 447 & 448] A
Constitution of Pakistan, 1973--
----Art. 188--Supreme Court Rules, 1980--O. XXVI, R. 1--Scope of review jurisdiction--If nothing was overlooked nor had the Court failed to consider an important aspect of the matter, review petition was not sustainable--Numerous judgments pronouncing the principles and parameters of the exercise of review jurisdiction were analyzed.
[P. 450] B
1999 SCMR 2189, PLD 2001 SC 233, PLD 2003 SC 724 &
1996 SCMR 158, ref.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 9(a)(vi)--Constitution of Pakistan, 1973, Art. 184(3)--Conviction for commission of corruption and corrupt practices u/S. 9(a)(iii) was maintained by High Court--Validity--Chairman NAB filed a reference against Chairman/M.D. H.B.F.C.--Allegations--Dishonestly or fraud or appropriation conversion for his own use or of misuse of authority for gain or benefit derived by the petitioner from recipients of the purported gifts of fruits or nimco--Held: Holder of a public office or any other person is said to commit the offence of corruption and corrupt practices if he misuses his authority in order to gain any benefit or favour for himself or for any other person--Petitioner abusing his official position as Chairman HBFC and misusing his authority, sent gifts to get personal gain or benefits or favor himself from the recipients of the gifts--Absence of evidence on dishonestly or fraud or appropriation/conversion for his own use or of misuse of authority for gain or benefit or favor derived by petitioner--Prosecution based its case on probabilities, presumptions and illogical deductions and not on evidence of any dishonesty or fraud or of misuse of authority for personal gains, benefits of or favors for himself or any one else--Further held: Offences u/S. 9(a)(iii)(vi) of NAB Ordinance are held not have been made out against the petitioner--Accused was acquitted. [Pp. 453, 454 & 456] D, E & I
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 14(a)(d) & 9(a)(iii)--Conviction for commission of corruption and corrupt practices u/S. 9(a) (iii) was maintained by High Court--Challenge to--Discharge the prima-facie burden to proof, to onus on the accused--Validity--Initial burden on the prosecution to prove that an offence u/S. 9(a)(iii) has been committed by dishonest and fraudulent misappropriation or conversion for himself or any other person--It is on proof through evidence that presumption against the accused arises thereby shifting burden on him to prove the contrary--Proviso to S. 14(d) obliges the prosecution to first make out a reasonable case against the accused--Held: In the case no evidence whatsoever was produced by prosecution to discharge its prima facie burden to prove the offence under S. 9(a)(iii) or to first making out a reasonable case against the accused for offence under S. 9(a)(vi) of NAB Ordinance. [P. 455] F & G
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 14(a)(d)--No presumption or assumption could be drawn in absence of any prosecution evidence--Irrationally, unreasonably and falsely implicated the accused--Corruption and corrupt practice--Prosecution was unable to prove unreasonableness or colorable use of administrative discretion by the petitioner to gain pecuniary or financial advantages or accumulation of wealth or assets or position or misappropriation or misuse of authority for personal benefits or favors--Absence of such evidence escaped the attention of Supreme Court while pronouncing judgment under review. [P. 456] H
As Per Sayed Zahid Hussain, J.--
Constitution of Pakistan, 1973--
----Arts. 188 & 191--Scope of power and parameters of review jurisdiction Court--Art. 191 enables the Supreme Court to make rules regulating the practice and procedure of the Court which power is subject to the constitution and law--Supreme Court Rules, 1980 were framed under this enabling provision. [P. 457] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XLVIII, R. 1--Review jurisdiction--Ground of an error apparent of the face of the record--Review jurisdiction is exercisable by the Court on grounds akin to those mentioned in Order 47, Rule 1 of CPC in civil proceedings and in criminal proceedings on the ground of an error apparent on the face of the record. [P. 457] B
Supreme Court Rules, 1980--
----O. X, R. 2--Scope of--Judgment pronounced by the Court or by a majority of the Court by dissenting judge shall not afterwards be altered or added to save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission--Validity--Such an assumed finality is again subject to the review power and jurisdiction of the Court. [P. 458] C
Words and Phrases--
----Review--Review as is understood, means according to the Law Lexicon 2nd Edition 2008 by Justice Y.V. Chandrachud page 1755 a judicial examination in a case--Review is a proceeding which exists by virtue of Statute. [P. 458] D
Words and Phrases--
----Review--According to Blacks Law Dictionary, Sixth Edition, Review means to re-examine judicial. [P. 458] E
Review--
----Scope of review power and jurisdiction has not been free of complexity, it has received attention of the Court time and again primarily--Indulgence by way of review is granted mainly owing to natural desire to prevent irremediable injustice by a Court of last resort by some inadvertence or accident. [P. 459] F
PLD 1962 SC 335 rel.
Review--
----Power of review to alter the judgment--Irregularity must be of such a nature--Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the constitution or with law of Pakistan there it would be the duty of the Court unhesitatingly to amend the error--Held: Court has unlimited power to re-hear and reopen a case which has been finally decided.
[P. 459] G & H
Review a Judgment--
----Material irregularity was committed would not be sufficient to review a judgment--Validity--If the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice a review petition would lie. [P. 461] I
Review Petition--
----Conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been over looked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie.
[P. 461] J
Review Petition--
----If the error in the judgment/order is so manifest and is floating on the surface, which is so material that had been noticed prior to rendering of the judgment the conclusion would have been different, in such a case review petition would lie. [P. 461] K
Review--
----Constitution does not place any restriction on the power of Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of significant impact on fundamental rights of citizens or in the interest of public good. [P. 461] L
Review--
----Court is competent to review its judgment/order suo motu without any formal application--Each bench whether small or large exercises the same power vested in Supreme Court and decisions rendered by benchs of their size are decisions of the Court having the same binding nature. [P. 461] M
Review of Judgment--
----Overlooking some important aspect of the matter from consideration or an erroneous assumption of a material fact affecting the conclusion reached in the judgment are valid grounds on which the review of judgment can be permitted. [P. 461] N
Error of Law--
----Error apparent on the face of record--Where an error of law or fact is discovered in an order by reading the order itself without reference to any other material, such an error would fall within the category of an error apparent on the face of record--If so considered would have changed the final outcome of the case would also amount to an error apparent of face of the order. [P. 462] O
Constitution of Pakistan, 1973--
----Art. 187--Prime purpose of justice--Review of judgment--In order to achieve the prime purpose of justice for all, whenever, it is brought to the notice of the Court that injustice has occurred as a result of material evidence having escaped the notice of the Court, the same can be set right without reservation by way of review of judgment--Held: In order to ensure complete justice, Supreme Court is vested with an additional power flowing from Art. 187 of Constitution of Pakistan, 1973. [P. 462] P & Q
Words and Phrases--
----Justice--According to Black's Law Dictionary, Sixth edition means proper administration of laws to render every man his due. [P. 463] R
Mr. Muhammad Ikram Ch. ASC, for Petitioner.
Mr. Abdul Baseer Qureshi, Addl. P.G. NAB, Dr. Asghar Rana, Addl. Dy. P.G. NAB, Mr. Khan Dil Muhammad Khan Alizai, DAG for State.
Date of hearing: 30.9.2009.
Judgment
Muhammad Sair Ali, J.--The petitioner is former Chairman/M.D. House Building Finance Corporation. He joined the corporation on two years contract on 1.5.1998. He was arrested on 18.10.1999. He remained in the custody of National Accountability Bureau w.e.f. 25.12.1999 and his whereabouts were not known. On a petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, and the consequent orders, the petitioner was ultimately produced before this Court on 18.05.2000 when time was sought to file challan against him in the Accountability Court. On 31.05.2000, the Chairman National Accountability Bureau filed a reference against the petitioner before the Accountability Court No. 4, Karachi. The allegations were that the petitioner recruited 88 persons without adhering to the mandatory procedure and without approval of the competent authority thereby causing wrongful loss of Rs. 56,88,525/- to the state exchequer. And that he criminally misappropriated the entertainment funds by sending gifts of fruit and nimco etc. valuing Rs. 1,05,000/- to persons unconnected with HBFC or its business. The petitioner being holder of a public office thus allegedly committed offences under Section 9(a)(iii)(iv)(vi) read with Section 10(a) and (b) of the National Accountability Bureau Ordinance, 1999 and Section 409 PPC.
The Accountability Court framed the charge on 16.08.2000. The petitioner pleaded not guilty and claimed trial.
The prosecution examined PW.1, Muhammad Dawood, General Manager HBFC, PW-2, Karamat Ali Chief Manager (Services) HBFC, PW-3 Javed Ahmed Khan, Cashier HBFC, PW-4 Abdul Qadir, General Manager (Personnel) HBFC, PW-5 Muhammad Wasim, Assistant Manager (Audit Division) HBFC, PW-6, Miss Nasreen Mehdi, General Manager (Audit and Instructions Division) HBFC PW-7 Syed Sohail Fahmi, Manager Allied Bank of Pakistan, FTC Branch, Karachi, PW-8 Rahila Anwar, Private Secretary to Chairman HBFC, PW-9 Muhammad Akram Tariq, Manager HBFC, PW-10, Mian Habib Ahmed, Assistant Director FIA, Investigating Officer and PW-11, Ghulam Farooq, Assistant Director F.I.A.; the second Investigating Officer.
The learned trial Court convicted the petitioner for commission of corruption and corrupt practices under Section 9(a)(iii) and (vi) of the Ordinance and sentenced him to five years R.I. and to pay a fine of Rs. 2,00,000/- or otherwise to undergo one year R.I. Benefit of Section 382-B, Cr.P.C. was allowed. Under Section 15 of the NAB Ordinance of 1999; he was also disqualified to contest election and to hold public office for a period of twenty one years.
The petitioner preferred an appeal before the Sindh High Court. A learned Division Bench of the High Court partly allowed the appeal through judgment dated 17.05.2001. The petitioners conviction and punishment for offence under Section 9(a)(vi) of the National Accountability Bureau Ordinance, 1999 on the charge of making wrongful appointments was set-aside.
On the charge of misappropriation of Rs. 1,05,000/- from entertainment funds, the High Court held that the entertainment funds were provided for entertainment of the guests visiting the offices and these funds were to be utilized for such guests only under some principles but fruits and nimco etc were sent by the petitioner to political figures and Government officers who were neither visitors of HBFC nor were they concerned with the business of HBFC but all of whom were persons that were or could be helpful to the petitioner in retention of his job in HBFC. Petitioner's conviction for the commission of corruption and corrupt practices under Section 9(a)(iii) was maintained by the High Court. While maintaining the conviction, High Court reduced the sentence of five years to the period of imprisonment already undergone by holding that"........... after his arrest on 18.10.1999, the appellant was dumped and forgotten till his production on 18.05.2000 by Prosecutor General NAB, before the Hon'ble Supreme. Court under the directive of the apex Court". The fine was also reduced to Rs. 1,05,000/- which was equal to the amount spent on the purported gifts. The period of disqualification of the petitioner to contest election and to hold public office for 21 years was maintained.
The High Court's judgment dated 17.05.2001 dismissing petitioner's Criminal Accountability Appeal No. 18 of 2000 on the charge of misappropriation of entertainment funds, was challenged before this Court by seeking leave there against through Criminal Petition No. 232 of 2001. The leave petition was dismissed by this Court though judgment dated 13.9.2004 but period of 21 years disqualification to contest election or to hold public office was reduced to 10 years.
Through the present Criminal Review Petition No. 45 of 2004 the petitioner seeks review of judgment dated 13.09.2004. Mr. Muhammad Ikram Ch., ASC appearing for the petitioner contends that while deciding the above petition, evidence on record particularly that of PW-6, PW-8 and PW-9 and the documents produced were not taken into account. And that the depositions of PW.6 and PW.8 etc. have a direct bearing upon the petitioner's culpability. Further that the petitioner was admittedly kept in illegal confinement by NAB etc from 18.10.1999 to 18.5.2000 when he was recovered and produced before this Court and the effect thereof on the trial was not determined. The learned ASC submitted that the petitioners illegal detention for 7« months vitiated the investigation and the reference proceedings as mala fide and corum-non-judice, which was enough to set-aside the conviction and punishment of the petitioner.
In the contrary arguments Mr. Abdul Baseer Qureshi, learned Additional Prosecutor General and the learned Deputy Attorney General appearing for the respondents' contended that the review was barred by time and the same could only be entertained under Rule 2 of Order XXVI of the Supreme Court Rules for `an error apparent on record' and no such apparent error existed to justify the review as this Court had considered all the evidence in the matter.
We have considered the submissions of the learned counsel for the parties as well as the record.
The objections of Mr. Abdul Baseer Qureshi, Addl. P.G. NAB and Mr. Khan Dil Muhammad Khan Alizai, DAG that the review petition is barred by limitation is frivolous. We find the petition to be within time. We have also examined maintainability of the review petition in the present case. The findings are recorded hereinafter.
In the case of Managing Director SSGC, Ltd. v. Ghulam Abbas (PLD 2003 S.C. 724) scope of review jurisdiction under Article 188 of the Constitution of Islamic Republic of Pakistan read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980 was educatively defined by an Hon'ble five member Bench of this Court. Numerous judgments pronouncing the principles and parameters of the exercise of review jurisdiction were analyzed. Referring to the cases of Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada (1999 SCMR 2189) and Wasim Sajjad v. Federation of Pakistan through Secretary, Cabinet Division and others (PLD 2001 S.C. 233), the rule was reiterated that if nothing was overlooked nor had the Court failed to consider an important aspect of the matter, review petition was not sustainable. The observations in the case of Suba through legal heirs vs. Fatima Bibi through legal heirs (1996 SCMR 158) were repeated that review petition would be competent if "something which is obvious in the judgment had been overlooked and that if it would have been considered by the Court the final result of the case would have been otherwise". The present case directly attracts the above settled principles of law on the exercise of review jurisdiction. While passing the judgment under review this Court appears to have overlooked the all important evidence of PW-6, PW-8 and PW-9 and also the absence of prosecution evidence on the culpability of the petitioner in terms of offences of Section 9(a)(iii) and (vi) of the National Accountability Bureau Ordinance, 1999.
We are in agreement with Mr. Muhammad Ikram Ch., learned. ASC for the petitioner that while rendering judgment dated 13.09.2004, evidence of PW-6 i.e. Nasreen Mehdi, PW-8 i.e. Rahila Anwar and PW-9 i.e. Muhammad Akram Tariq appear to have escaped attention of this Court. The statements of PW-6, PW-8 and PW-9 on the question of purchase of gifts valuing Rs. 1,05,000/- from the entertainment or discretionary funds, had direct bearing upon the determination of the guilt or otherwise of the petitioner. Had these depositions not escaped consideration of this Court, we feel result would have been different.
On the charge of misappropriation of entertainment or discretionary funds, PW-6 i.e. Nasreen Mehdi was the main and important witness of the prosecution being General Manager (Audit & Instructions Division) and then an Executive Director, Northern Region, HBFC.
She as PW-6 deposed that:--
"In December, 1998 special Team for audit front
State Bank of Pakistan arrived at HBFC. The specific issues on which the said team arrived were (1) sending the gift items from HBFC (2) ---------- I provided ------------------- information and documents. Prior to arrival of that inspection team of State
Bank of Pakistan the gifts in shape of fruit items were being sent to the dignatories from the funds allocated under the head of M.D's reserved funds of the budget of HBFC. M.D. HBFC was the only competent authority to utilize the said funds. M.D's reserved fund has not been explained any where as to which sort of expenditure is included in this head and therefore it was being utilized on the sole discretion of M.D. and if any head was not available to any expenditure it was debited from this head. Besides there is another allocation of fund under the head entertainment fund. When the said audit team of State Bank arrived in discussion they guided us that the items of gifts which are debited from the head of M.D's reserved fund must be. debited from the entertainment fund' of the budget of HBFC.
Thereafter the gifts in shape of fruits started debiting fromentertainment fund'. When the said gift items were being sent from M.D's reserved fund I was not Executive Director, Personnel & Services therefore 1 do not know what was the procedure at that time in utilization of the funds. On 12.11.1998 I was posted as Executive Director, P&S. The procedure of sending gifts during my period was that M.D. used to direct his personal staff about the names and gift items and the same were purchased and sent to the persons and dignatories and thereafter the bills were processed through Cashier and put up to me through proper channel and after my approval the same were paid to the person who had initially purchased those items.
........................ It is correct that during his tenure in the departments of HBFC there was substantive improvements. ---------------------- In meeting of February, 2000 of Board of Directors there was no allegation against Siddiq-ul-Farooq regarding financial irregularities. .......................... Besides the visit of special team of State Bank of Pakistan for audit there was an annual usual visit of Audit team of State Bank of Pakistan in HBFC and last year the post audit was up to the period of 1997. Thereafter as usual annual post audit was done in HBFC. Payment of the gifts which were sent to the dignatories have been processed and the cheques have been issued and those bills which were put up and processed have been paid. I know that there are rules for utilization of entertainment funds and gifts in Federal Government. I cannot say if an amount of Rs. 500,000/- were allocated to the head of entertainment in HBFC budget 2000. I remember that in the budget of HBFC for the year 1999 there was an amount of Rs. 200,000/- for head entertainment".
In the perspective of above quoted deposition of PW-6, our attention was also drawn to the sequential depositions of other witnesses particularly of PW-8 and PW-9 whose statements remained unexamined by this Court. On reading we found that PW-1 i.e. Muhammad Dawood, General Manager, HBFC said nothing on the charge relating to the gifts. PW-2 i.e. Karamat Ali, Chief Manager Services only referred to dealing with some bills for the purchase of fruits. PW-3 i.e. Javed Ahmed Khan, a junior Assistant dilated upon purchase of fruits etc. from the market for gifts and their dispatch to the recipients. Mr. Abdul Qadir, Chief Manager (personnel) HBFC deposing as PW-4 said nothing as to the gifts but admitted in the cross-examination that "over all there was improvement in the working of HBFC in all the departments. There was instructions from M.D. to us not to violate the rules and regulations in the work of HBFC". Muhammad Waseem i.e. Assistant Manager (Audit Division) appearing as PW-5 made no statement on the gifts. Syed Sohail Fehmi, Manager ABL, FTC Branch, Karachi (PW-7) deposed as to the cheque transactions from the account of the petitioner. Rahila Anwar, Private Secretary to the petitioner as PW-8 dilated upon purchase of fruits from discretionary funds of the petitioner as the Chairman/Managing Director. In the cross-examination she admitted that Mr. Siddiq-ul-Farooq had given some carpets to the retiring officers of HBFC as acknowledgement of their services as gifts ....................... And that Mr. Siddiq-ul-Farooq wrote A letter to State Bank to audit the accounts of HBFC and ................ that audit team inspected the accounts. Muhammad Akram Tariq (PW-9) Manager HBFC in his cross-examination admitted that "in connection with the payments and sanction of the gifts, there was no objection from any one. He also said that during the tenure of Mr. Siddiq-ul-Farooq the image of HBFC and the recoveries were boosted. PWs-10 & 11 were the Assistant Directors of F.I.A. who deposed on the investigation process.
Section 9 (a) clauses (iii) and (vi) read as follows:--
(a) A holder of a public office, or any other person, is said to commit or have committed the offence of corruption or corrupt practices
(i) ......................
(ii) ......................
(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or
(vi) .... (if he) misuses his authority so as to gain any benefit or favour for himself or any other person, or (renders or attempts to render) (or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority).
The allegations in the reference were for commission of corruption or corrupt practices by the petitioner under above quoted clauses (iii) and (vi) Section 9(a). The charges were also framed under both the above clauses. The trial Court also convicted and punished the petitioner for offences under above referred clauses (iii) and (vi). The learned Division Bench of the High Court however acquitted the petitioner of the charge under clause (vi) of Section 9(a) for causing colossal loss by making wrongful appointments etc but convicted, punished and disqualified the petitioner under clause (iii) for misappropriating discretionary funds. To maintain the conviction and punishment for the charge under clause (iii), the learned Division Bench of the High Court appears to have invoked ingredients of sub-clause (vi) and (iii) interchangeably, without maintaining the distinction existing therein. In view thereof, both the sub-clauses (iii) and (iv) of clause 9(a) ibid are concisely examined hereinafter.
Analyzing clause (iii) above, the proof of offence there under demands proof of dishonesty or fraudulent misappropriation or conversion of the entrusted property to his own use by the accused or for the use of any other person etc. etc. It is for the prosecution to initially prove existence of dishonesty, fraud, misappropriation or conversion of the entrusted property for bringing an accused within the mischief of offence under clause (iii). It is well settled that cases under the Ordinance are strict liability cases. Prima-facie case has to be established by the prosecution before drawing a presumption or inference against the accused under the Ordinance. It must be shown that the accused committed misappropriation deceptively or fraudulently or dishonestly with some ulterior purpose. In the present case there is no evidence of appropriation or mis-appropriation of discretionary/entertainment funds (Rs. 1,05,000/-) by the petitioner as Chairman/Managing Director with dishonest or fraudulent object to make some wrongful gains or to otherwise convert the said funds to his own use etc. In the absence of such proof, no offence under clause (iii) of Section 9(a) ibid, can be said to have been made out.
A perusal of Section 9(a)(vi) above shows that holder of a public office or any other person is said to commit the offence of corruption and corrupt practices if he mis-uses his authority in order to gain any benefit or favour for himself etc. or for any other person. The prosecution alleged that the petitioner abusing his official position as Chairman, HBFC and misusing his authority, sent gifts valuing Rs. 1,05,000/- to get personal gain or benefits or favour for himself from the recipients of the gifts.
The above rendered survey of evidence on record starkly brings out total absence, of evidence on dishonesty or fraud or appropriation/conversion for his own use or of misuse of authority for gain or benefit or favour derived by the petitioner from the recipients of the purported gifts of fruits or nimco etc. The prosecution based its case on probabilities, presumptions and illogical deductions and not on evidence of any dishonesty or fraud {required under clause (iii)} or of misuse of authority for personal gains, benefits or favours for himself or any one else (required under clause (vi).
We are conscious of the presumptions under Section 14(a) and (d) of the National Accountability Bureau Ordinance against an accused in the offences under clauses (iii) and (vi) of Section 9(a) ibid and of his burden to prove innocence. Section 14(a) and (d) read as under:--
"(a) Where in any trial of (an offence under clauses (i), (ii), (iii) and (iv) of sub-section (a) of Section 9) it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or any pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, it shall be presumed unless the contrary is proved, that he accepted, or obtained, or agreed to accept or attempted to obtain, that gratification or valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or reward such as is specified in Sections 161 to 163 of the Pakistan Penal Code, 1860 (Act XLV of 1860), or, as the case may be, without consideration, or for a consideration which he believed to be inadequate.
(b) ................................
(c) ................................
(d) (In any trial) of an offence under (clauses (vi) and (vii) of Section 9), the burden of proof that he used his authority or issued any directive, or authorized the issuance of any policy or statutory rule or order (SRO) or made any grant or allowed any concession, in the public interest, fairly, justly and for the advancement of the purpose of the enactment under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on (the accused), and the absence of such proof the accused shall be guilty of the offence, and his conviction shall not be invalid by the reason that it is based solely on such presumption:
Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of sub-section (a) of Section 9)".
The above quoted Section 14(a) evidently places the initial burden on the prosecution to prove that an offence under clause (iii) of sub-section (a) of Section 9 has been committed by dishonest and fraudulent misappropriation or conversion for himself or any other person. It is on proof through evidence that the presumption against the accused arises thereby shifting burden on him to prove the contrary.
Similarly the proviso to Section 14(d) obliges the prosecution to first make out a reasonable case against the accused. This Court in the case of Khan Asfandyar Wali and others, v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 S.C. 607) held that in case the prosecution succeeded in making out a reasonable case against the accused person to the satisfaction of the Court only then would the prosecution be deemed to have discharged prima-facie burden of proof, to shift onus on the accused to rebut the presumption of his guilt. The accused then would be required to show that he used his authority fairly, justly and in the public interest.
In this case no evidence whatsoever was produced by the prosecution to discharge its prima-facie burden to prove the offence under clause (iii) or to first making out a reasonable case against the petitioner for offence under clause (vi) of Section 9(a) (ibid). There is no evidence on record to show that:--
(i) Were there any rules or regulations or policy or practices for the exercise of authority in HBFC by the Chairman/M.D. to use discretionary or entertainment funds at his disposal;
(ii) Were the discretionary or entertainment funds dishonestly or fraudulently misappropriated or otherwise converted for his own use etc. by the petitioner;
(iii) Were the recipients of gifts of fruits and nimco etc. valuing Rs. 1,05,000/- totally unconnected, or un-concerned with the Corporation or its business as political or non-political persons;
(iv) Was the authority misused by the petitioner "so as to gain any benefit or favour for himself or any other person";
(v) Did petitioner receive any gain, benefit or favour from the recipients of insignificant gifts of fruits or nimco and/or was it so intended; and
(vi) Was the object or motive of sending fruits and nimco etc., to obtain gains or benefits or favours as to his person or office or retention of the office as alleged.
In absence of any prosecution evidence on the above stated essential factors, no presumption or assumption could be drawn under Section 14(a) and (d) ibid against the petitioner. Prosecution failed to prove or first make out a reasonable case against the petitioner under above referred clauses (iii) and (vi). The prosecution was unable to prove `un-reasonableness' or colorable use of administrative discretion by the petitioner to gain pecuniary or financial advantages or accumulation of wealth or assets or position or the misappropriation or misuse of authority for personal benefits or favours. Presumption of reasonability as well as relationability thus tilted against the prosecution. Absence of such evidence escaped the attention of this Court while pronouncing the judgment under review. From the circumstances and the evidence on record, what could be concluded was that during Musharraf regime, the petitioner was irrationally, unreasonably and falsely implicated in the present case because of his stated political liaison with the former Prime Minister i.e. Mian Muhammad Nawaz Sharif, his party or the Government.
The result thereof is that offences under Section 9(a)(iii) and (vi) of the National Accountability Bureau Ordinance, 1999 are held not have been made out against the petitioner. Wherefore as recorded in the short order dated 30.09.2009, we allow this review and set aside judgment under review passed by this Court on 13.09.2004. Criminal Petition No. 232 of 2001 is also accepted and treated as an appeal. For the reasons recorded above, we accept the appeal as well. The impugned judgment dated 17.05.2001 of the High Court and judgment dated 30.10.2000 of the trial Court are set-aside.
Petitioner is acquitted of all the charges. His disqualification to contest election and to hold any public office is also set-aside.
Sd/-
Judge
I have added separate note.
Sayed Zahid Hussain, J.--This review petition had come up for hearing on 30.9.2009 when on through consideration of the matter it was allowed by means of the short order announced in the Court which reads as follows:--
"On hearing Mr. Muhammad Ikram Chaudhry, learned ASC for the petitioner, Mr. Abdul Baseer Qureshi, learned Addl. Prosecutor General, Dr. Asghar Rana, Additional Deputy Prosecutor General and Khan Dil Muhammad Khan Alizai, Deputy Attorney General for the respondents, we allow this review petition and consequently accept the appeal as well. For the reasons to be recorded later, the impugned judgment and the judgment dated 17.5.2001 passed by learned Division bench of the High Court of Sindh, Karachi are set aside."
The reasons as is evident from the above order were to be recorded later. I concur with the conclusions recorded by his lordship Muhammad Sair Ali, J. however, as the ratio of acceptance of review petitions is minimal, I have recorded my views by means of this note as to the scope of power and parameters of review jurisdiction.
Art. 188. The Supreme Court shall have power, subject to the provisions of any Act of [Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.
As is evident from the perusal of the above it makes reference to the provisions of any Act of Parliament and of any rules made by the Supreme Court of Pakistan. Article 191 enables the Supreme Court to make rules regulating the practice and procedure of the Court which power is subject to the Constitution and law. Supreme Court Rules, 1980 were framed under this enabling provision. Its Order XXVI deals with review. Rule 1 thereof is as follows:
It is thus obvious that the review jurisdiction is exercisable by the Court on grounds akin to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure in civil proceedings and in criminal proceedings on the ground of an error apparent on the face of the record.
Before embarking upon this subject any further, one may note the provisions of Rule 2 of Order X of the Supreme Court Rules, 1980, i.e. "Subject to the provisions contained in Order XXVI a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission." Such an assumed finality is again subject to the review power and jurisdiction of the Court. Of course it has to be so as the power of review emanates from the Constitutional provisions which have to be accorded supremacy.
"Review" as is understood, means according to the The Law Lexicon, 2nd Edition 2008 by Justice Y.V. Chandrachud, (page 1755) "a Judicial re-examination in a case ......... a review is a proceeding which exists by virtue of statute." KJ Iyer in Judicial Dictionary, 14th Edition, describes the review as a " renewed study of material previously studied" ...... "Remedy of review is of very limited scope and it can be availed only in respect of errors apparent on the face of the record." (page-949) According to Black's Law Dictionary, Sixth edition, "Review" means "to re-examine judicially" ........ "A reconsideration; second view or examination; consideration for purposes of correction. "(page 1320)
In Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) it has been observed as follows:--
"Before proceeding further, it may be pointed out that right of review is a substantive right and is always a creation of the relevant Statute on the subject. See Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), where at page 5, it was held that:--
"The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Bronwell, L.J., in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 BD 1--
"does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment.
This is equally true in case of review, because both appeal and review though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law."
Therefore once the remedy of review is provided by the statute [in this case by the Constitution] the party concerned may invoke the same and claim its decision in accordance with the settled principles.
In Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC 145) Muhammad Haleem, C.J. dealt with this aspect in this way:--
"This rationale behind this policy is the need to promote certainty, stability, and predictability of the law. This, however, does not mean that this rule is inflexible. In this context, it will be of advantage to sum up what Hamoodur Rahman, C.J., in the case reported as Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), said :--
I am not unmindful of the importance of this doctrine but in spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedents. ........ It will thus be seen that the rule of Stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule."
There are, therefore, exceptions to the rigid adherence to this rule, and I am of the view that this Court being the Court of ultimate jurisdiction has power to review its own judgments. "
Ajmal Mian CJ. in Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363) quite aptly summarized/summed up the principles inter-alia (a) that every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the cases; ....... (b) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie; (c) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie; (d) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie; .............. (e) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good; (f) that the Court is competent to review its judgment/order suo motu without any formal application; (g) that under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature. In the same judgment an extract from a judgment dated 10.3.1991 passed in C.R.P. No. 1-K of 1989 (Begum Afsar Saeed and others vs. Ch. Abdul Aziz) has been cited which reads "From an examination of the aforesaid precedents of this Court, it seems settled that overlooking some important aspect of the matter from consideration or an erroneous assumption of a material fact affecting the conclusion reached in the judgment are valid grounds on which the review of a judgment can be permitted. "In Pakistan through Ministry of Finance Economic Affairs etc. v. Fecto Belarus Tractors Ltd. (PLD 2002 SC 208) it has been observed that "there is distinction between the review, and rehearing and the attempt to reargue the appeal at review stage is not permissible. We are fortified in this view by the judgment of this Court reported as 1987 SCMR 350 and 1152, 1983 SCMR 177 and 1986 SCMR 1021. However, if the Court has overlooked some material question of fact or of law which would have a bearing on the decision or there is otherwise some apparent mistake or error on the face of the record, then of course the power of review can be exercised. As far as error apparent on the face of the record is concerned, it should be so manifest, so clear as could not be permitted by any Court to remain on record. Such error may be an error of fact or of law but must be self-evident and floating on surface. The orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and Constitution, may, however, amount to error apparent on face of record. It must have also a material bearing on the fate of the case. These propositions were enunciated by this Court in the judgment reported as PLD 1979 SC 741, 1975 SCMR 115 and PLD 1984 SC 67. In another case reported as 1988 SCMR 908 (Sikandar Abdul Karim v. The State) the expression "error apparent on the face of record" was interpreted. While discussing its connotation, it was held that where an error of law or fact is discovered in an order by reading the order itself without reference to any other material, such an error would fall within the category of "an error apparent on the face of record. Failure of the Court while passing an order to notice or take into consideration a statutory provision, which if so considered would have changed the final outcome of the case would also amount to an error apparent on the face of the order".
The crux of all the opinions of the great jurists is that in order to achieve the prime purpose of justice for all, whenever, it is brought to the notice of the Court that injustice has occurred as a result of some material evidence having escaped the notice of the Court, the same can be set right without reservation by way of review of judgment. It may be observed that in order to ensure "complete justice" this Court is vested with an additional power flowing from Art. 187 of the Constitution of Islamic Republic of Pakistan, 1973.
"Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality."
Article 37 of the Constitution which falls in the chapter of Principles of Policy makes it obligatory for the State to "ensure inexpensive and expeditious justice".
"Justice" according to Black's, Law Dictionary, Sixth edition, means "proper administration of laws .......... to render every man his due." (page 864)
Justice (R) Fazal Karim in the preface of Judicial Review of Public Actions adopts the concept of "justice" that means "to remain within one's proper sphere; and injustice means to overstep that sphere ....... The Court's function, so for as a public authority is concerned, is to ensure that it does justice; it does not act unjustly by overstepping its proper sphere."
A.R. Cornelius J. had complied hundred Maxims of Fiqah. One of those is that "Wrong is to be undone" (No. 20)(PLD 1966 Journal 50)
I may also refer here to what is stated by Justice Krishna Iyer in The Majesty of the Judiciary (page-2):--
"Justice Jackson of the U.S. supreme Court once remarked:
"We are not final because we are infallible. We are infallible because we are final."
Judges are humans though they are ordinarily of high standard and rarely commit serious solecisms, fundamental flaws and grave goofs. Justly, therefore, even High Bench pronouncements do desiderate decisional review and correctional reversal. So we must abandon the populist superstition of judicial supremacy or curial papacy. Judges are under the Constitution, not over it."
Sometimes incorrect decisions do have far reaching effects on the person concerned. Correctional reversal thus becomes absolutely essential to make correction of the same in order to avoid the injustice.
It is said and rightly so that to err is human. Possibilities of mistakes and errors creeping in the decision making may not be very often but can not out rightly be ruled out on occasions, especially the Courts becoming over conscious of heavy back log of cases and long lists of daily causes fixed before them. Skipping over or escaping the notice of the Court some material and important aspects is also not unusual. Once, therefore, such a mistake/error comes to the notice of the Court resulting in injustice it should not be hesitant or reluctant to make necessary correction to undo the injustice caused thereby. The entire theme of the above referred ideas expounded by the learned jurists is the avoidance of injustice. If in a case it is caused by any act or omission of the Court inadvertently, accidentally or otherwise there should be no hesitation to rectify and make necessary correction by undoing the same.
Muhammad Sidiqul Farooq, the petitioner was a Chairman/M.D. House Building Finance Corporation, who faced trial before Accountability Court No. IV Karachi on certain allegations. He was convicted u/S. 9(a) (iii) & (vi) of the National Accountability Bureau Ordinance, 1999 and was sentenced to five years R.I. and. to pay a fine of Rs. 2,00000/-. In failing to pay the fine he had to further undergo one year R.I. He was given the benefit of S. 382(b) Cr.P.C. He was also disqualified to contest the election and to hold a public office for a period of twenty one years u/S. 15 of the National Accountability Bureau Ordinance, 1999. On his appeal the High Court of Sindh set aside the conviction u/S. 9(a)(vi) of the National Accountability Bureau Ordinance, 1999 and upheld the conviction u/S. 9(a)(iii) of the National Accountability Bureau Ordinance, 1999, the sentence was however reduced to the period already under gone, and also reduced the fine to Rs. 1,05,000/- or in default to undergo three months R.I. The period of disqualification to contest the election and to hold public office was maintained. His criminal petition was dismissed by this Court on 13.9.2004 with the observation that "disqualification to contest the election and to hold public office is on higher side. Accordingly the same is reduced form 21 years to 10 years." This review petition was filed in this background.
Instant is the case wherein as noticed in the judgment of his lordship Muhammad Sair Ali, J. very material pieces of evidence such as the deposition of Nasreen Mehdi, (PW-6), Raheela Anwar (PW-8) and Muhammad Akram Tariq (PW-9) escaped due consideration by the Court. Such evidence was not only of material relevancy but also had the direct impact as to the fate of the matter before the Court. This error apparent on the face of the record and consequential injustice warranted reconsideration and review of the matter, which in the circumstances became the duty of the Court to do so. That was the reason persuading us to allow the review and accept the appeal.
(R.A.) Appeal accepted.
PLJ 2010 SC 465
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
MUHAMMAD AZHAR--Petitioner
versus
DILAWAR and another--Respondents
Crl. P. No. 20-P of 2009, decided on 17.4.2009.
(On appeal from the judgment dated 26.1.2009 of the Peshawar High Court, Peshawar passed in Crl. Misc. No. 1667 of 2008).
Cancellation of bail--
----Considerations for grant of bail are guite distinct from the consideration for cancellation of bail. [P. 467] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860)--S. 324--Cancellation of bail--Principles governing grant of bail under prohibitory clause of S. 497, Cr.P.C.--Once bail had been granted by competent Court of law strong and exceptional grounds were required for canceling the same--It is to be seen as to whether order granting bail was patently, illegal, erroneous, factually incorrect and had resulted in miscarriage of justice--Accused was not shown to have misused the concession of bail--Accused was entitled to remain on bail. [P. 467] B & C
Mir Adam Khan, AOR for Petitioner.
Mian Muhibullah Kakakhel, ASC and Ms. Tehmina Muhibullah, ASC for Respondent No. 1.
Hafiz Aman, Advocate for State.
Date of hearing: 17.4.2009.
Judgment
Ijaz-ul-Hassan, J.--Muhammad Azhar, petitioner, seeks leave to appeal from a judgment dated 26.1.2009 of the Peshawar High Court Peshawar, granting bail to Dilawar, Respondent No. 1, in case FIR No. 981 dated 15.9.2008 registered at Police Station Tangi, Charsada, under Section 324, PPC.
Facts of the case have been mentioned elaborately in the order dated 2.12.2008 of learned Additional Sessions Judge as well as in the impugned judgment and in the memo. of petition and need not be reiterated. Suffice is to state that on refusal of grant of bail to Respondent No. 1 in the above mentioned case by learned Judicial Magistrate, Tangi, District Charsadda, vide order dated 17.11.2008, he filed application seeking bail before learned Additional Sessions Judge, Charsadda, and on its dismissal vide order dated 2.12.2008, the respondent preferred Criminal Misc. No. 1667 of 2008 before learned Peshawar High Court, Peshawar, which has been allowed granting bail to the respondent through the judgment impugned herein.
Mir Adam Khan, Advocate, appearing for the petitioner argued that learned Judge in the High Court has discussed merits of the prosecution case in detail and making deep appraisal of the evidence granted bail to the respondent in complete departure to the principles governing grant of bail under prohibitory clause of Section 497, Cr.P.C; that there was sufficient material on the file consisting of ocular account, medical evidence and motive connecting the respondent with commission of offence; that learned High Court has not properly evaluated the evidence observing that in the cross case bail has been granted to the accused and that impugned judgment is perverse, fanciful, shocking and not sustainable in law.
Mian Muhibullah Kakakhel, Advocate, assisted by Hafiz Aman, Advocate, on the other hand, supported the impugned judgment on all counts and prayed for its sustenance.
Having heard learned counsel for the parties and re-examining the material on file, we feel that submissions of learned counsel for the petitioner do not carry weight. Learned counsel despite his best efforts could not point out any infirmity or irregularity, legal or factual, warranting interfere with the impugned judgment. Learned High Court while reaching the conclusion has assigned sound and valid reasonings in last paragraph of the impugned judgment, which is reproduced herein below for facility sake:--
"There is nothing on the record to show that the petitioner is a previous convict, habitual or hardened, desperate and dangerous criminal. The accused in the cross FIR have already been released. The petitioner is in continuous custody since 9.11.2008. The investigation in the case is complete and the petitioner is no more required for further investigation and if he is kept in custody, no useful purpose would be served."
It needs no reiteration that considerations for the grant of bail are quite distinct from the consideration for cancellation of bail. Once bail has been granted by a competent Court of law strong and exceptional grounds are required for canceling the same, as held by this Court on a number of occasions. It is to be seen as to whether order granting bail is patently, illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. Considering the case of the respondent for grant of bail on the above touchstone, we are of the view that learned High Court has rightly reached the conclusion and no exception can be taken to it. The respondent is on bail since 26.1.2009 and he is not shown to have misused the concession of bail. He is entitled to remain on bail.
In view of the above, finding no force in this petition, we dismiss the same and refuse to grant leave.
(R.A.) Leave refused.
PLJ 2010 SC 467
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Mian Shakirullah Jan & Tassaduq Hussain Jillani, JJ.
MUHAMMAD ASHRAF JAVAID--Appellant
versus
ALLAH RAKHA--Respondent
Civil Appeals No. 2201 & 2202 of 2006, decided on 19.11.2009.
(On appeal against the judgment dated 15.9.2006 passed by Lahore High Court, Lahore in S.A. No. 67 & 82/2006).
Ejectment Petition--
----Eviction petition on the ground of personal need, default in payment of rent and damages to suit premises--Parties had executed agreement regarding tenancy and terms thereof and one of agreements receipt was with regard to payment of specific amount paid by tenant to landlord with a stipulation that landlord would not eject the tenant on the ground of personal need--Validity--Condition in the agreement debarring the landlord from seeking the eviction of the tenant from the premises on the ground of personal need is in violation of the statutory provisions contained in rent laws whereby the landlord can seek ejectment of the tenant on the ground of personal need and such a stipulation which is in violation of any statutory provision, is void and not enforceable. [P. 469] A
Contract Act, 1872--
----S. 28--Ejectment petition--Reference can be made u/S. 28 of Contract Act--Vacation of premises on personal need was malafide and had not proved his bonafide--Every agreement by which any party thereto is restricted absolutely for enforcing his right under or in respect of any contract by usual legal proceedings in ordinary tribunals is void hence on such ground the findings of High Courts are not sustainable. [P. 469] B & C
Ch. Muhammad Anwar Khan, AOR for Appellant.
Sardar Liaqat Ali, ASC for Respondent.
Date of hearing: 19.11.2009.
Judgment
Mian Shakirullah Jan, J.--The appellant/landlord, with leave of the Court, seeking reversal of the judgment of the High Court whereby while accepting the appeal of the respondent/tenant an ejectment order passed by the two Courts below from a rented premises/shop passed in favour of the appellant was set aside.
The appellant filed an eviction petition on the ground of (a) personal need, (b) default in payment of rent, and (c) damages to the suit premises. The learned Rent Controller did not accept the plea of the appellant regarding default and damages, however, accepted his application for ejectment on the ground of personal need. Two appeals, one by each party, were filed against the order of the Rent Controller and the appellate Court while accepting the appeal of the appellant to the extent of default dismissed the appeal of the respondent against his ejectment order passed by the Rent Controller. The respondent being aggrieved of the judgment and order of the first appellate Court filed two appeals against the two judgments and orders passed in the two appeals before the High Court. The High Court through a consolidated judgment while accepting the appeals of the respondent set-aside the judgment and order of his eviction. The appellant has now filed the instant appeals against the judgment and order of the High Court, with leave of the Court.
The parties have executed written agreements regarding the tenancy and terms thereof and one of the agreements/receipts is with regard to the payment of Rs. 80,000/- paid by the tenant to the landlord with a stipulation that the landlord would not eject the tenant on the ground of personal need. The High Court while holding the tenant as not defaulter also reversed the findings of the Courts below regarding personal need mainly on the ground that the payment of Rs. 80,000/- by the tenant to the landlord was in consideration of a stipulation for not ejecting the tenant from the premises on personal need. However, this condition in the agreement debarring the landlord from seeking the eviction of the tenant from the premises on the ground of personal need is in violation of the statutory provisions contained in rent laws whereby the landlord can seek ejectment of the tenant on the ground of personal need and such a stipulation, which is in violation of any statutory provision, is void and not enforceable. In this respect reference can be made to Section 28 of the Contract Act, 1872, wherein it has been provided that every agreement by which any party thereto is restricted absolutely for enforcing his right under or in respect of any contract by the usual legal proceedings in the ordinary tribunals is void hence on this ground the findings of the High Court are not sustainable. The learned counsel for the respondent while not controverting this legal proposition has contended that even on merits the demand of the appellant regarding the vacation of the premises on personal need is malafide and he has not proved his bonafide. Though he has taken the plea but again could not substantiate the same that the plea of the appellant regarding his personal need was malafide as the two Courts below i.e., the Rent Controller and the first appellate Court, have concurrently held the personal need as bonafide and the High Court has not attended to this aspect of the case sufficiently, hence we agree with the findings of the Courts below qua his personal need given in favour of the appellant and which are based on sound reasons and evidence on record.
Resultantly, while accepting these appeals, we hold that the judgment and order of the High Court is not maintainable. The same are set-aside and the judgment and order of Rent Controller and first appellate Court qua eviction of the respondent from the premises are restored and the respondent is directed to vacate the premises within a period of 6 months without recourse to any execution proceeding by the appellant. The amount of Rs. 80,000/- which has been directed by the Courts below to be refunded to the respondent is also maintained.
Before parting with the judgment we may mention here that the respondent has submitted that he had paid Rs. 7,000/- as property tax etc. of the premises which is the liability of the appellant and which was not denied by the latter (the appellant), therefore, it is directed that the respondent will adjust the aforesaid amount of Rs. 7,000/- from the rent to be paid to the appellant.
(R.A.) Appeals accepted.
PLJ 2010 SC 470
[Appellate Jurisdiction]
Present: Javed Iqbal, Sarmad Jalal Osmany &
Sayed Zahid Hussain, JJ.
Maulana ABDUL AZIZ--Petitioner
versus
STATE--Respondent
Crl. P. No. 217 of 2008, decided on 15.4.2009.
(On appeal from the Order dated 23.6.2008 of the Islamabad High Court, Islamabad in Crl. Misc. No. 116-B/2008).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code (XLV of 1860), Ss. 448, 427, 452, 506, 147 & 148--Anti-Terrorism Act, 1997, Ss. 6 & 7--Constitution of Pakistan, 1973, Art. 185(3)--Bail, grant of--Case does not fall within the ambit of the provision as enumerated in Section 497(2), Cr.P.C. which being without substance cannot be taken into consideration.
[P. 473] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 448, 427, 452, 506, 147 & 149--Anti-Terrorism Act, 1997, Ss. 6 & 7--Bail, grant of--Prima facie--Sufficient incriminating material was lacking prima facie connecting the accused--Presumption of innocent of accused--Sufficient incriminating material was lacking prima facie connecting the accused with commission of alleged offences--No denying the fact that the alleged offences were heinous in nature but the question was as to whether sufficient incriminating material connecting the accused with the commission of alleged offences was available or otherwise--Held: Presumption of innocence of accused is always paramount irrespective of the heinous of the alleged offences--Prosecutor General could not point out any incriminating material--Prima facie case was made out against the accused. [P. 473] A & B
Bail--
----Discretion of the Court--It is not practice of Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused person--Discretion has, of course, to be exercised on sound judicial principles.
[P. 474] D
Further Inquiry--
----Abetted--Incriminating material was lacking--Offences were abetted--Case falls within the ambit of further inquiry as at the moment sufficient incriminating material was lacking connecting the accused with commission of alleged offences and more so it is not known how alleged offences were abetted or facilitated by the accused. [P. 474] E
Bail--
----Abetment--No evidence could be pointed out to substantiate the allegation--Responsible for abetment--Held: No evidence has come on record showing the instigation, abetment or facilitation on the basis whereof the provision could be made applicable in the case of accused. [P. 475] F
Bail--
----Challan was submitted after a lapse of eight months--Case against the accused was registered and challan was submitted after a lapse of eight months and on such score alone the facility of bail can be extended in favour of accused. [P. 475] G
Ipsi dixit of Police--
----It is not proper to depend on ipso dixit of police regarding guilt or innocence of accused which is to be determined on the basis of evidence which is yet to be collected but prima facie sufficient incriminating material was lacking connecting the accused with the commission of the alleged offences--Held: Where evidence with regard to allegation of abetment or instigation is lacking the concession of bail can be extended in favour of accused. [P. 475] H & I
PLD 1996 SC 241, 1985 SCMR 195, PLD 1995 SC 34, PLD 1977 Lah. 201, 1985 PCr.LJ 2987 & PLD 1985 SC 182, 1979 SCMR 254, NLR 1978 Cri. 328, PLD 1977 SC 642, 1969 PCr.LJ 358, PLD 1985 SC 182, PLJ 1985 SC 243, ref.
Mr. Shaukat Aziz Siddiqui, ASC and Raja Abdul Ghafoor, AOR for Petitioner.
Mr. Muhammad Ilyas Siddiqui, Special Prosecutor General for State.
Date of hearing: 15.4.2009.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 23.6.2008 passed by Islamabad High Court, Islamabad whereby petition for bail preferred on behalf of petitioner has been rejected against whom a case was registered by means of FIR No. 30 dated 21.01.2007 under Sections 448/427/452/506/147/149 PPC read with Sections 6/7 of the Anti-Terrorism Act, 1997 at Police Station Abpara, Islamabad.
Precisely stated the facts of the case as enumerated in the order impugned are to the effect that "Muhammad Ehsan, Chowkidar of Model Children Library, made a complaint before the Police, wherein he stated regarding the entering of various girls students of Jamia Saeeda Hafza armed with dandas, after breaking the window pane and taking over possession of the Library by ousting him there from. He also got recorded his supplementary statement on the same day, wherein he implicated the present petitioner and his brother Maulana Abdur Rasheed Ghazi".
Mr. Shaukat Aziz Siddiqui, learned ASC entered appearance on behalf of petitioner and urged with vehemence that sufficient incriminating material connecting the petitioner with the commission of alleged offence is lacking which aspect of the matter has been ignored by the learned High Court which resulted in serious miscarriage of justice as no prima facie case is made out against the petitioner. It is next contended that the case falls within the ambit of the provisions as enumerated in Section 497(2) Cr.P.C. and being a case of further inquiry, the relief prayed for on behalf of petitioner could not have been declined because the petitioner has been implicated through supplementary statement of the complainant got registered under Section 161 Cr.P.C. and admittedly no nomination was made in the FIR got registered by complainant namely Muhammad Ehsan on 21.1.2007 at Police Station, Abpara, Islamabad. It is contended firmly that the alleged offences do not fall within the prohibitory clause of Section 497 Cr.P.C. and as such the concession of bail can be extended to the petitioner as a matter of right. It is argued that the provisions as enumerated in Section 21-C(4) of the Anti Terrorism Act, 1997 cannot be made applicable as no evidence worth the name is available. It is also mentioned that out of 27 cases got registered against the petitioner, concession of bail has been extended by the various Courts which were more heinous in nature as compared to the present one. It is argued that no challan could be submitted for about eight months after registration of the case which itself speaks a volume about the conduct of the prosecution and lack of evidence.
Mr. Muhammad Ilyas Siddiqui, learned Special Prosecutor General entered appearance on behalf of State and seriously controverted the view point as canvassed at bar by Mr. Shaukat Aziz, learned ASC for the petitioner with the submission that sufficient incriminating material connecting the petitioner with the commission of alleged offences is available which has rightly been scrutinized tentatively and the order impugned being free from any ambiguity does not call for interference. In order to substantiate the said contention, the supplementary statement of Muhammad Ehsan, who is Chowkidar of the Library, has been referred. It is also contended that the matter does not fall within the ambit of further inquiry, in view of the sufficient incriminating material which has come on record. The learned Special Prosecutor General also referred the provisions as enumerated in Section 21-C(4) of the Anti Terrorism Act, 1997 with the submission that facility of bail cannot be extended in favour of the petitioner in view of the restriction as imposed by the Anti Terrorism Act, 1997 itself.
We have carefully examined the respective contentions as agitated on behalf of the petitioner and for the State in the light of the relevant provisions of law and record of the case. Let we mention here at the outset that sufficient incriminating material is lacking prima facie connecting the petitioner with the commission of alleged offences. There is no denying the fact that the alleged offences are heinous in nature but the question is as to whether sufficient incriminating material connecting the petitioner with the commission of alleged offences is available or otherwise? It may be kept in view that presumption of innocence of accused is always paramount irrespective of the heinousness of the alleged offences. The learned Special Prosecutor General could not point out any incriminating material on the basis whereof it could be opined that a prima facie case is made out against the petitioner. The learned Special Prosecutor General has referred the supplementary statement of Muhammad Ehsan, Chowkidar of the Library who implicated the petitioner but failed to nominate him in the FIR got lodged by him and no plausible justification could be given for it. Insofar as the statement of Farasat Ali Khan, City Magistrate, Islamabad is concerned it hardly renders any assistance to the case of the prosecution for the simple reason that he has only mentioned about the negotiations with Maulana Abdul Aziz and Maulana Abdur Rasheed. The statement of Kamran Adil, ASP City Islamabad is also not helpful to the prosecution who accompanied Farasat Ali Khan, City Magistrate and participated in the negotiation.
The above discussed evidence was relied upon by the learned Special Prosecutor General who was asked time and again if any other incriminating material was available against the petitioner or otherwise but no satisfactory answer could be given. As a result of tentative but careful examination of the above collected incriminating material, we are inclined to hold that no prima facie case is made out against the petitioner.
We have also adverted to the main contention of learned Special Prosecutor General that the case does not fall within the ambit of the provision as enumerated in Section 497(2) Cr.P.C. which being without substance cannot be taken into consideration. We are conscious of the fact that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles." Abdul Haq v. The State (1979 SCMR 254), Ghulam Nabi v. The State (NLR 1978 Cri 328), Sultan Khan v. Amir Khan (PLD 1977 SC 642), Haq Nawaz v. The State (1969 P.CrLJ 358), Haq Nawaz v. The State (1969 SCMR 174). As mentioned hereinabove "the grant of bail is a matter purely in the discretion of the Courts below and ordinarily the Supreme Court does not interfere with the discretionary powers unless it is satisfied that the order is perverse or has been made in clear disregard of settled norms of justice and principles of law?. Mst. Zaro v. The State (1974 SCMR 11). On the touchstone of the criterion as mentioned hereinabove, we are of the considered view that the order impugned being laconic cannot be kept intact as admittedly the case falls within the ambit of further inquiry. It is well settled by now that "where there is no prima facie case against the petitioner and evidence on the record is vague and sketchy and the Court considers it necessary that further inquiry may be held in the matter it may enlarge the petitioner on bail". (Muhammad Sadiq v. Sadiq PLD 1985 SC 182, Muhammad Sadiq v. Sadiq PLJ 1985 SC 243). It is worth mentioning here that where prosecution version leaves much to be inquired into the bail can be granted by invoking the provisions as enumerated in Section 497(2) Cr.P.C. and concept of further inquiry can be pressed into service. In this regard reference can be made to the case of Falak Sher v. The State (1979 SCMR 103). We want to make it clear that provisions as contained in Section 497(2) Cr.P.C. and concept of further inquiry has been discussed time and again by this Court and it has been held that "where the Court finds that there are reasonable grounds to believe that the petitioner is not guilty of the offences charged and in such a case he can claim admission of bail as a right". (Najeeb Gul v. Khalid Khan 1989 SCMR 899). We have no hesitation in our mind while holding that the case falls within the ambit of further inquiry as at the moment sufficient incriminating material is lacking connecting the petitioner with the commission of alleged offences and more so it is not known how alleged offences were abetted or facilitated by the petitioner. It is also shrouded in mystery that what prevented Muhammad Ehsan, Chowkidar, who is complainant in this case to nominate the petitioner in the FIR got registered by him.
We have also adverted to the provisions as contained in Section 21-C(4) of the Anti Terrorism Act, 1997 which is reproduced herein below for ready reference:--
"21-C(4).--A child commits an offence if he provides, without valid authorization from the competent authority, any instruction or training, or if he receives such unauthorised instruction of training or invites another, specifically or generally, to receive such unauthorized instruction or training in the making or use of--
(a) fire-arms;
(b) explosives; or
(b) chemical, biological, and other weapons".
A careful analysis of the above reproduced section would reveal that it is free from any ambiguity and accordingly learned Special Prosecutor General was asked as to how it can be made applicable to the petitioner but no answer could be given except that the petitioner was responsible for abetment and instigation, but no evidence could be pointed out to substantiate the said allegation. A careful scrutiny of record would reveal that no evidence has come on record showing the instigation, abetment or facilitation on the basis whereof the above reproduced provisions could be made applicable in the case of petitioner.
It has been noted with grave concern that the case against the petitioner was registered on 21.1.2007 and challan was submitted after a lapse of eight months and on this score alone the facility of bail can be extended in favour of petitioner. In our considered view it is not proper to depend on ipsi dixit of police regarding guilt or innocence of accused which is to be determined on the basis of evidence which is yet to be collected but prima facie sufficient incriminating material is lacking connecting the petitioner with the commission of alleged offences. It is well settled by now that "where evidence with regard to the allegation of abetment or instigation is lacking the concession of bail can be extended in favour of petitioner". In this regard reference can be made to the case of Syed Amanullah Shah v. The State (PLD 1996 SC 241), Arbad Ali v. Khamiso (1985 SCMR 195), Tariq Bashir v. State (PLD 1995 SC 34), Shabbir Ahmad v. The State (PLD 1977 Lah.201), Nisar Ahmad v. The State (PLD 1971 SC 174), Mian Mehraj Din and others v. The State (1985 PCr.LJ 2987), Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182).
In the light of what has been discussed hereinabove we are inclined to convert this petition into appeal, which is accepted and the order dated 23.6.2008 passed by the Islamabad High Court is set aside.
By our short order dated 15.4.2009 we have ordered release of petitioner on bail and these are the reasons therefor. The observations made hereinabove are tentative in nature and shall not affect the merits of the case.
(R.A.) Appeal accepted.
PLJ 2010 SC 476
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MAHMOOD HASSAN HARVI--Appellant
versus
STATE--Respondent
Crl. Appeal Nos. 28 of 2004 and 625 of 2006, heard on 12.3.2009.
(On appeal from the judgment dated 2.12.2003 of the Lahore High Court, Lahore passed in Crl. As. No. 162 & 1538/01).
Control of Narcotic Substances Act, 1997--
----S. 15--Conviction and sentence recorded against accused--Challenge to--Appeal against conviction and sentence and against confiscation of his properties were dismissed--Sentence of accused was enhanced--Absentia--Recovery of 400 kg Hashish--No solid proof of involvement was produced--Unproved document and without producing either scribe/sender or recipient--Validity--Order of confiscation was passed by trial Court in absentia as at the relevant time accused was in jail and no opportunity of hearing was provided to accused to substantiate his case--Appeal was allowed. [P. ] A
As Per Ch. Ejaz Yousaf, J.
Control of Narcotic Substances Act, 1997--
----S. 15--Conviction and sentence was recorded against accused by trial Court--Challenge to--Conviction was maintained by High Court, yet his sentence of imprisonment was enhanced from ten years to that of life imprisonment--Maintainability of appeal--Allegation at trial precisely was that he had no telephone directed to issue a ticket to one of the accused persons who was allegedly involved in transporting the contraband material--Neither original was tendered in evidence, nor compared with nor author was examined so as to prove--Presumption could not have been drawn that the document was genuine--Held: If document in-question is presumed to be true even then as to what offence on the basis is made out--Case of accused was covered by S. 15 of Act, 1997, as only allegation of aiding, abetting and facilitating the co-accused person was attributed to him--Case of the accused was covered by S. 15 of CNS Act instead of S. 13 and judgment of trial Court was restored. [P. 479] A
Mr. S.M. Zafar, Sr. ASC for Appellant (in Crl. Appeal No. 28 of 2004).
Mian Abdul Rauf, ASC for Appellant (in Crl. A. No. 625 of 2006).
Mr. Niaz Ahmed Rathore, Special Prosecutor ANF for State.
Date of hearing: 12.3.2009.
Judgment
Abdul Hameed Dogar, CJ.--Through this judgment, we intent to dispose of Criminal Appeal Nos. 28 of 2004 and 625 of 2006 filed against judgment dated 24.12.2003 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeals No. 162 filed by appellant against his conviction and sentence and 1538 of 2001 against confiscation of his properties were dismissed. The sentence of appellant was enhanced from 10 years to life imprisonment with increase of fine from Rs. 5 lacs to Rs. 10 lacs.
Briefly stated facts are that on 27.5.1997, case was registered on the complaint of Syed Rahat Ali Shah, Inspector, ANF Lahore stating that he received secret information that appellant Mehmood Hussain Harvi in consultation with the international smugglers had smuggled charas to Canada in 50 cartons in medicinal balls through M/s. Champ Sports, Sialkot to M/s. Sears Canada Inc. 3075 Thimens Village St.Laurent Montreal Qued, Canada through air way Bill No. 020-3248-4712 of Lufthansa Cargo Flight No. IH-902 which was checked at Dubai and on search out of the medicinal balls 400 kilograms Hashish was recovered. On this a raiding party comprising of complainant, Cap. Noor-uddin, AD, Sahib Khan, SI and others headed by Lt.Col. Muhammad Younas, Joint Director ANF, Lahore was arranged and raid was conducted on Husnain Cargo Agogike Road, Sialkot from where Asif Javed was apprehended and on disclosure that hashish belong to Gul Zaman, who booked the consignment was also apprehended from Fine Sports Centre, Sialkot.
After completion of investigation respondents were sent upto face trial before learned Special Judge, Anti Narcotics, Lahore.
The prosecution in order to prove its case examined ten witnesses at the trial.
In his statement recorded under Section 342 Cr.P.C. appellant denied the case of prosecution and pleaded false implication. He neither opted to record his statement on Oath as required under Section 340(2) Cr.P.C. nor produced any thing in their defence.
On the conclusion of trial, the learned trial Court vide judgment dated 12.12.2000 convicted appellant under Section 15 of Control of Narcotic Substances Act, 1997 (hereinafter referred to as `the Act') and sentenced him to 10 years R.I. with fine of Rs. 500,000/- and in default thereof to further under go six months R.I.
Feeling aggrieved appellant filed Criminal Appeal No. 162 of 2001 before learned Lahore High Court, Lahore. During pendency of appeal learned trial Court vide order 03.8.2001 confiscated the assets of appellants in favour of Federal Government. This order was challenged by appellant through Criminal Appeal No. 1538 of 2001. Both the appeals were dismissed vide impugned judgment as stated above.
It is contended by Mr. S.M. Zafar, learned Sr.ASC appearing in Criminal Appeal No. 28 of 2004 that learned High Court while enhancing the sentence of appellant has not appreciated the facts and circumstances of the case in minute particulars. According to him, the appellant has been involved in this case on mere presumption and no solid proof of his involvement in the case has been produced. He further contended that documentary evidence in the shape of audio and video cassettes could not be based for recording conviction against appellant. According to him, the learned High Court enhanced the sentence on the basis of an unproved photo copy of a fax communication (Ex.PN) purportedly transmitted by a travel agent who was not produced as witness to an ANF officer with design to show purchase of a ticket on alleged telephone request of the appellant in the name of a person not connected with the offence as charged. He contended that learned High Court has misconstrued the provisions of Section 30 of the Act as the said provision cannot be construed to make admissible in evidence photo-copy of document (Ex.PN) and that too without production of either the scribe/sender or the recipient thereof as a witness in the case. He further stated that even otherwise Ex.PN cannot be used as an evidence against the appellant as its admissibility was neither decided by the learned trial Court nor it was specifically put to the appellant as an incriminating piece of evidence as mandatory required under the law.
Mian Abdul Rauf, learned ASC appearing in Criminal Appeal No. 625 of 2006 contended that impugned judgment was passed in his absence as the appellant was not provided with a reasonable opportunity to submit his reply to the show-cause notice issued by the learned trial Court for confiscation/forfeiture of his assets pursuant to his conviction. According to him, notice was served upon appellant when he was undergoing sentence in jail and no efforts were made by the learned trial Court to procure his attendance before the Court. He further contended that it was incumbent upon the learned trial Court to record evidence before passing any order forfeiting the appellant's property. According to him, the fact has not been considered by the Court below which resulted in miscarriage of justice.
On the other hand, Mr. Niaz Ahmed Rathore, learned Special Prosecutor ANF controverted above contentions and supported impugned judgment. He contended that learned High Court after going through the material produced on record has rightly enhance the sentence of appellant. He contended that prosecution has proved its case against appellant without any shadow of doubt.
We have gone through the contentions raised at the bar and have also gone re-appraised the evidence in minute particulars. Appellant in this case has been involved on the spy information received by complainant and thereafter machinery of law was put in action. It is pertinent to mention here that learned trial Court convicted appellant under Section 15 of the Act and sentenced to ten years R.I. with fine of Rs. five lacs and the learned High Court has enhance the sentence to imprisonment for life and fine was also enhanced to Rs. ten lacs. The contentions raised by learned counsel for the appellant seems to be convincing as the learned High Court erred in enhancing the sentence of appellant. Especially Ex.PN has been totally misread by the Court below in its true perspective which is an unproved document and without producing either scribe/sender or the recipient of the same. Accordingly, Criminal Appeal No. 28 of 2004 is partly allowed, the impugned judgment of the learned High Court is set aside and that of the learned trial Court is restored.
So far as Criminal Appeal No. 625 of 2006, the order of confiscation was passed by the learned trial Court in absentia as at the relevant time appellant was in jail and no opportunity of hearing was provided to him to substantiate his case. In view of above, Criminal Appeal is allowed and order dated 03.8.2001 passed by leaned trial Court is set aside.
These are the reasons of our short order of even date.
Sd/-
Chief Justice
Sd/-
Judges
I have appended a separate note.
Ch. Ejaz Yousaf, J.--I have the advantage of going through the judgment authored by the Hon'ble Chief Justice of Pakistan Mr. Justice Abdul Hameed Dogar, proposed to be delivered in the instant case and concurred by my learned brother Mr. Justice Ijaz-ul-Hassan, J.
It would be pertinent to mention here that in the instant case the appellant was convicted by the Special Judge, Anti-Narcotics, Lahore, and sentenced to undergo ten years R.I. along with a fine of Rs. 5,00,000/- or in default to further undergo six months R.I. On appeal, though the conviction recorded against the appellant was maintained by the High Court, yet, his sentence of imprisonment was enhanced from ten years R.I. to that of life imprisonment. The amount of fine was also increased from Rs. 5 lac to Rs. 10 lac. The instant appeal was filed by the appellant through his counsel whose wakalatnama, as pointed out by the office, is available on record, yet, record is silent as to whether the appellant in pursuance of judgment of the High Court had ever surrendered or was taken into custody. Hence maintainability of appeal, in my view, is under jeopardy in view of the law laid down by this Court in the cases reported as (i) Karam Ellahi v. The State (PLD 2007 SC 260) and (ii) Chan Shah v. The Crown (PLD 1956 FC 43).
I would further life to add that allegation/charge against appellant Muhammad Hussain Harvi, at the trial, precisely was that he had on telephone directed M/s. Shakeel Air Express, Karachi, to issue a ticket to one of the accused persons, namely, Haji Said Alam Malik, who was allegedly involved in transporting the contraband material. Although copy of Ex.P.N., the memo. prepared in pursuance of the direction allegedly made by the appellant to the Traveling Agency, was produced at the trial yet, neither original thereof was tendered in evidence, nor compared with Ex.P.N, nor author thereof was examined so as to prove the same, therefore, presumption could not have been drawn that the document in question was genuine. Having been questioned that notwithstanding the above discrepancy, if the document in question is presumed to be true even then as to what offence on the basis thereof is made out, the learned Special Prosecutor candidly conceded that case of the appellant was covered by Section 15 of the Control of Narcotic Substances Act, 1997, as only allegation of aiding, abetting and facilitating the co-accused persons was attributed to him. In such view of the matter, it was held that case of the appellant was covered by Section 15 of the C.N.S. Act, instead of Section 13 and therefore, the judgment of the trial Court was restored.
(R.A.) Order accordingly.
PLJ 2010 SC 480
[Appellate Jurisdiction]
Present: Anwar Zaheer Jamali, J.
MR. JUSTICE HASNAT AHMAD KHAN and another--Appellants
versus
INSTITUTION OFFICER--Respondent
Crl. Misc. Appeal No. 31 & 32 of 2009, decided on 20.11.2009.
(Against order of Institution Officer dated 3.11.2009).
Supreme Court Rules, 1980--
----O. V, R. 3--Contempt of Court Act, 1976, S. 10(2-A)--Appeal against identical office objection endorsed by Institution Officer, Supreme Court--Reverting to the office objection as to entertainability of two Intra Court Appeals--Challenge to--Question of maintainability--Validity--No question of maintainability, but a question of entertainability was involved in the appeals, preferred by appellants in the office of Supreme Court--Objection raised by Institution Officer about the entertainability of the appeals, having been filed under a law which stood repealed w.e.f. 15th December 2003, on coming into force of Ordinance, (V of 2003)--Held: Where Contempt of Court Act 1976, was not repealed, and any other objection as regards to its maintainability was raised by the office that might have been a question relating to its maintainability, which was not the position in the present case--Being the position, office objection was sustained and accordingly both the appeals were dismissed.
[Pp. 484 & 487] A & J
Constitution of Pakistan, 1973--
----Art. 270-AA (3)--Contempt of Court Ordinance, (V of 2003), S. 20--All Proclamations, President's--Appropriate legislature--Question of--Whether Contempt of Court Ordinance, was in forced and alive on the day when Art. 270-AA became part of the Constitution by way of 17th Constitutional Amendment--Held: Not only by Art. 270-AA of the Constitution, all legislations made, actions taken and acts done were given legal cover and protection from being called into question in any Court or forum on any ground whatsoever, but by sub-Art. 3 all Proclamations, President's Orders, Ordinances, Chief Executive's Order, Laws, Regulations, enactments, including amendment Constitution, notifications, Rules, Orders or bye laws in force immediately before the date on which the Art. 270-AA come into force were accorded permanence to continue in force until altered, repealed or amended by competent authority. [Pp. 484 & 485] B & C
Interpretation of Statutes--
----Recognized rule of interpretation--No word used by lawmakers is either redundant or can be subtracted, substituted added or read in a piece of legislation or a document, no valid presumption can be drawn that on expiry of 120 days, the Contempt of Court Ordinance, 2003 automatically lapsed/expired as it should have been in ordinary course. [P. 485] D
Intra Court Appeal--
----Right of--Simple mistake made by the office--Two wrongs or any number of wrong, will not make one right--Validity--Mere mistake in the citation of a relevant provisions of law will not nullify or vitiate an action or proceeding. [P. 486] E
Supreme Court Rules, 1980--
----O. III, Rr. 4 & 5--Administrative arrangement of Supreme Court--Registrar in terms of Order III, Rules 4 & 5 of Supreme Court Rules, is fully empowered to delegate and assign such work task among the officers of the Court. [P. 486] F
Entertainability and Maintainably--
----Words and Phrases--Word entertainability derives its source from the word entertain, which according to concise Oxford Dictionary Ninth Edition, means amuse, occupy agreeably, receive or treat as a guest, give attention or consider to an idea, felling, or proposal and it originates its source from French word entertainer. [P. 486] G
Remedy--
----Remedy under Supreme Court Rules--Objections as maintainability--Objections as to entertainability are those which the office can raise and can be decided at some appropriate level as per authorization under administrative authority and subject to further remedy under Supreme Court Rules, while the objections as to maintainability are those which raised by office or Court itself, are to be decided exclusively by the Court. [P. 487] H
Contempt of Court Ordinance, 2003--
----S. 20--Constitution of Pakistan, 1973, Art. 270-AA--Repealed enactment can be entertained by office--Contempt of Court Act, 1976 stood repealed by specific language of S. 20 of Contempt of Court Ordinance, 2003 which remained protected by insertion of Art. 270-AA in Constitution--Held: No appeal filed under the provision of a repealed enactment can be entertained by the office as rightly done so in instant matters by institution officer. [P. 487] I
Dr. A. Basit, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Appellants (in both appeals).
Nemo for Respondent.
Date of hearing: 19.11.2009.
Order
These two appeals, under Order V Rule 3 of the Supreme Court Rules, 1980, are directed against the identical office objection dated 3.11.2009, endorsed by the Institution Officer, Supreme Court of Pakistan, upon presentation of two Intra Court Appeals by Mr. Arshad Ali Chaudhry, learned AOR, which reads as under:--
"The above titled Intra Court Appeal in Criminal Original Petition No. 97 of 2009 filed by you under Section 10 (2-A) of the Contempt of Court Act, 1976 is not entertainable because Contempt of Court Act, 1976 has been repealed by the Contempt of Court Ordinance, 2003, and Contempt of Court Ordinance, 2003 is a valid law which has been accorded permanence by incorporation of Article 270AA in the Constitution by the Constitution (17th Amendment) Act, 2003. It has been held so by this Court vide the judgment reported as PLD 2007 SC 688.
Hence this Intra Court Appeal in Criminal Original Petition No. 97/2009 is returned herewith in original along with its paper books."
At the outset, Dr. A. Basit, learned Sr. ASC, who is representing both the appellants before me, made a detailed reference to the events which took place from the 3rd of November, 2007, till the passing of short order dated 31st July, 2009 by the Honourable fourteen Members Bench of this Court, followed by detailed reasons thereof.
Reverting to the office objection as to the entertainability of the two Intra Court Appeals filed by the present appellants under Section 10(2-A) of the Contempt of Court Act, 1976, against the notice dated 13.10.2009, the first submission of the learned counsel is that the objection so raised by the Institution Officer about the entertainability of the Intra Court Appeals was not within his competence, as under the Supreme Court Rules, such powers are only available with the Registrar, and not at the level of Institution Officer. He next contended that even in the impugned notice dated 13.10.2009, specific reference of Sections 3 & 4 of the Contempt of Court Act 1976, is made, therefore, filing of Intra Court appeals under Section 10(2-A) of the Same Act of 1976, read with Contempt of Court (Amendment) Act, 1997, is fully justified, and the office is estopped from raising any objection to this effect. He also submitted that the Contempt of Court Act, 1976, is still in force, therefore, the appeals preferred by the appellants under the provisions of said Act of 1976 are very much competent. He further submitted that Article 270AA of the Constitution, which became part of the Constitution of our country through Seventeenth Amendment on 31.12.2003, has only protected those actions and laws etc., which were taken/promulgated after proclamation of emergency on the 14th day of October, 1999 till the date of such addition in the Constitution, so as to protect and provide legal cover to all the actions taken there under, but no permanency has been attached to any such Ordinance to supersede or replace any Act, like the Contempt of Court Act 1976, which is to prevail after lapse of period of 120 days meant for any Federal Ordinance. Last limb of the arguments of Dr. A. Basit is that all objections relating to legal implications are objections about the maintainability of the appeals, therefore, the same are to be placed before the Court for adjudication and no one can be non-suited on such ground at the level of Registrar, as in the instant case.
Without commenting upon other aspects of the case, which are not much relevant for resolving the controversy involved in these appeals, I propose to confine my discussion only as to the objection raised by the Institution Officer dated 3.11.2009, about the entertainability of the two appeals, preferred by the appellants under Section 10(2-A) of the Contempt of Court Act 1976, which has been challenged through these appeals under Order V Rule 3, Supreme Court Rules, 1980. There can be no two views about the fact that by virtue of Section 20 of the Contempt of Court Ordinance 2003 (No. V of 2003), which came into force on 15th Day of December, 2003, the Contempt of Court Act 1976 (LXIV of 1976) was validly repealed. Now it is to be seen here, whether for the reason that Ordinance No. V of 2003 was in force and alive on the day when Article 270AA became part of the Constitution of Pakistan, 1973, by way of Seventeenth Constitutional Amendment, it received permanence or not, for this, a reference to Sub-Article (3) of Article 270AA would be relevant here, which reads as under:--
"(3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority.
Explanation.--In this clause, "competent authority" means,--
(a) in respect of Presidents' Orders, Ordinances, Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law."
A plain reading of this Sub-Article shows that not only by Article 270AA of the Constitution, all legislations made, actions taken and acts done etc., as detailed in Sub-Articles (1) and (2) were given legal cover and protection from being called into question in any Court or forum on any ground whatsoever, but by Sub-Article (3) all Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendment in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the said Article came into force, were accorded permanence i.e. to continue in force until altered, repealed or amended by the competent authority. In this context, it is significant to notice that in Sub-Article (3) (ibid) the guarded language used by the lawmakers is "altered, repealed or amended by the competent authority", meaning thereby that (a) nothing was to happen thereafter automatically (b) the position of expiry of Ordinances in force as on 31.12.2003, in the ordinary course or their lapse were eliminated. Thus, applying the well recognized rule of interpretation of statute that no word used by lawmakers is either "redundant or can be subtracted, substituted, added or read in a piece of legislation or a document, no valid presumption can be drawn that on expiry of 120 days, the Ordinance, V of 2003, automatically lapsed/ expired as it should have been in the ordinary course. Needless to observe that where some legislation is made and its language is couched in a particular/calculated manner to meet some extra ordinary situation, as in the case of Article 270AA, then it is to be read and interpreted in a more careful and pragmatic manner to ensure that its objective and intent is achieved. Incidentally Ordinance V of 2003, is one of such Ordinances, which, due to the blanket cover provided by Sub-Article (3), became protected, validated and in force piece of law on insertion of Article 270AA in the Constitution, through Seventeenth Amendment, unless undone in the manner prescribed therein. This view of the matter also gets support from the judgment of a three Members Bench of this Court in Suo Moto Case No. 1 of 2007 dated 1.11.2007, reported as PLD 2007 S.C. 688. Though in this judgment, no detailed deliberations have been made on this aspect of the case, but it has been categorically noted that Contempt of Court Ordinance 2003, was still a valid law, as it was accorded permanence by incorporation of Article 270AA in the Constitution by Constitutional (Seventeenth Amendment) Act 2003.
Considering the other technical objections raised by Dr. A. Basit, about the incompetency of the Institution Officer for raising the impugned office objection; nature of office objection whether relating to maintainability of appeals or to their entertainability, and effect of reference of Sections 3 & 4 of the Contempt of Court Act 1976, in the notice of this Court dated 13.10.2009, firstly, it may be mentioned here that reference to Sections 3 & 4 of the Contempt of Court Act 1976 in the notice dated 13.10.2009, seems to be a simple mistake made by the office, which, in any case, will not confer a right of Intra Court Appeal to the appellants, unless otherwise expressly provided by any law in force. Suffice it to observe, that two wrongs or any number of wrongs, will not make one right. This view of the matter also finds full support from the settled legal position that mere mistake in the citation of a relevant provision of law will not nullify or vitiate an action or proceeding. Similarly, objection as to the authority of the Institution Officer has no force, for the reason that he is duly notified Officer under the administrative arrangements of this Court, and for this purpose, Registrar, in terms of Order III, Rules 4 & 5 of the Supreme Court Rules, 1980, is fully empowered to delegate and assign such work/task among the Officers of the Court. Admittedly, the Institution Officer is an Officer of this Court in BPS.18, thus, the powers so exercised by him, for this purpose, cannot be objected to on such account. Looking at this plea from another angle, on strict interpretation of Order V rule 3, without reference to Rules 4 and 5 of Order III of the Supreme Court Rules, 1980, as argued by Dr. A. Basit, the very maintainability of these appeals becomes doubtful, as under this provision of law, an appeal to a Judge in Chambers only lies against the order of the Registrar and not otherwise. The appellants, therefore, cannot be permitted to approbate and reprobate in the same breath.
The last submission of Dr. A. Basit as to the nature of office objection, being related to the maintainability and not to its entertainability, is also devoid of any force. If we look at the ordinary dictionary meaning of words "entertainability" and "maintainability" we find that word "entertainability" derives its source from the word "entertain", which according to the Concise Oxford Dictionary, Ninth Edition, means amuse, occupy agreeably, receive or treat as a guest; give attention or consideration to an idea, feeling, or proposal, and it originates its source from French word "entertainer" and ultimately from Latin "tenere" meaning thereby to "hold". On the other hand word "maintainability" derives its source from the word "maintain". As per definition of this word in the same dictionary, it means, cause to continue; keep up, preserve, support, assert opinion or statement as true, preserve or provide for preservation (building, machine, record etc.) in good repair, give aid to cause or party etc. and it originates its source from old French word "maintenir", ultimately from Latin word "manu tenere" meaning thereby to `hold in the hand'. While in legal parlance (as noted from the Book "Legal Terms & Phrases" by M. Ilyas Khan, 2006 Edition) at page 327 word "entertain", referring to some judgments of the Supreme Court, denotes as under:--
"The word "entertain" in legal parlance means adjudicate upon' orproceed to consider on merits'.
Div. Superintendent, P.W.R. Multan vs. A. Khaliq 1984 SCMR 1311.
Expression entertain by Mitra's Legal and Commercial Dictionary (page 270) and words Phrases by Surendra Malik (page 232) are identical i.e. entertainment means proceed to consider on merits or adjudicate upon, whereas the expression entertain has also been defined in Hidustan Commercial Bank v. Punnu Sahu AIR 1970 SC 1384 and Pakistan Steel People Worker's Union v. Registrar of Trade Unions, Karachi 1992 PLC 715 referred to by the learned counsel for petitioners according to which, it means not merely filing of an application or institution of proceedings but would mean adjudicated upon or proceed to consider on merits. All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600."
Similarly, at page 573 of the same book word "maintain" carries following meanings:--
"According to the Concise Oxford Dictionary (3rd edition), the word `maintain' means carry on keep up (war contest, action of law, condition, position, attitude, relation, correspondence); cause (person or Co.) to continue in (condition, possession of thing, and Co.); support (life, one's state in life) by nourishment, expenditure & Co. furnish (oneself, children) with means of subsistence, keep (Road & Co.) in repairs; backup (cause, party; assert as time (opinion, statement, that) 1986 PLC 899."
The above discussion will show that indeed there is significant difference between the import of these two words for its practical implementation, and for this purpose with reference to the working in the office of Supreme Court, it can be said that the objections as to entertainability are those, which the office can raise, and can be decided at some appropriate level as per authorization under some administrative authority and subject to further remedy under the Supreme Court Rules, while the objections as to the maintainability are those which either raised by the office or the Court itself, are to be decided exclusively by the Court. In the present case, as I have already observed in the earlier part of this order that the Contempt of Court Act 1976, stood repealed by specific language of Section 20 of the Contempt of Court Ordinance, 2003, which remained protected by insertion of Article 270AA in the Constitution of Pakistan, vide Seventeenth Amendment dated 31.12.2003. Therefore, no appeal filed under the provision of a repealed enactment can be entertained by the office as rightly done so in the instant matters by the Institution Officer.
This being the position, its necessary implication is that no question of maintainability, but a question of entertainability was involved in the two appeals, preferred by the appellants in the office of the Supreme Court, and in such situation, the objection raised by the Institution Officer dated 3.11.2009, as reproduced above, is an objection about the entertainability of the appeals, having been filed under a law which stood repealed with effect from 15th December, 2003, on coming into force of Ordinance V of 2003. Indeed, in a situation where Contempt of Court Act 1976, was not repealed, and any other objection as regards to its maintainability under the said Act was raised by the office that might have been a question relating to its maintainability, which is not the position in the instant case. This being the position, office objection is sustained and accordingly both these appeals are dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 488
[Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhri, JJ.
MURSAL KAZMI @ QAMAR SHAH and another--Appellants
versus
STATE--Respondent
Crl. Shariat Appeal Nos. 12 & 13 of 2007, decided on 16.4.2009.
(On appeal against the judgment dated 27.7.2007 passed by the Federal Shariat Court in Crl. A. 294/I/02/M.R. No. 02/I of 2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 34 & 392--Offence Against Property (Enforcement of Hadood) Ordinance, 1979--S. 17--Conviction and sentences were recorded against accused by trial Court--Appeals were dismissed and death sentences were confirmed--Appreciation of evidence--Absence of description of accused in FIR--Star witness whose presence with the deceased at the time of occurrence and till his death was established--By the time the witness saw the accused, deceased had already received fire shots--Accused were two young men, no other description like their complexion, height or physiques was given--Substantive evidence of a witness is his statement in the Court but purpose of identification test is to test that evidence and the safe rule is that sworn testimony of witness in Court as to the identity of the accused who were stranger to the witnesses, generally speaking, required corroboration which should be in the form of an earlier identification proceedings--Prosecution witness was not put to any identification test, before his statement before trial Court--Prosecution witness did not give any description of the accused in his first statement about any identification marks viz., structure of accused or whether they were fat or thin or of a fair colour or of a black colour--Held: In absence of any such description it is impossible for the Supreme Court to convict any accused on the basis of single identification in which case the reasonable possibility of mistake in identification could not be excluded--No reliance can be placed on the statement of prosecution witness relating to identification of the accused. [Pp. 492, 493 & 494] A, B & C
Chance Witness--
----Accidentally met the I.O after more than three years--Worst padding--The witness whose name was not mentioned in FIR was a chance witness and who according to his own version left for his house after the occurrence and accidentally met the investigation officer after more than three years and nine months of the occurrence and reported the incident to him--Case of worst padding on the part of prosecution witness. [P. 494] D
Appreciation of Evidence--
----The evidence of pointing out the place of occurrence and the place where the car was abandoned by the accused, is also of no value as the places were already known to the investigation officer. [P. 494] E
Recovery of Weapon--
----No empties were recovered--Alleged recovery of weapons from the accused was also of no consequence as no empties were recovered from the place of occurrence. [P. 494] F
Necessity of Corroboration--
----One tainted piece of evidence could not corroborate another piece of tainted evidence because if such is allowed to be done then very necessity of corroboration would be frustrated. [P. 494] G
Malik Rab Nawaz Noon, Sr. ASC for Appellants (in Crl. S.A. 12/2007).
Mr. Muhammad Ilyas Siddiqui, ASC for Appellants (in Crl. S.A. 13/2007).
Mr. Zulfiqar Abbas Naqvi, ASC for Complainant (in both cases).
Ch. Munir Sadiq, DPG, Pb. for State (in both cases).
Date of hearing: 16.4.2009.
Judgment
Muhammad Farrukh Mahmud, J.--Mursal Kazmi alias Qamar Shah through Criminal Shariat Appeal No. 12 of 2007 and Ghulam Ismail alias Mana through Criminal Shariat Appeal No. 13 of 2007, both by leave of this Court, have assailed the judgment dated 27.07.2007, in case FIR No. 14, registered at Police Station Waris Khan, District Rawalpindi on 05.01.1997 at 12.30 a.m. (during night) for Offences under Sections 302/34, 392 PPC read with Section 17 of the Offences Against Property (Enforcement Hadood) Ordinance) 1979, handed down by learned Federal Shariat Court whereby the appeals of Mursal Kazmi and Ghulam Ismail were dismissed and their convictions recorded by the learned trial Court for Offence under Section 302/34 PPC as Tazir and sentences to death were confirmed. The order of compensation under Section 544/A Cr.P.C. of the learned trial Court was also maintained. Both the appellants were also convicted for Offence under Section 17(4) of Harabah Ordinance and were sentenced to death by the learned trial Court which was also confirmed by the learned Federal Shariat Court through the impugned judgment.
Muhammad Khalil, SHO (PW-13) recorded the statement of complainant, Waqas Mahboob (PW-2) at General Hospital Rawalpindi, on 05.01.1997 at 12:15 a.m. (during night). On the basis of his statement-Ex.Pb above noted FIR was recorded. According to prosecution case, on the fateful day, Waqas Mahboob (PW-2) met his friend Sheikh Rizwan deceased at his shop situated in F-6/1, Blue Area Islamabad. The complainant, Sheikh Rizwan deceased and Tehseen proceeded towards Rawalpindi in car Registered No. RIP/8465 which belonged to Sheikh Rizwan. At Dharnal Chowk Tehseen alighted from the car. Sheikh Rizwan wanted to drop the complainant at his house, at about 11:15 p.m. when complainant and the deceased reached opposite Asad Hospital situated at Dhoke Khaba, they stopped the car as complainant wanted some medicine for his throat. The complainant alighted from the car and went to the Ahmad Medical Store purchased medicine, and thereafter turned towards the car, he heard the noise of firing, he saw that Sheikh Rizwan while holding his throat by his hand was calling him. He also saw that two young persons who were wearing pants and jackets of black colour were taking away the car of Sheikh Rizwan. The complainant took Sheikh Rizwan to Asad Hospital where doctor was not available so he took Sheikh Rizwan in a Taxi car to General Hospital Rawalpindi. However Rizwan lost his life before reaching the hospital.
Both the appellants were sent up to face trial, as the appellants claimed to be innocent, the trial commenced. During trial, prosecution produced 16 witnesses in support of its case. Waqas Mahboob (PW-2), first informant, Zahoor Ahmad (PW-3) furnished the ocular account Dr. Muhammad Ashraf (PW-6) stated that he examined the dead body of Rizwan on 05.01.1997 at 1:30 p.m.. He found three fire-arm wounds of entry on the front of chest, just near to left nipple, left upper front of chest and at the base of front of neck. He also observed exit wound on the lateral aspect of right side of neck. In his opinion the cause of death was fire-arm injuries. Zafar Iqbal (PW-8) stated that he arrested Ghulam Ismail appellant on 17.08.2001 and recovered a pistol with five live bullets from his possession. He further stated that on 30.08.2001 Ghulam Ismail while in custody led the police to the place of occurrence. Farooq Alvi (PW-11) Magistrate stated that on 21.08.2001 Ghulam Ismail was correctly identified by Zahoor Ahmad (PW-3) during identification test held at Adiala Jail. Muhammad Khail (PW-13), Inspector stated about recording the statement of Waqas Mehboob at General Hospital and initial investigation of the case. He also stated about the finding of stolen car which had met with an accident and was abandoned in a street in Scheme No. 1 Saidpur Asghar Mall. Khalid Yameen (PW-14), Magistrate stated about identification of appellant Mursal Kazmi on 14.02.2000 by Zahoor Ahmad (PW-3) during identification test held at Adyala Jail, Sheikh Abdul Khaliq SHO
(PW-15), stated about the investigation of the case and also stated that on 15.09.2000 he recorded the statement of (PW-3) under Section 161 Cr.P.C. He also stated about the arrest of Mursal Kazmi on 02.11.2000 from Police Station Sadiqabad in this case. He further stated that on 31.12.2000 Mursal Kazmi led to the recovery of 30 bore pistol in the presence of witnesses. Sheikh Abdul Ghafoor (PW-16) also stated about the investigation of the case and arrest of Ghulam Ismail on 17.08.2001. He further stated about the recovery of pistol and five live bullets from the possession of Ghulam Ismail. He further stated that the Ghulam Ismail showed the police the place of occurrence. The rest of the witnesses are formal in nature and need not be discussed.
After the closure of the prosecution case statement of the appellants were recorded under Section 342 Cr.P.C. both the appellants claimed to be innocent, however, neither they appeared in their defence under Section 340(2) Cr.P.C. nor they produced any evidence in their defence.
The learned counsel for the appellants have argued that
(PW-3) was rightly disbelieved by the learned Court below and that (PW-2) was not in a position to identify the assailants who were not known to him previously and that the PW had only a fleeting glimpse of the accused and it was impossible for him to identify the culprits after a lapse of three to four years. They further argued that (PW-2) never joined any identification test and that identification in Court would not be reliable. Reliance was placed on State/Government of Sindh through Advocate General, vs. Sobharo, (1993 SCMR 585), reliance was also placed on Asghar Ali alias Sabah and, others vs The State and others (1992 SCMR 2088) wherein it was observed that identification of accused in Court was not sufficient especially when it was made after months of the occurrence. Reliance was also placed on the case of State through Advocate General, Sindh vs. Farman Hussain and others (PLD 1995 SC 1) and Sabir Ali Waseem. and 3 others vs. The State (2007 YLR 2142) wherein it was observed that a witness who had only a glimpse of the culprits, then identification test before a Magistrate was essential. The learned counsel further argued that the recoveries were fake and in any case could not be used against the appellants. The learned counsel has summed up their arguments by stating that the prosecution case was not free from doubts and the appellants deserved acquittal.
Conversely, it was argued by Mr. Zulfiqar Abbas Naqvi, ASC that the (PW-2) was an independent and truthful witness who had no previous enmity with the accused so as to falsely depose against them and that he correctly identified both the appellants in the Court and that the statement of (PW-2) was fully corroborated by the medical evidence and recoveries and that both the learned Courts below correctly convicted the appellants. The learned counsel appearing on behalf of State has adopted his line of arguments.
We have heard the learned counsel for the parties at length and have scanned the record of the case. The star witness of this case is Waqas Mahboob (PW-2) whose presence with the deceased at the time of occurrence and till his death is established. As is evident from the fact that the occurrence took place at about 11:15 p.m., soon after Sheikh Rizwan deceased while he was injured was firstly taken to Asad Hospital and then to General Hospital Rawalpindi in a cab. Unfortunately Sheikh Rizwan lost his life before reaching the hospital. Muhammad Khalil (PW-13) SHO after receipt of information reached the General Hospital and recorded the statement of (PW-2) at 12:15 a.m. within one hour of the occurrence. Having come to this conclusion that (PW-2) had seen the occurrence the only question would be whether he could identify the assailants, and his identification of the accused before the trial Court could be relied upon.
Most important piece of evidence, on this regard, would be statement of Waqas Mahboob-Ex.PB which was recorded soon after the occurrence. Perusal of the statement reveals that by the time Waqas Mahboob saw the accused, Rizwan-deceased had already received fire shots. According to this PW he saw two young men, who were wearing black trousers and Jackets, were decamping in the car of Rizwan. Except for stating that the accused were two young men, no other description like their complexion, height or physiques was given. The first and foremost concern of this PW was to save the life of his friend and it was not accepted of him to concentrate on the features of accused. It is true that the substantive evidence of a witness is his statement in the Court but the purpose of identification test is to test that evidence and the safe rule is that the sworn testimony of witness in Court as to the identity of the accused who were stranger to the witnesses, generally speaking, required corroboration which should be in the form of an earlier identification proceedings. In the instant case PW-2 was not put to any identification test, before his statement before the learned trial Court. On this point we may refer to the judgment of the Indian Supreme Court in case of Chellappan vs. State of Kerala (AIR 1979 SC 1767), wherein it was observed as follows:--
"As the names were not at all indicated in the F.I.R. the evidence of this witness cannot be accepted. Similarly, as A.5 and A.7 were persons who were not known to the witness from before and were identified in Court for the first time by face, the evidence of this witness in the absence of T.I. parade was valueless."
"No identification parade was carried out which was very much necessary in view of the victim's initial report lodged with the police. As such the identity of the accused connecting them with commission of the offence is missing."
We may also refer to the case of Farman Ali vs. State (PLJ 1997 SC 1992) wherein it was observed that:--
"Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits."
The occurrence took place on the night in between 4/5 January 1997 Mursal Kazmi appellant was arrested on 02.11.2000 after about three years and eleven months of the occurrence while Ghulam Ismail was arrested on 17.08.2001 after about four years and eight months of the occurrence. It is common knowledge that the memory of a witness fades away with the passage of time and it is necessary that the suspect should be identified at the earliest possible opportunity after the occurrence. As noted above PW-2 did not give any description of the accused in his first statement about any identification marks viz., structure of accused or whether they were fat or thin or of a fair colour or of a black colour. In the absence of any such description it is impossible for us to convict any accused on the basis of single identification in which case the reasonable possibility of mistake in identification could not be excluded. It is also note worthy that PW-2 did not state in Ex.PB that he could identify the accused. On the contrary this PW, whose statement was recorded after about 5 and « years of the occurrence, in his examination-in-chief before learned trial Court, named the accused and also specified their roles that Mursal Kazmi fired one shot while Ghulam Ismail fired two shots at the deceased. This part of the statement is nothing but dishonest improvement on the part of this PW as according to Ex.PB he had seen the accused when they had already fired and were taking away the car of the deceased. It was held by this Court in the case of Asghar Ali alias Sabah and others vs. The State and others (1992 SCMR 2088) as under:
"The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identity of the culprits."
In the above noted circumstances we are of the firm opinion that no reliance can be placed on the statement of PW-2 relating to identification of the appellants.
As far as PW-3 is concerned he was rightly not relied upon by the learned appellate Court. He was a chance witness whose name was not mentioned in the FIR, and who according to his own version left for his house after the occurrence and accidentally met the Investigation Officer at Ada Committee Chowk on 15.09.2000 i.e. after more than three years and nine months of the occurrence and reported the incident to him. It is a clear case of worst padding on the part of (PW-15).
As far as medical evidence is concerned, it only supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury but it does not lead to the culprits.
The evidence of pointing out the place of occurrence and the place where the car was abandoned by the appellants, is also of no value as the places were already known to the Investigating Officer.
The alleged recovery of weapons from the appellants is also of no consequence as no empties were recovered from the place of occurrence.
It is well settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated.
(R.A.) Appeals allowed.
PLJ 2010 SC 495
[Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman;
Muhamamd Farrukh Mahmud; Mahmood Akhtar Shahid Siddiqui; Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhri, JJ.
MUHAMMAD SAJJAD--Appellant
versus
STATE--Respondent
Crl. Shariat Appeal No. 11 of 2007, decided on 4.5.2009.
(On appeal against the judgment dated 7.6.2007 passed by the Federal Shariat Court in Crl. A. No. 247/L of 05).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Ss. 10 & 18--Criminal Procedure Code, (V of 1898), S. 382-B--Conviction and sentence recorded against accused by trial Court and maintained by High Court--Sentences were directed to run concurrently and benefit of Section 382-B was given to the accused--Appellant was acquitted of the charge for offence u/Ss. 18 & 10 of Hudood Ordinance--Challenge to--Appreciation of evidence--Deceased had been strangulated and there were signs of abrasion of her neck and blood was oozing from her nose--Cause of death was shock due to asphyxia caused by throttling due to fracture of hyoid bone--All injuries were ante mortem and sufficient to cause death in ordinary course of nature--Extra judicial confession was disbelieved by appellate Court of good and cogent reason--Accused had been seen while he was entering and coming out of the house of the complainant--Recovery of articles belonging to the deceased and complainant at the instance of accused--Undeniably it was un-witnessed crime--Validity--Prosecution witnesses had seen the deceased in the company of accused--Such piece of evidence can be described as a circumstance through chance witnesses and were co-workers of the complainant and happened to be present at the relevant time by chance--Held: It does not appeal to reason as to why the accused chose to come out of the house of complainant by climbing down the wall of the house--Accused could easily come out from the front door after satisfying himself that he was not being seen by anyone--It is also illogical that the accused would knock the door and enter inside the house, of the complainant in the presence of the witnesses while, according to prosecution case the appellant had entered into the house to commit a crime--Conduct of prosecution witnesses who were chance witnesses, was not natural and their testimony could only be believed in the presence of very strong and independent corroboratory evidence, which was lacking in instant case--Further held: No reliance can be placed on the piece of evidence, firstly it was not narrated in the FIR that identity card of the complainant and ring of the deceased were missing--PWs tried to improve their statements before trial Court but were duly confronted with their earlier statement--Secondly, there was no occasion for the accused to remove the identity card of the complainant and ring of deceased as both articles could easily implicate him--Thirdly, provisions of S. 103, Cr.P.C., which are mandatory in nature were violated as no one from the locality was associated during the recovery--Both the recovery witnesses were constables who were subordinate to Investigation Officer--Officer about to make the search would call upon two or more respectable inhabitants of the locality to attend and witness the search--Appeal was allowed.
[Pp. 500 & 501] A, B, D & E
NLR 1996 Crl. 197 & PLD 1997 SC 408, ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Conviction and sentence recorded against accused by trial Court and maintained by High Court--Challenge to--Appreciation of evidence--Unusual act of accused--Prosecution witness did not raise any noise when he saw accused climbing down from the wall and did not try to apprehend the accused--Prosecution witnesses had stated that they had seen the accused while he was climbing down the wall--Validity--Unusual act of the accused did not raise any suspicion in the minds of the witnesses--Prosecution witnesses were co-workers of the complainant, in case they had seen the accused climbing down out of the house of the complainant, then their natural response would be immediately inform the complainant or police or at least knock at the door of the complainant--Both witnesses did not re-act and did not narrate the circumstance to any one till the arrival of police--PWs did not raise any noise when he saw accused climbing down from the wall and he did not try to apprehend the accused--After having seen the accused climbing down from the wall of the house of the complainant, he simply went to his house and did not bother to inform the complainant, security officer, general manager or any of the security award--Appeal was allowed. [P. 500] C
Malik Saeed Hassan, Sr. ASC for Appellant.
Mrs. Rukhsana Malik, Addl. DPG. Pb. a/w Ch. Akhtar Ali, AOR for State.
Date of hearing: 4.5.2009.
Judgment
Muhammad Farrukh Mahmud, J.--This appeal, by leave of this Court, is directed against judgment dated 07.06.2007 handed down by learned Federal Shariat Court, in case FIR No. 49 of 2004 registered at Police Station Raiwind Saddar, District Kasur on 08.02.2004 at 2:00 p.m. for offences under Section 302 PPC read with Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereby convictions and sentences recorded by the learned trial Court vide judgment dated 24.06.2005, in following offences were maintained:--
(a) Under Section 302(b) PPC to life imprisonment plus compensation of Rs. 5,000/- in default of payment thereof to suffer further 3 months S.I.
(b) 380/411 PPC-7 years R.I. plus fine of Rs. 10,000/-in default thereof to suffer further one month S.I. The sentences were directed to run concurrently and benefit of Section 382-B was given to the convict.
Through the same judgment, appellant was acquitted of the charge for offence under Section 18/10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
The case FIR was registered on the statement of Muhammad Jameel (PW-13)-father of deceased Nida Jameel. The relevant facts are that the complainant was an employee of Mehran Ramzan Textile Mills situated near Bucheke Bypass. His wife had left for Sahiwal on 07.02.2004 while his son Ahsan Jameel had gone to Lahore. Complainant and his deceased daughter Nida Jameel were alone in the quarter allotted to the complainant. On the fateful day at about 8:15 a.m., the complainant left his house in pursuit of his duty. Muhammad Sajjad appellant met the complainant at his door and inquired about his going to the Mill. The complainant informed him that he was on his way to perform his duties. The complainant left for his job, leaving her daughter Nida Jameel aged about 10-11 years alone in the house. At about 11 a.m. Ahsan Jameel returned from Lahore and knocked at the door which was bolted from inside. Since the door was not opened he climbed over the wall and jumped in the compound of the house. He discovered that Nida Jameel was lying dead in the bed room. Ahsan rushed to the Mill and informed his father, thereafter complainant and Ahsan went to their house and saw that Nida Jameel had been strangulated and there were signs of abrasion on her neck, and blood was oozing from her nose. The complainant discovered that Rs. 10,000/- had been removed from the drawer of the table. While reporting the matter to the police the complainant showed his suspicion against Sajjad-appellant and one Muhammad Riaz.
During trial prosecution examined 15 witnesses in support of its case. PW-13 narrated the facts given in the FIR, however he added that on checking the articles he found that his Identity Card was also missing. He further stated that on his return Rao Shamim Ali Khan (PW-7), Muhammad Akram (PW-9), Raheem Ullah (PW-8) and Muhammad Hanif (not produced) met him and informed him that they had seen the appellant in a confused state in the street and while climbing down the wall and that Raheem Ullah had seen the appellant while he was knocking at the door of his house and that the door was opened and the appellant went inside, PW-7 and PW-9 stated that at about 10.00/10:30 a.m., they saw the appellant while he was climbing down from the wall of the quarter of complainant. PW-7 added that he called the appellant who did not stop and ran away. PW-8 stated that at about 10 a.m. he saw the appellant knocking at the door of the complainant and that he also saw the appellant entering inside the quarter. PW-11 and 12 Haseeb-ul-Najum and Abdul Hameed stated about the confession of the appellant, however their statements were discarded and not-believed. PW-6 Dr. Farzana Shaheen conducted post-mortem examination on the dead body of the deceased on 09.02.2004 at 11 a.m., she observed that the cause of death was shock due to asphyxia caused by throttling due to fracture of hyoid bone. All injuries were ante-mortem and sufficient to cause death in ordinary course of nature. She further stated that the time elapsed between death and postmortem was about 22 hours. PW-5 Faryad Hussain stated about the recovery of silver ring with name Nida written on it, I.D. Card of the complainant and
Rs. 5,000/- at the instance of the appellant from Quarter No. 10 of residential colony of Mehran Ramzan Textile Mill. Ahsan Jameel s/o complainant appeared as PW-14 and after narrating the facts given in the FIR made improvement in his statement by stating that Identity Card of his father and ring of the deceased was also taken away. He was duly confronted with his statement recorded under Section 161 Cr.P.C. Muhammad Boota S.I. (PW-15) stated about the investigation of the case, arrest of the accused and recoveries. The rest of the witnesses are formal in nature.
After closure of prosecution case statement of the appellant was recorded under Section 342 Cr.P.C. The appellant pleaded innocence, and explained his position in answer to Question No. 9 which is as follows:--
"I alongwith Abdur Razaq son of Sher Muhammad and Molvi Hassan resident of Qr. No. 9 were arrested on 8.2.2004 by local police thereafter, local police arrested some other workers of this mill due to suspicion. Other workers of the mill became afraid and they started feeing away from the mill. Due to non-availability of workers there was apprehension of close of mill for couple of days. In that situation owner of the mill inquired the administration. Due to these circumstances the administration stopped the police from arresting other workers and made me scape goat.
The PWs are very interested. They made statements due to relation with complainant and due to influence of mill administration and specially Admn. Manager, who was very interested in this case. He appeared on each and every date of hearing in this Court after recording of his statement. Furthermore, I produce my written reply in this regard which is mark-A."
"Malik Saeed Hassan, learned counsel for the petitioner has contended that in recording conviction against the petitioner in the instant case, the learned trial Judge had relied upon the extra-judicial confession of the petitioner made before PW-11 Naseeb-ul-Najum and PW-12 Ch. Abdul Haq but the same was disbelieved by the Federal Shariat Court in appeal and the petitioner was also acquitted from the charge of rape. He has added that after disbelieving the extra-judicial confession, their remained on record only the evidence of last seen and the recoveries i.e. ring of the deceased, Identity card of the complainant and a sum of Rs. 5,000/- allegedly recovered from the upper storey of Quarter No. 10 belonging to the Muhammad Nasrullah, the said quarter was a single storey building, therefore, the discrepancy had marred evidentiary value of the evidence of recovery and therefore, last seen evidence alone was not sufficient to bring home charge against the petitioner.
In order to consider as to whether in the absence of direct evidence, the afrore-mentioned pieces of evidence which according to the learned counsel for the petitioner were purely of corroboratory in nature, were sufficient to base conviction, thereon, leave to appeal is, granted."
The learned counsel for the appellant has submitted that the evidence of last seen was not worthy of credence and that the recoveries were fake and were planted upon the appellant to strengthen the case. The learned counsel for the appellant further argued that after disbelieving the evidence of extra-judicial confession, the learned Court convicted the appellant merely on presumption. Conversely, it has been argued that PW-7, 8 and 9 were independent witnesses who had no motive to falsely implicate the appellant and that their evidence was fully supported by the recovery of articles at the instance of the appellant which fully implicated him.
We have heard the learned counsel for the parties and have gone through the entire record of the case. Admittedly the story of extra-judicial confession was disbelieved by the appellate Court for good and cogent reasons. After excluding the evidence of extra-judicial confession, we are left with the evidence that the appellant was seen while he was entering the house of the complainant and was also seen when he was coming out of the house and the recovery of articles belonging to the deceased and complainant at the instance of appellant. Undeniably it was an un-witnessed crime. PW-7, 8 and 9 only said about presence of the appellant near the house of the complainant. PWs had not seen the deceased in the company of appellant. At most this piece of evidence can be described as a relevant circumstance through WAJ TAKKAR (chance) witnesses. PWs-7, 8 and 9 are co-workers of the complainant and happened to be present at the relevant time by chance. According to PW-8 he saw the appellant, knocking the door of the quarter of the complainant, and entering into it. After noticing the above fact this PW left for Jaranwala, and returned at 4.00 p.m. The act of the appellant did not cause any concerned to the PW and instead of making any inquiry or reporting the matter to the complainant. He went to Jaranwala and managed to return by 4:00 p.m. Which it is difficult to believe considering the distance between the place of occurrence and Jaranwala and the occasion for which this witness had gone to Jaranwala. According to him he had gone to Jaranwala in order to celebrate Eid with his children, in that case there was no occasion for him to return on the same date after leaving his children behind. PWs-7 and 9 have stated that they had seen the appellant while he was climbing down the wall of the quarter of the complainant at about 10:00/10:30 a.m. Admittedly, the unusual act of the appellant did not raise any suspicion in the minds of the witnesses. Both of them were co-workers of the complainant, in case they had seen the appellant climbing down out of the house of the complainant, then their, natural response would be to immediately inform the complainant or police, or at least knock at the door of the complainant. On the contrary both these witnesses did not react and did not narrate the circumstance to any one till the arrival of police. PW-7 admitted that he was on visiting terms with the complainant but he did not raise any noise when he saw appellant climbing down from the wall and he did not try to apprehend the appellant. He also admits, that he did not go to the house of the complainant after having seen the appellant and did not disclose this fact to any neighbor, to the Security Officers or to the General Manager. Similarly PW-9 also admitted that after having seen the appellant climbing down from the wall of the house of the complainant, he simply went to his house and did not bother to inform the complainant, Security Officers, General Manager or any of the Security Guards about it. During cross-examination, he firstly stated that his statement was not recorded by the police then he improved his statement by stating that he did not remember and further improved his statement by stating that his statement was recorded. In addition to all that, it does not appeal to reason as to why the appellant chose to come out of the house of the complainant by climbing down the wall of the house. He could easily come out from the front door after satisfying himself that he was not being seen by anyone. It is also illogical that the appellant would knock the door and enter inside the house, of the complainant in the presence of the witnesses while, according to prosecution case the appellant had entered into the house to commit a crime. As noted above the conduct of the PWs, who were chance witnesses, was not natural and their testimony could only be believed in the presence of very strong and independent corroboratory evidence, which was lacking in this case.
According to prosecution case, on 25.02.2004, the appellant, who was in custody led to the recovery of Rs. 5,000/-, Identity Card of the complainant and a silver ring which contained the name of Nida. In order to prove the recoveries Faryad Hussain Constable, (PW-5) and Muhammad Boota (PW-15) appeared before the learned trial Court. For various reasons no reliance can be placed on this piece of evidence. Firstly it was not narrated in the FIR that the Identity Card of the complainant and silver ring of the deceased were missing. PW-13 and PW-14 tried to improve their statements before learned trial Court but were duly confronted with their earlier statements. Secondly there was no occasion for the accused to remove the Identity Card of the complainant and the silver ring of the deceased as both these articles could easily implicate him. Undeniably, it was an ordinary ring of not much worth to be stolen. As far as Identity Card of the complainant is concerned it was of no use to the accused. Anyone with a head on his shoulders would not keep these articles intact till his arrest so as to produce those to the I.O. Thirdly the provisions of Section 103, Cr.P.C., which are mandatory in nature were violated as no one from the locality was associated during the recovery. Both the recovery witnesses were Constables who were sub-ordinate to the I.O. Section 13, Cr.P.C. requires that officer about to make the search would call upon two or more respectable inhabitants of the locality to attend and witness the search. We would like to refer to the judgment of this Court in the case of Muhammad Azam vs The State (NLR 1996 Criminal 197) wherein it was observed as follows:
"It is necessary in this case to touch question of interpretation and requirements mentioned in Section 103, Cr.P.C. in order to clarify position. Bare perusal of Section 103, Cr.P.C. shows that it applies with full force when search is to be made of place which is in a locality. In other words it can be said that Section 103 is relatable to the place and not to the person. If place is known where search is to be made and that place is situate in a locality which is inhabitated by the people, then it is necessary to join two or more respectable persons from that locality to witness the search. Main object behind Section 103, Cr.P.C. is to guard against possible chicanery and concoction and for that reason witnesses from the locality are to be joined in the investigation and if this is done and for some reason subsequently in the Trial Court those witnesses from the locality are not produced for the reason that they had been won over, then evidence of police officer who made the recovery can be believed if his conduct in the investigation is beyond reproach."
In the instant case there is no explanation as to why the inhabitants of the locality were not associated during search. It was so held in the case of State through Advocate-General, Sindh Vs. Bashir and others (PLD 1997 SC 408) which is as follows:
"It may be observed that it has been repeatedly held that the requirement of Section 103, Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public.
For the above noted reasons, the recovery evidence is not worthy of any credence.
As far as medical evidence is concerned it does not lead to the killer.
(R.A.) Appeal allowed.
PLJ 2010 SC 503
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday & Sarmad Jalal Osmany, JJ.
Rana MUHAMMAD ARSHAD--Petitioner
versus
MUHAMMAD RAFIQUE & another--Respondents
Crl. Petition No. 25 of 2009, decided on 26.3.2009.
(On appeal from the order dated 19.12.2008 of the Lahore High Court, Lahore passed in Crl. Misc. No. 10599-B/08)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Bail before arrest--Interpretation of latter part of S. 498, Cr.P.C.--Vesting power in High Courts and Courts of Sessions--On account of passage of time concepts tend to get foggy and blurred and need to keep reminding--To re-state fundamentals relating to the matters of bail before arrest--Validity--Powers so found and parameters so prescribed have been regularly and repeatedly coming up for scrutiny by Superior Courts including Supreme Court--But each time the matter was re-examined--Concept as it was initially pronounced as it developed may be summarized for the benefit of all as grant of bail before arrest is on extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives, (b) pre-arrest bail is not to be used as a substitute or as an alternative for post arrest bail, (c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through S. 497(2), Cr.P.C. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, sufficient ground warranting further inquiry into his guilt, (d) he must also show that his arrest was being sought for ulterior motives, to cause irreparable humiliation to him and to disgrace and dishonour him, (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to discretionary relief in equity e.g. he had past criminal record or that he had not been a fugitive at law and finally that, (7) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in first instance approach the Court of first instance i.e. the Court of Session, before petitioner the High Court for the purpose. [Pp. 507 & 508] A
Cancellation of Bail before arrest--
----Fugitive at law for more than two years--Bail before arrest in double murder case--Grant of bail before arrest to co-accused who had also remained an absconder and a proclaimed offender for about 2« years also surfaced and again, directly before High Court without having first had recourse to Court of Sessions--High Court had granted the bail on the ground that right side of stood paralyzed and that he could not even walk without help another person--Validity--A person seeking bail before arrest must, in absence of compelling reasons, approach the Court of Sessions in the first instance--This had not been so done in the present case and not a word had been said by High Court for allowing such a deviation from the normal procedure--High Court might have permitted the departure on account of physical disability of accused--But even such a presumption would not be sufficient to justify the digression from the established principle of law--If he could have travelled to Lahore in his physical condition then there was nothing stopping him from travelling, more or less the same distance to the Court of Session at Sialkot--Held: Discretion exercised by the High Court in admitting accused to bail before arrest through impugned order was not sustainable--Bail granted to accused through an order passed by High Court was recalled. [Pp. 510, 512 & 513] B & G
Bail before arrest--
----Cancellation of--Condition of malafides--Power of Court--No Court would have any power to grant bail before arrest unless all the condition specified for allowing bail before arrest especially the condition regarding malafides were proved--Disappearance of accused for more than two years after his nomination as an accused--Validity--Accused was in no condition to escape arrest or to abscond and it was the police which had not caused his arrest for such a long period of time which observation established absence of ulterior motives on the part of police. [P. 510] C
Cancellation of Bail before arrest--
----Motive alleged in FIR--Not nominated in FIR--Litigation between the parties over a plot of land, that complainant physically knew the accused party despite which he had not named them as killers of deceased and had nominated accused only through a supplementary statement, as an after thought about a month--Alleged conduct of complainant--Litigation was of a rather recent origin i.e. less than a month old when the occurrence took place; that complainant might well have been interested in out come of litigation but was not directly a party to the same--Evidence was available in abundance to prove that complainant knew the accused party at the time of the presence occurrence and thereby declare that the prosecution case had become doubtful and consequently one of further inquiry was not a reasonably deducible inference. [P. 510] D & E
Prima facie--
----Litigation with accused party over a plot was mentioned in FIR--Despite this he had frankly conceded that he did not know the ones who had done murder of his son--Prima facie shows honesty and good faith on his part because if he was to be malicious then there was nothing stopping him from nominating his alleged enemies.
[P. 512] F
Raja Muhammad Ibrahim Satti, Sr. ASC for Petitioner.
Mr. Zulfiqar Khalid Malooka, ASC for Respondent No. 1.
Mr. M. Siddique Baloch, DPG Punjab for State.
Date of hearing: 26.3.2009.
Judgment
Khalil-ur-Rehman Ramday, J.--One Rana Arshad alleged through FIR No. 305 of Police Station Sambrial of District Sialkot that on 17.6.2006 he was going to Sambrial in his motor car with Khawaja Atif, Muhammad Ikram and Muhammad Mujahid Hussain traveling with him while his son Inamullah was also accompanying them but in his own car; that when they reached Malkanwala canal bridge, a black Honda car reached there and four occupants of the same opened fire at the said Inamullah's car; that thereafter the said assailants got down from their car and made further indiscriminate firing at the above-mentioned motor car of the complainant's son as a result whereof the complainant's son and his companion, namely, Farooq Shafi died at the spot. It appears that the assailants were not identifiably known to the complainant who, consequently, did not name any one of them in the FIR. He, however, did make a mention in the said FIR that he had some litigation relating to a plot of land with one Faqir Muhammad and his sons, namely, Nawaz, Sarfraz, Rafique (the respondent before us) and Shahbaz and that the said Faqir and others had colluded with one Maqbool and others to eliminate him and his said son and that he had been receiving threats from them in the said connection. He had added that he could identify the killers of his son and of the said Farooq if he ever came across them.
It was so on 16.7.2006 i.e. about one month after the said occurrence that the said complainant submitted an application before the DSP of Sambrial stating therein that on the said day he had gone to the District Courts of Gujranwala in connection with case FIR No. 221/2006 of Police Station Saddar, Kamoke (which FIR related to the same plot dispute mentioned above) where he came across some persons and identified them as the ones who had done his son and his companion Farooq to death and where, on his inquiry, their names were told to him as Rafique (the respondent before us), Shahid, Kalimullah and Tariq. He, had added that the said were the murderers of his son and of Farooq Shafi and that they be arrested. This is how Rafique respondent and others came to be the accused persons of the present case.
Having remained a fugitive at law for more than Two Years, the above-mentioned Tariq, a co-accused of the present respondent surfaced directly before the Lahore High Court and without having first approached the Court of Session for the purpose, prayed for his release on Bail Before Arrest in a Double Murder Case. Through an order dated 27.10.2008 passed in Cr.Misc.No. 9006-B of 2008, the learned High Court granted him the said relief, inter-alia, on the ground that the right side of his body stood paralyzed and that he could not even walk without the help of another person.
Within One Week of the grant of the said bail before arrest to the said Tariq co-accused, Rafique respondent who had also remained an absconder and a proclaimed offender for about 2« years also surfaced and again, directly before the Lahore High Court, without having first had recourse to the Court of Session and he also prayed, through his application dated 04.11.2008, for his release on bail before arrest. The said relief was allowed to him also through an order dated 19.12.2008 passed in Cr. Misc. No. 10599-B of 2008 whereby the interim pre-arrest bail allowed to him earlier, was confirmed.
Rana Arshad complainant is now before us seeking cancellation of the said pre-arrest bail allowed to the said Rafique accused in which matter notices had been issued to the said Rafique respondent as also to State.
Learned counsel for the parties have been heard.
It is natural and clearly understandable that on account of passage of time, certain concepts tend to get foggy and blurred and hence the need to keep reminding ourselves, constantly, of the basic norms regulating such-like matters. It appears to us that it was time to re-state the fundamentals relating to the matters of bail before arrest. Therefore, before going on to the merits of this case, we consider that it would be in the fitness of things if the parameters defined for the purpose were re-enumerated.
It was perhaps for the first time in December, 1948 that by interpreting the latter part of Section 498 of the Code of Criminal Procedure in Hidayat Ullah Khan's case (PLD 1949 Lah. 21= AIR 1949 Lah. 77), the power vesting in the High Courts and the Courts of Session to admit persons to bail before they could be arrested, was authoritatively discovered by a Full Bench of the Lahore High Court. Cornelius J. (as he then was) epitomised the said power and its bounds in the following words:
"For the reasons given above, the reply which I would give to the question referred to us is that, in a proper case, the High Court has power under Section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a police-officer or a Court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which, not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also, it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm."
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified through sub-section (2) of Section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose.
(i) THE CROWN VS. KHUSHI MUHAMMAD (PLD 1953 F.C. 170)
(ii) MUHAMMAD AYUB VS. MUHAMMAD YAQUB (PLD 1966 S.C. 1003)
(iii) SADIQ ALI VS. THE STATE (PLD 1966 S.C. 589)
(iv) ZAHOOR AHMAD VS. STATE (PLD 1974 Lah. 256) (cited with approval in PLD 1983 S.C. 82)
(v) MUHAMMAD ANWAR SAMMA & ANOTHER VS. THE STATE (1976 SCMR 45)
(vi) MURAD KHAN VS. FAZAL-E-SUBHAN & ANOTHER (PLD 1983 S.C. 82)
(vii) MUHAMMAD SAFDAR & OTHERS VS. THE STATE (1983 SCMR 645)
(viii) ZIA-UL-HASSAN VS. THE STATE (PLD 1984 S.C. 192)
(ix) MST. QUDRAT BIBI VS. MUHAMMAD IQBAL & ANOTHER (2003 SCMR 68)
Having said this, we now proceed to consider the impugned bail granting order.
Rafique respondent, according to the said order, had sought bail:
"... mainly on the ground that the case of co-accused of the petitioner, namely, Tariq Mahmood is not distinguishable who had already been admitted to pre-arrest bail by this Court...."
The finding of the Court was that:
"Co-accused of the petitioner, namely, Tariq Mahmood who was involved in this case through the same supplementary statement with the role equivalent to that of the petitioner had already been admitted to pre-arrest bail.... For the reasons find mentioned in the said order on the factual aspect, the case of the petitioner is not distinguishable."
This then necessitates an examination of the order allowing bail before arrest to the said co-accused of Rafique respondent, namely, Tariq.
(a) not a word had been said as to why his petition had been directly entertained in the High Court and why he had not been asked to go to the Court of Session in the first instance;
(b) again, not a word had been said about any ulterior motive which could have prompted the fabrication of a false and malicious case against him only to victimize, disgrace or dishonour him;
(c) it was found that the right side of his body stood paralysed; that he could not even walk without the help of another person and that he was consequently a sick and an infirm person whose case fell within the purview of the 1st Proviso to sub-section (1) of Section 497 Cr.P.C. It may be added that the case of Rafique respondent was distinguishable as this ground of infirmity was not available to him;
(d) it had also be found that he had not been named as the assailant in the FIR and that it was only through a subsequent supplementary statement that he had been nominated as one of the four who had fired shots at the two deceased persons and consequently, his case was one of further inquiry qualifying for grant of bail under sub-section (2) of Section 497 Cr.P.C; and
(e) the issue of the said accused having been a fugitive at law for more than two years had been brushed aside by the High Court saying that he had admittedly got afflicted by paralysis in October, 2006 and could not even move without the help of another person and how "A Person In Such A Condition Would Manage To Escape His Arrest For Almost Two Years" and thus putting the blame on the police for not arresting him, the learned JUDGE wondered ".... As To Why The Police Had Failed To Arrest The Petitioner For Almost Two Years." His Lordship, however, appears to have failed to appreciate that one did not need to use his feet and his legs to escape or to abscond or even to go into hiding.
As has been mentioned in Para 9 supra, the rule is that a person seeking pre-arrest bail must, in the absence of some compelling reasons, approach the Court of Session in the first instance. This had not been so done in the present case and not a word had been said by the High Court for allowing such a deviation from the normal procedure. It could be presumed that the High Court might have permitted the said departure on account of the physical disability of Tariq accused. But even such a presumption would not be sufficient to justify the said digression from the said established principle of law as it was on record that Tariq accused was a resident of Kamoke and if he could have travelled to Lahore in his said physical condition then there was nothing stopping him from traveling, more or less the same distance, to the Court of Session at Sialkot. As has been mentioned above, even the said presumed ground did not exist in the case of Rafique respondent.
It had also been repeatedly held by the Superior Courts (reference be made to Zia-ul-Hassan's case supra) that no Court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest Especially the condition regarding malafides were proved. No such finding exists in the said bail granting orders. On the contrary, while talking about the disappearance of Tariq accused for more than two years after his nomination as an accused, the Hon. Judge found that the said accused was in no condition to escape arrest or to abscond and it was the police which had not caused his arrest for such a long period of time which observation obviously established absence of ulterior motives on the part of the police.
On the merits of the case, the learned Judge in Chamber presumed, from the motive alleged in the FIR i.e. litigation between the parties over a plot of land, that the complainant physically knew the accused party despite which he had not named them as the killers of his son and of another and had nominated Rafique accused and others only through a supplementary statement, as an after-thought, about a month after the occurrence. The said alleged conduct of the complainant, in the opinion of His Lordship, had:
"... cast shadow of doubt on prosecution case ...."
The Hon. Judge appears to have been led to this finding, as has been mentioned above, on account of the said litigation relating to a plot of land. His Lordship had observed in Tariq's bail granting order that:
".... This means Muhammad Rafique was known to the complainant when this occurrence had taken place and the FIR is silent about the accused qua his presence on the spot at the relevant time...."
In the impugned order granting bail to Rafique accused, the learned Judge was more emphatic and had observed:
".... The data available on the record speak volumes that the petitioner was known to the complainant much prior to the occurrence and had the petitioner been present at the spot the complainant would definitely have named him in the FIR...."
We called upon the learned ASC for Rafique accused-respondent to show us anything from the record which could establish that the complainant had ever come into contact with Rafique accused or his brothers or their father which could lead to an inference that they were identifiably known to the complainant. Nothing of the kind could be pointed out for the purpose. On the contrary, the learned counsel for the complainant drew out attention to the addresses of the parties available on record and submitted that the complainant was a resident of Sambrial in District Sialkot while Rafique accused and his family were residents of Kamoke in District Gujranwala. He also referred us to an `IQRARNAMA' available at page 37 of the paper book and submitted that it was only on 20.5.2006 i.e. less than a month before the occurrence that the complainant had bought the plot in question situated in Kamoke from one Muhammad Arif. Explaining the litigation in question, the learned ASC referred to a plaint (available at pages 33 to 35 of the paper book) which had been filed by Rafique accused and his brothers in the Court of the learned Senior Civil Judge, Gujranwala on 23.5.2006 i.e. only about three weeks prior to occurrence, with respect to the said plot. The complainant was not a party to the said suit and it was only the said Arif who was the only defendant cited in the said plaint and about whom it had been alleged that he had tried to forcibly dispossess the plaintiffs therefrom. One week thereafter, it was again the said Arif (the seller of the said plot) who had lodged an FIR at P.S. Kamoke against the Rafique accused party with respect to the plot in question.
What thus emerges is that the litigation in question was of a rather recent origin i.e. less than a month old when the occurrence took place; that the complainant might well have been interested in the out-come of this litigation but was not directly a party to the same; that on account of the rather early stages of this litigation, occasion may never had arisen yet where the complainant could have come face to face with Rafique accused party and that in the circumstances, to hold that evidence was available in abundance to prove that the complainant knew the accused party at the time of the present occurrence and thereby to declare that the prosecution case had become doubtful and consequently one of further inquiry, was not a reasonably deducible inference.
There is yet another aspect of the matter which may also be noticed. The complainant had mentioned in the FIR that he was in litigation with Rafique accused party over a plot of land and that he had been even receiving threats from them. Despite this he had frankly conceded, through the said FIR that he did not know the ones who had done his son to death. This, at least prima-facie, shows honesty and good faith on his part because if he was to be malicious then there was nothing stopping him from nominating his said alleged enemies, as the killers of his son, in the very FIR itself. It may be added that as per the FIR, the complainant was an advocate who would thus be expected to know the implications of not naming the assailants in FIR and the consequences of naming them subsequently through a supplementary statement.
What follows from the above is:--
(a) that the prosecution case could not be said to have become doubtful only because the accused had not been named in the FIR and had been nominated subsequently through a supplementary statement;
(b) that the case was not one where it could be said that the same had been fabricated on account of ulterior motives either on the part of the police or even on the part of the complainant;
(c) that the concessions extended to Tariq accused on account of his physical disability could not be made available to Rafique accused who was a perfectly healthy person;
(d) that no explanation existed on record for granting the extra-ordinary relief of bail before arrest and that also in a double murder case, to a person i.e. Rafique accused who was a proclaimed offender and who had been a fugitive at law for more than two years; and
(e) that no reason was available in the impugned order or even on record which could justify a direct approach to the High Court for grant of pre-arrest bail without moving the Court of Session for the purpose.
In this view of the matter, the discretion exercised by the High Court in admitting Rafique respondent to bail before arrest through the impugned order was not sustainable. Consequently, this petition is converted into an appeal which is allowed as a result whereof the said bail granted to Rafique respondent through an order dated re-called. He may be taken into custody in accordance with law if it is so desired.
These are then the reasons for the short order passed on 26.3.2009.
But we may add before parting that we had felt compelled to go into the merits of the case as we did on account of the lengthy arguments of the learned counsel for the parties and on account of some of the observations made by the High Court. It is, however, clarified that the above conclusions reached by us were only for the disposal of this bail matter and should not be taken as ultimate findings on the merits of the case.
We would also like to bring it on record that it was on account of the admitted physical disability of Tariq co-accused that we exercised restraint in issuing a notice to him for re-call the bail allowed to him.
(R.A.) Appeal allowed.
PLJ 2010 SC 513
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Muhammad Qaim Jan Khan &
Syed Zawwar Hussain Jaffery, JJ.
MUHAMMAD ASLAM--Petitioner
versus
SABIR HUSSAIN and others--Respondents
Crl. Petition Nos. 437 and 438 of 2008, decided on 13.2.2009.
(On appeal from the judgments dated 17.9.2008 of the Lahore High Court, Lahore passed in Criminal Appeal Nos. 1993 and 1996 of 2002).
Appeal Against Acquittal--
----Principle ordinarily interference--Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused--A judgment of acquittal cannot be reversed unless the same is shown to be shocking, perverse, ridiculous and arbitrary, unless a substantive or direct evidence is available--Conviction cannot be based on any other type of evidence--When an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order--Leave refused.
[P. 521] E
Extra Judicial Confession--
----Weakest piece of evidence--Validity--Evidence of extra-judicial confession is always treated as a weak piece of evidence, as held by Supreme Court on a number of occasions. [P. 519] A
Recovery memo--
----Recovery of crime empties--Report of forensic science laboratory--Over-writing and cutting was made by I.O.--Figure showing three crime empties was entered after tampering with original figure, which makes the recovery highly doubtful, as rightly held by High Court. [P. 520] B
Ocular Account--
----Medical report regarding seat of injuries, kind of weapon--Prosecution had failed to prove the allegations against the accused through trustworthy ocular account--Held: Medical evidence might confirm the ocular evidence with regard to seat of injury, nature of the injury, kind of weapon used in occurrence but it would not connect the accused with commission of the crime. [P. 520] C
Finding of Acquittal--
----Ground which found favour with High Court in passing the impugned judgment were neither fanciful nor conjectural. [P. 520] D
Double Presumption--
----When an accused person was acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. [P. 521] F
Natural Witness--
----Presumption of innocence was double and multiplied after finding of not guilty recorded by competent Court of law--Held: Sole eye-witness not being independent and natural witness of occurrence, infirmities having been found in prosecution case and doubts having crept in prosecution version--Possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of ocular testimony, it cannot be said that prosecution had succeeded in proving the guilt of the accused beyond any reasonable doubt. [P. 521] G
1997 SCMR 290 ref.
Mr. Zulfiqar Khalid Maluka, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 13.2.2009.
Judgment
Ijaz-ul-Hassan, J.--Muhammad Aslam, petitioner, through instant petitions, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal from a judgment passed by a learned Division Bench of the Lahore High Court, Lahore, dated 17.9.2008 whereby Criminal Appeal No. 1993 of 2002 filed by Mst. Razia Bibi and Sabir Hussain, respondents, and Criminal Appeal No. 1996 of 2002 filed by Zafar Ullah, respondent challenging their convictions and sentences, were accepted, resulting in acquittal of respondents and Murder Reference No. 879 of 2002, sent by Trial Judge against Sabir Hussain, respondent for confirmation of his death sentence, was answered in the negative. However, Criminal Revision No. 165 of 2003, filed by petitioner for enhancement of sentence awarded to Mst. Razia Bibi, was dismissed.
The prosecution story, as reflected in the impugned judgment, is to the effect that on 18.4.2002 at about 5.30 a.m., complainant Muhammad Aslam was informed by a niece of his wife, namely, Mst. Razia Bibi that her father and mother were murdered at about 1.00 a.m. of the same date. When the complainant alongwith other relatives as well as two other persons namely, Ghulam Rasul, (PW.5) and Muhammad Anwar (PW.6), reached the place of occurrence, he was told by Mst. Razia, that at about 1.00 a.m. in the night, she alongwith her father Mehdi Khan and mother Mst. Seeman Bibi, deceased was asleep in the residential room of the house. The outer gate was locked from inside. According to the complainant, four unknown persons of medium height, entered the house and after scaling over the wall barged into the room. On hearing the muffled tone of their footfall, Mst. Razia and her father and mother, woke up but on seeing the accused armed, did not rise from their cots. Out of them, one person fired two shots, one after the other, which hit Mehdi Khan (deceased) in his head, who died at the spot. Thereafter, the said intruders demanded keys of the box, which were provided by her, after taking out from the pocket of Mehdi Khan. She further told the complainant that while the murderers were leaving, her mother said that she had recognized them, upon which one of them fired from his pistol at her mother culminating in her death at the sot. When the accused made their escape good, she started wailing on which her aunt, Mst. Seeman Bibi and cousin Muhammad Yaqoob were attracted to the spot. Since the electric bulbs were on, the accused were also seen by them.
Mst. Razia Bibi and Sabir Hussain were tried by learned Additional Sessions Judge, Gujrat, in case F.I.R. No.81 dated 18.4.2002 registered at Police Station City Jalalpur Jattan, district Gujrat for offence under Section 302/34
PPC. Zafar Ullah being minor was tried separately, regarding the same occurrence by learned Judge, Juvenile Court, Gujrat.
At the conclusion of the trials, vide judgments dated 30.10.2002, Sabir
Hussain, respondent was convicted and sentenced to death under Section 302-(b)
PPC on two counts, with direction to pay Rs. 100,000/- each as compensation under Section 544-A, Cr.P.C. to legal heirs of the deceased, or in default to undergo six months S.I. Mst. Razia Bibi, respondent, was convicted under
Section 308-A/34 PPC and sentenced to suffer 14 years imprisonment as Tazeer' with direction to pay Rs.300,000/- each asdiyat' on two counts to legal heirs of the deceased. However, Zafar Ullah, respondent, was convicted and sentenced to suffer 14 years imprisonment as Tazeer' under Section 308-(2)/34, PPC with direction to pay Rs.300,000/- asDiyat' to legal heirs of the deceased. He was further directed to pay an amount of Rs. 100,000/-each as compensation under
Section 544-A Cr.P.C. on two counts to legal heirs of the deceased or in default to undergo six months S.I. Benefit of Section 382-B Cr.P.C, was extended to the accused.
Feeling aggrieved, respondents filed appeals, calling in question their convictions and sentences, complainant filed Criminal Revision, seeking enhancement of sentence awarded to Mst. Razia Bibi, respondent. Learned trial Court sent Murder Reference under Section 374 Cr.P.C. for confirmation of death sentence inflicted on Sabir Hussain. All the three matters were decided together through judgment impugned herein. The appeals were accepted, Murder Reference was answered in the negative and Criminal Revision was dismissed, as stated and mentioned above.
After registration of the case against the unknown culprits, complainant made the supplementary statement and nominated the respondents as perpetrators of the crime.
The prosecution, in support of its case, produced 13-witnesses at the trial. Mst. Seeman Bibi, (PW.3), a neighbor of the deceased, furnished eye-witness account of occurrence and charged the accused- respondents for commission of offence. Ghulam Jafar SHO (PW.13) investigated the case and gave the details of the investigation conducted by him.
Dr. Muhammad Safdar Awan, Medical Officer, Aziz Bhatti Shaheed, Hospital, Gujrat (PW.7) conducted postmortem examination of Mehdi Khan deceased and noted the following :--
A fire-arm entry wound 2x2 cm x cranial cavity deep on the right side of the vertex of the skull with brain matter manenges and blood coming out of it.
A fire-arm entry wound 2.5 cm x 2 cm x cranial cavity deep on the vertex of the skull 3 cm left and posterior to the Wound No. 1 with brain matter, manenges and blood coming out of it.
Dr. Anjum Ara, (PW.9) Medical Officer, Maternity Hospital, Gujrat conducted postmortem examination of Mst. Seeman deceased, and found the following:--
A fire-arm wound of entry 1 x 1 cm on the left cheek 5 cm away from the left ear.
Wound of entry 1 x 1 cm on the lateral aspect of the upper left fore-arm. Wound of exit side 1.5 x 1 cm on the interior aspect of left upper arm.
After tendering in evidence the report of the Chemical Examiner, (Ex.PDD), report of the Serologist (Ex.PBB) and the report of Forensic Science Laboratory, (Ex.PCC), prosecution's evidence was closed.
The accused in their statements recorded under Section 342 Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. In reply to the question, as to why this case against you, Sabir Hussain, accused stated:--
"I have been falsely involved in this case at the instance of Muhammad Afzal ASI, subordinate to the I.O./SHO, who had registered a false case under the Arms Ordinance against Zafarullah accused vide F.I.R. No.66 dated 2.4.2002 P.S City J.P. Jattan. I went to the SHO and said Afzal ASI where some hot words were exchanged and later on the accused Zafarullah was released by the police on his personal bond without producing him in the competent Court. Hence for this very grudge I and Zafarullah accused have been booked in this case falsely, under the public pressure of the vicinity."
Mst. Razia Bibi accused in answer to a similar question, stated:--
"I am innocent. I being only the off spring of the deceased parents have been booked in this case by the complainant party as the complainant party wanted to usurp my property. Seeman Bibi wanted to marry me with her son Yaqoob PW to usurp my property and when she was not successful and when dacoity by unknown persons was committed in my house and in the said dacoity my parents were murdered and I have been booked in this case later on by the complainant party. Previously dacotiy was committed in our house and Aslam complainant has also pursued the same."
The accused, however, declined to appear as their own witness under Section 340(2), Cr.P.C.
Mr. Zulfiqar Khalid Maluka, Advocate for the petitioner contended that prosecution had succeeded in proving the charge of `Qatle-e-Amd' and robbery of currency notes and ornaments, against respondents, which fact was supported by the ocular account and medical evidence; that motive as assigned by the prosecution was fully proved; that reports of the Chemical Examiner, Serologist and Forensic Science Laboratory were returned in positive; and that learned High Court had no justification, in the wake of the evidence on record, to acquit the respondents. The learned counsel reiterated that ocular account furnished by the prosecution witnesses establishes the commission of offence by respondents, who had no motive to falsely implicate them. According to learned counsel, the impugned judgment passed by learned High Court is arbitrary, fanciful and opposed to the settled norms and guiding principles of safe administration of justice in a criminal matter. The judgment under challenge suffers from the defect of misreading and non-reading of material evidence. Learned High Court gave more weight to the story of the defense without giving any concrete, solid and cogent reasoning whereas on the other hand the prosecution has established its case on the touch-stone of evidence of sole eye-witness. Concluding the arguments, learned counsel contended that the close scrutiny of the prosecution evidence would suggest that ocular account sought sufficient corroboration from other sources and the defence has not been able to create even a slight doubt qua the truthfulness of the evidence of eye-witness. The medical evidence and recovery of weapon of offence which was found matched with the crime empties recovered from the spot on the day of occurrence have provided an independent corroboration to the ocular account and motive part of the story would be another strong source of corroboration. The ocular account provided by Mst. Seeman Bibi, a disinterested witness and who had no enmity to falsely implicate the respondents, which got support from the medical evidence, recovery of weapon of offence at the instance of accused, evidence regarding extra-judicial confession and positive report of Forensic Science Laboratory, regarding the matching of crime empty with the crime weapon recovered from the respondents, were sufficient for sustaining the conviction of the respondents.
The prosecution case hinges on the ocular account furnished by Mst. Seeman Bibi (PW.3), evidence of conspiracy provided by Ghulam Rasool (PW.5) and Muhammad Anwar (PW.6) evidence regarding extra-judicial confession provided by (PW.8) motive and recovery of pistol i.e. the weapon of offence, from Sabir Hussain, besides looted articles.
Having considered the matter from all angles in the light of the material on file, we find that evidence of conspiracy provided by Ghulam Rasool and Muhammad Anwar (PWs) has not been believed by learned High Court for reasons which are cogent and not open to legitimate exception. It may be pertinently mentioned here that though both the said witnesses claimed to have come to know about plan of the respondents to eliminate the deceased, yet none of them bothered to bring this fact to the notice of the deceased or the police. The testimony of both the witnesses of alleged conspiracy becomes further doubtful on account of the fact that though both of them after receipt of information of the double murder, accompanied complainant Muhammad Aslam (PW.2) lodger of the FIR, yet they did not reveal the said conspiracy to the complainant. Had the said conspiracy been in the knowledge of the said witnesses, they would have definitely informed Muhammad Aslam complainant about it. Needless to point out that FIR was registered against unknown persons as stated above. We feel that the evidence provided by Ghulam Rasool (PW.5) and Muhammad Anwar (PW.6) is fabricated and not worth reliance.
Insofar as evidence of extra-judicial confession is concerned, the same has been provided by Amanat Ali (PW.8). This piece of evidence has also been discarded for valid and sound reasons. A close scrutiny of the statement of the said witness reveals that he is a paternal first cousin of Mehdi Khan deceased and Mst. Seeman Bibi (PW.3). During cross-examination, he admitted that he had not tried to apprehend the said accused after their confession. The statement of this witness appears to be devoid of truth. There was no occasion for the accused for making such a confessional statement before PW.8. Even otherwise, evidence of extra-judicial confession is always treated as a weak piece of evidence, as held by this Court on a number of occasions.
Coming to the ocular account, we find that Mst. Seeman Bibi (PW.3) is the sole eye-witness in this case. She claims to have seen the incident from the rooftop of her house. The statement of Mst. Seeman Bibi (PW.3) stands belied by host of circumstances as pointed out by learned High Court in para 13 of the impugned judgment and we have no reason to differ. It would be highly unsafe to base conviction on the solitary evidence of Mst. Seeman Bibi (PW.3) in the absence of any corroboration of testimony from independent and unimpeachable source.
Apart from the ocular evidence, the prosecution has heavily relied upon the recovery of pistol, i.e. the weapon of offence, from Sabir Hussain respondent, besides alleged recovery of looted articles. Though the pistol allegedly recovered from Sabir Hussain respondent wed with one of the crime empties as per the report of Forensic Science Laboratory, yet the said recovery is useless for the prosecution, because the same is open to doubts and hardly inspires confidence. The recovery memo., regarding the crime empties, reveals that some over-writing and cutting was made by the Investigating Officer while preparing the same. The figure showing three crime empties was entered after tampering with the original figure, which makes the recovery highly doubtful, as rightly held by learned High Court.
Adverting to medical evidence in the peculiar circumstances of the case, it cannot lend any support to the prosecution case especially when the prosecution has failed to prove its allegations against the respondents through trustworthy ocular account. Medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
Needless to emphasize that it is worth and truthfullness of ocular account furnished by a witness which is to be taken into consideration for believing the same and relying for conviction. Learned counsel for the petitioner though argued at length but could not point out any misreading or non-appraisal of evidence warranting interference by this Court. There is nothing wrong with the reasons advanced by learned High Court while passing finding of acquittal in favour of the respondents. The ground which found favour with learned High Court in passing the impugned judgment are neither fanciful nor conjectural. These are backed by the material on record. This Court in the case of Muhammad Rafique v. Mohabbat Khan and others (2008 SCMR 715) observed that:--
"Learned counsel for the petitioner has not been able to satisfy us that in the facts of present case, the acquittal of respondent offended the principle of safe administration of criminal justice and would not create double presumption of innocence in favour of accused. This Court is not supposed to interfere in the judgment of acquittal unless, very strong reasons appeared on the case regarding the perversity of the judgment. The mere fact that witnesses were natural and occurrence took place in the daylight would not be sufficient to believe or disbelieve the evidence rather the real test is whether the witnesses were truthful and confidence-inspiring in the peculiar facts of the case to be relied upon for conviction. In the present case, the prosecution evidence did not fulfill the above test to the satisfaction of the two Courts and we also do not find any good reason to differ with the High Court."
"The consideration warranting interference in appeals against acquittal and in appeals against conviction are quite different. This Court cannot interfere unless the grounds on which the High Court had acquitted the respondents were not supportable from the evidence on record or the judgment of acquittal is perverse and reasons thereof are artificial and ridiculous."
In an appeal against acquittal this Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This Court itself has laid down limitation upon itself in challenging with an appeal against acquittal. A judgment of acquittal cannot be reversed unless the same is shown to be shocking, perverse, ridiculous and arbitrary. Unless a substantive or direct evidence is available, conviction cannot be based on any other type of evidence as held by this Court in Qalb-e-Abbas alias Nahola versus The State, (1997 SCMR 290).
It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others, (2003 SCMR 477) "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reserved, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence .......... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.
In view of what has gone above, we find that the sole eye-witness not being independent and natural witness of occurrence, infirmities having been found in the prosecution case and doubts having crept in the prosecution version, the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it cannot be said that the prosecution had succeeded in proving the guilt of the respondents beyond any reasonable doubt.
Having thus examine all aspects of the matter, we find that it could not be said that acquittal recorded by the High Court proceeds on reasons which are perverse or whimsical. Resultantly, finding no merit in these petitions, we dismiss the same and refuse to grant leave.
(M.S.A.) Leave refused.
PLJ 2010 SC 522
[Appellate Jurisdiction]
Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery & Sarmad Jalal Osmany, JJ.
GHULAM MUSTAFA and another--Appellants
versus
STATE--Respondent
Crl. Appeal Nos. 280 of 2003 and 88 of 2008, decided on 19.3.2009.
(On appeal from judgment of Lahore High Court, Lahore dated 4.7.2002 passed in Crl. Appeal No. 593 of 2002).
Legal Maxims--
----Principle of applicability--Whether prosecution witnesses, whose testimony had not been believed for one set of accused persons, can be believed for the other set--Held: Legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. [P. 529] C
Witness--
----Question, whether Pws, whose testimony has not been believed for one set of accused persons, can be believed for the other set--Held: If evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted with out strict corroboration from other independent and credible sources--There is hardly any corroborative piece of evidence to substantiate the eye-witnesses, whose ocular account Viz-a-viz the second set of co-accused has been disbelieved--Appeals allowed. [P. 529] D & E
Medical Evidence--
----Deceased and injured had received wounds to from a fire-arm but there is no opinion as to what type of weapon was used in the occurrence--Held: Medical evidence can only established the type of weapon used, the seat of injury and time elapsed between receipt of injury and medical examination. [P. 527] A
Enmity--
----Enmity between the parties because one of deceased was nominated along with other prosecution witness in the murder--Held: If enmity persuades a person to commit a crime then it is also sufficient to falsely implicate some person from the other side, the accused.
[P. 528] B
1969 SCMR 132, 1968 SCMR 719 and NLR 2002 Cr. 1 (SC) ref.
Raja Mehmood Akhtar, ASC and Mr. Mehmood-ul-Islam, AOR for the Appellant (in Crl. Appeal No. 280 of 2003).
Syed Ibn-e-Hassan, ASC and Mr. Mehmood A. Qureshi, AOR for Appellant (in Crl. Appeal No. 88 of 2008).
Mr. M. Siddique Khan Baloch, Deputy Prosecutor General Punjab for the State.
Date of hearing: 28.1.2009.
Judgment
Sarmad Jalal Osmany, J.--Criminal Appeal No. 280 of 2003 assails the Judgment of the Learned Lahore High Court dated 4.7.2002 hereby Criminal Appeal No.593 of 2002 filed by Appellant Ghulam Mustafa against the Judgment of the Learned Anti-Terrorism Court was dismissed. However, at the same time, the sentence of the Appellant was reduced from death to life imprisonment etc. Criminal Appeal No.88 of 2008 filed by Appellant-Muhammad Safdar impugns the judgment of the Learned Lahore High Court dated 13.12.2004 whereby Criminal Appeal No. 16 of 2004 filed by him against the judgment of the Learned Anti-Terrorism Court, sentencing him to life imprisonment etc. was dismissed. As both the Appeals arise out of the same set of facts i.e. a single F.I.R., the same are being disposed of through this common judgment.
Briefly stated the facts of the matter per F.I.R. No.51 of 2000 registered at Police Station Shahpur Sadar dated 22.3.2000, are that on such day Complainant PC-Muhammad Akbar (No.425) along with PC-Muhammad Mumtaz (No. 1368) had brought under trial prisoners Ahmad Hayat, Sikandar Hayat, Javed Iqbal and Muhammad Sher from Sargodha Jail to face their trial before the relevant Court in Shahpur Sadar, District Sargodha. The Complainant was holding the handcuffs of the aforesaid under trial prisoners while PC-Muhammad Mumtaz was on guard duty, armed with a G-3 rifle. All of them were sitting outside the Court room and besides them were present Sher Muhammad, Zulfiqar Shah, Muhammad Farooq and PC-Muhammad Aslam (No.953), who had come there on some personal work. At about 9.30 a.m. four unknown persons came there on two motorcycles out of whom one was armed with a Klashnikov while others were carrying .222 rifles and started firing on the under trial prisoners as well as the police officials. PC-Muhammad Mumtaz sustained injuries on his legs whereas under trial prisoner Javed Iqbal and Sikander Hayat were also injured. Similarly, bystanders Sher Muhammad, Zulfiqar Shah, Muhammad Farooq and PC-Muhammad Aslam (No.953) were injured as well. PC-Muhammad Mumtaz fired in self defence with his G-3 rifle as a result of which one of the assailants, who was armed with a Klashnikov was hit and fell down whereas the remaining assailants fled away on their motorcycles. In this commotion, under trial prisoners Muhammad Sher and Muhammad Hayat managed to make good their escape. Then the Complainant found that under trial prisoner-Javed Iqbal and Sher Muhammad had expired. While PC-Muhammad Mumtaz, PC-Muhammad Aslam, Sikandar Hayat, Zulfiqar Shah and Muhammad Farooq had been seriously injured.
After investigation, the challan was submitted against accused viz Appellant-Ghulam Mustafa, Muhammad Sher, Khizar Hayat, Ghulam Hussain, Ahmad Khan son of Muhammad Khan, Khalid Mahmood, Rab Nawaz, Muhammad Ashraf, Ahmad Khan son of Malik, Noorzada and Appellant-Muhammad Safdar, the last two of whom were shown as absconders. The Learned Anti-Terrorism Court, Sargodha charged nine accused, who were in attendance, including Appellant Ghulam Mustafa, to which all of them pleaded their innocence. The prosecution, in support of its case, examined as many as 19 witnesses, including eye-witnesses, the Doctors, who had attended to the injured and carried out postmortem examination of the dead and other official witnesses, who were formal in nature. Thereafter the Accused were examined under Section 342 Cr.P.C. wherein they denied the prosecution case and declined to lead any evidence in their defence.
Thereafter arguments were heard by Learned Anti-Terrorism Court and vide its judgment dated 1.4.2002, the Court convicted the Appellant-Ghulam Mustafa (Appellant in Criminal Appeal No.280 of 2003) under Section 302 (b) read with Section 34 PPC for the murder of the deceased and sentenced him to death as well as to pay compensation of Rs.2,00,000/- to the legal heirs of each deceased and in default to further undergo six months S.I. on each count. So also he was convicted under Section 324 read with Section 34 PPC for launching a murderous assault on the injured and sentenced to suffer ten years R.I. with a fine of Rs.20,000/- and in default • thereof to undergo further R.I. of two years on each count. He was also convicted under Sections 384/34 PPC, 337-F (ii), (iii) and (vi) PPC for causing injuries to the injured and sentenced to various prison terms alongwith fine etc. He was also convicted under Section 7-ATA and sentenced to death. The other Accused were acquitted viz Ghulam Hussain, Muhammad Sher, Khizar Hayat, Ahmad Khan son of Muhammad Khan, Khalid Mehmood, Rab Nawaz, Muhammad Ashraf and Ahmed Khan son of Malak. As observed above, upon appeal, the Learned Lahore High Court converted the death sentence to life imprisonment and reduced the amount of compensation etc. After his arrest, Appellant-Muhammad Safdar was again charged by the Learned Anti-Terrorism Court in the same F.I.R., to which he pleaded not guilty. At the trial, the prosecution examined 20 witnesses, including eye-witnesses, Doctors, who had attended to the injured and performed postmortem of the deceased as well as the formal witnesses. He was examined under Section 342 Cr.P.C. wherein he totally denied the prosecution case and also declined to lead evidence. After hearing arguments from both sides, the Learned Anti-Terrorism Court sentenced Appellant-Muhammad Safdar to (i) imprisonment for life and to pay a fine of Rs. one lac, in default three years RI under Section 7 of the Anti Terrorism Act, 1997 read with Section 34 PPC. (ii) Three years RI and to pay fine of Rs.5000/- in default three months RI under Section 21 (L) of the Act. (iii) Two years RI and to pay a fine of Rs.5,000/-, in default six months RI under Section 353 read with Section 34 PPC. (iv) Ten years RI with a fine of Rs.20,000/-, in default 2 years RI under Section 324 read with Section 149 PPC. (v) Ten years RI as tazir and to pay 1/3rd of diyat as arsh under Section 337-A (v) PPC. (vi) Rs. 15,000/- as daman, in default to be kept in jail for six months (SI), (vii) To pay the diyat of Rs.90,148/- for committing the murder of Javed deceased, to be recovered as arrears of land revenue, in default six months SI and (viii) To pay diyat of Rs.41,983/- for the murder of Sher Muhammad, which was upheld by the Learned Lahore High Court.
In support of Criminal Appeal No.280 of 2003, Raja Muhammad Akhtar, Learned ASC firstly submitted that in • cross-examination before the Learned Anti-Terrorism Court both the police officials have admitted that they do not know the assailants and also did not participate in any identification test for this purpose before any Magistrate. Similarly, both the police officials failed to identify the Appellant in Court. Consequently, their evidence cannot be relied upon, in so far as, positive identification of the Appellant is concerned, since in F.I.R. he was not identified by them. Secondly, Learned ASC submitted that empties recovered from the place of occurrence are that of a Klashnikov, which is attributed to deceased Sibt-e-Hassan, hence, as according to the prosecution case, Appellant-Ghulam Mustafa was carrying a .222 rifle, only his presence, if at all, could be established at the scene of the crime. This would, therefore, mean that Appellant-Ghulam Mustafa could only be convicted on the basis of common intention, which requires strict corroboration and which is missing from the case. Finally Learned ASC stated that only Appellant-Muhammad Safdar and Noorzada were declared proclaimed offenders and not Appellant-Ghulam Mustafa. Hence, the reasoning which weighed with the Learned Anti-Terrorism Court and the High Court in so far as his absconsion is concerned, is not supported from the record. In this regard, he referred to Fazal Muhammad v. Muzaffar Hussain (1981 SCMR 959).
Syed Ibn-e-Hassan, Learned ASC appearing in Criminal Appeal No.88 of 2008 has firstly submitted that Appellant-Muhammad Safdar was only implicated in the supplementary statement of the PWs, in which event it is not safe to base a conviction on the same. Secondly, according to the Learned ASC, PW-Muhammad Farooq was believed by both the Learned Anti-Terrorism Court as well as the High Court, as he was an injured witness. However, the fact that he had changed his previous statement in connection with the trial of Appellant-Ghulam Mustafa, was not taken note of. Finally, Learned ASC has submitted that PW-10-Karam Illahi only implicated Appellant-Ghulam Mustafa and not the Appellant-Muhammad Safdar.
On the other hand, Mr. M. Siddique, Learned Deputy Prosecutor General has fully supported both the impugned judgments and submitted that besides the official witnesses, there are four other eye-witnesses out of whom two were injured and hence, their evidence cannot be doubted as to the positive identification of both the Appellants. According to Learned Deputy Prosecutor General, the eye-witnesses account is fully corroborated by medical evidence hence, the fact that the recovery did not match the weapons allegedly carried by both the Appellants is insignificant.
We have heard both the Learned ASCs as well as Learned Deputy Prosecutor General. From the available record, it can be discerned that the evidence against the Appellants consists of the ocular account, the medical record, the recoveries and lastly the motive. In so far as the ocular account is concerned, it would be seen that on the date of incident, in which four persons were grievously injured and two lost their lives, including one of the assailants, the F.I.R. has been timely filed by the Complainant, who is a police official and admittedly has no connection with either the accused or the injured/deceased. Consequently, the occurrence cannot be doubted as it stands further corroborated by the medical evidence. However, having observed as much, it would also be seen that per the official witnesses viz PC-Muhammad Akbar (No.425) and PC-Muhammad Mumtaz (No. 1368), they were present along with Ahmad Hayat, Sikandar Hayat, Javed Iqbal and Muhammad Sher, whom they had brought from Sargodha Jail when the occurrence took place. According to these PWs, at the time of incident, they had not recognized the assailants and only came to know of their names after wards and as much as has been admitted by them in cross-examination. Consequently, it can safely be deduced that they had improved their statements in Court, as admittedly, none of the accused were put to any identification test. Hence, the ocular version put forward by these two witnesses can only be relied upon to the extent that four assailants come on two motorcycles and had ¦ fired upon the police party as well as under trial prisoners and others who were present outside the Court on the fateful day.
In so far as positive identification of the assailants is concerned, the testimony of other eye-witnesses viz PW-Sikandar Hayat, who was injured, as well as PW-Muhammad Farooq, again injured, and PW-Ahmad Hussain is relevant. According to these eye-witnesses, deceased-Sibt-e-Hassan armed with a Klashnikov and Noorzada Pathan, Muhammad Safdar along with Appellant-Ghulam Mustafa armed with .222 rifles had attacked from the southern side. As a result of firing made by Appellant-Ghulam Mustafa, deceased-Javed Iqbal had been hit on left side of the chest and right arm. Another set of accused comprising Ghulam Hussain, armed with a Klashnikov, Muhammad Sher, Khizar Hayat and Muhammad Ashraf Chochri armed with .222 rifles attacked from the northern side from whose firing PWs-Sikandar Hayat and Muhammad Farooq, Zulfiqar Shah, Muhammad Sher Constable Muhammad Aslam and Constable Muhammad Mumtaz were injured out of whom Muhammad Sher later expired. According to all these PWs, deceased Sibt-e-Hassan was killed from the firing made by PW-Constable Muhammad Mumtaz. Besides being related to the deceased and other injured persons these PWs have improved their version in the Court, i.e. from their police statements. Such improvements concern, inter alia, the slogan (lalkara) raised by Appellant-Ghulam Mustafa, shots fired by him, shots fired by other set of accused persons etc. In these circumstances, their testimony is to be treated with some caution and would require corroboration, particularly, as there is enmity between the Appellants and the other accused and the Complainant party since deceased-Javed Iqbal, who was the brother of PW-Sikandar Hayat and PW Ahmad Hussain was also related to PW-Muhammad Farooq and had been nominated in the murder of Ahmed Nawaz, who is the relation of the Appellants.
In so far as corroboratory pieces of evidence are concerned, the medical account displays that the deceased and injured had received wounds from a fire arm but there is no opinion as to what type of weapon was used in the occurrence. However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same. In this regard it would be seen that under cross-examination PW-Sikandar Hayat was confronted with his police statement wherein he had not stated that the two shots fired by the Appellant-Ghulam Mustafa had hit deceased Javed Iqbal. Similarly, neither PW-Muhammad Farooq or PW-Ahmad Hussain had stated as much in their police statements contrary to their testimony in Court. Consequently, they have improved their version for no other purpose than to bring it into accord with the medical evidence in which event the latter could hardly corroborate these witnesses. The second piece of evidence, which is available on the record and which can corroborate the ocular account were the recoveries. In this regard it would be seen that the recoveries at the scene are only of a Klashanikov rifle and empties of the same, which has been attributed to deceased Sibt-e-Hassan. Consequently this hardly corroborates the ocular account vis-a-vis the Appellants, who admittedly were armed with .222 rifles. So also the recovery of a .222 rifle from Appellant-Ghulam Mustafa and a .12 bore shotgun from Appellant-Muhammad Safdar is of no consequence at all since they were not sent for any ballistic test and indeed could not be so sent as no empty of a .222 rifle or of a shotgun were recovered at all. Finally it would be seen that in so far as motive is concerned, it cuts both ways. Admittedly, there was enmity between the parties because one of the deceased-Javed Iqbal was nominated along with other PWs in the murder of Ahmad Nawaz, who was a relation of the assailant party. If enmity persuades a person to commit a crime then it is also sufficient to falsely implicate some person from the other side i.e. the accused. Consequently, the benefit of doubt should be given to the accused in this regard. So also it may be seen that besides being a brother of the deceased-Javed Iqbal, PW-Ahmad Hussain is a chance witness as according to him he had come to the Court premises on the fateful day along with his mother and uncle-Akhtar Nawaz to meet the deceased and injured. They were not sitting with the deceased and injured but available in a hut (chappar), which was near a hotel adjacent to the plot where the deceased and injured were sitting along with the police party. This witness has introduced the element of criminal conspiracy hatched between all the accused a day before when they conspired to do away with the deceased and injured when they would come to attend the Court on the fateful day. He had narrated the facts to his father and uncle-Muhammad Hussain (who was on bail in the murder case of Ahmad Nawaz) and all of them had gone to the Police Station with this report but their complaint was not recorded by the Inspector. Under cross-examination, this witness has been confronted with the discrepancy in his police statement and examination-in-chief viz-a-viz the location of the deceased and injureds' injuries, firing by the accused party, number of accused who attacked from the northern side, empties recovered from the northern side, his coming to the police station along with his uncle etc. In the circumstances, again the statement of this witness in the Court needs to be strictly corroborated, which, as discussed above, is not the case. Furthermore, it would be seen that the Investigating Officer-Inspector Wajid Hussain, who was then posted at Police Station Shahpur Saddar, has stated under cross-examination that PW Ahmad Hussain had never visited him on 20.3.2000 to report the alleged abetment/criminal conspiracy amongst the Accused. He also admitted that none of the PWs had nominated any Accused in their police statement. Finally it would be seen that injured PW-Muhammad Farooq had not mentioned the presence of PW-Ahmad Hussain in his police statement, which he acknowledged when so confronted under cross-examination. Again PW-Karam Ellahi, who is the father of deceased-Javed Iqbal has testified that on the fateful day about 10 or 11 a.m. he was standing in his house (Dera) when Appellant-Ghulam Mustafa and Accused-Ashraf came their on a motorcycle. Appellant-Ghulam Mustafa told him that he should go to the Court at Shahpur and see that he and others had left heaps of dead bodies and injured persons in revenge for murder of Ahmad Nawaz. Again the same principle of corroboration applies to this chance witness, who is also an interested one, which is missing from the case. In this regard, reference can be made to the case of Ata Muhammad v. State (1995 SCMR 599) and Mumtaz Begum v. Ghulam Farid (2003 SCMR 647).
Furthermore, it would be seen that the Learned Trial Court as well as the Learned High Court have disbelieved the testimony of PWs-Sikandar Hayat, Muhammad Farooq and Ahmad Hussain viz-a-viz the second set of accused persons i.e. Muhammad Sher, Khizar Hayat, Ghulam Hussain and Muhammad Ashraf Chochri for having participated in the crime and so also for having hatched a criminal conspiracy with Appellant-Ghulam Mustafa and others. In the circumstances, the question to be answered is whether these PWs, whose testimony has not been believed for one set of accused persons, can be believed for the other set, including the Appellants before us. In our jurisprudence it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v. State (NLR 2002 Criminal 1 (SC). As discussed above, there is hardly any corroborative piece of evidence to substantiate the eye-witnesses, whose ocular account viz-a-viz the second set of co-accused has been disbelieved by the Learned Trial Court as well as the High Court.
In view of the above discussion, the prosecution case in both the Appeals as to the veracity and credibility of the eye-witnesses is full of contradictions and doubts, the benefit of which must go to the Appellants. Consequently, both the Appeals are allowed, the impugned judgments are set aside and the Appellants are acquitted of the charges against them. They shall be set free immediately, if not required in any other case.
(M.S.A.) Appeals allowed.
PLJ 2010 SC 530
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Akhtar Sahbbir &
Syed Sakhi Hussain Bukhari, JJ.
Mst. RASHEEDA BIBI & others--Appellants
versus
MUKHTAR AHMAD & others--Respondents
Civil Appeal No. 1448 of 2007, decided on 4.6.2008.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 1.3.2002 passed in C.R. No. 2-D of 1991).
Muhammadan Law--
----Clause 149--Gift-deed--Validity--Pardanasheen ladies--Suit for declaration challenging the registered gift deeds being a fraudulent and collusive transaction--Suit was dismissed by Courts below--Assailed--Held: Clause 149 of Muhammadan Law provided three essentials of a gift, if these conditions are complied with, the gift is valid--All the four donors in instant case/plaintiffs were "Simple, villagers, pardanasheen ladies" and according to the custom had never appeared in public and in such like case, very heavy burden lays on donees that a valid gift has been made in their favour by such ladies--Failure of donees to discharge such burden would be a proof that the gift was not made in their favour. [P. 535] A
1999 SCMR 1049, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1--No evidence to establish that under the gifts the possession of the property has been transferred in favour of the defendant--As no relevant and legal issues have been framed to prove the validity of the gift by performing the three requirements of law--Held: For non-framing of issues, the parties could not properly adduce the evidence--Court was bound to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also knows on what fact the evidence should be led. [Pp. 536 & 537] B & C
1997 SCMR 1849; 2001 SCMR 772 & PLD 1961 Dacca 65 ref.
Action or Inaction--
----Action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity--Case remanded to trial Court, for fresh decision after framing additional relevant issues. [P. 538] D
1997 SCMR 1849, 2001 SCMR 772 & PLD 1961 Dacca 65, ref.
Syed Samar Hussain, ASC for Appellants.
Raja Muhammad Bashir, Sr. ASC and Mr. Mehr Khan Malik, AOR for Respondents.
Date of hearing: 4.6.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This appeal, by leave of the Court, is directed against the judgment dated 01.03.2002 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No. 2-D of 1991.
(i) Whether the plaintiffs have locus standi to bring the suit?
(ii) Whether the plaintiffs are estopped by conduct from bringing the suit?
(iii) Whether the present suit is not maintainable in its present form?
(iv) Whether the suit is bad for misjoinder of causes of action?
(v) Whether the plaintiffs are owners of the suit land and Tamlik' orHiba' registered on 19.05.1977 are based upon fraud, undue influence and coercion, if so, its effect?
(vi) Whether the Court has no jurisdiction to try the suit of defendants?
(vii) Whether the defendants are estopped by conduct from brining the suit?
(viii) Whether the defendants are owners in possession of suit land?
(ix) Whether Ghulam Muhammad was benami for the defendants?
(x) Whether the suit of defendants is not correctly valued for the purposes of Court fee and jurisdiction, if so, its correct valuation?
(xi) Relief.
After recording, appreciating the evidence of the parties, pro and contra, the learned trial Court dismissed the suit, vide judgment and decree dated 28.05.1989. Feeling aggrieved, the plaintiffs preferred an appeal which came up for hearing before the Appellate Court/Additional District Judge, Bahawalpur, who vide judgment dated 04.09.1990, dismissed the appeal. Both the judgments of the Courts below were assailed through a revision petition before the High Court which too met with the same fate, vide the impugned judgment and decree, the validity of which has been challenged through C.P. No. 2212-L of 2002, out of which the instant appeal has arisen out.
The learned counsel for the appellants argued that the appellants had challenged the validity of the gift deeds (Tamliq' andHiba') raising objections on non-performance of three requirements of a valid gift. Further contended that the trial Court has not framed proper issues in accordance with the pleadings of plaintiffs regarding performance of three requirements of a valid gift; that the appellants had not been provided the opportunity to produce evidence on proper and legal issues; that all the three Courts below have not adverted to this aspect of the case. The learned counsel vehemently stressed that the plaintiffs were "simple, illiterate and Pardanasheen ladies" and they have denied the transfer of property through the gift deeds and the onus to prove the transfer of property through these disputed deeds shifted on the beneficiary-defendant/predecessor-in-interest of the respondents to discharge the responsibility of establishing a valid gift in his favour. The Courts below have not taken into consideration this legal and factual aspect of the case at all.
While on the other hand, the learned ASC for the respondents controverted the arguments of the counsel for the appellants, contending that the execution of the gift deeds
(Tamliq' andHiba') has been admitted by the PWs and that the admitted facts need not to be proved. He further contended that under the said gift deeds, the possession of the property was delivered to the defendant/vendee and by producing evidence, the defendant-respondents have established their case.
We have heard the arguments advanced by the learned counsel for the parties and perused the record with their kind assistance.
The plaintiffs namely Mst. Rasheeda, Mst. Sakina and Mst. Aziza were daughters of Ghulam Muhammad, step sisters of Muhammad Shafi defendant while Mst. Bibi (now deceased) was mother of Muhammad Shafi defendant with whom Ghulam Muhammad father of the Plaintiffs No. 1 to 3 had contracted marriage while Muhammad Shafi was her son from her wedlock with her previous husband. Muhammad Yousuf and Muhammad Ibrahim are the real brothers of Mst. Rasheeda and two other plaintiffs. Three daughters and two sons of Ghulam Muhammad were born from the womb of Mst. Bibi.
The plaintiffs in their plaint asserted that they had not declared their intention to gift their share of property in favour of Muhammad Shafi, defendant, nor delivered the possession to him under these gift deeds. They asserted that the whole transaction was the result of fraud, fabrication and collusiveness. There is no cavil to the fact that all the four plaintiffs were the "illiterate, simpleton, villager ladies". Mst. Sakina, one of the plaintiffs, who appeared in Court as PW-3 very clearly stated that Muhammad Shafi was their step brother and tenant of their land and he misstated/informed them that Muhammad Yousuf had got transferred the whole property in his name and a suit is to be filed against him and he brought them in the Court premises and got their thumb impressions on the papers and did not inform them about the real facts.
The mere admission of making thumb impressions or appearing before the Sub-Registrar is not sufficient to infer that the donors/plaintiffs have declared their intention to transfer their share of property (in dispute) which they have obtained as legal heirs of Ghulam Muhammad, their father and husband, respectively, in favour of the defendant. Moreover, mere registration of a document in itself is not under the law proof of its execution by a person by whom it was alleged to have been executed, if any of the parties in litigation had denied its execution by the said person. In the case in hand, the executants themselves disputed the execution of the document. Therefore, the person claiming the execution of such document is required under the law to prove its execution by producing evidence that it was in fact executed. Reliance in this behalf can be placed on the case of Muhammad Sharif Uppal v. Akbar Hussain (PLD 1990 Lahore 229).
The Courts below have observed that the documents Ex.D-I and Ex.D-II (Hiba' andTamlik') had been validly executed by the executant on the basis of admission of Mst.
Sakina Bibi. Abdul Majeed PW-1 (one of the marginal witnesses) who denied the execution of gift deeds has categorically deposed that he was told to sign on the Abtal Nama' and he hurriedly signed the same because he had to appear in the Court. He further stated that in his presence the plaintiffs had not gifted the property throughHiba' or Tamlik'. He without reading the documents had signed the same. Similarly Muhammad Ashraf (DW-3), the allegedscribe' of the documents, deposed in his statement that he did not personally know the executant/the donors, nor he demanded the national identity cards from the executant nor entered N.I.C. numbers on these writings. The same is the statement of DW-4 who stated that the purchaser of the stamp paper Mst. Sakina
Bibi was not personally known to him neither she was identified before him by any body.
The execution or appearance of the party before the Registrar/Sub-Registrar is not conclusive proof of the execution of gift. In such a case, the Court will have an overall view of all the attending circumstances of transaction and no presumption could be attached to such type of document. Reliance can be placed on the cases of Qazi Altaf Hussain & another v. Ishfaq Hussain (NLR 1981 SCJ 451) and Muhammad Khan v. Mst. Rasul Bibi (PLD 2003 SC 676). There is no doubt that the certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same. The certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. This view is supported by the dictum laid down in the cases of Gopal Das and others v. Sri Thakurji & others (AIR 1943 PC 83) and Siraj Din v. Mst. Jamilan & another (PLD 1997 Lahore 633). In the latter case, a Division Bench of the Lahore High Court observed that the endorsement made by the Registrar on questioned document would not prove that such document was executed by donor in favour of donee; contents of gift deed and constituents of gift must be proved in consonance with the provisions of "Qanun-e-Shahadat" and rules of gifts under Muhammadan Law.
Clause 149 of Muhammadan Law provided three essentials of a gift which are reproduced below:--
"149. The three essentials of a gift.--It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee."
If these conditions are complied with, the gift is valid. All the four donors in this case/plaintiffs were "simple, villagers, Pardanasheen ladies" and according to the custom had never appeared in public and in such like case, very heavy burden lays on donees that a valid gift has been made in their favour by such ladies. Failure of donees to discharge such burden would be a proof that the gift was not made in their favour. Reference can be given to the case of P.M. Amer v. Qabool Muhammad Shah & 4 others (1999 SCMR 1049). Moreover, all the donors had taken the plea of fraud and one of them Mst. Sakina Bibi stated that they were made to thumb mark on the documents which were presented to them to be in another different connection and question never arose of their making gift in favour of the defendant. All the donors ladies were not identified by such a person who advised or protected their interest as against the alienation through gift which deprived them of their valuable proprietary rights. The donors being ladies and Muslim females needed full protection and safeguard in the manner provided by Islam and the relevant law insofar as their property was concerned. Reliance in this behalf can be placed on the cases of Mst. Badshah Begum v. Ghulam Rasul & 4 others (PLD 1991 SC 1140) and Janat Bibi v. Sikandar Ali & others (PLD 1990 SC 642).
(i) Whether the plaintiff had any friendly advice before executing the deed and by a person whom the Court considers as being genuinely interested in her welfare?
(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?
(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?
(iv) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?
The trial Court has not framed the relevant legal issues to determine the genuineness of gift nor the First Appellate Court or the High Court has adverted to this legal aspect of the case and has not examined the evidence produced by the parties on such touchstone. There is no evidence on the file by the defendant establishing the three requirements of a valid Muhammadan gift and we have no hesitation to observe that the evidence produced by the donees fell short of the required standard of proof in a land dispute involving huge property. Mere fact that Muhammad Shafi, defendant was step brother of the three plaintiffs and son of the fourth, is not sufficient to believe or infer that the ladies-plaintiffs had knowingly/with free mind executed the gift deeds of their valuable landed property and any such transaction lacking any of the three requirements would be invalid and void. Reference in this context can be placed on the cases of Hakim Ali & three others v. Sheikh Muhammad Mazhar Ali (1994 SCMR 1939) and Mst. Azra Sultana v. Mst. Ashran Bibi (2000 PSC 107). The High Court of Peshawar has also followed the same principle in the case of Syed Mustafa Kamal Shah etc v. Syed Feroz Shah etc. (PLJ 1991 Peshawar 87).
There is no evidence on the file to establish that under the gifts the possession of property has been transferred in favour of the defendant. As no relevant and legal issues have been framed to prove the validity of the gift by performing the three requirements of law, we find that for non-framing of issues, the parties could not properly adduce the evidence. The trial Court was under the legal obligation to frame factual, legal and relevant issues arising out of the pleadings of the parties and hence it failed to perform its duty. From scrutiny of the judgment, it is clear that the parties have been prejudiced for not framing the issues correctly. That's why they failed to lead evidence properly. It is the duty of the Court to frame correct issues but the parties were also under duty to make application for amendment of issues. Nevertheless, the Court was bound to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also knows on what fact the evidence should be led. Reference is made to the case of Roazi Khan & others v. Nasir & others (1997 SCMR 1849), Mst. Sughran Bibi & others v. Mst. Jameela Begum & others (2001 SCMR 772). In the case of Ananta Kumar Majumdar & others v. Gopal Chandra Majumdar & others (PLD 1961 Dacca 65), it has been held that plea that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, Rule 1 CPC reveals that it is incumbent upon the Court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. It is the settled principle of law that "action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity. Reference can also be made to the cases of Mst. Hafizan v. Muhammad Yasin & 2 others (1985 CLC 1448), Muhammad Khalid & another v. Muhammad Iqbal & another (2005 CLC 970), Barkat Bibi & others v. Mst. Gaman Bibi & others (2005 MLD 280) and Azizur Rehman v. L.D.A. (1985 CLC 2028), Muhammad Mansha & others v. Sabir Ali (1999 SCMR 1782), Muhammad Iqbal through legal heirs & others v. Khan Muhammad through legal heirs and others (PLD 1999 SC 35), the State v. Asif Ali (1997 SCMR 209), Ghulam Haider & others v. Mst. Raj Bharri & others (PLD 1988 SC 20) and Fateh Khan v. Boze Mir (PLD 1991 SC 782). In the case in hand, we find that proper legal issues have not been framed by the trial Court fully reflecting pleadings of the parties and this important aspect escaped notice of the Courts below.
Where the Courts below have missed the above discussed important features and legal aspects from taking into consideration, the Supreme Court as Court of last appeal would be under legal duty to interfere and correct the irregularity and illegality committed by the Courts below. We are surprised to note that the lower Courts and the High Court had made their observations declaring the deeds validly executed without considering the above referred lacunas in the case.
In view of the above discussion and the pointed out infirmities, illegalities in the judgments of the three Courts, we allow the appeal, set aside the judgments of the three Courts namely the High Court, First Appellate Court and the trial Court and remand the case to the trial Court/Senior Civil Judge, Hasilpur, for fresh decision after framing additional relevant issues taking into consideration the observations of this Court and to provide opportunities to the parties to produce evidence, within one year from the date of receipt of the copy of order of this Court.
These are the reasons for our Short Order of even date whereby this appeal was allowed.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 538
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
MUHAMMAD NADEEM ARIF and others--Petitioners
versus
INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE
and others--Respondents
Civil Petition Nos. 492 to 495 of 2009, decided on 13.5.2009.
(Against the judgment dated 6.3.2009 passed by the Lahore High Court, Lahore, in I.C.A. Nos. 154 to 157 of 2008).
Delay in announcing Judgment--
----Judgment be set aside merely on the ground that it was announced after six months--It is the duty and obligation of the petitioners to point out that by accounting the judgment after considerable delay had caused prejudice to the petitioners. [P. 543] A
Locus Poenitentiae--
----Principle of--Where benefit is awarded to a person in violation of law then principle of locus poenitentiae does not attract. [P. 543] B
Interpretation of Statutes--
----Instructions and statutes must be read as an organic whole--It is no doubt that departmental practice consistently followed by the department with regard to any issue or provision has force of law but it is not absolute in all respect. [P. 545] C & D
PLD 1992 SC 207, ref.
Words and Phrases--
----Approval--Accordingly to the Black's Law Dictionary the expression "approval" means the act of confirmation, ratifying, sanctioning or consenting to same knowledge and exercise of discretion after knowledge. [P. 546] E
Doctrine of "due Process of law"--
----Right of "access to justice to all" is a well recognized inviolable right enshrined in Art 9 of the Constitution and is equally found in the doctrine of "due process of law"--Right includes the right to have a fair and proper trial and a right to have an impartial Court or tribunal--Justice, therefore, can only be done if there is an independent judiciary which should be separated from executive and not at its mercy or dependent on it. [P. 546] F
PLD 1989 Kar. 404 ref.
Promotion--
----Out of turn promotion, as envisaged in the impugned instruction, is not only against Constitution but also against injunctions of Islam--Out of turn promotion in a public department generates frustration and thereby diminishes the spirit of public service--It generates under preference in a good to install the spirit of service of community but it should to be made basis of accelerated promotion--Leave refused.
[P. 547] G
Hafiz S.A. Rehman, Sr. ASC for Petitioners.
Ms. Afshan Ghazanfar, A.A.G. Naseer Baloch, DSP (Legal), Lahore and Fazal Rahim, DSP (Legal), Sheikhupura, for Official Respondents.
Nemo for proforma Respondents.
Date of hearing: 13.5.2009.
Order
Ch. Ijaz Ahmed, J.--We intend to decide captioned petitions by one consolidated judgment having similar facts and law.
Detailed facts of the case are need not to be reproduced as the same have been stated in the impugned judgment as well as in the memo of petitions. However, necessary facts out of which the captioned petitions arise are that petitioners were initially appointed as Constables. Subsequently they were granted one step promotion as Head Constable Instructors on their joining the staff of Police Training School and they claimed confirmation in the rank of Head Constable from the date of one step promotion. The Inspector General of Police vide letter dated 22.3.2008 declined their request on the plea that they had not qualified lower school course and could be detailed for such course on completion of at least 3 years at the training school and after having completed and passed successfully, only then they could be promoted as Head Constable and could retain their rank. Petitioners being aggrieved filed Constitutional Petitions in the Lahore High Court with the prayer that one step promotion be declared promotion for all purposes and they may be allowed to join intermediate training course. The writ petitions were accepted by treating one step promotion of the petitioners as Head Constables as regular promotion in all respects. Petitioners were also held entitled for intermediate training course required for promotion as A.S.I. Respondents Nos. 1 & 2 being aggrieved filed four I.C.As. in the Lahore High Court, Lahore which were accepted vide impugned judgment dated 26-8-2008. Hence the present petitions.
Learned counsel for the petitioners submits that I.C.As. were heard on 26-8-2008 whereas the judgment was announced on 6-3-2009, therefore, the impugned judgment is violative of law laid down by this Court in various pronouncements as the impugned judgment was announced after six months. He further urges that memorandum dated 22-3-2008 is also hit by Article 25 of the Constitution. Respondent No. 1 had withdrawn the Office Order dated 23-2-2002 and office order dated 8-11-2002 through the Memorandum dated 22-3-2008. He further urges that memorandum in question wherein the criteria of promotion on the basis of seniority from the date of passing lower school course was introduced in violation of the previous policy and practice of the department. The Memorandum in question is also in consistent with or in violation of the law laid down by this Court in Qayyum Nawaz Khan's case (1999 SCMR 1594).
The learned Assistant Advocate General, Punjab, submits that selection policy issued by the competent authority vide memorandum dated 8-11-2002/23-2-2002 does not in any way indicate that an official can claim his promotion from the date he joins Police Training School/Police Training Institution. Policy dated 8-11-2002 clearly envisages that his seniority would be reckoned with the batch mates of lower school course. She further submits that learned High Court was justified to hold that aforesaid Office Order dated 23-2-2002 issued by the Inspector General of Police, without approval of the Government of the Punjab, has no legal sanctity. She further submits that all the policies relied upon by the learned counsel of the petitioners were issued by Respondent No. 1 without securing approval from the Government of the Punjab in terms of Section 12 of Police Act, 1861. She further submits that it appears that I.C.As. were heard on 26-8-2008 but the petitioners did not attach order of the Lahore High Court wherein the judgment was reserved. Therefore, the contention of the learned counsel that the judgment was announced after six months does not borne out from the record. Even otherwise no prejudice has been caused to the petitioners as all the contentions raised by the learned counsel for the petitioners were mentioned in the impugned judgment which were rejected by the learned High Court after application of mind with cogent reasons.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is an admitted fact that date of hearing as mentioned in the impugned judgment is 26-8-2008 whereas it was announced on 6-3-2009. It is the duty of the petitioners to bring on record the order of the High Court wherein the judgment was reserved or copy of the relevant register wherein the intimation was sent by the staff of the High Court to the concerned branch that the judgment in question was reserved. However, in the interest of justice and fair play we have considered the contentions of the learned counsel for the petitioners to find out prejudice caused to the petitioners as the impugned judgment was announced after six months. The aforesaid proposition of law was considered and decided by this Court in Muhammad Bakhsh's case (1989 SCMR 1473) and laid down the following principle:--
"No doubt the judgment was announced one year after it had been reserved but we find that the learned judge adverted to all the points as mentioned above. Nevertheless it is proper that once the arguments conclude and the judgment reserved, it has to be announced within reasonable period. We are sure that in future no unnecessary delay will take place in announcement of judgments ".
The aforesaid principle was reaffirmed by this Court in Juma Khan's case (PLD 2002 SC 823) by observing that merely because of the delay in pronouncement of judgment, decision, itself is not vitiated unless and until prejudice has caused to the petitioners. It is also observed that Order XX Rule 1(2) CPC, is directory in nature and not mandatory in nature as observed by this Court in Juma Khan's case. The aforesaid principle was also upheld in Samiul Haq's case (2001 SCMR 1053) in the following terms:--
"While interpreting Rule 31 of Order 41, C.P.C., the learned Division Bench has dealt with all the contentions of the petitioner's counsel in the judgment, therefore, no prejudice was caused to the petitioner. But it is always proper and advisable that after pronouncement of judgment, the High Court would write the judgment without unnecessary delay."
The aforesaid principle has also been followed in Ali Khan Subanpoto's case (1997 SCMR 1590) as depicted from para 10 wherein it is specifically mentioned that no prejudice seems to have been caused to the petitioner. Rule 30 and Rule 31 of Order 41 CPC were examined by this Court in Raja Hamayun Sarfraz Khan' case (2007 SCMR 307) and laid down the following principle:--
"The examination of the above provisions of law and ingredients show that where a law provides for writing, announcing and signing a judgment, all that must be done in a way, to give validity to the judgment."
This Court has also considered the aforesaid provisions of Rules 30 and 31 of Order 41 CPC wherein the impugned judgment was set aside as the same was not announced within six months. See Syed Iftikhar-ud-Din Haider Gardezi's case (1996 SCMR 669 at 673). Even in this case, this Court has observed as under:--
"It is not possible for this Court to determine this matter finally because substantial evidence available on record could not be considered by the High Court to come to some conclusion one way or the other. In other words, it could safely be held that the dispute between the parties was not decided keeping in view the evidence on record."
Similarly at page 675 it has been observed as under:--
"This case is also hit by rule 31 as all the points which were argued and relied upon the learned counsel for the appellants were not considered for their proper determination on the basis of available evidence........ We would also hold that evidence of Saeed Ahmed D. W. was not considered by the High Court the just decision of the appeal. This being so, the appeal of the appellants shall be deemed to be still pending decision before the High Court."
Contrary view has been taken by this Court in Muhammad Ovais' case (2007 SCMR 1587). Even in this case, the Court observed in para 8 as under:--
"In the lengthy arguments addressed before us on merits, we were referred to a bulk of documentary evidence going to the very route of the case which was never found mentioned in the impugned judgment of the High Court. This omission seems to be caused only and only due to the delay of ten months in question."
It is proper to mention here that in the case in hand all the contentions raised before the learned High Court in the impugned judgment were noted, considered and rejected with cogent reasons coupled with the fact that the petitions were heard in the Lahore High Court on 26-8-2008 and judgment was announced on 6-3-2009. The petitioners have not brought on record any document to show that the judgment was reserved on 26-8-2008 by annexing with the petition interim order of the High Court or copy of the concerned register of the Lahore High Court. It is settled law that each and every case is to be decided on its own peculiar circumstances and facts.
In view of the foregoing discussion we do not find any force in the contentions of the learned counsel of the petitioners that the judgment be set aside merely on the ground that it was announced after six months. The ratio of the aforesaid cases is that it is the duty and obligation of the petitioners to point out that by announcing the judgment after considerable delay had caused prejudice to the petitioners. The learned High Court in the impugned judgment after quoting all the relevant cases and provisions of Police Act had given findings of fact that Office order dated 23-2-2002/8-11-2002 was issued by the Inspector General of Police without approval of the Government of the Punjab, therefore, the same has no legal sanctity. Section 12 of the Police Act confers power upon the Inspector General of Police to frame rules after securing approval from the Government of the Punjab. The learned counsel of the petitioners has failed to bring on record any document to show that the memorandum dated 23-2-2002/8-11-2002 or any instructions issued by the Inspector General of Police has the backing of the Government of the Punjab. The said provision was interpreted in Siddiq Akbar's case (PLJ 1999 SC 873 = 1998 SCMR 2013) wherein standing order No. II issued by the Inspector General of Police having not been approved by Provincial Government was devoid of its legal status and was, therefore, of no legal authority by observing that merely because a Standing Order has held ground for a number of years is not sufficient to assume grant of approval. The basic memorandum relating to the policy/rule which was issued by the Inspector General of Police in favour of the petitioners was not valid itself having any legal backing, therefore, learned High Court was justified to declare the same having no legal sanctity. It is settled principle of law that where benefit is awarded to a person in violation of law then principle of locus poenitentiae does not attract as law laid down by this Court in Jalaluddin's case (PLD 1992 SC 207). The departmental construction of statute, although not binding on the Court, can be taken into consideration specially if it was followed by the department consistently and applying this principle Siddiq Akbar's case was decided while interpreting Section 12 of the Police Act on 8-5-1998. The department consistently followed those instructions of the Inspector General of Police which were issued without approval of the Provincial Government. The instructions as well as departmental practice are illegal and violative of the directions or instructions on departmental practice conflicting with the parent statute or rule cannot remain operative and must be ignored even though they have been followed long, have been found to be convenient and have worked fairly in practice. No one is obliged to obey such directions/instructions/ departmental practice. The role of the directions/instructions is to supplement, never to contradict or conflict with rules. A direction/ instruction cannot abridge, or run counter to, statutory provisions. If there is any conflict between the rules and the directions/instructions/ departmental practice, the rules prevails. Instruction or departmental practice cannot amend or supersede the rates. A rule can be amended by another rule and not by a direction/instructions/departmental practice. Therefore, the argument qua department has consistently followed the instructions have no force. The aforesaid dictum is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution.
Petitioners request was declined by the Inspector General of Police vide memorandum dated 22-3-2008 which was challenged by the petitioners by invoking extraordinary jurisdiction of the High Court under Article 199 of the Constitution which was accepted by the learned Single Judge of the High Court vide judgment dated 6-5-2008. The judgment of the learned Single Judge was implemented by the Respondents vide memorandum dated 18-2-2009 in the following terms alongwith others wherein the total numbers are 119:--
"In compliance of the orders of the Lahore High Court issued in writ petitions, following Head Constables are deputed for Intermediate School Course which commenced from 16-2-2009 in Police College, Sihala, subject to the decisions of the Intra Court appeals pending in the Lahore High Court on the subject", 8. The judgment of the learned Single Judge was reversed by the Division Bench of the Lahore High Court vide judgment dated 6.3.2009 which was also implemented by the respondents vide memo dated 6-4-2009 in the following terms:--
"In pursuance of the judgment dated 6-3-2009 passed by the Honourable Lahore High Court, Lahore, in ICA/Appeal No. 154/08 the permission granted to the 126 officials (list enclosed) for joining Intermediate School Course commenced w.e.f 16.2.2009 at Police College, Sihala is hereby withdrawn ".
A constable with the qualification prescribed in para 6 above and not more than 30 years of age and having a minimum of seven years of service may be taken as Head Constable Instructor on one step promotion.
On successful completion of three years tenure he will be sent for lower school course. On successful completion of the lower school course, he will be brought on list C.I. as Head Constable and will be reverted back to his district/unit as Head Constable of list C.I.
His seniority on list C.I. of his district/range/unit would be reckoned with the batch mates of lower school course.
"Due process of law" contained in America constitution meaning and application of doctrine with reference to precedents. Fauji Foundation and another vs. Shamimur Rehman: NLR 1984 SCJ 403
"the term "due process of law " is summarized 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 right 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. Ibid
The seniority is vested right of an employee as laid down by this Court in Anwar Ahmed Lari's case (1990 SCMR 1013), therefore, such deviation is not in consonance with the object and spirit of the Police Act, 1861 read with Articles 4, 5(2) of the Constitution and Article 25 of the Constitution. It appears that the Inspector General of Police had issued instructions off and on without judicial application of mind which is the primary duty of the public functionary in view of the law laid down by this Court in Chairman, Regional Transport Authority's case (PLD 1991 SC 14). After addition of Section 24-A in General Clauses Act, 1887 which was interpreted by this Court laying down the principle that public functionaries must have to pass the orders with reasonable time with reasons after applying independent mind as law laid down by this Court in M/s. Airport Support Services' case (1998 SCMR 2268). The principle of locus poenitentiae has more force than the principle qua the departmental practice followed by the department qua any instructions or rules consistently since long. Even then this Court laid down a law to deviate from the general principle of locus poenitentiae where the action is in derogation of section or law then the locus poenitentia is not absolute as laid down by this Court in Jalaluddin's case (PLD 1992 SC 207).
In view of the aforesaid discussion the said pleas of the learned counsel of the petitioners have no force. The employees of the Police Department are serving in terms of instructions and policy issued by the Inspector General of Police off and on in violation of Section 12 of the Police Act, 1861. In this view of the matter, the Inspector General of Police is well within his right to issue policy/framed rules keeping in view the circumstances and difficulties of the employees under Section 12 of the Police Act, 1861 or Article 122 of Police Order, 2002. The Government offices are like public trust and, therefore, the same should be regulated in fair, transparent and economically so as to promote the sense of public service and thereby to make a welfare state. The public offices should not be held for improper motives. The social justice and economic justice can also be done through fair administrative policies. No policy can be congenial if it breeds corruption. Out of turn promotion, as envisaged in the impugned instruction, is not only against Constitution but also against Injunctions of Islam. Out of rum promotion in a public department generates frustration and thereby diminishes the spirit of public service. It generates undue preference in a public service. Element of reward and award is good to install the spirit of service of community but it should not be made basis of accelerated promotion. Let copy of this order be sent to all the Provincial Police Officers and Islamabad Capital City Police Officer to look into the matter and frame rules to save the agony of police officials/officers as well as to save the public exchequer from unnecessary litigation.
In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment. Therefore, this petition has no merit and the same is dismissed. Leave refused.
(M.S.A.) Leave refused.
PLJ 2010 SC 548
[Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhari, JJ.
BASHIR AHMAD--Appellant
versus
FIDA HUSSAIN & 3 others--Respondents
Crl. Sh. A. No. 15 of 2004, decided on 16.4.2009.
(On appeal against the judgment dated 12.11.2003 passed by the Federal Shariat Court in Criminal Appeal No. 174-I of 2002).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 12--Pakistan Penal Code, (XLV of 1860), Ss. 302, 34 & 377--Trial Court acquitted accused for offences u/Ss. 302/34, PPC and S. 12 of Offences of Zina (E.O.H) Ordinance, 1979--Federal Shariat Court upheld acquittal order of trial Court--Held: Extra judicial confession is a weak type of evidence and it must receives strong corroboration from other evidence produced by the prosecution otherwise it can not be relied upon--Prosecution had not explained that why witness to the extra judicial confession was not produced as a witness at the trial stage, rightly disbelieved by trial Court--Deceased was subjected to sodomy and thereafter murdered--It does not connect the offences with the accused--Findings of acquittal cannot be reversed merely because a different conclusion is also possible where in the present case, no other Conclusion was possible--Appeal dismissed.
[Pp. 551, 552 & 553] A, B & C
PLD 1985 SC 11, ref.
Mr. Shoaib Shaheen, ASC & Malik Mumtaz Hussain Jai, ASC for Appellant.
Mr. Muhammad Saleem Malik, ASC a/w Respondents No. 1-3 present in Court.
Ch. Munir Sadiq, DPG Punjab for State.
Date of hearing: 16.4.2009.
Judgment
M. Javed Buttar, Chairman.--This appeal, by leave, is directed, against the judgment dated 12.11.2003 passed by learned Federal Shariat Court, whereby Criminal Appeal No. 174-I of 2002 filed by the appellant/complainant Bashir Ahmad against Respondents No. 1 to 3 was dismissed and the respondents' acquittal as recorded by the trial Court was upheld.
Respondents No. 1 to 3 namely Fida Hussain, Muhammad Ismail and Abdul Ghafoor were tried by Hon. Additional Sessions Judge, D.G Khan in case FIR No. 459 of 1997 dated 26.10.1997 registered at Police Station Sadar, D.G Khan at 10.30 a.m. for the offence under Sections 302/34, 377 PPC and Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at the instance of complainant Bashir Ahmad (PW-4) for an occurrence alleged to have taken place in the intervening night of 20/21-5-1997 in which the complainant's son Kaleem Ullah (17/18 years) was murdered after the commission of the offence of sodomy upon him, allegedly by the afore-said respondents. The learned trial Court vide its judgment dated 10.7.2002 acquitted the said respondents.
On 21.5.1997 the complainant was informed that the deceased had died in a train accident. Afterwards, he found that the deceased had gone with his friend Muhammad Ismail (Respondent No. 2) and the witnesses had seen deceased going with him. The complainant further alleged in the FIR that Fida Hussain (Respondent No. 1) and Muhammad Ismail (Respondent No. 2) had made extra judicial confession of their guilt about commission of sodomy and murder of the deceased before PW-5 Nazir Ahmad (uncle of the deceased) and Hafiz Allah Wasaya (not produced). On the basis of the information received, the complainant lodged the report on 26.10.1997 which became basis of the FIR.
We have heard learned counsel for the appellant, learned counsel for Respondents No. 1 to 3, learned Deputy Prosecutor General, Punjab and have also seen the available record with their able assistance.
It is submitted by learned counsel for the appellant that the judgment passed by learned Federal Shariat Court which is impugned before us is too sketchy and it does not disclose any reasons for dismissing the appellant's appeal, no evidence was discussed and the judgment passed by the learned trial Court was mechanically followed. On merits, it is submitted that the prosecution was able to prove its case beyond any reasonable doubt against the respondents/acquitted accused through the evidence of last seen furnished by PW-8 Muhammad Bakhsh (first cousin of complainant) and PW-10 Muhammad Bilal (brother of complainant), the evidence of extra judicial confession made by Respondents No. 1 & 2 furnished by PW-5 Nazir Ahmad (uncle of the deceased), the recoveries of the articles belonging to the deceased from the spot and the medical evidence and the due weight has not been given by Courts below to the evidence available on record.
Learned counsel representing Respondents No. 1 to 3 while supporting judgments passed by the Courts below, has submitted that it was an un-witnessed occurrence and the prosecution based its case against the accused merely on the basis of the suspicion and hearsay. He has also placed his reliance Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), in which guidance has been provided by this Court in regard to the interference to be made by the Courts against the judgments of acquittal.
Learned Deputy Prosecutor General, Punjab while opposing the appeal, has submitted that there is no illegality or perversity in the judgment of acquittal impugned before this Court, that it is a case of circumstantial evidence and in such like cases every link in chain from the deceased and place of occurrence to the neck of the accused has to be established whereas in the present case, no such chain has been established and many links are missing.
We have given our anxious consideration to the entire facts and circumstances of the case. The prosecution case is based on the evidence of last seen furnished by PW-8 Muhammad Bakhsh and PW-10 Muhammad Bilal, close relatives of the complainant, the evidence of extra judicial confession furnished by PW-5 Nazir Ahmad another close relative of the deceased and the complainant, the evidence of recoveries and the medical evidence.
The evidence of last seen furnished by PW-8 Muhammad Bakhsh and PW-10 Muhammad Bilal does not inspire confidence. Muhammad Bakhsh is first cousin of the complainant and Muhammad Bilal is brother of complainant. Had they seen the deceased in the accompany of the accused on the night when the deceased was murdered, they would have informed the complainant the next day when the dead body of the deceased was discovered but they did not do so. PW-8 stated in the cross-examination that he could not mention the exact date when he passed the above information to the complainant. He however, stated that he informed the complainant few days after the occurrence. Similarly, PW-10 Muhammad Bilal also did not immediately disclose the above information of having last seen the deceased in the accompany of the accused, to the complainant and did not go to the Police. Statements of both the witnesses were recorded by the Police under Section 161 Cr.P.C. during proceedings under Section 174 Cr.P.C. in which they did not state that they had seen the deceased in the accompany of the accused in the night in which he was killed. In our opinion, the evidence of last seen produced by the prosecution was, therefore correctly disbelieved by the trial Court.
As regards the evidence of extra judicial confession allegedly made by the respondents Muhammad Ismail and Fida Hussain before PW-5 Nazir Ahmad, the uncle of deceased, the same is also not believable and seems to be a concoction. He stated that both the above mentioned accused made extra judicial confession before him on 17.10.1997 in his baithak in presence of PW Hafiz Allah Wasaya (not produced). He further stated that after the extra judicial confession made by the accused, he and PW Allah Wasaya went to the complainant on the same day and narrated him the entire story. It is not understandable that thereafter, why the complainant remained silent till 26.10.1997 and lodged the report with the Police on 26.10.1997 and why he did not straight away go to the Police. Extra judicial confession is a weak type of evidence and it must receives strong corroboration from other evidence produced by the prosecution otherwise it cannot be relied upon. The prosecution has not explained that why PW Allah Wasaya who was a witness to the extra judicial confession, was not produced as a witness at the trial stage. The learned trial Court has dealt with the evidence of extra judicial confession as under:
"35. The second evidence is of extra judicial confession. Nazir Ahmad is real uncle of the deceased brother of the complainant. According to evidence the accused approached him prior to the registration of case and requested ham for pardon. Nazir Ahmad was accompanied by Allah Wasaya PW at the time of this extra judicial confession. He was sitting in his baithak consisting of two rooms. The accused went to adjacent room turn by turn. Nazir Ahmad PW summoned Allah Wasaya due to fear and in the presence of Nazir Ahmad and Allah Wasaya they made the extra judicial confession and it is not recorded in the evidence that the accused were armed with any sort of weapons at the said time. This evidence also does not appeal to my mind. Why the accused has gone to Nazir Ahmad PW.5 before the registration of the case five months after the occurrence in order to confess their guilt. The case was not registered till 26.10.97. Even application for registration of the case was moved by the complainant to the SSP, DG Khan on 18.10.97. There was no fun to disclose the commission of offence on the part of Muhammad Ismail and Fida Hussain accused prior to the registration of case when the occurrence took place in May, 1997. More over it is quite difficult to go to brother or uncle of the deceased to confess the guilt of the commission of offence and the latter may be furious and some incident can take place. Extra judicial confession is weak type of evidence and it must receive strong corroboration from the other evidence produced by prosecution and it is established law and then it can be relied upon".
"36. Third type of evidence is recovery of articles of the deceased from the said choubara. Again this evidence cannot be believed. First of all why the accused have taken away ring and purse of the deceased when they allegedly took the unconscious boy and they were intending to throw it on the railway line. For a while if it is admitted that they did so then why they did not destroy this purse and ring during the period of five months. If it is admitted that they committed the offence and made extra judicial confession on 17.10.97 before real uncle of the deceased then why they did not destroy the evidence till 26.10.97 date of registration of case and these articles remained in the said choubara so that Jamil Ahmad the most incompetent and inefficient I.O. will come and recover these articles and these should be treated as important piece of evidence against the accused. Muhammad Jamil SI has not completed legal formalities in order to prove before this Court that the said choubara is owned by the accused or was in their possession on rent during the days of commission of offence. There is no mention of these articles of the deceased even in FIR Ex.P.F recorded five months after the occurrence."
We do not find any fault in the reasoning given by the trial Court.
The medical evidence per se is inconsequential. It merely shows that the deceased was subjected to sodomy and was thereafter murdered. It does not connect the said offences with the accused/respondents.
Learned trial Court after having discussed the entire evidence concluded that the prosecution had miserably failed to prove its case against accused/respondents beyond any reasonable doubt. Learned Federal Shariat Court found that the reasons given by the trial Court were neither arbitrary nor perverse. We affirm the findings of the learned Federal Shariat Court. We do not find any misreading/non-reading of evidence or legal infirmity in the judgments of both the Courts below whereby concurrent findings have been recorded in favour of respondents/accused. The conclusions drawn by the Courts below are neither perverse nor shocking. They are based on the material available on record. The findings of acquittal cannot be reversed merely because a different conclusion is also possible whereas in the present case, in our view, no other conclusion was possible. In the case of Ghulam Sikandar and another (supra), this Court provided the guidance as under:
"(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous".
In view of the above mentioned, we find no merit in this appeal which is dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2010 SC 554
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
GOVERNMENT OF PAKISTAN through the D.G. Ministry of Interior, Islamabad and others--Appellants
versus
FARHEEN RASHID--Respondent
Civil Appeal No. 538 of 2009, decided on 26.5.2009.
(On appeal from the judgment dated 17.11.2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 961(R)CS/2006)
General Clauses Act, 1897 (X of 1897)--
----S. 24-A--After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to decide the case of their subordinates after application of mind with cogent reasons within reasonable time. [P. 558] A
1998 SCMR 2268 and 1991 SCMR 2330, Ref.
Constitution of Pakistan, 1973--
----Arts. 4 & 5(2)--Bound to obey the command of Constitution--It is the inalienable right of every citizen to be treated in accordance with law as envisaged by Art. 4 of the Constitution--It is the duty and obligation of the public functionaries to act with in the four corner of the mandate of the Constitution and law--Even the Chief Executive of the country is not above the Constitution and is bound to obey the command of the Constitution as envisaged under Art. 5(2) of the Constitution. [P. 559] B
PLD 1975 SC 383; PLD 1995 SC 530 & PLD 1969 SC 14, Ref.
Charge Sheet--
----Scope of--A charge sheet is precise formulation of the specific accusation made against a person who is entitled to know its nature at the early stage--Object of the charge sheet is to tell an accused as precisely or and concisely as possible the matter in which she is charged and must convey to her with sufficient clearances and certainty what the department intends to prove against her and of which she will have to clear herself during the disciplinary proceedings. [P. 559] C
Constitution of Pakistan, 1973--
----Art. 212(3)--Supreme Court has no jurisdiction to substitute its own finding in place of finding of tribunals below while exercising power under Art. 212(3) of the Constitution--Respondent has not filed petition before Supreme Court against the impugned judgment--Supreme Court were not inclined to set aside the minor penalty awarded to the respondent by Federal Service Tribunal--Appellants had failed to raise any substantial question of law of public importance as contemplated under Art. 212(3) of the Constitution--Appeal dismissed. [P. 560] D
Khan Dil Muhammad Alizai, D.A.G. for Appellants.
Respondent in person.
Date of hearing: 26.5.2009.
Order
Ch. Ijaz Ahmed, J.--This appeal is directed against the impugned judgment dated 17-11-2008 whereby the appeal of the respondent was accepted partly and her major penalty of dismissal from service was converted into minor penalty of stoppage of annual increments for a period of two years without cumulative effect by the Federal Service Tribunal, Islamabad.
"You ASI (under suspension) Ms. Farheen Rasheed found the wallet of one Mr. Muhammaad Qasim-Bin-Ghalib but you did not immediately report the incident to Shift and arrival in charge, rather kept the wallet for several hours, though the complainant right after losing his wallet come over to your counter several times, however, your did not bother to inform him of finding the wallet."
"Keeping in view the above narrated facts, statement of witnesses and collection of record reveals that ASI Farheen Rashid has been found guilty of the charges leveled against her. Departmental/legal action is suggested against her."
"For what has been discussed above, the accused official does not deserve any leniency as she has hopelessly lost the scope of safeguarding the State interest in future also. If the accused official is allowed to continue with the service, she will commit such acts again causing embarrassment to the FIA. Therefore, in terms of provisions envisaged in Removal from Service (Special Powers) Ordinance, 2000 and enactment thereto the undersigned in capacity of Inquiry officer is constrained to recommend imposition of major penalty of "Dismissal" from service upon the accused official. Moreover, a criminal case of theft or misappropriation if deemed necessary, may also be registered against the accused official with concerned Police Station in order to recover the stolen 8000 UAE Dirham of the complainant."
"Leave to appeal is granted, inter alia, to consider that the reasons advanced by the learned Tribunal in converting the dismissal of service into minor penalty of stoppage of two increments for a period of two years was justified under the facts and circumstances of the case in view of the allegation that she on having found the wallet of Mr. Muhammad Qasim-Bin-Ghalib did not immediately report about the incident to shift and arrival Incharge, rather kept the wallet for several hours though the complainant right after losing his wallet had come over to her counter several times but she did not bother to inform him of finding the wallet."
The learned counsel for the appellants submits that the learned Federal Service Tribunal erred in law to convert the penalty of respondent merely on surmises and conjectures without judicious application of mind.
Respondent submits that the learned Federal Service Tribunal was justified to convert her major penalty into minor penalty after considering each and every piece of evidence on record.
We have given our anxious considerations to the contentions of the learned counsel for the appellants and also heard the respondent. It is pertinent to mention here that the Inquiry Officer Ch. Zulfiqar Ali, Assistant Director Legal, FIA, had submitted report to the competent authority on 13-7-2006 which has already been mentioned herein above wherein it was recommended that criminal case be also registered against the respondent with the concerned police station in order to recover the stolen 8000 UAE Dirham of the complainant. There is no allegation qua theft of the aforesaid amount in the charge sheet and show cause notice. The competent authority dismissed the respondent on 28-7-2006 by countersigning the report of the Inquiry Officer as is evident from para 3 of the dismissal order dated 28-7-2006.. See Ghulam Mohi-ud-Dincase (PLD 1964 SC 829). The learned service Tribunal although had converted the major penalty of dismissal into minor penalty as mentioned above yet the Service Tribunal had also not examined the facts that the charge sheet and show cause notice issued by the appellant to the respondent were defective. After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to decide the cases of their subordinates after application of mind with cogent reasons within reasonable time as law laid down by this Court in M/S Airport support Services case (1998 SCMR 2268 ) and Aslam Warraich case (1991 SCMR 2330). It is the duty and obligation of the Federal Service Tribunal to decide the appeal of the respondent after application of mind with reasons as law laid down by this Court in Gouranga Mohan Sikdar case (PLD 1970 SC 158). The relevant observation is as follows:--
"It is not for us to express any opinion as to the respective merits of the opposing contentions advanced before us but we have merely indicated them in order to show that this was not such a simple question as could have been disposed of by merely saying that there is no substance in the application.
Such an order, we regret to say, does not disclose a proper application of the mind of the High Court to the merits of the case that was before it."
There is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty offhand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. 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 though and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable."
"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."
(i) Zulfiqar Ali case (PLD 1988 SC 693)
(ii) Muhammad Idrees Khan case (2006 SCMR 104)
(iii) Akif Javed case (2005 SCMR 752)
It is settled principle that this Court has no jurisdiction to substitute its own finding in place of finding of tribunals below while exercising power under Article 212(3) of the Constitution. It is pertinent to mention here that respondent has not filed petition before this Court against the impugned judgment, therefore, we are not inclined to set aside the minor penalty awarded to the respondent by the learned Federal Service Tribunal. The learned counsel for the appellants has failed to raise any substantial question of law of public importance as contemplated under Article 212(3) of the Constitution.
In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment, therefore, the appeal has not merits and the same is dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2010 SC 560
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
RAJA KHAN--Petitioner
versus
MANAGER (OPERATION) FAISALABAD ELECTRIC SUPPLY COMPANY (WAPDA) and others--Respondents
Civil Petition No. 636 of 2009, decided 21.5.2009.
(Against the judgment dated 11.2.2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 445(R)CE/2005).
Removal from Service (Special Powers) Ordinance, 2002--
----S. 5(4)--Constitution of Pakistan, 1973, Art. 212--Leave to appeal--Federal Service Tribunal dismissed on merits as well as time barred and confirm the order of departmental authorities to award him major penalty of compulsory retirement from service--Held: Finding of service tribunal having findings of fact would not call for interference by Supreme Court--Even Supreme Court does not interfere with the concurrent findings of fact arrived at by the departmental authorities and service tribunal while exercising the power under Art. 212(3) of the Constitution. [Pp. 563 & 564] A & B
Constitution of Pakistan, 1973--
----Art. 212(3)--Limitation--Civil servant--When an appeal of the employee was time barred before the appellate authority then the appeal before the tribunal was also not competent. [P. 564] C
Constitution of Pakistan, 1973--
----Art. 212(3)--Constitutional jurisdiction under Art. 212 (3) is discretionary in character. [P. 565] D
Leave to Appeal--
----Grant of leave to appeal is discretionary. [P. 565] E
Constitutional jurisdiction--
-----Constitutional jurisdiction against void order may be refused if it was meant to enable petitioner to circumvent provisions of law of limitation or if he was estopped by his conduct from challenging of order--Leave refused. [P. 565] F
1991 SCMR 255; 2005 SCMR 806; PLD 1990 SC 951; 2007 SCMR 513; 1983 SCMR 1689; 1969 SCMR 141 & PLD 1947 SC 106 Ref.
Mr. Haider Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 21.5.2009.
Order
Ch. Ijaz Ahmed, J.--Raja Khan, petitioner, seeks leave to appeal against the impugned judgment dated 11.2.2009 whereby the learned Federal Service Tribunal, Islamabad, dismissed his appeal on merits as well as time barred.
"1. Whereas you Mr. Raja Khan, Chowkidar PESCO (WAPDA) Jhang Circle Jhang are charged with misconduct as per statement of allegations attached.
And whereas on the basis of documentary evidence available, it is not considered necessary to have formal inquiry against you and that proceedings are being initiated under Section 5(4) of the Removal from Service (Special Powers) Ordinance 2002 which might entail imposition of a major penalty of dismissal from service as specified in Section 3 of the said ordinance.
Now, therefore, you are required to show cause within 15 days from the date of receipt of this notice as to why the proposed action should not be taken against you.
If no response is received from you within the time stipulated above, it would be presumed that either you have no defence to offer and/or you have willfully declined to do so. The case shall then be decided on `ex-parte' without further reference.
Whereas you Mr. Raja Khan, Chowkidar, PESCO Jhang Circle Jhang are charged with gross misconduct, inefficiency, corruption and mal practices for the following charges and other relevant circumstances.
As per report of Mr.Shahzad Nasir, Telephone Attendant and Mr.Ghulam Abbas Bhatti Telephone Attendant PESCO Jhang Circle Jhang. You are absent from duty w.e.f. 6.2.2004 to 17.2.2004 without intimation/prior permission/sanction leave from the Circle Superintendent/Technical Officer/ and by the undersigned.
If any mishap/incident create in Circle office, how are responsible. You are already so many times directed to present in the officer after closing hours but you have failed in official duties.".
Petitioner submitted reply to the show cause notice and admitted that he was absented from duty on account of illness. The competent authority after providing him personal hearing awarded major penalty of compulsory retirement from service w.e.f. 31.3.2004 vide order dated 29-3-2004. Petitioner being aggrieved filed departmental appeal on 6-4-2004 before the appellate authority who dismissed the same as time barred vide order dated 10-11-2004. Thereafter the petitioner filed another appeal before the Managing Director Power on 8-12-2004 which was dismissed vide order dated 4-2-2005 on the ground that there is no provision of second appeal "further appeal" under the rules. Petitioner being aggrieved file Appeal No. 445(R)CS/2005 in the Federal Service Tribunal, Islamabad, on 12-4-2005 which was dismissed vide impugned judgment dated 11.2.2009. Hence the present petition.
Learned counsel for the petitioner submits that the impugned order of dismissal of the petitioner dated 29.3.2004 was passed by incompetent authority, therefore, the same was corum non judice and without lawful authority. He further urges that impugned order of the department was void, therefore, no limitation would run against such type of order. It can be agitated at any time and could be ignored being a void order. Learned Service Tribunal had not adverted to this aspect of the case, therefore, the impugned judgment was passed by the learned Service Tribunal without application of mind.
We have given our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record. It is an admitted fact that show cause notice was served upon the petitioner under the provisions of Removal from Service (Special Powers) Ordinance, 2002 wherein it is specifically provided under the provisions of the Ordinance that petitioner has to file departmental appeal within the prescribed period of 15 days. The order of compulsory retirement was passed by the competent authority on 29.3.2004. The petitioner filed departmental appeal on 6.4.2004 which was dismissed as time barred on 10-11-2004. Thereafter the petitioner filed second appeal before the Managing Director on 8-12-2004 which was also dismissed on 4-2-2005 in the following terms:--
"It is to inform you that your appeal under reference does not merit consideration as there is no provision of second appeal "further appeal" under the rules."
"He challenged his first compulsory retirement through a review application filed on 23rd of October, 1974, which was decided on 3-6-1975. This was the final older passed on review. It could be challenged within 30 days, before the Tribunal under Section 4 of the Service Tribunals Act. If the appellant chose not to file an appeal but only to repeat a representation before the same authority who had decided the review, that by itself would not give him another cause of action to file an appeal under Section 4. The period spent in making the representation this second or any other representation after the decision of the review application, could not be excluded as of right in counting the period of limitation..............The review petition filed by the respondent in that behalf was decided on 13-6-1978. Instead of filing an appeal before the Tribunal under Section 4 within 30 days of this final order passed on review, he made another representation which caused further delay. The period consumed during the processing of the subsequent representation could not be excluded as of right. And there being no condonation on any good ground by the Tribunal, the appeal fled on 14-1-1979, was clearly time barred and should have been dismissed accordingly".
Muhammad case (1998 SCMR 1354), Messrs Raja Industries case (1998 SCMR 307)
Mst. Sirajun-Munira case (1998 SCMR 785)
Rs. 155733/- as well as monthly pension. He also received his monthly pension regularly. Petitioner preferred appeal before the Service Tribunal on 12-4-2005. This fact was also noted in the impugned judgment in para 10. Even on merits the learned Service Tribunal was justified to dismiss his appeal on the well known principal of "approbate and reprobate." See Haji Ghualm Rasul case (PLD 1971 SC 376). The learned Service Tribunal was justified to dismiss his appeal on the well known principle of estoppel keeping in view subsequent events. See Mst. Amina Begum case (PLD 1978 SC 220).
"We have seen placed on the record a number of documents which indicate the service record of the appellant. From 1989 to 27.3.2003, the appellant has been punished for unauthorized absence as many as eight time. The punishment included censure, stoppage of one annual increment for one year (1983), reduction to three lower stage in time scale for a period of three years (1990), stoppage of one annual increment for one year (1993), stoppage of one annual increment for one year (1993) and stoppage of annual increment for one year (1995) ".
Muhammad Ismail case (1983 SCMR 168)
Abdur Rshid case (1969 SCMR 141)
Wali Muhammd case (PLD 1974 SC 106)
Keeping in view the conduct of the petitioner mentioned herein above in para 10 of the impugned judgment we are not inclined to exercise our discretion in favour of the petitioner on the well known maxim that he who seeks equity must come with clean hands as law laid down by this Court in Nawab Syed Raunaq Ail case (1973 SC 236).
In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment. Even otherwise the learned counsel has failed to raise any question of public importance in the present case as contemplated under Article 212(3) of the Constitution. The petition has no merit and the same is dismissed. Leave refused.
(M.S.A.) Leave refused.
PLJ 2010 SC 566
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
MUHAMMAD AKRAM & 9 others--Petitioners
versus
MUHAMMAD YOUSAF & another--Respondents
Crl. Petition No. 17-Q of 2007, decided on 11.5.2009.
(On appeal from the judgment dated 10.5.2007 of the High Court of Balochistan, Quetta, passed in Criminal Revision No. 97/2006).
Illegal Dispossession Act, 2005--
----S. 3--Preventive provisions--Prohibitory mandate--There is no restriction as to the class of person--All persons have been prohibited to commit the offence detailed in this provision, be he male or female.
[P. 568] A
Illegal Dispossession Act, 2005--
----S. 3(2)--Scope of--Provisions of S. 3(2) is salutary and mandatory--It is with the purpose to alleviate the suffering and is also effective deterrent against--Legislative has taken full case to close all doors of any injustice to the parties--Ingredients of offence under Section 3 of Illegal Dispossession Act 2005 and its defences enumerated--Leave refused. [P. 569] B
Mr. Mehta W.N. Kohli, AOR, for Petitioners.
Mr. Naeem Akhtar Afghan, ASC for Respondent No. 1.
Date of hearing: 11.5.2009.
Judgment
Ijaz-ul-Hassan, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, calls in question a Judgment dated 10.05.2007, passed by learned Judge in Chambers in the High Court of Balochistan, Quetta disposing of Criminal Revision Petition No. 97/2006, arising out of a complaint under the Illegal Dispossession Act, 2005 preferred on behalf of Muhammad Yousaf, Respondent No. 1 against Muhammad Akram and others, petitioners.
Facts of the case as gathered from the record precisely stated are, that Muhammad Yousaf, Respondent No. 1, filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 before the Sessions Judge, Lasbella at Hub on 14.06.2006, alleging therein that he is recorded owner of the property measuring 8 acres 3 rods 34 poles under survey No. 159/1, situated at Mouza Sakran, Tehsil and District Lasbella; that Juma Khan, predecessor-in-interest of the petitioners was allowed to reside temporarily in a portion of land measuring 400 sq. yards and after his demise in the year 1959-60, petitioners were allowed to stay thereon; that petitioners started collecting material at property in question to raise construction and that the petitioners were asked to vacate but they declined to do so, compelling Respondent No. 1 to file a complaint against them.
Record reveals that learned Sessions Judge, recorded statement of Respondent No. 1 on oath on 14.06.2006 and referred the matter to the SHO concerned for inquiry and report, who on 06.07.2006 submitted his report. This report was duly supported with the report of Tehsildar and other officials. At the conclusion of the trial, through Judgment dated 12.09.2006, learned Sessions Judge came to the conclusion that Respondent No. 1 was illegally dispossessed and property was grabbed by the petitioners in contravention of Section 3 of the Illegal Dispossession Act, 2005. He accepted the complaint and directed the petitioners to restore the possession of the property to Respondent No. 1 without any delay. Petitioners, feeling aggrieved thereby, filed Criminal Revision Petition in the High Court of Balochistan, Quetta, which was disposed of through the judgment impugned herein.
We have heard at length Mr. Mehta W.N Kohli, learned AOR for the petitioners and Mr. Naeem Akhtar Afghan, learned ASC for Respondent No. 1 in the light of the material on file.
It is mainly contended by learned counsel for the petitioners that Judgment of learned Single Judge of the High Court of Balochistan, Quetta is against law, facts and justice; that learned Judge exercised his jurisdiction by failing to take into consideration that the claim of Respondent No. 1 did not fall under the provisions of Section 3 of the Illegal Dispossession Act, 2005 and thus the matter between the parties being of civil nature, was exclusively triable by the Civil Court and that the findings arrived at by the learned Single Judge in Chambers is the result of mis-reading and non-reading of evidence and mis-application of law and cannot be allowed to remain intact.
Learned counsel for Respondent No. 1 in reply, opposed the arguments of learned counsel for the petitioners and supported the impugned judgment whole heartedly maintaining that the petitioners without permission illegally and unlawfully stored material for raising construction upon the respondent's property and the trial Court after taking into consideration the report of SHO as well as other material on record rightly accepted the complaint of Respondent No. 1 and directed for restoration of possession.
A careful perusal of the record would reveal that predecessor-in-interest of the petitioners namely Juma Khan was allowed to reside on a piece of land measuring 400 sq. yards purely on temporary basis. The report of the SHO indicates that father of Respondent No. 1 is recorded owner of the property measuring 8 acres 3 rods and 4 poles falling under Khasra No. 159/1 and on some portion of land houses of petitioners and others exist. The settlement operation of the area was made in the year 1969-70 and the property was initially recorded in the name of late Jam Mir Ghulam Qadir, who, subsequently, vide mutation No. 4 dated 13.07.1970 transferred the entries in the name of father of Respondent No. 1. The material on record clearly establishes that petitioners without permission of Respondent No. 1 illegally and unlawfully encroached upon the property in question and started collecting material for raising construction thereon. The High Court has recorded a detailed and comprehensive judgment, dilating upon every aspect of the case. The provisions of subsection (1) of Section 3 of the Illegal Dispossession Act, 2005 are in the form of preventive provisions. The section beings with the words: "no one shall...". This is a prohibitory mandate. There is no restriction as to the class of person. All persons have been prohibited to commit the offence detailed in this provision, be he male or female. In order to constitute an offence under Section 3(1) of the Illegal Dispossession Act, 2005, the complainant is to allege and show before the Court:--
(i) That the complainant is the actual owner (or occupier i.e in lawful possession) of the immovable property in question.
(ii) That the accused has entered into (or upon) the said property.
(iii) That the entry of the accused into (or upon) the said property is without any lawful authority.
(iv) That the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant.
The defense line for the accused can be:--
(1) That the complainant is not the actual owner of the property.
(2) That the entry of the accused into the property is not to dispossess the complainant.
(3) That the accused has the lawful authority to enter into the property.
(4) That the accused had no intention to dispossess the complainant.
The law has made it clear that a person who is proved guilty shall not save him from the punishment for which he may be liable under any other law for the time being in force.
The provisions of Section 3(2) is salutary and mandatory. It is with the purpose to alleviate the suffering and is also effective deterrent against (sic). The legislative has taken full care to close all doors of any injustice to the parties. It was observed by this Court in case of Rahim Tahir vs. Ahmed Jan & two others (PLD 2007 Supreme Court 423)--
"the Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would veal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum."...................... "The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants."
In view of above finding, no substance in this petition, we dismiss the same and decline to grant leave.
(M.S.A.) Petition dismissed.
PLJ 2010 SC 570
[Appellate Jurisdiction]
Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ.
MUHAMMAD KHAN--Appellant
versus
SALEHUN alias SALEH MUHAMMAD--Respondent
Civil Appeal Nos. 1177-1178 of 2003, decided on 1.7.2009.
(On appeal from the judgments dated 6.11.2002 of the Lahore High Court, Lahore passed in RSA No. 13/99 and S.R. 313-D of 1999).
Limitation Act, 1908 (IX of 1908)--
----S. 14--Object of--Bar of limitation, to a person who honestly did his best to get his case tried on merits but failed because the Court was unable to give him such a trial--Time during which another civil proceeding was being prosecuted with due diligence against the same party for the same relief in good faith, in a Court which for defect of the jurisdiction or other cause of alike nature was unable to entertain it, can be excluded--Section 14 of the Act comes into play if the following conditions are fulfilled: (a) that the plaintiff had been prosecuting another civil proceeding against the defendant (b) that he had been prosecuting it with due diligence, (c) that the present proceeding is founded upon the same cause of action (d) that it was prosecuted in good faith (e) that it did not bear fruit because the Court was unable to entertain it due to defect of jurisdiction or other cause of alike nature--Appeal allowed. [P. 574] A
Mr. Akhtar Masood Khan, ASC for Appellant (in both cases).
Mr. Ghulam Hussain Awan, ASC for Respondent (in both cases).
Date of hearing: 1.7.2009.
Judgment
M. Javed Buttar, J.--These appeals, by leave, are directed against the judgment dated 06.11.2002 passed by an Hon'ble Judge in Chambers of Lahore High Court, Lahore, whereby RSA No. 13 of 1999 and Civil Revision No. 313-D of 1999 both filed by the appellant were dismissed. The leave to appeal in both the petitions was granted by this Court on 10.06.2003. The leave granting order describes the relevant facts and the issues involved with brevity and for convenience sake the same is re-produced below:--
"By this common judgment, we propose to decide both these petitions involving identical questions of law and facts.
The respondent on 8.8.1988 filed suit for specific performance of agreement of sale dated 13.12.1976 allegedly executed by the petitioner in his favour regarding sale of land for an amount of Rs.50,000/- out of which an amount of Rs.44000/- was shown to have been allegedly paid as earnest money at the time of alleged execution thereof. It was contested by the petitioner on merits and on the ground of limitation as well. The petitioner filed counter suit for recovery of possession of the land in dispute which was consolidated with the said suit filed by the respondent for specific performance of agreement.
Before filing the suit, the respondent on 31.1.1977 filed an application for making an award rule of the Court which was obtained by him from an arbitrator allegedly appointed to resolve the dispute of sale of land in dispute. It was contested by the petitioner on the ground that apart from the fact that there was no arbitration agreement, the agreement of sale dated 13.12.1976 in relation to which the said award was obtained, was also forged document. This plea was accepted by the Court and the said application dismissed through order dated 21.6.1981 against which appeal filed by him dismissed on 22.3.1984. The respondent approached the High Court by filing revision petition which was also dismissed on 24.4.1984 against which he filed civil petition for leave to appeal before this Court which was dismissed through judgment dated 10.7.1988 with the observation that as regards finding that agreement of sale was a forged document should not have been recorded in these proceedings, therefore, the respondent may if so wanted seek remedy on the basis of the said agreement of sale. It was in these circumstances that on 8.8.1988, he filed suit for specific performance of the said agreement of sale.
Both the suits were consolidated by the trial Court and consolidated issues were framed on 11.5.1992. Initially, Issue No. 3 pertaining to limitation was ordered to be tried as preliminary issue but subsequently the trial Court decided to record evidence on the other issues also and thereafter to decide the case as a whole. The evidence of the respondent-plaintiff was concluded on 18.10.1993. After availing two/three opportunities, the petitioner did not produce evidence, therefore, his evidence was closed on 19.1.1994 and the suit of the respondent of specific performance was decreed by the trial Court on 27.1.1994 whereas the counter suit filed by the petitioner for possession of land was dismissed. Two appeals filed by the petitioner were dismissed by the first appellate Court through judgment dated 5.12.1998 against which he filed regular second appeal in the suit of specific performance and a revision petition in the suit filed by him for possession of the land. Both of them have been dismissed through the consolidated impugned judgment dated 6.11.2002 against which leave is sought.
Learned counsel for the petitioner, inter alia, contended:--
(a) that issue of limitation, has not been correctly decided in accordance with law, for all the Courts below had mechanically proceeded on the assumption as if the observation made by this Court in the judgment dated 10.7.1988 that the petitioner could seek remedy of specific performance of agreement did constitute an expression of opinion or a decision about condonation of delay in filing the suit whereas the question of limitation should have been decided independently keeping in view the facts and circumstances of the case;
(b) that Section 14 of the Limitation Act has not been properly construed and applied in its true perspective and terms and on relevant consideration inasmuch as the previous proceedings initiated by the respondent under the garb of an arbitration agreement suffered from malafides and was an attempt to indirectly by under hand means to get a decision could not be held by any stretch of imagination or law to be proceedings prosecuted in good faith;
(c) that even if the evidence of the petitioner had been closed but the certified copies of the proceedings in the previous arbitration matter were produced in evidence as Exh. D1 to Exh. D4 in which a finding had been recorded that there was no arbitration agreement but the Courts below did not apply their mind to this aspect of the case that the respondent was not prosecuting the said case bonafidely in good faith.
The points raised by the learned counsel for the petitioner, inter alia, deserve examination, therefore, we grant leave in both these petitions to consider the same.
Till the disposal of the appeals', the respondent is hereby restrained from getting the mutation sanctioned in the revenue record on the basis of the decree of specific performance of agreement of sale passed by the Courts below and execution proceedings in pursuance thereof are hereby stayed."
We have heard learned counsel for the parties and have also seen the available record with their able assistance. Learned counsel for the appellant while reiterating the submissions recorded in the leave granting order (reproduced above), additionally contended that under Section 14 of The Limitation Act, 1908 time spent in the wrong forum can be excluded if the said forum has jurisdictional defect but it cannot be excluded if the form of suit was wrong or the relief sought was altogether different.
On the other hand, learned counsel for the respondent while vehemently opposing the appeals, has submitted that the arbitration proceedings were started on 31.01.1977 i.e. before the target date for the completion of the agreement which was 20.03.1977, that the present suit was filed soon after the conclusion of the proceedings from the Supreme Court of Pakistan in the arbitration case, that under Section 14 of the Limitation Act, 1908, the time spent in judicial proceedings on the same cause of action has to be excluded, that arbitration proceedings were initiated in good faith and the respondent perused the arbitration proceedings with due diligence under a bonafide mistake of law. He has also placed his reliance on Abdul Majid and others vs. Mst. Zubeda Begum and others (2007 SCMR 866).
The respondent filed the suit on 08.08.1988 for specific performance of alleged agreement to sell dated 13.12.1976. Apparently the suit was grossly barred by time and if the time spent by him in the arbitration proceedings i.e. from 31.01.1977 when he filed an application for making an award rule of the Court till 10.07.1988 when the Civil Petition for leave to appeal filed by him was disposed of by this Court, is not excluded then his suit would be liable to be dismissed as being grossly barred by time.
The issue of limitation was not decided correctly in accordance with law which was required to be decided keeping in view the facts and circumstances of the case. Courts below proceeded on the wrong assumption. In the judgment dated 10.07.1988 Civil Petition for Leave to Appeal No. 590 of 1984 filed by respondent was converted into an appeal, on the same day (C.A. No. 266/1988) and was partly allowed only to the extent that findings recorded in the arbitration proceedings on the existence or non-existence of the agreement will not prejudice the respondent in any proceedings which the respondent may initiate for the enforcement of the said agreement. No observation whatever was made by this Court in regard to the issue of limitation which was likely to crop up in the subsequent proceedings to be initiated by the respondent. Therefore, in the present suit for specific performance instituted by the respondent, the issue of limitation had to be decided on its own merit.
In our opinion, no justifiable reasons existed for excluding time spent by the respondent in arbitration proceedings before different forums including this Court. The previous proceedings initiated by the respondent under the garb of an arbitration agreement cannot be held to be prosecuted in good faith. It was held that there was no arbitration agreement and the alleged arbitration award produced by the respondent for making the same rule of the Court was declared to be a forged document. The said proceedings, therefore, suffered from malafide or bad faith and the respondent cannot be allowed a premium for the same by extending him the time spent in the said proceedings. The documents Exhs. D1 to D4 established the findings recorded in the arbitration proceedings that there was no arbitration agreement. The Courts below, therefore, failed to apply their mind that the respondent was not prosecuting the said case bonafidely in good faith. Furthermore, the earlier proceedings under the Arbitration Act had not terminated on account of the jurisdictional defect or other cause of alike nature, therefore, for this reason also the provisions of Section 14 of the Limitation Act, 1908 were not attracted. It may also be mentioned here, that in the impugned judgment also it has been held towards the end that the said provision "has no relevance to the proposition in hand, because earlier proceedings under the Arbitration Act, had not terminated on account of the jurisdictional flaw".
Object of Section 14 of the Limitation Act, 1908 is to provide protection against the bar of limitation, to a person who honestly did his best to get his case tried on merits but failed because the Court was unable to give him such a trial. It envisages that the time during which another civil proceeding was being prosecuted with due diligence against the same party for the same relief in good faith, in a Court which for defect of the jurisdiction or other cause of alike nature was unable to entertain it, can be excluded. Section 14 of the Act comes into play if the following conditions are fulfilled: (a) that the plaintiff had been prosecuting another civil proceeding against the defendant; (b) that he had been prosecuting it with due diligence; (c) that the present proceeding is founded upon the same cause of action; (d) that it was prosecuted in good faith; and (e) that it did not bear fruit because the Court was unable to entertain it due to defect of jurisdiction or other cause of alike nature. The conditions (c), (d) and (e) are not satisfied in the present case.
In view of the above mentioned, both the appeals are allowed with costs throughout, the judgments and decrees passed by the Courts below are set aside, the suit filed by the respondent is dismissed as being grossly barred by time and the suit for possession filed by the appellant is decreed.
(M.S.A.) Appeals allowed.
PLJ 2010 SC 575
[Appellate Jurisdiction]
Present: M. Javed Buttar & Sardar Muhammad Aslam, JJ.
HAZARA & others--Appellants
versus
MUHAMMAD YAR & others--Respondents
C.A. No. 369 of 2003, decided on 29.6.2009.
(On appeal from the judgment dated 13.1.2000, passed by the Lahore High Court, Multan Bench Multan, in C.R. No. 83-D of 1996).
Finger Print--
----Non-appearance of finger print expert in witness box effect--Alleged thumb impression obtained on the register of the petition-writer, though tallies with thumb impressions of the defendant, per expert report yet his non-appearance in the witness box, in support of his report, will render no help to the plaintiffs. [P. 578] A
1974 SCMR 411, ref.
Revisional Jurisdiction--
----High Court, in exercise of its revisional jurisdiction, was not called upon the re-appraise and re-evaluate the merits of evidence of the parties in the absence of any illegality or non-reading/misreading of evidence--It travelled beyond its jurisdiction in re-examining the entire evidence, searching support, for another possible conclusion--Such approach has not been approved by Supreme Court and warrant interference. [P. 578] B
1997 SCMR 1139 (B), ref.
Mr. Abdul Rashid Awan, ASC for Appellants.
Dr. Aslam Khaki, ASC for Respondents.
Date of hearing: 29.6.2009.
Judgment
Sardar Muhammad Aslam, J.--This appeal, through leave of this Court, by defendants is directed against the judgment dated 13.01.2000, passed by a learned Judge-in-Chamber of Lahore High Court, Multan Bench, Multan, accepting Civil Revision by setting aside concurrent Judgments and decrees of the First Appellate Court as well as of Trial Court and decreed the suit for specific performance of contract.
Respondents-plaintiffs instituted a suit for specific performance of an agreement dated 08.05.1982. The appellant-defendant Hazara, also filed a suit for cancellation of the very same agreement. Trial Court consolidated both the suits and framed issues. Parties produced their respective evidence in support of their plea. The suit was dismissed by the learned trial Court on 21.11.1991, an appeal was preferred by the respondents-plaintiffs which, too, ended in dismissal on 10.12.1995. Decision of the Courts below were assailed in Civil Revision, which was allowed on 13.01.2000.
Leave was granted on 18.02.2003 to consider the following questions:--
(i) Whether the High Court has not exceeded the limits of revisional jurisdiction, as laid down by this Court in a number of cases including "Abdul Hakeem v. Habibullah & 11 others" (1997 SCMR 1139)
(ii) Whether the High Court has arrived at correct findings on the disputed questions ?
(iii) Whether the Judgment of the High Court has not caused a failure of justice ?
Learned counsel for the appellants argued that well reasoned concurrent Judgments of the learned Courts below have been set-at-naught in the absence of any misreading and non-reading of evidence or any illegality, affecting the jurisdiction of the Court and that the plaintiffs having failed to prove the execution of the agreement were not entitled to decree for specific performance of the agreement.
In reply, learned counsel for the respondents submitted that the concurrent findings of fact are not sacrosanct, when grave injustice has occurred to a litigant and that all procedures and mechanism in law are meant to provide substantial justice.
We have heard learned counsel for the parties at length, perused the impugned Judgment and examined the evidence oral as well as documentary.
Learned High Court in setting aside the concurrent Judgments of the Courts below found:--
(i) that agreement was executed by defendant;
(ii) that the plaintiffs were in possession of a suit property;
(iii) that the Petition Writer supported execution of agreement, notarized by PW-2 an Advocate/Notary Public;
(iv) positive opinion of the Handwriting Expert that thumb impressions of defendant, on the register of Petition Writer were similar in characteristic with the admitted thumb impressions; and
(v) that agreement to sell contained National Identity Card of defendant.
Before proceeding further, reference is necessary to the evidence of the plaintiffs. Ex.P. 1 is an agreement to sell dated 08.05.1982. It was written on a stamp paper, allegedly executed by defendant. Ch. Qasim Ali is stamp vendor, and Abdul Ghafoor Chughtai, a marginal witness. It was notarized by Ihsan Karim Sheikh, Advocate. Yar Muhammad signed as one of the vendee.
Abdul Ghafoor Chughtai, PW-1, Petition Writer, deposed that he authored the agreement to sell dated 08.05.1982, at the instance of defendant. He entered it in register at Serial No. 405. He himself secured its attestation from Notary Public. Defendant was personally known to him. His Identity Card Number was written on Ex.P.1. He admitted, in cross-examination, of having been summoned in the Police Station on the complaint of defendant of having attested the agreement, by way of fraud, and, that no amount of consideration was paid. PW-2 Sheikh Ihsan Karim, Advocate, is Notary Public. Defendant appeared before him but concealed in cross-examination that he has no knowledge whether Petition Writer had produced a fictitious person. Khuda Bakhsh has thumb marked the agreement. He denied the suggestion that a fictitious person was produced in place of defendant. Haji Muhammad Usman, one of the plaintiffs appeared as PW-4, and stated that he thumb marked the agreement Ex.P.1. A sum of Rs. 18,000/- was paid to the defendant at the seat of the Petition-Writer. Muhammad Nawaz PW-5, stated that earnest money in the sum of Rs. 18,000/- was paid by Haji Muhammad Usman PW-4. Defendant entering into witness box as DW-3 denied the execution of Ex.P.1 and his thumb mark over it. He deposed that plaintiffs were given possession of the suit land as tenants prior to the alleged agreement and not under the agreement. He had instituted a suit for recovery of produce and ejectment against them which has been decreed in his favour by Revenue Court.
The pivotal question for determination is as to whether defendant No. 1 executed an agreement to sell dated 08.05.1982 for consideration?
Learned trial Court answering the above issue, found that Ex.P. 1 contained recital that earnest amount has already been paid. PW-3, marginal witness of Ex. P.1 also supported the above recital. There are three thumb impressions of defendant on Ex.P. 1. One is affixed on the front page while two are on the reverse of it. The Identity Card number "317-40-091554" is written on agreement which was denounced by the defendant and produced National Identity Card which is "317-87-045543".
First Appellate Court held that the three thumb impressions of defendants on Ex.P. 1 were tampered and not capable of identification. Stamp vendor was not produced by the plaintiffs. Petition Writer, author of Ex.P. 1, stated that payment of Rs. 18,000/- was made before him, at the time of writing of agreement, but the same was contradicted by PW-3. Haji Muhammad Usman, PW.4 stated that earnest money was paid at the seat of the Petition Writer, whereas Ex.P.1 shows that it was paid prior to execution of the agreement.
Alleged thumb impression obtained on the register of the Petition-Writer, though tallies with thumb impressions of the defendant, per expert report yet his non-appearance in the witness box, in support of his report, will render no help to the plaintiffs. Reference can be had to "Allah Dino v. Muhammad Umar and two others" (1974 SCMR 411).
Execution of agreement of sale was not proved by plaintiffs and their evidence in regard to payment of earnest amount is contradictory. Possession of the plaintiffs was in capacity as tenants, not under an agreement of sale and suit for ejectment and produce against the plaintiffs has been decreed in favour of defendant, negating the stand of plaintiffs' possession under agreement. Evidence available on record was thoroughly examined by Trial Court as well as First Appellate Court, as mentioned in the preceding paragraphs. The learned High Court, in exercise of its revisional jurisdiction, was not called upon to re-appraise and re-evaluate the merits of evidence of the parties in the absence of any illegality or non-reading/misreading of evidence. It travelled beyond its jurisdiction in re-examining the entire evidence, searching support, for another possible conclusion. This approach has not been approved by this Court and warrant interference. Reference can he had to "Abdul Hakeem v. Habibullah & 11 others" (1997 SCMR 1139).
For the above discussion, we are of the view that interference by the learned High Court in exercise of its revisional jurisdiction was not called for. Consequently, the appeal is allowed; impugned judgment is set-aside and that of the First Appellate Court and Trial Court are restored. There shall be no order as to costs.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 579
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
Mst. FAZAL BEGUM--Petitioner
versus
HASSAN KHAN and another--Respondents
Crl. Petition No. 132-P of 2007, decided on 29.4.2009.
(On appeal from the judgment dated 1.11.2007 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No. 407/2005).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 354-A & 34--Conviction and sentences recorded against accused by trial Court--High Court converted the conviction from Section 345-A, PPC to Section 345/34, PPC--Petition for leave to appeal--Case for re-appraisal of the evidence is made out--Leave to appeal is accordingly granted in instant petition to examine in detail, inter alia, the contentions of counsel for the parties--Leave granted.
[P. 580] A
Mr. Shahzad Akbar Khan, ASC and Sh. Wazir Muhammad, AOR for Petitioner.
Barrister Zahoor-ul-Haq, ASC for Respondent No. 1.
Mr. Attaullah Khan Tangi, ASC for Respondent No. 2.
Date of hearing: 29.4.2009.
Order
Ijaz-ul-Hassan, J.--Respondents Hassan Khan was tried by learned Additional Sessions Judge, Karak at Takhti Nasrati, in case FIR No. 163 dated 14.10.2003 registered under Section 354-A/34 PPC at Police Station `Takhti Nasrati' District Karak. At the conclusion of trial, vide judgment dated 2.6.2005, respondent was convicted under Section 354-A, PPC and sentenced to life imprisonment with fine of Rs.20000/- and in default of payment of fine, to undergo further two years R.I. The respondent was also made liable to pay Rs.50,0000/- as compensation under Section 544-A, Cr.P.C. to Mst. Fazal Begum, victim or in case of default to undergo six months S.I. with the benefit of Section 382-B Cr.P.C.. The respondent, feeling aggrieved, filed appeal before learned Peshawar High Court, Peshawar which was partially accepted and after converting the conviction of the respondent from Section 354-A/34 PPC to Section 354/34 PPC, respondent was convicted to suffer two years R.I. with a fine of Rs.20,000/-. Hence instant petition for leave to appeal by Mst. Fazal Begum.
We have heard in detail M/s. Shahzad Akbar Khan, Advocate for the petitioner, Barrister Zahoor-ul-Haq, Advocate for Respondent No. 1 and Attaullah Khan Tangi, learned Additional, Advocate-General, N-WFP representing the state. We have also gone through the record with their assistance.
It is mainly contended by learned counsel for the petitioner that overwhelming evidence was available on the file to prove that respondent was guilty of an offence under Section 354-A/34 PPC for outraging the modesty of his aunt Mst. Fazal Begum, which has not been appreciated in its true perspective, resulting in grave miscarriage of justice and that learned High Court was not justified to show leniency by converting the conviction of the respondent from Section 354-A/34 PPC to Section 354/34 PPC.
Learned counsel for Respondent No. 1, on the other hand, refuted the argument of learned counsel for the petitioner, supported the impugned judgment on all counts and contended that analysis of Section 354-A, PPC would indicate that two basic ingredients are to be satisfied to attract the penal provision of the section, firstly, the woman should be stripped off the clothes and, secondly, she should be exposed to public view in such condition. Both the ingredients according to learned counsel are missing in this case justifying conversion of the conviction from Section 354-A/34 PPC to Section 354/34 PPC.
Learned counsel for the State, however, supported the contentions of learned counsel for the petitioner whole heartedly.
After hearing learned counsel for the parties, we feel that a case for reappraisal of the evidence is made out. Leave to appeal is accordingly granted in this petition to examine in detail, inter alia, the contentions of learned counsel for the parties.
(M.S.A.) Leave granted.
PLJ 2010 SC 581
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday, Mahmood Akhtar Shahid Siddiqui & Rahmat Hussain Jafferi, JJ.
MUHAMMAD SULTAN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 233-L/2009 in Crl. Petition. No. 546-L/2009, decided on 15.12.2009.
(Against the judgment dated 15.5.2009 of the Lahore High Court, Lahore passed in Criminal Revision No. 226 of 2009)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Conviction and sentence recorded against accused by trial court--Challenge to--Cheque issued dishonestly--Appellant kept signed cheque which was stolen and used by complainant--No dispute the signature on cheque--Business transaction between the complainant and accused--In order to satisfy the claim of complainant the accused issued the cheque--Proved of--Validity--It is against the natural conduct that a person would keep a blank signed cheque in the cheque book. [P. 583] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Dishonestly issuing a cheque--Conviction and sentence recorded against accused by trial Court--Concurrent findings--Challenge to--Business transaction between the complainant and appellant--In order to satisfy the claim of complainant the accused issued the cheque--Proved of--Application was filed by accused for stopping the payment of the cheque and that at that time the balance in the account of appellant was Rs. 300/- only--Held: Accused did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing--Balance in account of the appellant was Rs. 300/- only at the time when application was moved as such it does not appeal the common sense that appellant would request the bank to stop the transaction when there was meager amount lying in the account--Concurrent findings of the courts below do not call for interference--Appeal was dismissed. [P. 584] B
Ch. Muhammad Rafique Warriach, ASC for Appellant.
Syed Ali Imran Shah, DPG for State.
Mr. Khalid Aseer Chaudhry, ASC for Complainant.
Date of hearing: 15.12.2009.
Judgment
Rahmat Hussain Jafferi, J.--On 21.3.2005 at 8.50 a.m the complainant Noor Muhammad lodged the FIR at Police Station Kotwali, Faisalabad alleging therein that there was a business dealing between him and the appellant for supply of kitchen towel cloths. In pursuance of the said dealing an amount of Rs.3372038/- was outstanding against the appellant. In order to satisfy the claim the appellant issued a cheque of Rs.2500000/- dated 26.2.2005 which, was presented before the bank but it was dishonoured on 28.2.2005. After investigation the police challaned the appellant in the Court where he was tried and convicted for offence punishable under Section 489-F, PPC and sentenced to three years RI and fine of Rs. 15000/- or in default thereof to suffer imprisonment for one month with benefit of Section 382-B, Cr.P.C, vide judgment dated 15.7.2008 of Judicial Magistrate (Section 30, Cr.P.C.), Faisalabad. The appellant preferred an appeal and criminal revision before the Sessions Court and High Court, respectively but the same were dismissed. Therefore, the appellant filed the petition for grant of leave to appeal. The leave was granted on 29.6.2009, hence the present appeal.
"Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend, to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
A perusal of Section 489-F, PPC reveals that the provision will be attracted if the following conditions are fulfilled and proved by the prosecution--
(i) issuance of cheque;
(ii) such issuance was with dishonest intention;
(iii) the purpose of issuance of cheque should be;
(a) to re-pay a loan; or
(b) to fulfill an obligation (which in a wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance;
(iv) on presentation, the cheque is dishonoured.
However, a valid defence can be taken by the accused, if he proves that:
(i) he had made arrangements with his bank to ensure that the cheque would be honoured; and
(ii) that the bank was at fault in dishonoring the cheque.
If the accused establishes the above two facts through tangible evidence and that too after the prosecution proves the ingredients of the offence then he would be absolved from the punishment.
The learned counsel for the appellant has argued that the appellant's cheque book was stolen, therefore, the complainant himself filled in the cheque of Rs.2500000/- but on 26.1.2005 one month before its presentation the appellant moved an application before the bank for stopping the said cheque. He has further stated that the stand of the appellant has been supported by the employee of the bank, who was examined as DW-1.
Conversely, the learned counsel for the complainant has stated that the appellant had issued the cheque with his signature; that the appellant has not denied the signature on the cheque; that a contrary stand has been taken by the appellant in his statement recorded under Section 342, Cr.PC than the above stand; that the case has been fully proved against the appellant, therefore, the concurrent findings of Courts below do not require any interference by this Court. The learned DPG has supported the arguments of learned counsel for the complainant.
Having heard the learned counsel and perusing the record of the case, we find that there was business transaction between the complainant and appellant. Prosecution alleged that in order to satisfy the claim of the complainant the appellant issued the cheque. Such fact has been proved from the evidence of PWs. Without touching the factual aspect of the case, the learned counsel for the appellant has simply argued that the appellant's cheque book was stolen and the complainant filled the cheque. Such plea has not been supported by his own statement under Section 342, Cr. PC. In response to a query, the learned counsel for the appellant has stated that the appellant kept the signed cheque which was stolen and used by the complainant. Thus the appellant has not disputed the signature on the cheque in question. It is against the natural conduct that a person would keep a blank signed cheque in the cheque book. Furthermore, DW-1 has stated that on 26.1.2005 an application was filed by the appellant for stopping the payment of the cheque and that at that time the balance in the account of the appellant was Rs.300/- only. We have perused the said application from winch we find that the appellant did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing. It appears that balance in the account of the appellant was
Rs. 300/- only at the time when the application was moved as such it does not appeal the common sense that the appellant would request the bank to stop the transaction when there was meager amount tying in the account.
(R.A.) Appeal dismissed.
PLJ 2010 SC 584
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhary, CJ. and
Mian Shakirullah Jan, JJ.
Raja FAZAL-UR-REHMAN--Petitioner
versus
MUHAMMAD AFZAL and another--Respondents
Crl. Petition No. 291 of 2008, decided on 24.9.2009.
(On appeal against the order dated 22.7.2008 passed by Lahore High Court, Lahore, in Crl. Misc. No. 5377-B of 2008)
Criminal procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 314 & 109--Cancellation of bail--Allegation of abduction--No account of different criteria for grant or refusal of bail than trial while convicting or acquitting the accused--Entitlement of concession of bail--Last seen evidence--Where a different criteria than the one settled by a chain of authorities by superior Courts whereby in conviction or acquittal benefit of doubt plays an important role but u/S. 497, Cr.P.C the criteria is that the petitioner shall not be granted bail when there existent reasonable grounds to believe that he is guilty of the offence--By going through the record of the case one can very comfortably arrive at a such conclusion that there are reasonable grounds for believing that the accused is guilty of the offence and he was not entitled to grant of bail and which deserves to be recalled. [P. 586] A
Mr. Altaf Elahi Sheikh, Sr. ASC for Petitioner.
Mr. Nazir Ahmed Shami, ASC for Respondent.
Mr. Shahid Abbasi, DPG Mr. Muhammad Raiz Gara, DPO Gujrat. Mr. Muhammad Afzal, S.P. Investigation. Mr. Muhammad Sharif, SHO Saddar, Kharian for State.
Date of hearing: 24.9.2009.
Judgment
Mian Shakirullah Jan, J.--The petitioner is seeking cancellation of bail, granted to the respondent/accused by the High Court in a case registered under Section 364/109 PPC with the allegation of abduction of the brother of the complainant, through the instant petition for leave to appeal.
The abductee, Raja Abdul Rehman, who settled in Norway, contracted a second marriage here in Pakistan with Mst. Nageena Kosar, during the subsistence of the first marriage from whom he has got grown-up children. His in-laws, the brothers and relatives of the first wife, have taken ill of contracting his second marriage and nourished a grudge against him and conspired to finish him. The respondent/ accused who is statedly to be a close relative of his in-laws, managed to take the abductee to Lala Musa with him on his (abductee's) motorcycle on some pretext of exchanging of Norwegian currency. After the lapse of sufficient time when the abductee did not return home his second wife, Mst. Nageena Kosar, in whose presence the abductee was taken away by the respondent/accused, tried to contact her husband on Mobile Phone and the abductee on phone told her that he was far away from his house and asked her to pray to God for his return and the phone was disconnected. After the lapse of about four years, since the registration of the case i.e., on 31.10.2005, the abductee is still untraced and there is every likelihood that he might have been killed. The respondent/accused after remaining fugitive from law for sufficient time when was arrested he applied for his bail before the Additional Sessions Judge, Kharian, but could not succeed and then he approached the High Court for the bail which was granted to him and against that order the petitioner/complainant has now come to this Court for the cancellation of his bail.
The learned counsel for the petitioner contended that the evidence available on the record is sufficient to connect the respondent/accused with the crime and being absconder for a longer period he is not entitled to the concession of bail and the High Court while ignoring the material evidence on record has granted bail to him to which he is not entitled. The learned counsel for the respondent/accused has vehemently opposed the learned counsel for the petitioner by stating that the High Court has very rightly allowed bail to the respondent/accused as the only evidence is that of last seen evidence and which by itself is not sufficient to secure conviction of the respondent/accused in the case. The learned Deputy Prosecutor General has also supported the petitioner/complainant for the cancellation of bail.
The respondent/accused has been directly charged in the FIR for instigating and taking away the abductee from his house in the presence of his wife, Mst. Nageena Kosar, though the FIR has been lodged with a delay of some days but in such like cases the delay generally occur when the relatives of the abductee launch a search for the abducted person and after having no clue then they resort for the help of the law enforcement agencies. The version of his wife, Mst. Nageena Kosar, is a strong piece of evidence in whose presence the abductee was taken away by the respondent/accused and also when she was having a telephonic contact with him and his response was indicative of he (the abductee) being in a difficult situation and was seeking the help of some one. This is not a case of ordinary last seen evidence when the deceased is seen in the company of the accused and where after he is found dead somewhere but here there is a specific assertion that it was the respondent/accused who was solely responsible for taking away the abductee and after that time till today his whereabouts are not known. The conduct of the respondent/accused by remaining fugitive from law further lends support to the prosecution story and particularly at the bail stage when such a conduct is relevant one and to be taken into consideration as when he does not care to be a law abiding person to surrender himself immediately to the law enforcing agencies, if he is not guilty, and did make himself available to the investigating agency to help it in arriving at a fair conclusion by associating him with the investigation. The contention of the learned counsel for the respondent/accused that being a week case and his case is not fit for cancellation of bail as on such evidence he cannot be convicted he has lost sight of the relevant provision relating to bail under Section 497 Cr.P.C. where a different criteria than the one settled by a chain of authorities by the superior Courts whereby in case of conviction or acquittal the benefit of doubt plays an important role but under Section 497 Cr.P.C. the criteria is that the petitioner shall not be granted bail when there exist reasonable grounds to believe that he is guilty of the offence. By going through the record of the case one can very comfortably arrive at such a conclusion that there are reasonable grounds for believing that the respondent/accused is guilty of the offence and he was not entitled to the grant of bail and which deserves to be recalled.
Consequently, this petition is converted into appeal and allowed. The order dated 22.07.2008 passed by Lahore High Court, Lahore, is set-aside as a result whereof bail granted to the respondent/accused, Muhammad Afzal s/o Muhammad Asghar, is recalled. He is ordered to be taken into custody immediately. He be kept as an under trial prisoner. However, the observations made in the instant order may not influence the trial of the case as the same will have to be decided on the basis of evidence recorded by the Court during the trial and which evidence is not available before us at the moment and also no account of different criteria for the grant or refusal of bail than the trial while convicting or acquitting the accused.
(R.A.) Appeal allowed.
PLJ 2010 SC 587
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Rahmat Hussain Jafferi, JJ.
MUHAMMAD ZUBAIR and another--Appellants
versus
STATE and another--Respondents
Crl. Appeal Nos. 397 & 398 of 2006, decided on 7.10.2009.
(Against judgment dated 8.6.2005 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal
No. 514 & M.R. No. 717 of 2000)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 324--Criminal Procedure Code, (V of 1898), S. 382-B--Conviction and sentence was recorded against accused by trial Court--Challenge to--Appreciation of evidence--Ocular testimony and recovery convicted him for offence punishable u/S. 302, PPC and sentenced him to death--Validity--Case hinges upon three pieces of evidence--Recovery of blood stained churri and motive--Ocular testimony consists of prosecution witness who was minor at the time of incident--Trial Court after putting preliminary questions to minor witness was satisfied that she was a competent witness--Held: Supreme Court did not find any discrepancy or infirmity in her evidence--She was a natural witness, whose presence at the place of incident cannot be doubted and she has no reason to falsely implicate the accused--Her evidence was further corroborated by complainant had seen the accused armed with churri just after the incident standing outside the room of the house, where the deceased was lying dead and minor PW was present in injured condition who disclosed the facts of the incident--Prosecution had proved its case against the accused beyond any reasonable doubt--Conviction awarded to the accused by Courts below was maintained. [Pp. 591 & 592] A & E
Ocular evidence--
----Minor witness was present there with injuries on her person--Ocular testimony rests upon minor witness--Statement of minor witness was challenged statement on the ground that she had disclosed that the accused gave her churri blows whereas the Doctor did not find any incised injury on the person--Held: No doubt minor witness disclosed such fact but she did not specifically state that she received injuries with sharp side of the churri--Even otherwise this is a minor discrepancy which does not affect the evidence of minor, whose evidence is confidence inspiring in the peculiar circumstance of the present case, therefore, the prosecution had proved the ocular testimony. [P. 592] B
Recovery of Blood Stained Churri--
----Proved from the evidence of investigation officer--Churri was sent to chemical examiner for examination who reported that it was stained with human blood. [P. 592] C
Motive--
----Quarrel between the prosecution and the accused over the coming of one male person in his house--Validity--Case of the accused was that he complained the fact of the coming of male person in the house of the complainant to brothers of the complainant and they committed murder of the deceased--There were some issues in respect of visiting of male person to the house of the complainant--None of the parties produced the required evidence to establish their respective.
[P. 592] D
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 299--Age of the accused--High Court had reduced the sentence by taking into consideration the age of the accused--Accused produced birth certificate, which shows his date of birth and also produced school leaving certificate with same date of birth--Held: After taking into consideration the document, the High Court framed the opinion that he was not adult within the meaning of S. 299, PPC. [P. 593] F
High Court Rules & Order--
----Volume-V--Chapter 22-A--Criminal Procedure Code, (V of 1898)--S. 342--Violation of--Age was not mentioned in statement--According to birth certificate, accused's age was about 20 years at the time of incident--Trial Court did not mentioned the age of the accused in his statement recorded under S. 342, Cr.P.C. and thereby violated paragraph 8 of the Rules and Orders of High Court, Volume V of Chapter 22-A. [P. 593] G
Doubt of age--
----Doubt in respect of the age of the accused because according to him he was about 18 years of age whereas according to the complainant he was 20 years of age at the time of incident--Held: Doubt, if any, regarding the age of the accused is required to be resolved in his favour as such Supreme Court maintain the finding of High Court on the aspect of the case--Appeals were dismissed. [P. 593] H & I
Malik Shahzad Ahmed Khan, ASC for Appellant (in Crl. A. No. 398/2006).
Malik Rab Nawaz Noon, Sr. ASC for Respondent No. 1 (in Crl. A. No. 398/2006) & for Appellant (in Crl. A. No. 397/2006).
Raja Shahid Mehmood Abbasi, DPG for State (in boths Appeals).
Date of hearing: 7.10.2009.
Judgment
Rahmat Hussain Jafferi, J.--This judgment will dispose of Criminal Appeal Nos. 397 and 398 of 2006, as they arise out of a common judgment.
On 22.02.1999 at 8:30 p.m., the complainant Muhammad Hanif lodged the report at Police Station Pindi Gheb, District Attock alleging therein that on the said date at about 6:30 p.m., when he entered his house after coming from Pindi Gheb he saw the appellant-convict Muhammad Zubair armed with Churri standing in front of a room of his house. The complainant tried to catch hold of him but he ran away through stairs and by scaling over the wall. The complainant went inside the room where he saw his wife Zaitoon Bibi lying dead. He also saw his minor daughter Mst. Sudra Bibi present there with injuries on her person. She narrated the incident to her father, the complainant, to the effect that the appellant came in the house, caught hold of the deceased Zaitoon Bibi, who abused him and thereafter he (the appellant) gave Churri blows to her, which she received on the back of her neck, near ears and other parts of the body and that she (Mst. Sudra Bibi) also received injuries from the hands of the appellant.
The motive alleged was that on 20.02.1999 there was a quarrel between the complainant and the appellant over the coming of one Nawab Khan into his house and that because of the said quarrel the appellant had committed the murder of his wife and injured his daughter.
The case was investigated by PW. 11 Zulfiqar Ali, SI. He collected the ocular evidence of Mst. Sudra Bibi, arrested the appellant and produced blood stained Churri, which was sent to the Chemical Analyst for examination who reported that Churri was stained with human blood. After completing the investigation, the appellant was challaned in the Court.
The learned Additional Sessions Judge, Attack tried the appellant and after relying upon the ocular testimony and recovery convicted him for the offence punishable under Section 302, PPC and sentenced him to death. He was directed to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased or in default thereof to suffer SI for six months. He was also convicted for the offence punishable under Section 324, PPC and sentenced to RI for one year and fine of Rs. 5,000/- or in default thereof to suffer RI for three months with benefit of Section 382-B, Cr.PC, vide judgment dated 25.11.2000.
The appellant was dissatisfied with the said judgment, therefore, he challenged it before the Lahore High Court, Rawalpindi Bench, Rawalpindi. He also filed a Writ Petition Bearing No. 2665 of 2002 in the said Court for determination of his age. The appeal and writ petition were heard together. The learned High Court concurred with the finding of the trial Court on factual aspect of the case but after examining the School Leaving Certificate, Birth Certificate, Report of Medical Officer, Rawalpindi Jail and the age shown in police record formed the opinion that the appellant was not adult within the meaning of Section 299, PPC, therefore, while maintaining the conviction under Section 302(b), PPC reduced his sentence from death to imprisonment for life. The conviction and sentence awarded to the appellant for offence punishable under Section 324, PPC was also maintained with benefit of Section 382-B, Cr.PC and it was ordered that both the sentences should run concurrently under the impugned judgment dated 08.06.2005.
The appellant challenged the finding of the learned High Court by filing Criminal Petition No.265 of 2005, whereas the complainant filed Criminal Petition No.292 of 2005 for enhancement of sentence by taking the plea that the appellant was not minor but he was major at the time of incident and produced Birth Certificate showing the date of birth of the appellant as 26.10.1978. This Court, vide order dated 09.05.2006, granted leave in both the matters. Hence these appeals.
We have heard learned counsel for the appellant, the complainant Muhammad Hanif and the State. Learned counsel for the appellant Muhammad Zubair has argued that the ocular testimony rests upon minor witness PW-10 Mst. Sudra Bibi only which is not confidence inspiring; that the statement of Mst. Sudra Bibi is in conflict with medical evidence as she deposed that she received injuries with Churri but the Medical Officer did not find any incised injury on her person and that the recovery in the case is highly doubtful. As regards the sentence, he has stated that the appellant was about 18 years of age at the time of incident, which fact has been supported from the Birth Certificate, School Leaving Certificate, Report of Medical Officer, Rawalpindi Jail and police record; that the Birth Certificate produced by the complainant is in respect of some other person as it was regarding one Kumhar, whereas the appellant is Awan by caste. Alternatively, he has argued that if the Court believes the ocular evidence and recovery then the sentence may not be enhanced.
Conversely, learned counsel for the complainant Muhammad Hanif (appellant in Criminal Appeal No.398 of 2006) has stated that ocular evidence of minor girl Mst. Sudra Bibi is confidence inspiring; that she is a straightforward witness who specifically assigned the role of causing injuries to the appellant; that her evidence is supported and corroborated by the complainant who saw the appellant in the house, armed with Churri standing outside the room, just after the incident where the deceased was lying dead; that the recovery of blood stained Churri further connects the appellant with the commission of crime; that the deceased was done to death in a cruel manner, therefore, he does not require any leniency. He has challenged the finding of the learned High Court concerning the age of the appellant by arguing that proper evidence was not produced before the High Court as no notice was given to him; that he has produced Birth Certificate of the appellant which shows that the appellant was 20 years of age at the time of incident; that no proper inquiry was conducted by the learned High Court, therefore, normal sentence of the offence should be awarded by enhancing it. The learned State counsel has adopted the arguments of learned counsel for the complainant and has supported the impugned judgment to the extent of finding with regard to the conviction. However, as regards sentence he has submitted that it may be enhanced.
Having heard the arguments of learned counsel for the parties as also for the State and after appraising the evidence available on record, we find that the case hinges upon three pieces of evidence, i.e. statement of Mst. Sudra Bibi, recovery of blood stained Churri and the motive. The ocular testimony consists of PW.10 Mst. Sudra Bibi, who was minor at the time of incident. The trial Court after putting preliminary questions to Mst. Sudra Bibi was satisfied that she was a competent witness, therefore, recorded her statement. She fully supported the prosecution case and specifically stated that the appellant caused Churri injuries to the deceased and also caused injuries to her. She was subjected to cross-examination but veracity of her evidence was not shaken and she successfully passed the test of cross-examination. Both the Courts below have relied upon her evidence. We also do not find any discrepancy or infirmity in her evidence. She is a natural witness, whose presence at the place of incident cannot be doubted and she has no reason to falsely implicate the appellant. Her evidence is further corroborated by the complainant, whose evidence reveals that he saw the appellant armed with Churri just after the incident standing outside the room of the house, where the deceased was lying dead and PW.10 Mst. Sudra Bibi was present in injured condition, who disclosed the facts of the incident. Her statement is further supported and corroborated by the medical evidence as the Doctor, who examined the dead body of the deceased, found three incised injuries and one abrasion on the person of the deceased. He also found injuries on the person of PW.10. Statement of PW.6 Dr. Raifeel Hashmi shows that PW Mst. Sudra Bibi had, "Lacerated wound measuring 3 cm X 1 cm just below left occeptal trominance. 6 cm from the pinna of right ear. The wound was bone deep and Swelling on the right scapiuler region." Learned counsel for the appellant Muhammad Zubair challenged the statement of Mst. Sudra Bibi on the ground that she had disclored that the appellant gave her Churri blows, whereas the Doctor did not find any incised injury on her person. No doubt she had disclosed such fact but she did not specifically state that she received injuries with sharp side of the Churri. Even otherwise, this is a minor discrepancy which does not affect the evidence of Mst. Sudra Bibi, whose evidence is confidence inspiring in the peculiar circumstances of the present case, therefore, the prosecution has proved the ocular testimony.
As regards the recovery of blood stained Churri, the same has been proved from the evidence of the Investigation Officer, Zulfiqar Ali (PW. 11) and corroborated by Noor Muhammad (PW.8) and Muhammad Afzal Kiani (PW.12). The Churri was sent to the Chemical Examiner for examination who reported that it was stained with human blood.
The motive of the incident as alleged by the complainant is that on 20.02.1999 there was a quarrel between him and the appellant over the coming of one Nawab Khan in his house. The complainant deposed the said facts but no further evidence was led in support of his contention. The case of the appellant was that he complained the fact of the coming of Nawab Khan in the house of the complainant to Muhammad Hanif and Manzoor Hussain, brothers of the complainant, and they committed murder of the deceased. From his statement, it appears that there were some issues in respect of visiting of Nawab Khan to the house of the complainant. However, none of the parties produced the required evidence to establish their respective pleas.
After considering the material available on record, we are of the considered view that the prosecution has proved its case against the appellant beyond any reasonable doubt. Therefore, we maintain the conviction awarded to the appellant by both the Courts below for the offence punishable under Sections 302 & 324, PPC.
As regards the sentence, the learned High Court reduced the same by taking into consideration the age of the appellant. Before the High Court in the writ petition, the appellant produced Birth Certificate, which shows his date of birth as 8.6.1981. He also produced School Leaving Certificate with the same date of birth. He was referred to Medical Officer, Rawalpindi Jail for determination of his age, who examined him on 13.12.2001 and formed the opinion that he was of 23 years of age. The incident took place on 22.2.1999, therefore, he was of about 18 years of age at the time of incident as per Medical Officer. The police also reported his age as 18/19 years. After taking into consideration the said documents, the learned High Court formed the opinion that he was not adult within the meaning of Section 299 of PPC. The complainant Muhammad Hanif has produced a Birth Certificate which shows the date of birth of the appellant as 26.10.1978. According to this certificate, appellant's age was about 20 years at the time of incident. Surprisingly, the learned Additional Sessions Judge did not mention the age of the appellant in his statement recorded under Section 342, Cr.P.C. and thereby violated Paragraph 8 of the Rules and Orders of the Lahore High Court, Lahore (Volume-V of Chapter 22-A) laying down the following instructions to the Criminal Courts:
"All Criminal Courts should in future enter the ages of the convicts in the body of their judgments, with a view of being directly seized with the question of age when deciding the sentence to be imposed on a juvenile or adolescent.
"In view of discrepancy in recording the age of the appellant it is only fair that the benefits should be extended to him particularly in view of the precedent of this Court quoted by the learned counsel for the appellant i.e. Javid lqbal v. The State (1982 SCMR 447)".
(R.A.) Appeals dismissed.
PLJ 2010 SC 594
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Ghulam Rabbani & Jawwad S. Khawaja, JJ.
Dr. AGHA IJAZ ALI PATHAN--Petitioner
versus
STATE--Respondent
Crl. R.P. No. 9 of 2008, Crl. M.A. No. 181 of 2007 in Crl. M.A.
No. 282 of 2006 in Crl. P. No. 361-L of 2004, decided on 15.10.2009.
(On review from the order dated 14.1.2008 passed by this Court in Cr.M.A. No. 181/2007 in Cr.M.A. No. 282/2006 in Crl.P.L.A. No. 361-L/2004 and on appeal from the judgment dated 17.5.2004 passed by the Lahore High Court, Lahore in Crl.A. No. 1749/2000).
Short Order--
----Punishment was awarded--Appeal was dismissed by Division Bench of High Court--Leave to appeal was also dismissed for non-prosecution by Supreme Court--Criminal Misc. Application made by petitioner for restoration of main petition was also dismissed for non-prosecution--Challenged through Crl. Rev. P. which was heard by a three member Bench--Validity--Short orders under reference passed by High Court, which were duly signed and pronounced for all intents and purposes were final orders and could not be set aside and the case could not be remanded for re-trial of the accused who stood acquitted in some of appeals by High Court and in some of the appeals by trial Court as well as by High Court. [P. 598] A
Short Order--
----Short order was recorded in clear terms and was signed by Judges of Supreme Court--Whereby the judgments of trial Court as well as of Appellate Court were set aside the conviction and sentence awarded to the petitioner were also set aside and the petitioner was acquitted of the charge--Validity--Decision so made and announced through short order is presumed to be solemn, well considered, conscious, deliberate and a final verdict covering all points arising out of the case--Held: Lis in the instant matter cannot be treated to be pending having already attained the finality in the eyes of law--Order recalling the short order with direction that case be fixed for re-hearing after notice to the parties is set aside, as a result the short order shall stand revived and operative in law. [Pp. 599 & 600] B & C
Syed Iftikhar Hussain Gillani, Sr. ASC and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Abdul Baseer Qureshi, Deputy Prosecutor General NAB and Dr. M. Asghar Rana, Addl. P.G. NAB for State.
Date of hearing: 15.10.2009.
Judgment
Ghulam Rabbani, J.--The petitioner is a qualified Doctor. He appeared in competitive examination of CSS held for the year, 1995 and having secured 2nd position was allotted DMG group. While he was serving as Assistant Commissioner in the Province of the Punjab a Reference was filed against him by the Acting Chairman NAB. Pursuant to that he was tried by the Accountability Court No. IV, Lahore and on being found guilty of an offence of corruption and corrupt practices within the meaning of Section 9 of NAB Ordinance, 1999 (hereinafter referred to as the said Ordinance) he was awarded punishment under Section 10 of the said Ordinance to suffer R.I. for four years and a fine of Rs. five lac; in default whereof to undergo further R.I. for one year, etc. vide judgment dated 22.11.2000. Appeal there-against was dismissed by learned Division Bench of the Lahore High Court, Lahore, vide judgment dated 17.5.2004, with the following observations:
"In the afore-referred circumstances the sentence of imprisonment for four years was on the higher side and ends of justice would have been met if he had been awarded sentence of imprisonment for a period of two years & the sentence of fine to the tune of Rs. 2,00,000/- would have been sufficient. However, since the appellant has undergone the entire period of sentence of imprisonment we are inclined to reduce the sentence to what he has already undergone. Since the amendment in Section 15 of the NAB Ordinance 1999 came into effect during the pendency of this appeal, we are inclined to further modify the sentence in terms of this section and hold that the appellant shall stand disqualified for a period of 10-years in terms of the amended provision and not 21-years as directed by the learned trial Court which was in accord with the un-amended Section 15 of the NAB Ordinance, 1999."
Feeling aggrieved the petitioner filed Cr.P.L.A. No. 361-L of 2004 before this Court, which was dismissed for non-prosecution by this Court vide order dated 27.3.2006. Criminal Misc. Application Bearing No. 282/2006 made by the petitioner for restoration of the main petition was also dismissed for non-prosecution vide order dated 22.3.2007. Subsequently, the petitioner made another Criminal Misc. Application Bearing No.181/2007, which, too, was dismissed vide order dated 14.1.2008. Petitioner, thereafter, filed Criminal Review Petition No. 9 of 2008, which was heard by a three Members Bench and was allowed in the following terms vide order dated 14.11.2008:
"For the reasons to be recorded later, Criminal Review Petition No.9 of 2009 is allowed, orders of this Court dated 14.1.2008, 22.3.2007 and 27.3.2006 are recalled, Criminal Petition No. 361-L of 2004, is converted into appeal and is allowed. Consequently, the impugned judgment of the High Court as well as of the Trial Court are set aside, conviction and sentence awarded to the petitioner is also set aside and he is acquitted of the charge.
Sd/- Abdul Hameed Dogar, CJ.
Sd/- Ijaz ul Hassan, J.
Sd/- Ch. Ejaz Yousaf, J."
It appears that no reasons were recorded; rather above-referred short order dated 14.11.2008 was, later, re-called and the case was ordered to be fixed for re-hearing after notice to the parties vide order dated 19.3.2009, reproduced as follows:
"While dictating judgment in the instant case answer to certain questions, inter-alia, as to why the amount of interest accrued on the money deposited in the Accounts No.PLD-215, PLS-916, CD-1184 and Special Saving Account No. SSA-90, etc. was withdrawn by the petitioner and was kept with him till initiation of proceedings against him i.e. during the period from 14.4.2000 to 31.8.2000 etc. could not be found as such short order dated 14.11.2008 announced in Court may be recalled and the case may be fixed for re-hearing after notice to the parties.
Sd/- Ch. Ejaz Yousaf, J.
Hon. Mr. Justice Ijaz-ul-Hassan
Agreed
Sd/- Ijaz-ul-Hassan, J.
Hon. C.J.
I agree.
Sd/- Abdul Hameed Dogar, C.J."
In the above backdrop of the case this matter has come up before us. We have heard learned counsel for the petitioner and Additional Deputy Prosecutor General, NAB. Learned counsel for the petitioner has contended that a short order, for the reasons to be recorded, signed and announced by the Judges like the one in the instant case, disposing of the case determining the rights and liabilities of the parties finally, is fully operative in law with all legal consequences to follow. He placed reliance on the case reported as The State v. Asif Adil and others (1997 SCMR 209). Learned counsel has stated that in the instant case, since a short order was recorded and was duly signed by a three Member Bench of this Court, whereby Criminal Petition No. 361-L of 2004 was converted into appeal and allowed; the judgments of Trial Court as well as of the High Court were set-aside, conviction and sentences awarded to the petitioner were, too, set-aside and he was acquitted of the charge, no lis against the petitioner, thereafter, was pending to be fixed for rehearing.
On the other hand, learned Deputy Prosecutor General NAB, has, vehemently, opposed this proposition and has stated that the review petition filed by the petitioner shall be deemed to be pending in view of order dated 19.3.2009.
We have carefully gone through the case law cited (supra) by learned counsel for the petitioner. In that case a Division Bench of the High Court of Sindh comprising Muhammad Aslam Arain and Shoukat H. Zubedi, JJ, disposed of two sets of appeals viz. appeals filed by convicts against their convictions and sentences and the appeals filed by the State against acquittals of co-accused, vide order dated 24.2.1994, if the following terms:
"Convicts' appeals.--Arguments concluded. For reasons to be recorded separately, we accept this appeal set aside the conviction and sentence and acquit the appellant. He shall be released forthwith unless required, in any other case.
State's acquittal appeals.--Arguments concluded. For reasons to be recorded separately, the appeal is dismissed."
The same bench also disposed of two cases, however, before the reasons could be recorded in the above matters, Shoukat H. Zubedi, J., who was an Additional Judge, was not confirmed and ceased to be Judge w.e.f. 23.3.1994. Other learned Judge Mr. Justice Muhammad Aslam Arain, J. as then he was, on 7.7.1994 passed the order that "Short order passed in the above appeals (on 24.2.1994) be treated as final orders." The learned Judge retired from service w.e.f. 11.5.1995 on attaining the age of superannuation. The State, therefore, filed petition for leave to appeal against the above referred short order dated 7.7.1994 before this Court which was dismissed on 20.11.1996. Ajmal Mian, J., as then he was, having referred to plethora of the case law, expressed that among others following legal principles are deducible:
"(i) ...........
(ii) ...........
(iii) ...........
(iv) ...........
(v) ...........
(vi) ...........
(vii) ...........
(viii) that the short orders which have been recorded and signed by the Judges concerned and have been pronounced in Courts shall be fully operative in law and in consequence thereof, the cases in respect of which the same have been passed shall stand disposed of in law."
Having said so, it was held that the short orders under reference passed by the Division Bench of the High Court of Sindh, which were duly signed and pronounced by the learned Judges, for all intents and purposes, in view of the situation obtaining, were final orders and could not be set-aside and the case could not be remanded for re-trial of the accused who stood acquitted in some of the appeals by the High Court and in some of the appeals by the trial Court as well as by the High Court. It was observed that:
"12. In the case in hand, Shoukat H. Zubedi, J., one of the learned Judge of the Division Bench which heard the above matters and passed short orders, was not confirmed as a permanent Judge on 24-2-1994 and, therefore, had ceased to be a Judge. It was not possible to have reasons of the above Division Bench as a judgment in support of the above short orders. However, it was open to the other learned Judge available, namely, Muhammad Aslam Arain, J. to have recorded reasons in terms of Rule 3 in Chapter 4-H under the sub-heading "Rules of Procedure in Appeals" in Volume V of the Rules and Orders of the High Court, quoted hereinabove in Para. 3, which would have been deemed to be minutes and not judgment. This was not done by the above learned Judge. On the contrary, on 7-7-1994 he ordered that the short orders in appeals passed on 24-2-1994 be treated as final orders. He also ceased to be a Judge with effect from 11-5-1995 upon his retirement. The position which has now emerged, is that none of the two Judges of the Division Bench concerned is available and, therefore, the reasons in terms of above Rule 3 cannot be recorded, The point in issue is, as to whether the above short orders whereby the convicts' appeals were allowed and the acquittal appeals were dismissed, can be treated as final orders for the purpose of disposal of the appeals concerned. The answer of the above controversy is very aptly provided in the judgment in the case of In re: Officer Reference dated 28-4-1981 (supra) decided by a Division Bench of the High Court of Sindh comprising Zafar Hussain Mirza and Nasir Aslam Zahid, JJ. (as their lordships then were), namely, that the cases in which short orders have been recorded and signed by the concerned judges, stand disposed of and the said short orders are fully operative. The above view is in line with the view earlier taken by another Division Bench of the same High Court quoted hereinabove in para. 10(viii). Somewhat similar view was taken by a Division Bench of the Lahore High Court comprising A.R. Sheikh and Shafiur Rehman, JJ. in the case of Abdur Rahim v. Taj Muhammad (supra), in which short order recorded in Urdu allowing a revision petition by the Settlement Commissioner under the Displaced Persons (Compensation and Rehabilitation) Act was treated as a final order.
We are inclined to hold that the short orders under reference passed by the above Division Bench of the High Court of Sindh, which were duly signed and pronounced by the learned judges, for all intents and purposes in view of the situation obtaining, are final orders. The same cannot be set aside and the cases cannot be remanded for re-trial of the accused who stand acquitted in some of the above appeals by the High Court and in some of the appeals by the trial Court as well as by the High Court. Our above view is supported by a well-settled proposition of law that a party should not be made to suffer on account of an act/omission on the part, of Court or other State functionaries. In this regard, reference may be made to the case of Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859, the case of Fateh Khan v. Boze Mir (PLD 1991 SC 782, the case of Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012 and the case of Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 581."
In the instant case a short order dated 14.11.2008 was recorded in clear terms and was signed by Judges of this Court, whereby the judgments of Trial Courts well as of Appellate Court were set-aside, the conviction and sentence awarded to the petitioner were also set-aside and the petitioner was acquitted of the charge. Needless to observe that the decision so made and announced through Short Order is presumed to be solemn, well considered, conscious, deliberate and a final verdict covering all points arising out of the case. Considered as such, in our view, it ought not to have been fixed for re-hearing. Admittedly, the order dated 19.3.2009 was passed without hearing the petitioner. Having said so, in the light of above cited case (1997 SCMR 209), we are clearly of the view that the lis in the instant matter cannot be treated to be pending having already attained the finality in the eyes of law. Therefore, the order dated 19.3.2009 recalling the short order with direction that the case be fixed for re-hearing after notice to the; parties is set aside; as a result the short order dated 14.11.2008 shall stand revived and operative in law. Office is directed to consign this file to record.
(R.A.) Petition accepted.
PLJ 2010 SC 600
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmed, JJ.
CHIEF MANAGER STATE BANK OF PAKISTAN LAHORE
and another--Petitioners
versus
MUHAMMAD SHAFI--Respondent
Civil Petition No. 1188-L of 2004, decided on 6.10.2009.
(Against the judgment dated 19.1.2004 passed by the Federal Service Tribunal, Lahore in Appeal No. 421(L)(CE)/2000)
State Bank of Pakistan Act, 1956 (XXXIII of 1956)--
----S. 54--Status of regulations qua statutory or non-statutory regulations--Rules framed by Central Board of Directors which does not require approval of Government--Regulations may be termed as internal instructions or domestic rules/regulations having no status of statutory rules/regulations as law laid down by Supreme Court in various pronouncements which are as follows, PLD 1984 SC 170 & 2004 SCMR 35. [P. 602] A
Mr. Noor Muhammad Khan Chandio, ASC and Mr. Rehan Nawaz, ASC, Sr. Legal Advisor, State Bank for Petitioners.
Mr. Muhammad Ahmed Hasan Khan, ASC for Respondent in person.
Date of hearing: 30.9.2009.
Judgment
Ch. Ijaz Ahmed, J.--Petitioners seek leave to appeal against the judgment of the Federal Service Tribunal dated 19.1.2004 wherein appeal filed by the respondent was accepted.
Necessary facts out of which the present petition arises are that respondent was in the service of the petitioners against the post of Assistant Treasurer. He tendered his resignation on 20-3-1999 due to the death of his mother and other circumstances. Petitioners directed him to deposit a sum of Rs. 4,58,959/- outstanding against him. The matter regarding outstanding amount was not settled between the petitioners and the respondent. Consequently respondent submitted an application on 4-6-2000 with the request to withdraw his resignation. His request was not accepted. Respondent filed departmental appeal which was dismissed. Thereafter, he filed Appeal No. 421(L)(C.E)/2000 before the Federal Service Tribunal. The learned Service Tribunal accepted his appeal vide impugned judgment dated 19-1-2004. Hence the present petition filed by the petitioners on 25-3-2004. During the pendency of the petition this Court has decided the case of Muhammad Mobeen-us-Salam reported as PLD 2006 SC 602.
Learned counsel of the petitioners submits that in view of the judgments of this Court passed in Muhammad Mobeen-us-Salam's case (PLD 2006 SC 602) and Civil Petition No. 318 of 2005 (State Bank of Pakistan v. Agha Aurangzeb) whereby it was held that Service Tribunal was having no jurisdiction in the matter and which rule is applicable in the case in hand.
Learned counsel of the respondent submits that learned Service Tribunal had decided the case in his favour on 19-1-2004. This Court decided the case of Mobeen-us-Salam on 20-1-2006, therefore, this judgment has prospective effect and not retrospective effect.
Learned counsel for the petitioners in rebuttal submits that State Bank of Pakistan Staff Regulations, 1999 are not statutory by regulations.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. First of all we will decide the status of regulations of the petitioner qua statutory or non-statutory regulations. For this purpose Section 54 of the State Bank of Pakistan Act, 1956 is reproduced hereinbelow:--
Powers of the Central Board to make regulations.--(1) Subject to the approval of the Central Government, the Central Board may make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act.
2 (j) recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank's contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances; their betterment and uplift;
"In exercise of the powers conferred by Section 54 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956) the Central Board of Directors, hereby makes the following Regulations, to define the conditions of service of the employees of the Bank."
(i) Cadet College Kohat's case (PLD 1984 SC 170).
(ii) Zia Ghafoor Paracha's case (2004 SCMR 35).
"108. The threadbare discussion on the subject persuades us to hold:--
(1) Section 2-A of the STA, 1973 is partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1)(h) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1)(b) of the CSA, 1973.
(3) The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in Section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of Section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under Section 2-A of the STA. 1973 in view of the above observations. However, if any of the cases is covered by clause `c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."
"While examining these matters, we find that cases at serial Nos. 89 to 1914, mentioned in the later part of the judgment involve the employees whose services are not governed by statutory rules."
"The employees had succeeded before the learned Federal Service Tribunal after protracted litigation and, therefore, it was a fit case for applying defecto doctrine to save and protect the judgments delivered by the learned Federal Service Tribunal in favour of the employees....."
Mr. Khalid Anwar, ASC, appearing on behalf of State Bank of Pakistan submits in para 6 as under:--
"The cases not covered by Section 2-A stand abated which include the proceedings and judgments of the learned Federal Service Tribunal."
Finally this Court has analyzed the judgment Mubeen-us-Salam case in Muhammad Idrees' case (PLD 2007 SC 681) and directs in para 14 as under:--
"(a) The cases noted at Serial Nos. 89 to 1914 stand abated with, the result that the proceedings and judgments rendered by the learned Federal Service Tribunal also stand nullified. The affected/aggrieved parties are allowed a further period of 90 days to have recourse to the available remedies.
(b) The judgments of the learned Federal Service Tribunal rendered on the basis of Section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court have attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation.
(c) The cases in which the services of the employees were governed by statutory rules are not hit by Mubeen-us-Salam's case,"
(R.A.) Petition accepted.
PLJ 2010 SC 605
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Rahmat Hussain Jafferi, JJ.
MAJEED--Appellant
versus
STATE--Respondent
Crl. Appeal No. 84 of 2006, decided on 1.10.2009.
(Against judgment dated 31.5.2004 of the High Court of Balochistan, Quetta passed in Criminal Appeal No. 112 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence of imprisonment for life with benefit of S. 382-B, Cr.P.C.--Challenge to--Double murder--Evidence of dying declaration of deceased--Dying declaration was made even before a private person--Validity of--When prosecution witnesses were reached on the fire-arm reports they found the one deceased was lyind dead while other was alive by lying in injured condition who disclosed that the accused had fired at them--All the witnesses were cross-examined but nothing had come on record to discredit their evidence--No serious effort was made to challenge their statement on question of dying declaration--Held: Deceased made dying declaration, immediately after the incident, eliminating the possibility of influence before the witnesses making the accused responsible as one of the accused for causing them injuries--Further held: If dying declaration was made even before a private person, is free from influence and the persons before when such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction--Prosecution had proved the dying declaration which by itself was sufficient to maintain the conviction and sentence. [Pp. 607 & 608] A, B, C & D
Confessional Statement--
----Dying declaration--Accused made the confession of committing the crime by specifically admitting that had caused fire-arm injuries to deceased--Such statement was supported and corroborated by dying declaration--Courts below had relied upon the piece of evidence and Supreme Court did not find any reason to interfere with their findings. [P. 608] E
Evidentiary Value of Confession--
----No hard and fast rule--Period given by magistrate for reflection purposes to the accused was sufficient and it had not caused any prejudice to the accused--Even other, any lapse by magistrate in recording the confession cannot always be treated as fatal to the evidentiary value of confession when the Court is satisfied that lapse on the part of Magistrate is not in any way adversely affected the voluntaries or truthfulness of the confession. [P. 609] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 544-A--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Conviction for the offence punishable u/S. 302(b), PPC and sentence of imprisonment for life with benefit of S. 382-B, Cr.P.C.--No misreading or non-reading of the evidence--No infirmity in the assessment of evidence by High Court and trial Court--Conviction and sentence awarded by trial Court and affirmed by High Court was maintained--Held: Courts below did not pass any order as required u/S. 544-A, Cr.P.C. which was required to have been passed and they also did not give any reason for not passing such an order--Supreme Court directed the accused to pay compensation of specific amount for each deceased to be paid to their legal heirs or in default thereof to undergo RI for six months--Appeal was dismissed. [P. 609] G
PLJ 2000 SC 419, 1980 SCMR 654, 1992 SCMR 1983, 1999 SCMR 1744, 1992 SCMR 1983 & 1991 SCMR 942, ref.
PLJ 2001 SC 722, rel.
Hafiz S.A. Rehman, Sr. ASC for Appellant.
Raja Abdul Ghafoor, AOR for State.
Date of hearing: 1.10.2009.
Judgment
Rahmat Hussain Jafferi, J.--Present appeal, by leave of the Court, is directed against the judgment dated 31.05.2004, passed by a learned Division Bench of the High Court of Balochistan, Quetta by which appeal of the appellant was dismissed, maintaining the conviction for offence punishable under Section 302(b), PPC and sentence of imprisonment for life with benefit of Section 382-B, Cr.PC awarded by the Special Judge STA, Turbat.
It is the case of the prosecution that on 07.12.1998 Mir Shahdad and his son Mujeeb-ur-Rehman were coming to their house on a Motorcycle from Dasht Khuddan. When they reached at a place known as Maksar their Motorcycle was intercepted by the appellant and co-accused who were armed with Kalashnikovs. They fired upon Mir Shahdad and Mujeeb-ur-Rehman due to which Mir Shahdad died at the spot while Mujeeb-ur-Rehman became injured. On the firearm reports PW.3 Abdul Rehman, PW.4 Muhammad Amin and PW.7 another Abdul Rehman reached there. The deceased Mujeeb-ur-Rehman disclosed that the appellant and Ismail caused them injuries. The deceased Mujeeb-ur-Rehman succumbed to the injuries. The complainant Muhammad Anwar also arrived there and lodged the report on 7:30 p.m.
Motive of the incident was that on the day of occurrence Mir Shahdad apprehended a proclaimed offender Sawali and handed him over to the Levies authorities of Tehsil Dasht Khuddan.
The police investigated the case and collected the evidence of dying declaration of deceased Mujeeb-ur-Rehman in presence of PWs.3, 4 & 7. After the arrest, the appellant was produced before a Magistrate where his judicial confession was recorded. After completing the investigation the appellant was challaned in the Court where he was tried, convicted and sentenced as mentioned above.
We have heard learned counsel for the appellant as well as the State. Learned counsel for the appellant stated that dying declaration is doubtful and that the judicial confession was not recorded in accordance with law, therefore, the case of the prosecution has not been proved. The learned State counsel has stated that the prosecution has proved the dying declaration and confession, therefore, he supported the impugned judgment.
We have given due consideration to the arguments and have gone through the evidence available on record with the assistance of learned counsel for the appellant.
The evidence of PWs.3, 4 & 7 reveals that when they reached on the firearm reports they found the deceased Mir Shahdad lying dead while Mujeeb-ur-Rehman was alive but lying in injured condition who disclosed that the appellant Majeed and Ismail had fired at them. PW.7 apart from naming the above two persons also named Naseer and Bashir. All these three witnesses were cross-examined but nothing came on record to discredit their evidence. No serious effort was made to challenge their statement on the question of dying declaration. From the evidence it has been established beyond any shadow of doubt that deceased Mujeeb-ur-Rehman made dying declaration, immediately after the incident, eliminating the possibility of influence etc before the witnesses making the appellant responsible as one of the accused for causing them injuries. It is a well settled principle of law that if dying declaration is made even before a private person, is free from influence and the persons before whom such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction. This Court gave following guiding principles for relying upon the dying declaration in the case of "Farmanullah v. Qadeem Khan (PLJ 2001 SC 722)"--
"(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction."
Thus, the prosecution has proved the dying declaration which by itself is sufficient to maintain the conviction and sentence.
As regards confessional statement, the accused made the confession of committing the crime by specifically admitting that he had caused firearm injuries to the deceased. This statement is supported and corroborated by the dying declaration. Both the Courts below have relied upon the above pieces of evidence and we do not find any reason to interfere with their findings.
Learned counsel for the appellant has criticized the confession on the grounds that there was a delay of 12 days in recording the confession; that it was not voluntary and true and that only half an hour was given to the appellant for reflection.
No doubt there was delay of 12 days in recording the confession but this by itself is not sufficient to discard the same. This Court in the case of "Nabi Bakhsh v. State (PLJ 2000 SC 419)" held that delay in recording the confessional statement by itself is not sufficient to affect its validity. However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation. Reference is also invited to "Muhammad Yaqoob v. State (1992 SCMR 1983)".
We have examined the confessional statement and found that the Magistrate after performing requirements of law and giving a time of half an hour recorded the same and he was of the opinion that the confession was voluntary and true. In the case of "Gul Jamal v. State (1980 SCMR 654)", it was held that no hard and fast rule as to how much time is to be allowed to the accused for reflection before confession is recorded. However, period of time depends on each case. In the present circumstances of the case, we find that the period given by the Magistrate for reflection purposes to the appellant was sufficient and it has not caused any prejudice to the appellant. Even otherwise, any lapse by Magistrate in recording the confession cannot always be treated as fatal to the evidentiary value of confession when the Court is satisfied that lapse on the part of the Magistrate is not in any way adversely affected the voluntariness or truthfulness of the confession. Reference is invited to "Naseem Akhtar v. State (1999 SCMR 1744) and Muhammad Yaqoob v. State (1992 SCMR 1983)". We do not find any infirmity in the confessional statement which is corroborated by the dying declaration. Even otherwise, the recorded confession is sufficient for conviction if it is voluntarily and true and requires no corroboration but as a rule of procedure the Court is required to seek corroboration of the same on material particulars. Reference is invited to "Gul Muhammad v. The State (1991 SCMR 942)". In this case confession has been fully corroborated by dying declaration.
After scrutinizing the evidence, we are of the view that there is no misreading or non-reading of the evidence on record. There is no infirmity in the assessment of evidence by the learned High Court and the trial Court as such no interference is required to the impugned judgment. Consequently, the appeal fails and conviction and sentence awarded by the trial Court and affirmed by the learned High Court is maintained. However, we may point out that both the Courts below did not pass any order as required under Section 544-A, Cr.PC which was required to have been passed and further they also did not give any reason for not passing such an order, therefore, we direct the appellant to pay compensation of Rs. 1,00,000/- for each deceased to be paid to their legal heirs or in default thereof to undergo RI for six months.
Resultantly, the appeal stands dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 610
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed &
Ghulam Rabbani, JJ.
Dr. AYESHA SABIR--Petitioner
versus
FIDA-UL-HAQ and others--Respondents
Civil Petition No. 1189 of 2009, decided on 18.8.2009.
(Against the judgment dated 10.4.2009 passed by the Lahore High Court, Rawalpindi Bench, in W.P. No. 1997 of 2008).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Constitutional jurisdiction--Concurrent finding of facts against petitioner that she had settled all her claims before superior Court of Justice in Canada--Validity--Supreme Court generally does not interfere in concurrent findings of the Courts below while exercising constitutional jurisdiction under Art. 185(3) of Constitution. [P. 614] A
1974 SCMR 279, PLD 1981 SC 246 & PLD 1981 SC 522, ref.
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Concurrent--Suit for recovery of dowry articles was dismissed by Courts below--Concurrent conclusions--In Ontario Superior Courts of Justice, Canada, claim of the petitioner for return of jewellery was not finally settled, therefore, the petitioner filed a suit for recovery thereof in Pakistan--Contrary to record of Canadian Court refused her claim on the ground that the same had been settled--Discretionary power--Constitutional jurisdiction is discretionary in character--He who seeks equity must come with clean hands--All the Courts below had come to concurrent conclusions while rejecting the document--Supreme Court had re-examined the document and compared with other document available on record--Held: Family Judge was justified to discard the document in-question--Finding was not challenged by the petitioner before the first appellate Court as well as before High Court, therefore, petitioner had no legal right to agitate the same before Supreme Court--Leave refused. [Pp. 614 & 615] B & C
PLD 1971 SC 766 & AIR 1940 PC 219, ref.
Mir Muhammad Ghufran Khurshid, ASC for Petitioner.
Mr. Ibadur Rehman Lodhi, ASC for Respondent Nos. 1 & 2.
Date of hearing: 18.8.2009.
Order
Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 10-4-2009 wherein Constitution Petition filed by the petitioner against the judgments and decrees dated 2-6-2008 and 15-9-2009 passed by the Judge, Family Court and Additional Sessions, respectively, was dismissed.
Necessary facts out of which the present petition arises are that petitioner and Respondent No. 1 solemnized marriage in accordance with the injunctions of Islam on 19-12-2002 in lieu of dower amount of Rs. 10,000/-. Rukhsati had taken place on 27-6-2003. The petitioner started living with Respondent No. 1/Defandant No. 1 and performing the matrimonial obligations till the departure of the Respondent No. 1/Defendant No. 1 to Canada in July, 2003. The petitioner also left for Canada in October, 2003. The petitioner was divorced on 18-4-2005. Petitioner filed a suit for recovery of dowry articles before the Judge, Family Court, Rawalpindi on 2-5-2006. The contents of the plaint reveal that at the time of marriage the petitioner/plaintiff was given valuable dowry articles which included golden ornaments weighing 65 tolas, including 13 golden bangles, 9 gold sets, one silver set, 5 Rings, one Bracelet of gold, one diamond bracelet, gold bangles of 4-1/2 tolas from Respondent No. 1/Defendant No. 1's mother and Rs. 100,000/- cash amount was also given to the petitioner/plaintiff by her parents. The detailed list of dowry articles is also annexed with the plaint. The respondents filed written statement controverting the allegations leveled in the plaint. Out of the pleadings of the parties the Judge Family Court framed the following issues :--
Whether plaintiff is entitled to recover dowry articles as per list annexed with the plaint or in alternate their prices? OPP.
Whether after decision of the superior Court of Justice in Canada this suit is not proceedable u/S. 11 CPC? OPD.
Whether this Court had territorial jurisdiction as cause of action has also arisen in Canada and parties had also reside in Canada?. OPD.
Relief.
The Judge, Family Court, dismissed the suit of the petitioner vide judgment and decree dated 2-6-2008. Petitioner being aggrieved filed appeal in the Court of Additional District Judge, Rawalpindi who dismissed the same vide judgment and decree dated 15-9-2008. Thereafter, the petitioner filed Constitution Petition No. 1997/2008 in the Lahore High Court, Rawalpindi, Bench, Rawalpindi, which was also dismissed vide judgment dated 10-4-2009. Hence the present petition.
3-A. The learned counsel for the respondents submits under:--
(i) That matter has been settled between the parties by Superior Court of Justice in Canada vide judgment dated 31-8-2006 wherein the petitioner had forgiven her claims against Respondent No. 1/Defendant No. 1.
(ii) That document at page 49 of the paper book dated 17-8-2006 was discarded by the Judge, Family Court. Against the said finding of the Judge, Family Court, the petitioner did not challenge the same before the first appellate Court as is evident from grounds of appeal. Similarly, she had not agitated the same in the High Court as is evident from the contents of the Constitution petition filed by her in the High Court.
(iii) That document in question dated 17-8-2006 is not genuine document. The petitioner did not produce original document. The photo copy of the document is not admissible in the evidence.
(iv) The document in question was filed by the counsel of the petitioner before the Superior Court of Justice in Canada on 17-8-2006 whereas the final settlement arrived between the parties by the Superior Court of Justice in Canada on 31-8-2006.
(v) That other documents of Superior Court of Justice in Canada which are attached with the petition which contain entries, i.e. Date of Signature, Signature of Judge or Clerk of the Court whereas the document in question does not contain the said entries.
Finding of the Family Court
This witness also produced order dated 17-3-2006, with final minutes of settlement as Ex.P.1. Since learned for the defendants had raised objection on the admissibility of this document, hence it was ordered that its admissibility will be decided later on. Since documents produced by the plaintiff as Ex.P.1 is not properly attended, therefore, it can not be produced by the plaintiff, hence Ex.P.1 is excluded from the plaintiffs/evidence. During the cross examination PW.1 admitted Ex.D.1 was the copy of her claim which was filed in Canada. She had attended pages. She also admitted it correct that Ex. D.2 was copy of order dated 1 7-8-2008 of the Superior Court of Justice of Canada.
SCHEDULE `A'
Gold Jewelry given as a dowry and gifts to the applicant valued 20,000 CDN and which are not in the applicant's possession but in the respondent's care and control.
11-22 carat gold sets consisting of necklace, ring and. ear rings.
Three gold bracelets.
a. Gold and Sapphire
b. Gold and diamond.
c. Gold and Pearl
One white pearl set.
19 gold bangles.
6 gold rings.
One diamond ring.
2 sets of ear rings
Furniture, and electronics valued approximately & 5000 CDN.
Cross Examination
It is an admitted fact that petitioner filed appeal in the Court of Additional District Judge, Rawalpindi. The petitioner has not challenged the aforesaid finding with regard to the document dated 17-8-2006 in the grounds of appeal consisting from ground A to H. Thereafter, the petitioner filed Constitution Petition wherein she did not challenge the aforesaid finding of the Family Court as is evident from grounds 1 to 9. It is also admitted fact that all the Courts below have given concurrent finding of facts against the petitioner that she had settled all her claims before the Superior Court of Justice in Canada. It is also settled principle of law that this Court generally does not interfere in the concurrent conclusions of the Courts below while exercising constitutional jurisdiction under Article 185(3) of the Constitution as law laid down by this Court in various pronouncements. See:--
(i) Khuda Bakhsh case (1974 SCMR 279)
(ii) Muhammad Sharif case (PLD 1981 SC 246)
(iii) Abdul Rehman Bajwa case (PLD 1981 SC 522)
It is also settled principle of law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. All the Courts below had come to the concurrent conclusions while rejecting the document dated 17-8-2006. We have also re-examined the said document and compared the same with other document available on record. We are also of the view that the Judge, Family Court was justified to discard the document in question. Keeping in view this aspect of the case we are not inclined to exercise our discretionary power in favour of the petitioner as law laid down by this Court in various pronouncements: See:--
(i) Wali Muhammad case (PD 1974 SC 106)
(ii) Raunaq Ali case (PLD 1973 SC 236)
(iii) Haji Muhammad Saifullah Khan case (PLD 1989 SC 166)
Even otherwise there is no substantial question of law arising in this petition. It is pertinent to mention here that the Judge, Family Court excluded Ex.P/1 (document dated 17-8-2006) from evidence, this finding as mentioned above was not challenged by the petitioner before the first appellate Court as well as before the High Court, therefore, petitioner has no legal right to agitate the same before us as law laid down by this Court in Ashfaqur Rehman Khan (PLD 1971 SC 766) and John E. Brownlee case (AIR 1940 P.C. 219).
(R.A.) Leave refused.
PLJ 2010 SC 615
[Appellate Jurisdiction]
Present: Jawwad S. Khawaja, Anwar Zaheer Jamali &
Khilji Arif Hussain, JJ.
M/s. VICTOR ELECTRONICS APPLIANCES INDUSTRIES
(PVT.) LTD.--Appellant
versus
HABIB BANK LIMITED and others--Respondents
Civil Appeal No. 1478 of 2007, decided on 4.2.2010.
(On appeal from the judgment dated 20.12.2006 of the High Court of Sindh, Karachi passed in HCA No. 115 of 2005).
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 9--Letters of credit--Question of jurisdiction--Relationship between them of customer and bank--Appellant was availing financial facilities advanced by bank including a facility for establishing letters of credit--Civil suit was filed under the ordinary law and not a suit u/S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001--Validity--Jurisdiction of a Court could not be created through a concession or even through an agreement between the parties--Held: As a general proposition of law of a Court cannot be created through agreement between the parties--Cause of action alleged therein, arose in favour of appellant on account of failure of the bank to establish a letter of credit within an agreed time frame--Letters of credit have specifically been included in the definition of finance--Provision of S. 9 of the Ordinance, and the concession duly made and recorded in the judgment it is the Banking Court which has jurisdiction in the case--Appeal was dismissed. [P. 617] A
Mr. Saalim Saleem Ansari, ASC and Mr. A.S.K. Ghori, AOR for Appellant.
Mr. Iqbal Haider, Sr. ASC and Mr. K.A. Wahab, AOR for Respondents.
Date of hearing: 4.2.2010.
Order
Jawwad S. Khawaja, J.--The appellant, Victor Electronics Appliances Industries Pvt. Ltd. impugns the appellate judgment dated 20.12.2006 passed by a learned Division Bench of the High Court in H.C.A. No. 115/2005.
The issue before us is very straightforward. It relates to jurisdiction. It is admitted by both sides that the appellant and the respondent-Bank have a relationship between them of customer and Bank, respectively. Furthermore, from the contents of the plaint, it is also clear that the appellant was availing financial facilities advanced by the Bank including a facility for establishing Letters of Credit.
The question of jurisdiction arose because the appellant filed a civil suit under the ordinary law and not a suit under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The learned Judge trying the suit passed decree in favour of the appellant for a sum of Rs. 10 million. The respondent-Bank impugned the said decree by filing an appeal. We note that the respondent-Bank in its written statement, had taken the express preliminary objection that the jurisdiction in the case was vested in the Banking Court established under the aforesaid statute. No issue, however, was framed on this objection and consequently, the matter of jurisdiction could not be adjudicated at the trial. During the appeal, however, the present appellant made a statement which has been noted in Paragraph 5 of the impugned judgment. Relevant extracts from the said paragraph are reproduced as under:
"In the light of above order this matter was again fixed for re-hearing on 20.12.2006 and the ground of jurisdiction was apprised to the learned counsel for the respective parties. In the light of the reasons expressed in the detailed order dated 14.11.2006 learned counsel for the respondent conceded the legal position and stated that his case may be sent to the Banking Court for further adjudication. Since the learned counsel for the respondents has conceded that only the Banking Court has jurisdiction where a customer or a financial Institution commits a default in fulfillment of any obligation as (sic) to file plaint in Banking Court as prescribed under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001."
...........
"Since the learned counsel for the respondent has not contested the matter on the point of jurisdiction, therefore, the impugned judgment and decree passed by the Court in Suit No. 1221/2002 are set aside. "
A
(R.A.) Appeal dismissed.
PLJ 2010 SC 617
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk &
Ch. Ijaz Ahmed, JJ.
ZAFAR and others--Petitioners
versus
UMER HAYAT and others--Respondents
Crl. P. No. 732-L of 2009, decided on 14.10.2009.
(Against the judgment dated 9.6.2009 passed by Lahore High Court, Lahore, in Criminal Revision No. 441/2009).
Constitution of Pakistan, 1973--
----Art. 185(3)--Pakistan Penal Code, (XLV of 1860)--Ss. 302, 148 & 149--Leave to appeal--Summons issued to accused--Petitioner being aggrieved filed Criminal Revision which was dismissed--Assailed--It is duty and obligation of the trial Court to scrutinize the contents of the complaint, nature of allegation made therein supporting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are leveled should suffer the ordeal of protracted time consuming and cumbersome process of law--Held: Every one has a right to approach the Court for redress of grievances but the same is subject to condition that sufficient grounds for issuance of process is made out--No sufficient ground for issuance of process considering the facts that the FIR was got registered but after more than seven months counter version has been brought by respondent about the same incident--Fact was not considered by the trial Court at the time of issuing summons to respondents which was countersigned by High Court without application of mind as is evident from the judgment--Leave was allowed. [Pp. 621 & 622] A & C
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 202 to 204--Summons to accused--Sufficient grounds--Provisions of--Provisions as contained in Ss. 202 to 204, Cr.P.C. if read together would show that a proper safeguard has been provided by legislature which showed its such intention by using the words if any and sufficient grounds for any in S. 203, Cr.P.C. and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out. [P. 622] B
2000 SCMR 1904.
Limitation--
----Criminal prosecution--Although no such thing as limitation is prescribed in criminal prosecution, but yet on the other hand the longer complaint is delayed the less becomes the chance of believing in its truth, more particularly when it is based upon entirely oral evidence. [P. 622] D
Principle of Law--
----All the laws of the land must wear in sleves of the judge. [P. 622] E
Controversy--
----It is basic and fundamental principle of law that it is duty and obligation of Courts below to decide the controversy between the parties after application mind. [P. 622] F
PLD 1970 SC 158, ref.
General Clauses Act, 1897 (X of 1897)--
----S. 24-A--Every public functionaries are duty bound to decide the applications of the citizens after application of mind after addition of S. 24-A, in General Clauses Act as law laid down by Supreme Court.
[P. 622] G
1998 SCMR 2268.
Principle of law--
----Each and every case is to be decided on its own peculiar and circumstances and facts as law laid down by Supreme Court.
[P. 622] H
Mr. M. Aftab Iqbal Chaudhry, ASC for Petitioners.
Syed Ali Imran Shah, Deputy Prosecutor General, Punjab for State.
Date of hearing: 14.10.2009.
Judgment
Ch. Ijaz Ahmed, J.--Petitioners have sought leave to appeal against the impugned judgment of the High Court dated 9-6-2009 wherein the revision petition filed by them against the summons issued to them by the learned Additional Sessions Judge, Sargodha, vide its order dated 12-5-2009 on the complaint filed by Respondent No. 1, was dismissed.
(a) Umer Hayat son of Ghulam Muhammad
(b) Ahmad Hayat son of Ghulam Muhammad
(c) Muhammad Yaseen son of Abdul Ghafoor
(d) Sana Ullah son of Ahmad Hayat
(e) Muhammad Naeem son of Inayat Ullah
(f) Rehmat Ullah son of Noor Muhammad
(g) Muhammad Riaz son of Raja
(h) Amjad Sana son of Sanaullah
(i) Saleem Ullah son of Abdul Ghafoor
Respondent No. 1 Umar Hayat who is nominated accused in the said FIR filed complaint in the Court of Additional Sessions Judge Sargodha on 9-2-2009 regarding same occurrence by his counter version. The learned Additional Sessions Judge after recording evidence of complainant Umer Hayat (respondent) who also produced Hafeezullah (PW-2) and Ghulam Muhammad (PW-3) in support of his version and also submitted postmortem report of Saeedullah before the Court. The learned Additional Sessions Judge issued summons to the petitioners/ respondents vide order dated 12-5-2009. Petitioners being aggrieved filed Criminal Revision No. 441/2009 in the Lahore High Court which was dismissed vide impugned judgment. The above petition was fixed before this Court on 25-8-2009 wherein it was ordered to issue notice to Respondent No. 1. Office had issued notice to Respondent No. 1 but he did not turn up in spite of the service.
(i) FIR was lodged qua the same incident on 15-6-2008 whereas the complaint was filed by Respondent No. 1 with regard to the same incident by his counter version in the Court of Additional Sessions Judge on 9-2-2009 without explaining delay for filing belated complaint before the said Court.
(ii) The complainant had only mentioned in the contents of the complaint that he had approached high officers of the police for recording his counter version but police failed to record his counter version on the political influence of the petitioners/respondents. It is the duty and obligation of the trial Court to issue summons to the petitioners/respondents after application of mind but the learned trial Court did not apply its mind as is evident from para 2 of the order of the Additional Sessions Judge dated 12-5-2009.
(iii) The learned High Court has also countersigned the order of the trial Court without application of mind.
(iv) Challan has already been submitted after investigation by the police in terms of the FIR No. 304/2008 mentioned hereinabove and the trial Court was almost at the verge of the conclusion and the statements of all the material eye witnesses have been recorded and suddenly out of the blue, a complaint was lodged by Respondent No. 1 accused party, implicating the complainant and eye witnesses of the FIR case as accused and this fact was not considered while summoning the petitioners/respondents. This fact was also not considered by the learned High Court in the impugned judgment.
The learned Deputy Prosecutor General has supported the impugned judgment.
We have give our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is better and appropriate to reproduce the admitted facts in chronological order to resolve the controversy between the parties which are as follows:--
(a) FIR was lodged on 15-6-2008 by one Rehmatullah son of Dara against Respondent No. 1 and his co-accused.
(b) Challan has already been submitted before the learned Additional Sessions Judge Sargodha.
(c) Statements of almost all the material witnesses have been recorded by the learned Additional Sessions Judge in the abovementioned FIR.
(d) Respondent No. 1 filed complaint before the Additional Sessions Judge on 9-2-2009.
It is pertinent to mention here that same Additional Sessions Judge had recorded evidence in the aforesaid FIR case against Respondent No. 1 and his co-accused qua the same incident with counter version. It is duty and obligation of the trial Court to scrutinize the contents of the complaint, nature of allegation made therein supporting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are leveled should suffer the ordeal of protracted time consuming and cumbersome process of law. It is also settled principle of law that the provisions as contained in Sections 202 to 204, Cr.P.C. if read together would show that a proper safeguard has been provided by the Legislature which showed its such intention by using the words "if any" and "sufficient grounds for any" in Section 203, Cr.P.C. and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out. See Abdul Wahab Khan's case (2000 SCMR 1904). It is also settled principle of law that every one has a right to approach the Court for redress of grievances but the same is subject to condition that sufficient grounds for issuance of process is made out, In the case in hand, we have found that there was no sufficient ground for issuance of process considering the facts that earlier also FIR No. 304/2008 was got registered by one Rehmatullah son of Dara but after about more than seven months counter version has been brought by Respondent No. 1 about the same incident. This fact was not considered by the trial Court at the time of issuing summons to the petitioners/respondents which was countersigned by the learned High Court without application of mind as is evident from the impugned judgment. Judgments of both the Courts below are not in consonance with the dictum laid down by this Court in Muhammad Salim's case (2001 SCMR 1738), It is also settled principle of law that although no such thing as limitation is prescribed in criminal, prosecutions, but yet on the other hand the longer complaint is delayed the less becomes the chance of believing in its truth, more particularly when it is based upon entirely oral evidence. It is also settled principle of law that all the laws of the land must wear in the sleeves of the Judge. It is basic and fundamental principle of law that it is duty and obligation of the learned Additional Sessions Judge and the learned High Court to decide the controversy between the parties after application of mind as law laid down by this Court in G.M. Sikdar's case (PLD 1970 SC 158). Every public functionaries are duty bound to decide the applications of the citizens after application of mind after addition of Section 24-A in the General Clauses Act as law laid down by this Court in M/s Airport Services' case (1998 SCMR 2268). As mentioned above, the learned High Court had countersigned judgment of the trial Court, therefore, judgment of the learned High Court is not sustainable in the eyes of law as law laid down by this Court in Ghulam Mohi-ud-Din's case (PLD 1964 SC 829).
The learned High Court had non suited the petitioners in view of the law laid down by this Court in Noor Muhammad's case (PLD 2007 SC 9). It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case (1994 SCMR 2213). The facts of the case in hand are entirely distinguished from the cited case.
In view of what has been discussed above the impugned judgments of both the Courts below are set aside. Consequently the complaint filed by respondent is dismissed. The petition is converted into appeal and appeal is allowed with no orders as to costs.
(R.A.) Appeal allowed.
PLJ 2010 SC 623 [Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez & Ghulam Rabbani, JJ.
Dr. MOBASHIR HASSAN and others--Petitioners
versus
FEDERATION OF PAKISTAN and others--Respondents
Constitution Petition Nos. 76 to 80 of 2007 & 59/2009, C.A. No. 1094 of 2009 and HRC Nos. 14328-P to 14331-P & 15082-P of 2009, heard on 16.12.2009.
(On appeal from the order dated 15.1.2009 passed by High Court of Sindh at Karachi in Const. P. No. 355 of 2008)
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution of Pakistan, 1973, Arts. 184(3), 270-AAA & 89--Proclamation of Emergency, 2007--Provisional Constitutional Order, 2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Challenging the Constitutionality of National Reconciliation Ordinance, 2007--Doctrine of constitutional trichotomy--Validity--Supreme Court vide judgment dated 31st July 2009, in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLJ 2010 SC 1 & PLD 2009 SC 879), declared the Proclamation of Emergency, 2007, Provisional Constitutional Order, 2007, Oath of Office (Judges) Order, 2007, Provisional Constitution (Amendment) Order, 2007 and the Constitution (Amendment) Order, 2007, to be unconstitutional, illegal and void ab initio--Consequently all the Ordinances (including the National Reconciliation Ordinance, 2007) were shorn of the permanency, which was provided under Art. 270AAA of the Constitution, as validated in Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLJ 2009 SC 18 & PLD 2008 SC 178)--Supreme Court, while adhering to the doctrine of constitutional trichotomy, referred the National Reconciliation Ordinance, 2007 along with other Ordinances, to the Parliament for consideration to make them Act of the Parliament, or the Provincial Assemblies, as the case may be, with retrospective effect--National Reconciliation Ordinance, 2007 after having been brought on the floor of the National Assembly from where it was withdrawn-- Necessary inference can be drawn that the National Assembly and the Senate (the Parliament), which were required to approve or otherwise the NRO, 2007, and the same was sent along with other Ordinances to them, to make it an Act of the Parliament, with retrospective effect, did not consider it to be a valid temporary legislation. [Pp. 668, 669, 670 & 691] A, B & H
Constitution of Pakistan, 1973--
----Art. 7--Organ of the State--When the two organs of the State, as defined in Art. 7 of the Constitution, become incapable of performing their duties entrusted to them under the Constitution, it is incumbent upon the third organ i.e. judiciary to come forward for rescue of the State. [P. 680] C
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Scope--Constitution of Pakistan, 1973, Art. 89--Inherent mischief--To protect the interest of a person--Validity--National Reconciliation Ordinance, 2007 does not meet the criterion, laid down in Art. 89 of the Constitution, particularly with regard to `satisfaction' of the President, which should always be fair, just and never arbitrary, therefore, the National Reconciliation Ordinance, 2007 having inherent mischief in it, as it conceives to protect the interest of a particular person, is a bad law. [P. 681] D
Administration of Justice--
----Practice of the Courts that legal proceedings are not undertaken merely for academic purposes unless there are admitted or proven facts to resolve the controversy. [P. 689] E
Constitution of Pakistan, 1973--
----Art. 270-AAA--Scope of--Ordinance would stand repealed at the expiration of four months and three months under Arts. 89 & 128 of Constitution--Principle of trichotomy of powers--Question of--Whether Court can give decision--Whether the Court, itself, can give decision that as the permanency attached to temporary legislation i.e. an Ordinance, through unconstitutional provision of Art. 270-AAA of the Constitution, should examine itself or the matter should be left for the parliament to examine them'; there was no difficulty in declaring that Ordinance would stand repealed at the expiration of four months and three months, under Arts. 89 and 128 of the Constitution, as the case might be prima facie, there was no justification for placing such legislations before the parliament but on having taken into consideration the principle of trichotomy of powers, coupled with the fact that on the basis of bona fide apprehension, all the Ordinances, issued during the period, when the emergency was imposed in the country, commencing from 3rd Nov., 2007 up to 15th Dec., 2007, and all those temporary legislations, which were in force on 15th Dec. 2007, were not placed before the Parliament, after attaining perpetuity through Art. 270-AAA of the Constitution, because such Ordinances had conferred rights and obligations upon the parties; therefore, it was considered appropriate to strengthen the Parliament, by sending these Ordinances for making them the Acts of the Parliament with retrospective effect, so the benefit derived by the masses, could also be protected. [P. 690] F
Constitution of Pakistan, 1973--
----Preamble--Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive and the judiciary--Legislature is assigned the task of law making, the executive to execute such law and the judiciary to interpret the laws--None of the organs of the State can encroach upon the field of the others. [P. 691] G
Constitution of Pakistan, 1973--
----Arts. 184, 185 & 186--Principle of law--Duty is cast upon Supreme Court--It should normally lean in favour of constitutionality of a statute and efforts should be made to save the same instead of destroying it. [P. 693] I
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Taking notice of prevailing state of affairs having bearing on the issue involved in a case--Scope--Having bearing on the issue involved in a case, reports of the relevant period, from electronic and print media, can be taken into consideration--Non-denial of a solitary newspaper report, or even more reports for that matter, may not, in appropriate cases, from the basis of an opinion, one way or the other. [Pp. 694 & 695] J & K
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution of Pakistan, 1973, Art. 184(3)--Challenging the validity of National Reconciliation Ordinance, 2007--Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive and the judiciary--Legislature is assigned to task of law making, the executive to execute such laws and the judiciary to interpret the laws--None of the organs of the State can encroach upon the field of others. [Pp. 696 & 697] L, M, N & O
Constitution of Pakistan, 1973--
----Arts. 8 & 25, Chapt. I--Inconsistent with rights--Fundamental right--Art. 8 of the Constitution provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void; and the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void--Held: Art. 8 of the Constitution is covered under Chapter I of the Constitution, which deals with fundamental rights--Art. 25 of the Constitution, being one of the important Arts. of the Constitution, professes that all citizens are equal before law and are entitled to equal protection of law. [Pp. 697 & 698] P
Constitution of Pakistan, 1973--
----Arts. 15, 16, 17, 18, 19, 24 & 233--Rule of law--During emergency the provisions of Art. 4 remain operative--Proclamation of emergency, fundamental rights, guaranteed under Arts. 15, 16, 17, 18, 19 & 24, of the Constitution, can be suspended in terms of Art. 233 of the Constitution, but during the emergency, the provisions of Art. 4 of the Constitution remain operative--The phrase `rule of law' has been used since the time of Aristotle, in the fourth century B.C.; it has meant different things to different authors and theorists; Aristotle's concept of rule of law is contained in his simple saying: "the rule of law is to be preferred to that of any individual" -- In other words, the rule of law is anathema to the rule of men; in the words of the Constitution of the State of Massachusetts, it means "a government of law and not of men. [Pp. 698 & 699] Q
Constitution of Pakistan, 1973--
----Art. 8--Inconsistency--Whether a law which is inconsistent with fundamental rights is liable to be declared void to extent of such inconsistency--Question of--Art. 13 of the Indian Constitution is pari materia to Art. 8 of the Constitution of Pakistan and according to the former, "all laws in force in the territory of India immediately before the commencement of Constitution of Pakistan, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void". [P. 700] R
Constitution of Pakistan, 1973--
----Arts. 8(2) & 184(3)--Jurisdiction of Supreme Court to examine constitutionality of a law--Scope--Inconsistency or contravention of a law passed or existing laws shall be examined to extent of violation of fundamental rights and such law are not void for other purpose--Art. 8(i) of the Constitution uses the word `inconsistent' purposely, regarding any law which was promulgated in the past or is in existence presently--Whereas, Art. 8(2) of the Constitution debars the State not to make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void--So, inconsistency or contravention of a law passed, or the existing law, shall be examined to the extent of violation of fundamental rights and such laws are not void for other purposes. [P. 700] S
Words & Phrases--
----Void ab-initio--Legal effect whatsoever"--Similarly, the word `void ab initio' has been defined in Black's Law Dictionary, 7th Edn--(1999) as "null from the beginning"--However, the powers of Supreme Court to examine the constitutionality of a law have been discussed in number of judgments at number of times. [P. 701] T
PLD 1983 SC 457; PLD 1988 SC 416 at 485; PLD 1995 SC 28 at 296; PLD 1997 SC 781 at 796; PLD 2006 SC 697 at 731 & PLD 2007 SC 642 at 671, 675 & 676.
Constitution of Pakistan, 1973--
----Art. 4--Scope--Constitution command that all the citizens without any discrimination shall be dealt with in accordance with law, so enforcement of the law leaves no room for creating any distinction between the citizens, except a particular class, on the basis of intelligible differentia. [P. 701] U
Constitution of Pakistan, 1973--
----Art. 25--National Reconciliation Ordinance, 2007--Scope of--To be declared void ab initio of National Reconciliation Ordinance--Challenge to--Being discriminatory in nature--National Reconciliation Ordinance, 2007, is of its being discriminatory in nature--National Reconciliation Ordinance, 2007, being violative of Art. 25 of the Constitution, deserves to be declared void ab initio, non est, thus never took birth, therefore, nothing, which is the product of the National Reconciliation Ordinance, 2007 or done in pursuance of it or under it, ever came into existence or survive. [P. 701] V
Classification--
----Definition--Intelligible differentia--"Intelligible differentia" means, in the case of the law differentiating between two sets of the people or objects, all such differentiations should be easily understood as logical and lucid and it should not be artificial or contrived. [P. 702] W
Criminal Procedure Code, 1898 (V of 1898)--
----S. 494(1)--Amendment--Consent of the Court was replaced with recommendation of the review board--Powers of the Court under Section 494(1), Cr.P.C. were conferred upon the Review Board, to be constituted by the Federal Government and the Provincial Government, composition of which has been provided u/S. 494(4), Cr.P.C.--In simple words consent of the Court has been replaced with the recommendations of the Review Board i.e--an executive body, for all intent and purposes. [P. 704] X
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 87 & 88--Declaring a person absconder--Essentially--Essentially, declaring a person absconder is the job of the Trial Court, after submission of challan and observing codal formalities under Sections 87 and 88, Cr.P.C.--As far as involving a person falsely for political reasons or through political victimization, is concerned, it is a question which could only be examined by the Court of law, before whom challan has been submitted because once a challan is filed, the accused can be discharged or acquitted under Cr.P.C. [Pp. 704 & 705] Y
Absconding--
----Prima facie to be fugitive from law--However, as far as absconding accused is concerned, prima facie, he is considered to be fugitive from law--Therefore, without surrendering to the Court, legally no concession can be extended to him by the executive authority. [P. 705] Z
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution of Pakistan, 1973, Arts. 2(a) & 184(3)--Criminal Procedure Code, (V of 1898), S. 494--Constitutional petition under Art. 184(3) of Constitution--Challenging validity of National Reconciliation Ordinance--Withdrawal of criminal cases, registered against the accused persons, during the specific period, commencing from 1st Jan., 1986 to 12th Oct., 1999, Advocate General Sindh was called upon to place on record the details of all cases--However, except furnishing one list of the cases, he could not handover the list of all other cases--Neither any benefit of the National Reconciliation Ordinance, 2007 was extended to any of the accused, nor was any Provincial Review Board constituted. [Pp. 705 & 706] AA
Withdrawal of Cases--
----Recommendation for withdrawal of cases--Review Board and trial Court--Whether hundreds of cases can be decided within few hours, for the purpose of making recommendations by the Provincial Review Board. [P. 706] BB
Constitution of Pakistan, 1973--
----Arts. 2-A & 45--Punishments of death--Way of qisas and tazir--Question of pardon--Test of repugnancy--Principle of law--Punishments of death awarded were not by way of qisas--Sentences of death awarded were under Ta'zir--No question of pardon arises if the punishment of Qisas has been awarded--However, in respect of Ta'zir, the President continues to enjoy the power to grant pardon--It is further observed that in terms of Arts. 45 and 2A of the Constitution, the Court has no power to apply the test of repugnancy by invoking Art. 2A of the Constitution for striking down Art. 45 of the Constitution. [P. 707] CC & DD
Administration of Justice--
-----Conclusion of trial--Principles of--Principles of administration of justice in criminal cases that if no case is made out on merits, it is free to discharge or acquit the accused without waiting for conclusion of the trial. [P. 708] EE
Criminal Procedure Code, 1898 (V of 1898)--
----S. 494--Amendment--Independence of judiciary--Amendment in Section 494, Cr.P.C. has not only undermined the independence of judiciary by substituting the Court, before whom the trial of an accused was pending, with the Review Board, but, at the same time, had also created discrimination with the accused, who were facing trial prior to 1st Jan., 1986 or had been charged for the offence after 12th Oct., 1999. [P. 708] GG
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Object of--Question of--Political victimization--Whether there had been no political victimization after 12th Oct., 1999 uptill now, on account of which accused persons were involved falsely in the commission of the offence but Supreme Court could not succeed in getting the answer of the same except observing that specific dates were incorporated in the National Reconciliation Ordinance, 2007 for achieving specific object as well as the specific purpose, which has been highlighted by one of the counsel. [P. 708] HH
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Intelligence differentia for reasonable classification--Classification amongst the accused persons, facing trial during the specific period i.e. 1st Jan. 1986 to 12th
Oct. 1999, is based on arbitrariness and no reasons have been disclosed in the
National Reconciliation Ordinance, 2007 for entering into so called
reconciliation' with particular group of accused persons, except in the name ofnational reconciliation' on the pretext that the cases were politically motivated against them--Therefore, the National Reconciliation Ordinance, 2007 to the extent of discussion on Section 2, is arbitrary and irrational as it has failed the test of reason to conclude in its favour that it is not a bad law--Similarly on the basis of intelligible differentia for reasonable classification, the differentiation has not been understood logically and it seems that for specific purpose, an artificial grouping was made, causing injustice to the accused persons, who were placed in the same position and instead of achieving the national reconciliation' the National Reconciliation
Ordinance, 2007 had served the purpose ofindividual reconciliation'. [Pp. 710 & 711] II
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss. 6--National Accountability Ordinance, 1999, S. 31-A--Powers of Court--Legislature to declare order of competent jurisdiction in absentia is void--Powers of the Court could not be substituted or conferred according to Section 6 of the National Reconciliation Ordinance, 2007 on the legislature to declare that an order or judgment passed by a Court of competent jurisdiction in absentia is void ab initio and shall not be acted upon--It may also be kept in mind that; firstly Section 6 of the National Reconciliation Ordinance, 2007 is general in its nature and benefit of the same can be derived by a candidate for becoming the member of the Parliament, or a member of the Parliament, or by other ordinary person; secondly, it has not been made applicable for a specific period--Therefore, if it being an amended provision continued to remain intact for all the times to come, conviction in absentia under Section 31A of the National Accountability Ordinance, 1999 shall be void and for all practical purposes Section 31A of the National Accountability Ordinance, 1999 shall be deemed to have been annulled. [P. 713] JJ
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 31-A--Offence falling within mischief of Section 31-A--Conviction in absentia--Section 31-A of the National Accountability Ordinance, 1999 is distinct offence, from the allegations made in the reference, which was filed against an accused and if the convict has been acquitted in the reference or the reference has been withdrawn, even then the conviction under Section 31-A of the National Accountability Ordinance, 1999 remain operative and the convict has to avail remedy, for getting it set aside, by approaching the next higher judicial forum, as envisaged under Section 32 of the National Accountability Ordinance, 1999--Conviction in absentia is a final order, therefore, no other forum can declare such conviction as void, except a judicial forum, that too, by filing an appeal--But in instant case, as it has been pointed out by amending a law, such conviction has been declared void, therefore, the amendment in Section 31A of the National Accountability Ordinance, 1999 by inserting clause (aa), by means of Section 6 of the National Reconciliation Ordinance, 2007, is declared void being against the provisions of Section 31A read with Section 32 of the National Accountability Ordinance, 1999, which provides remedy to the convict to file appeal. [Pp. 714 & 715] KK
Constitution of Pakistan, 1973--
----Art. 63(1)(p)--Enactment can undo the effect of judgment--Conviction for an offence and if he is holder of public office--Member of parliament--Question, whether the legislature by means of an enactment can undo the effect of the judgment in which the person has been convicted for an offence and if he is `holder of public office', his such conviction is a disqualification to be elected as a member of the Parliament, or to be a member of the Parliament, under Art. 63(1)(p) of the Constitution?--Validity--No legislation on any subject is permissible which is against the specific provision of the Constitution. [P. 715] LL
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 31-A--Constitution of Pakistan, 1973, Art. 63(1)(p)--Conviction in absentia--Disqualification for a person to become member of parliament--Law has opened the door of the parliament, for the persons, convicted in absentia, as the disqualification for a person to become a member of Parliament and for a member of Parliament under Art. 63(1)(p) of the Constitution has been removed by means of clause (aa) inserted in Section 31A of the National Accountability Ordinance, 1999, a person, who has been convicted under Section 31-A of the Ordinance, 1999, in absentia, with a stigma of a convict, has been made qualified to enter into the Parliament, contrary to the Constitutional provisions as well as law laid down in the case (PLD 2003 SC 163). [P. 716] MM
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S. 6--National Accountability Ordinance, 1999, S. 31-A(aa)--Names of beneficiaries--NAB has placed on record the material pointing out the names of the beneficiaries, who have derived benefit u/S. 6 of the National Reconciliation Ordinance, 2007--Held: Insertion of clause (aa) in Section 31A of the National Accountability Ordinance, 1999 is without lawful authority, as it has not amended the original Section 31A of the National Accountability Ordinance, 1999, which is still intact with all its consequences and effects--Language used in an enactment must show the intention of the law giver that it would apply with retrospective effect and shall be deemed always to have been so inserted in the respective statute. [Pp. 716 & 717] NN
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 31-A--Conviction is absentia was void ab initio--Nullify the effect of a judgment--Principle abundantly makes it clear that since the basis of the judgment, in respect of conviction in absentia under Section 31-A of the National Accountability Ordinance, 1999, has not been removed, pointing out any defect in the same by the legislature, therefore, the legislature, by means of an enactment, could not give a judgment that conviction in absentia was void ab initio, rather for the purpose of declaring such judgments void ab initio, it was incumbent upon the legislature to have repealed Section 31-A of the National Accountability Ordinance, 1999 because on the basis of the same the absconder accused were convicted--More so, to nullify the effect of a judgment, by means of a legislative enactment, Supreme Court have to examine the nature of each judgment separately and individually but in instant case omni bus type order has been passed, declaring all the judgments recorded under Section 31-A of the National Accountability Ordinance, 1999 as void ab initio, without pointing out any defect in the same. [P. 719] OO
Administration of Justice--
----Civil and criminal administration of justice--Under the civil administration of justice, plethora of case law is available on the point that how an effect of a judgment can be nullified or neutralized, particularly the judgment in which, on the basis of existing laws, the Courts have come to the conclusion that the tax was not recoverable but the Government by issuing a legislation, with retrospective effect, has removed the defect in the law, thereby nullified the effect of the judgment, as a result whereof the Government continued to effect the recovery of tax--This is in respect of the civil matters, but in the criminal administration of justice Supreme Court have not succeeded in laying hand on such identical principles, applied in civil cases, on the point, therefore, Supreme Court have to rely upon treaties on the Constitutional Limitation by Thomas M--Cooley. [P. 719] PP
Role of Independent Judiciary--
----Criminal cases, this issue has to be approached differently than the matters relating to civil disputes, payment of taxes--Legislative authority, ordinarily is not required to enter into the domain of judiciary--Under the scheme of the Constitution, the judiciary has an independent role, amongst three organs of the State, as it has been held (PLD 1997 SC 426). [P. 720] QQ
Criminal Administration of Justice--
----Where a judgment has been announced on the basis of law, the legislative authority cannot annul such judgment without pointing out any flaw in the law, which is the basis of such a judgment--Judgment pronounced under the law, by a Court of competent jurisdiction, is a judgment which has been pronounced legally, according to the mandate, conferred upon the Court and such judgment or order cannot be annulled by means of an enactment. [P. 722] SS
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 31-A--Legislative authority is not aggrieved--If the legislative authority is not aggrieved, in any manner, by the judgment pronounced by the Courts discharging its functions under Section 31A of the National Accountability Ordinance, 1999, the judgment could only be set aside, varied, suspended as per the procedure laid down in the National Accountability Ordinance, 1999 and not by enforcing or adopting legislative measures. [P. 722] TT
PLD 1990 SC 823.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 31-A(aa)--National Reconcilitation Ordinance, 2007, S. 6--Insertion of--Justification--Principle of justice--Conviction and the sentence, have been declared void, by adding clause (aa) in Section 31A of the National Accountability Ordinance, 1999, which definitely is against the norms and the principles of justice--Insertion of clause (aa) in Section 31A of the National Accountability Ordinance, 1999, by means of Section 6 of the National Reconciliation Ordinance, 2007, is constitutionally valid even then it would be tantamount to allow the legislature to pronounce a judicial verdict against an order or judgment of a competent Court of law, declaring the same to be void ab initio--Doctrine of trichotomy of powers, the action of the legislative authority, whereby clause (aa) has been inserted in S. 31A of the National Accountability Ordinance, 1999, by means of the National Reconciliation Ordinance, 2007, would be considered to be a step to substitute the judicial forum with an executive authority--Thus, it would not be sustainable being contrary to the principle of independence of judiciary. [P. 723] UU & VV
Constitution of Pakistan, 1973--
----Arts. 2-A & 175--Principle of independence of judiciary--Independence of judiciary shall be fully secured read with Art. 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as might be established by law. [P. 723] WW
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 32--Remedy of appeal against conviction--Except an appeal under Section 32 of the National Accountability Ordinance, 1999 to the High Court of the Province, no other remedy is available to a convict against his conviction/sentence, to get it set aside--Thus, no other forum including the legislature is empowered to declare an order or judgment, whereby conviction has been recorded under Section 31A of the National Accountability Ordinance, 1999, to be void ab initio except in civil cases pertaining to the tax matters.
[Pp. 723 & 724] XX & YY
Act of Parliament--
----Not in derogation to powers of parliament--By appropriate legislation, and by manifestation of appropriate intent and use of language, be competent to nullify the effect of a judgment in the given circumstances of the case--This, however, is not such a case as an unspecified number of convictions, on differing facts and evidence, are sought to be set aside in one swipe--This is going beyond legislative competence and parliament itself wisely decided not to intervene to make permanent, a temporary law (Ordinance) by enacting as an Act of Parliament--Supreme Court are only endorsing the will of the elected representatives. [P. 724] ZZ
Constitution of Pakistan, 1973--
----Art. 203--Supervision and control over subordinate Courts--Art. 203 of the Constitution is also another important provision of the Constitution which provides that each High Court shall supervise and control all Courts subordinate to it (PLD 1998 SC 1445). [P. 724] AAA
Independence of Judiciary--
----Intervention by executive--Principle--The intervention by the executive, contrary to the principles of independence of judiciary, declared unconstitutional. [Pp. 725 & 726] BBB
PLD 1998 SC 1445 ref.
Constitution of Pakistan, 1973--
----Arts. 8 & 184(3)--Inconsistent with fundamental rights--Constitutional powers--Supreme Court, while hearing the petition under Art. 184(3) of the Constitution, enjoys ample powers under Art. 8 of the Constitution, to declare any law inconsistent with the fundamental rights conferred by the Constitution or to examine the constitutionality of such law, on the touchstone of any other provision of the Constitution--While exercising its constitutional powers, conferred upon Supreme Court under various provisions of the Constitution, including Arts. 184, 185, 187(1) and 212(3), it also enjoys enormous powers of judicial review--Apex Court had always been vested with inherent powers to regulate its own authority of judicial review, inasmuch as in Zafar Ali Shah's case (PLD 2000 SC 869). [P. 732] CCC
Judicial Power--
----While examining the vires of a statute, the powers of Supreme Court are limited to examine the legislative competence or to such other limitations as are in the Constitution and while declaring a legislative instrument as void, it is not because the judicial powers are superior in dignity to the legislative powers but because it enforces the Constitution as a paramount law or where the legislative instrument is in conflict with the Constitutional provisions so as to give effect to it or where the legislature fails to keep it, within its constitutional limitations. [P. 735] DDD
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss. 6 & 7--National Accountability Ordinance, 1999, Ss. 31-A(aa) & 33-F--Constitution of Pakistan, 1973, Art. 184(3)--Beneficiaries persons--Unconstitutional and void of initio--Withdrawal of prolonged proceedings initiated prior to 12th Oct. 1999--Challenge the validity of NRO--Determining of the Court--Section 7 of the National Reconciliation Ordinance, 2007 further added Section 33F in the Ordinance, 1999, by means of which, following categories of the persons have benefitted:
The persons, against whom investigation is pending but no trial has commenced; the investigation has come to an end--The persons, against whom the trial is pending but no conviction/ acquittal has been recorded; the trial comes to an immediate end--The persons, who have been convicted but have merely filed an appeal or some proceedings, against that conviction before the High Court or the Supreme Court and whether or not such conviction/sentence has been suspended, before the promulgation of the National Reconciliation Ordinance, 2007; everything stands terminated and withdrawn--The persons, who have been acquitted and against their acquittal an appeal is pending; they also stand absolved--The persons, against whom, request for mutual legal assistance and civil party to proceedings, have been initiated by the Federal Government; that stand withdrawn or terminated--Holders of public office', whose cases have been withdrawn or terminated, shall also not be liable to any action in future, as well, under the National Reconciliation Ordinance, 2007, for acts having been done in good faith before the cut off date.
Section 33E of the National Accountability Ordinance, 1999 provides that any fine or other sum due, or as determined to be due by a Court, shall be recoverable as arrears of land revenue--Section 33F of the Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007 has provided a mechanism for withdrawal and termination of prolonged pending proceedings, initiated prior to 12th Oct., 1999. [P. 741] EEE & FFF
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--Misuse of abuse of power--Misappropriation of property--Claimed to have been expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases, involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto--An emergent need was also found for the recovery of outstanding amounts from the persons, who have committed default in the repayment of amounts to banks, financial institutions, government agencies and other agencies. [P. 744] GGG
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--Corruption and corrupt practice--Scope of--Theme of the National Accountability Ordinance, 1999, as it is evident from its preamble and substantive part, is to deal with the cases of corruption and corrupt practices, strictly to achieve the object spelt out in preamble--Expression "corruption and corrupt practices" has been defined in Section 9 of the National Accountability Ordinance, 1999. [P. 746] HHH
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 25--Scope--To achieve the object of conviction and effecting the recovery of national wealth--Provisions of the National Accountability Ordinance, 1999 as well as their interpretation provide high moral authority to the functionaries, to discharge their duties for curbing corruption and corrupt practices, to achieve the object namely, conviction and effecting the recovery of national wealth, even before the trial, keeping in view the solid mechanism provided under Section 25 of the National Accountability Ordinance. [P. 749] III
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--Object to save the assets outside the country--On account of international cooperation, request for mutual legal assistance means, the NAB or any officer, authorized by the Federal Government, has been empowered to make a request to a foreign state to do any or all things to freeze assets by whatever processes are lawfully available in that State, to the extent to which the assets are believed, on reasonable grounds, to be situated in that State; and to transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds, realized from the disposal of such articles or assets--As far as, confiscation or realization of the national wealth, situated within the country, is concerned, there is no difficulty for the NAB to deal with it, in accordance with the procedure provided under the National Accountability Ordinance, 1999--However, for achieving the object to save the assets outside the country, allegedly belonging to the nation, a mechanism has been provided on the basis of international cooperation--While making request to the Foreign States for mutual legal assistance, no request for criminal proceedings in such a State can be demanded--However, Courts of the States might proceed independently for an action, which falls within the definition of their municipal laws, governing criminal actions--Pakistan is not the only country, which has demanded for such mutual legal assistance; there are so many other countries, on whose demand, subject to determination, the wealth of the nation was reverted back to those States--On account of the proceedings against Marcos, the money/funds belonging to Philippine Government were returned by the Swiss Courts--Similarly, there is another case, from Nigerian jurisdiction, wherein the Head of the State was found involved in corruption and corrupt practices and proceedings, against him, were initiated for return of his assets from Switzerland to Nigeria and from 1999 to 2009, approximately US$ 1.2 billion, had been returned to the Federal Republic of Nigeria. [Pp. 750 & 751] JJJ
United Nation's Convention Against Corruption, 2005--
----Scope--International cooperation, for the purpose of prevention of corruption, has been considered in the comity of the nations, as their commitment to achieving the object, under the United Nation's Convention Against Corruption, 2005. [P. 757] LLL
United Nation's Convention Against Corruption, 2005--
----Arts. 44 to 50--International cooperation in criminal matters--Proceedings in civil and administrative matter--Government of Pakistan is also signatory to the above UN Convention as it has been ratified by Pakistan on 31st Aug., 2007, regarding international cooperation in criminal matters in accordance with Arts. 44 to 50 of UN Convention, according to which, where appropriate and consistent with their domestic legal system, the State parties shall consider assisting each other in investigation or proceedings in civil and administrative matters, relating to corruption. [P. 758] MMM
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
25--Holder of Public Officer--According to the scheme of the National
Accountability Ordinance, 1999, S. 25 provides that where a holder of public office' or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains, acquired or made by him in the course, or as a consequence of any offence, under Ordinance, 1999, the Chairman NAB might accept such offer and after determination of the amount, due from such person, and its deposit with the NAB, discharge such person from all his liability in respect of the matter or transaction in issue--In such provision of law as well the wordwithdrawal' has not been used, which is akin to process of discharge or acquittal of an accused under the system of criminal administration of justice. [Pp. 758 & 759] NNN
Termination of Proceedings--
----The words "termination of the proceedings, under investigation or pending in any Court, including a High Court and the Supreme Court", are not recognized under any legal instrument, including the Constitution of Pakistan, Cr.P.C. or NAO, 1999--While examining the constitutionality of newly inserted clause (aa) in Section 31A of the National Accountability Ordinance, 1999, whereby the judgments passed by the Court in absentia under the Ordinance, 1999, have been declared void ab initio by the legislative authority. [P. 759] OOO
Constitution of Pakistan, 1973--
----Art. 89--National Reconciliation Ordinance, (LX of 2007), S. 7--Fundamental rights of non-beneficiaries of NRO--On 5th Oct. 2007, when the summary was moved, the cabinet in its meeting, held on the same day, had approved the draft of the NRO, 2007, in pursuance whereof, the Prime Minister was requested to advise the then President to approve and sign the NRO, 2007, as such on the same day i.e. 5th Oct. 2007, the NRO, 2007 was promulgated--Both the proceedings and the cases of corruption and corrupt practices, were being terminated or withdrawn in terms of Section 7 of the NRO, 2007, whereby Section 33-F has been added in the National Accountability Ordinance, 1999 regarding withdrawal and termination of prolonged pending proceedings initiated prior to 12th Oct. 1999--Object, disclosed in the summary for the Cabinet, for issuance of the NRO, 2007 was that it was expedient to promote national reconciliation, foster mutual trust and confidence amongst `holders of public office' and to make the election process more transparent--Ultimately, on the same day, the Ordinance, 2007 was promulgated when the election of the President (in uniform) was scheduled to be held on the very next day i.e. 6th Oct. 2007--At that time, a petition filed by Jamat-e-Islami (PLD 2009 SC 549). [Pp. 759 & 760] PPP
Temporary Legislation--
----Temporary legislation cannot be struck down, taking into consideration the mala fide or subjective consideration for the issuance of such legislation but simultaneously Supreme Court is empowered to examine the contents of the temporary legislation, if it is inconsistent with the fundamental rights, guaranteed by the Constitution or of any of the provisions of the Constitution has been violated. [P. 760] QQQ
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss. 2, 6 & 7--Constitution of Pakistan, 1973, Art. 25--National Reconciliation Ordinance, 2007 as a whole and in particular, its Sections 2, 6 & 7, are inconsistent with Art. 25 of the Constitution, as it has created unreasonable classification, having no rational nexus with the object of the NRO, 2007--Principle of equality (Musawat), as enshrined in Art. 25 of the Constitution, has its origin in the Islamic teachings--Reference in this behalf may be made to Muhammad (PBUH) Encyclopedia of Seerah (Sunnah, Da'wah and Islam), 1st Edn. 1986--Vol. IV (p:147-148)--Relevant portion therefrom, on the subject of "Equality". [P. 764] RRR
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S. 7--National Accountability Ordinance, 1999, S. 33-F--Constitution of Pakistan, 1973, Art. 62-F--Holder of public office--Corruption and corrupt practices, being a crime, if proved, against a `holder of public office' takes away his qualification to contest the election because, prima facie, he has breached the trust of his electorate--Therefore, by inserting Section 33-F in the National Accountability Ordinance, 1999 by means of Section 7 of the National Reconciliation Ordinance, 2007, possibility of raising objection on the qualification of a person to be elected or chosen as a member of the parliament has been negated for limited purpose, in view of Art. 62(f) of the Constitution, a person having been convicted/sentenced by the Court under the Ordinance, 1999 shall stand absolved as the case has been withdrawn against him or the proceedings have been terminated, pending in any Court including the High Court and Supreme Court--Therefore, instead of following the command of Art. 5 of the Constitution, Section 7 of the National Accountability Ordinance, has contravened Art. 62(f) of the Constitution--Section 62(f) of the Constitution cannot be considered self-executory but if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment, his candidature on the touchstone of Art. 62(f) of the Constitution can be adjudged to the effect whether he is sagacious, righteous, non-profligate, honest or Ameen. [Pp. 766 & 767] SSS
Constitution of Pakistan, 1973--
----Art. 62 & Scope of--On an objection against a candidate, without any support of evidence, the provisions of Art. 62 of the Constitution cannot be pressed into service, because it is a provision of Constitution which is not self executory--Art. 62(f) has been incorporated in the Constitution by means of President's Order No. 14 of 1985 (The Revival of Constitution Order, 1985) and it being a part of the Constitution has to be taken into consideration by the Courts, while examining the case of a convict, involved in corruption and corrupt practices, who has attained the status of innocent person by means of a law which has washed away his conviction/sentence by withdrawal or termination of cases or proceedings, however, subject to furnishing strong evidence for establishing the allegation mentioned in Art. 62(f) of the Constitution--Such provision was inserted by a dictator but it is still continuing although five National Assemblies and Senate had been elected and completed their terms, but no effective steps, so far have been taken in this behalf. [P. 767] TTT
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 25 & 33-F--National Reconciliation Ordinance, 2007, S. 7--Withdrawal from the cases inside or outside the country--A person, who enters into plea-bargain as per the mandate of Section 25 of the National Accountability Ordinance, 1999, would be disqualified to contest the election or to hold the public office--The language employed in Section 33-F of the Ordinance, 1999, inserted by means of Section 7 of the Ordinance, 2007 does not indicate that the withdrawal had to take place, subject to any of the provisions, either under Section 25 or under Section 31B of the National Accountability Ordinance, 1999, with the consent of the Court--So far as withdrawal from the cases inside or outside the country, as per Section 33-F of the Ordinance, 1999, inserted through Section 7 of the Ordinance, 2007, is concerned, it would mean that the `holders of public office' have been absolved from the charge of corruption and corrupt practices, therefore, by adopting such procedure, the legislative authority had transgressed its jurisdiction, because such powers are only available to the judiciary and the Constitution provides guarantee to secure the independence of the judiciary. [Pp. 769 & 770] UUU
Constitution of Pakistan, 1973--
----Art. 190--National Reconciliation Ordinance, 2007, Scope of--Executives and judicial authorities--Art. 190 of the Constitution imposes a constitutional obligation upon all the executives and judicial authorities, throughout the country to act in aid of the Supreme Court--List provided by the NAB, regarding cases falling within category (b) in which a huge amount is involved, it was also pointed out that to get back that money, subject to determination, belonged to the people of Pakistan, an amount ranging between 660 million to 2 billion rupees was spent but the of Supreme Court directions, the Chairman NAB could not furnish the exact figure--Supreme Court asked the Prosecutor General to furnish the details in respect of the amount involved in the cases out side the country, in pursuance of request for mutual legal assistance and civil party to proceedings, was made by the Federal Government. [P. 770] VVV
Withdrawal of Cases--
----Request for withdrawal of mutual assistance and civil party to proceedings, initiated by the Federal Government was unsatisfactory--Validity--Chairman NAB, who should have assisted the Court diligently, was reluctant to do so for one or the other reason--Therefore, having left with no option, the Federal Secretary, Law & Justice Division, Government of Pakistan was called upon to appear and place on record copies of the file, pertaining to the Swiss cases--Secretary General to the President also appeared on Court's call and informed that no such file existed in his office or at President's Camp Office--As far as issuing a letter to Attorney General of Geneva dated 7th April 2008 by (the then Attorney General) is concerned, it seems that he had done so in his personal capacity, against the Rules of Business, 1973--Under Rule 14 of the Rules of Business, 1973, he was required to consult the Law, Justice and Human Rights Division on all legal questions, arising out of any case--Had he consulted the Law, Justice & Human Rights Division, he would have been advised not to send any letter in this regard because the Ministry of Law & Justice had already declined such request as was pointed out by the Secretary Law & Justice Division. [Pp. 772 & 773] XXX, YYY & ZZZ
Rules of Business, 1973--
----R. 5(11-A)--Functionary of government--Violation of--President of Pakistan to do so, does not seem to be correct because under Rule 5(11-A) of the Rules of Business, 1973, verbal orders given by a functionary of the Government should, as a matter of routine, be reduced to writing and submitted to the issuing authority; if time permits, the confirmation shall invariably be taken before initiating action; however, in an exigency, where action is required to be taken immediately or it is not possible to obtain written confirmation of the orders before initiating actions, functionary to whom the verbal orders are given shall take the action so required and at the first available opportunity, obtain the requisite confirmation while submitting to the issuing authority a report of the action taken by him--The statement of Secretary General to the President, reflects that no such file exists--Then Attorney General for Pakistan has done so in violation of the Rules of Business, 1973, therefore, he is liable to account for his such action. [Pp. 773 & 774] AAAA
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 21--Comprehensive provision of law--Section 21 of the National Accountability Ordinance, 1999 is a comprehensive provision of law, which spells out the nature of the request to a foreign state for mutual legal assistance including; freezing of assets to the extent to which the assets are believed on reasonable ground to be situated in that State; confiscate articles and forfeit assets to the extent to which the articles or assets, as the case may be, are believed to be located in that State; transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets--Held: To curb the culture of corruption and corrupt practices globally it has become necessary to enact such law on the basis of which the objects could be achieved. [P. 774] BBBB
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
9--Cases withdrawn or terminated who had been guilty for corruption and corrupt practice--The cases against the holders of public office' either had been withdrawn or terminated, who would had been found guilty for the corruption or corrupt practices and sentenced to imprisonment as well as fine, and theholders of public office' who had been convicted and sentenced, and against their convictions, appeals pending either before the High Court or the Supreme Court, had been withdrawn--A perusal of UN Convention Against Corruption indicates that the state had responsibility to develop and implement or maintain effective, coordinated anti-corruption policies; to take measures to prevent money laundering; to take measures for freezing, seizure and confiscation of proceeds of crime, derived from offences established in accordance with the
Convention, or the property the value of which corresponds to that of such proceeds, property, equipment or other instrumentalities used in or destined for use in offences established in accordance with the Convention, State parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to corruption; as well as affording to one another the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to the offences covered by the Convention; prevention and detection of transfers of proceeds of crime--Promulgation of the National Reconciliation Ordinance, 2007, instead of preventing corruption and corrupt practices, has encouraged the same--Supreme
Court have no option but to agree with the contention of counsel for the petitioners, as the same is based on legal and logical premise. [P. 774] CCCC & DDDD
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Scope--Constitution of Pakistan, 1973, Art. 45--Preceding paras of the judgment--Scheme for withdrawal of cases--Supreme Court had already pointed out in the preceding paras of the judgment that under the provisions of National Accountability Ordinance, 1999, there is a separate scheme for the withdrawal of cases--However, Art. 45 of the Constitution confers power upon the President of Pakistan to the effect that the President shall had power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court. [P. 775] EEEE
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S. 7--National Accountability Ordinance, 1999, S. 33-F--Constitution of Pakistan, 1973, Art. 185(3) & 45--Constitutional petition u/Art. 184(3) of Constitution to challenge the validity of S. 7 of National Reconciliation Ordinance--Withdrawn or terminated the case or proceedings--Inserted through Section 7 of the National Reconciliation Ordinance, 2007, are also not covered under Art. 45 of the Constitution and in that behalf no other law has been referred to by any of counsel appearing for the parties--Criminal Courts, including the Trial, Appellate and Revisional, are empowered to acquit, set aside the conviction/sentence or quash the proceedings, but without adhering to that provision, the legislative authority, in its wisdom, had withdrawn or terminated the cases or proceedings, purportedly, in exercise of power, not vested in it--Consequently, all the `holders of public office' had not been dealt with in accordance with law, principle of which had been enshrined in Art. 4 of the Constitution. [P. 775] FFFF
Binding Judgment--
----Principle of law--Explained--It is a principle of law that binding judgment, either of acquittal or conviction, can only be withdrawn by the Courts of law, therefore, the question for determination would be as to which forum is a `Court' and which is not--Answer to that proposition had been given in Rehman Khan v. Asadullah Khan (PLD 1983 Quetta 52). [P. 776] GGGG
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Withdrawal or termination of cases or proceedings--Appropriate order can be passed--Applying the test on the provisions of Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, relating to withdrawal or termination of cases or proceedings, inescapable conclusion would be that the legislative authority of the President had acted contrary to judicial norms by allowing withdrawal and termination of cases and proceedings--However, on the basis of judicial interaction by the Court of law, having jurisdiction, appropriate orders can be passed--Essentially withdrawal or termination of cases or proceedings in the manner as it has been done by means of contents of Section 33F of the Ordinance, 1999, inserted through
Section 7 of the Ordinance, 2007, does not fall within the definition of
pardon',amnesty' or commutation of sentence'--Admittedly, neither theholders of public office' have been pardoned nor amnesty has been given to them and similarly, their sentences have also not been commuted--Therefore, on the basis of such legislative document i.e. the National Reconciliation Ordinance, 2007, which has no legal sanctity behind it, the benefit drawn by the `holders of public office' is not sustainable. [Pp.
777 & 778] HHHH & IIII
Constitution of Pakistan, 1973--
----Art. 5--National Reconciliation Ordinance, 2007, Scope of--Basic duty of every citizen and obedience to the Constitution--Art. 5 of the Constitution in unambiguous terms provides that loyalty to the State is the basic duty of every citizen; and obedience to the Constitution and the law is the inviolable obligation of every citizen, wherever he might be and of every other person for the time being within Pakistan--Therefore, while promulgating the National Reconciliation Ordinance, 2007, the President has to confirm to the norms and response to the voice of the Constitution, as per the mandate of Art. 5 of the Constitution and any action on his part which negates the dictates of the Constitution including the fundamental rights shall be tantamount to promulgating a law which is neither acceptable by the nation or internationally, being not in line with the dictates of the Constitution--Therefore, the President who is under oath to protect the Constitution in all circumstances is not competent to promulgate an Ordinance in the name of national reconciliation, which is not permissible under any of the legislative lists i.e. Federal or concurrent, as per Fourth Schedule of the Constitution, perusal whereof abundantly makes it clear that no law in the nature of the NRO, 2007 can be promulgated which instead of eliminating exploitation amongst the citizens, as per Art. 3 of the Constitution, tends to perpetuate corruption and corrupt practices. [Pp. 778 & 779] JJJJ
Interpretation of Law--
----Promulgation of law--Prerogative of Parliament, Provincial Assembly--It is the prerogative of the Parliament or Provincial Assembly to promulgate laws according to their respective spheres allocated to them, inter alia, taking into consideration the provisions of Art. 227 of the Constitution, relating to promulgation of law according to Islamic provisions. [P. 779] KKKK
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S. 7--Constitution of Pakistan, 1973, Arts. 25 & 227(1)--Equality of rights between the people without any discrimination--Being ultra vires the express and provisions of Constitution--Principle of equality in Islam is an essential requisite of justice because when there is discrimination and partiality between the people, there is no justice--A code of Allah demands absolute equality of rights between the people without any discrimination or favouritism between man and man, and man and woman, on any count--Therefore, without any fear of doubt, it can be held that Art. 25 of the Constitution, namely, all citizens are equal before the law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex alone, has its origin in Quranic injunctions--Any law is void, insofar as, it is inconsistent with or in derogation of fundamental rights, therefore, it would also be against the injunctions of Islam and no such law shall be enacted which is repugnant to such Injunctions--Held: National Reconciliation Ordinance, 2007 has been promulgated not in consonance with Injunctions of Islam in terms of Art. 227(1) of the Constitution--Word of caution might be added since there is a tendency among some litigants to invoke such precepts of Islam as do not have universal acceptance even among the jurists and schools of Islamic Sharia, or who will invoke, on vague and unspecific grounds, recourse to the morality and conscience of the Constitution or to international conventions--Constitution remains supreme and the primary reason for striking down the NRO, 2007 has been its being ultra vires the express and stated provisions of the Constitution--Application of Art. 227 and to the morality and conscience of the Constitution are only further supportive observations that can be construed as a reconfirmation of the essential and inherent invalidity in the light of the other express provisions contained in the Constitution--Primary touchstones remain the other provisions of the Constitution specified in the judgment. [Pp. 779 & 780] LLLL
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Constitution of Pakistan, 1973, Art. 184(3)--Challenging the validity of National Reconciliation Ordinance, under Art. 184(3) of Constitution--Benefit of withdrawal or termination of the cases--Newly inserted Section 33-F of the National Accountability Ordinance, 1999, under Section 7 of the NRO, 2007, has not only made classification between the general public and the holders of public office' but also amongst theholders of public office' on account of time period, as well, on the basis of which, benefit to a particular class i.e. the persons against whom the proceedings were initiated prior to 12th Oct. 1999, has been extended on the criteria that prolonged proceeding are pending against them--Prior to the
National Accountability Ordinance, 1999, Ehtesab Act, 1997 was in field, which was repealed on the promulgation of the National Accountability Ordinance, 1999, as a result whereof, the proceedings initiated under the Act, 1997, were protected by means of Section 33 of the National Accountability Ordinance, 1999, which provides that any and all proceedings pending before the Court under the Ehtesab Act, 1997 shall stand transferred to a Court, as soon as it is constituted under this Ordinance, 2007 within the same Province, and it shall not be necessary to recall any witness or again to record any evidence, that may have been recorded--As far as Ehtesab Act is concerned, it was enacted on 31st May 1997 and was made effective w.e.f. 6th Nov. 1990, so through the
NRO, benefit of withdrawal or termination of the cases or proceedings has been extended to persons whose cases are covered between the period from 6th Nov.
1990 and 12th Oct. 1999--Neither the benefit of the National Reconciliation
Ordinance, 2007 has been extended to the holders of public office', against whom cases were registered prior to 6th Nov. 1990 nor to thoseholders of public office' against whom cases have been registered after 12th Oct. 1999, although the cases were registered against such persons, even before and after these cutoff dates--All the holders of public office' against whom cases have been initiated before 6th Nov. 1990 and after 12th Oct. 1999 are also entitled for equal protection of law because they are similarly placed--Therefore, on the basis of intelligible differentia, no distinction can be drawn between both the groups, as such the sub-classification within the class ofholders of public office' is not based on an intelligible differentia, having no rational nexus to the object, sought to be achieved by the relevant classification under the National Reconciliation Ordinance, 2007 as such, it, being a discriminatory law, deserves to be declared void ab initio [I.A. Sherwani's case (1991 SCMR 1041)]. [Pp. 780 & 781] MMMM
Constitution of Pakistan, 1973--
----Preamble--Future requirements of a nation--Constitution of the country, might be written or otherwise, represents the voice of the people--Constitution being a supreme law of the country provides for guarantee of peace, welfare and amity of the people, subject to their rights and obligations, against all forms of exploitation, socio-economic justice and principles of good governance, transformed in the principles of policy, to make the document as a living instrument, sufficient to cater for the present and future requirements of a nation--To achieve the objects spelt out in the preamble, has the support of 176 million people, meaning thereby that this instrument has on its back moral strength of the nation, therefore, it would be their earnest desire and wish that everyone must show loyalty to the State and obedience to the Constitution and the law, as it has been envisaged under Art. 5 of the Constitution--Object can be achieved if the moral or ethical values, the desires of the nation, have been transformed into a legally enforceable formulation--In instant case the Parliamentarians i.e. the representatives of the people of Pakistan, by their high moral conduct have already demonstrated, by not allowing the NRO, 2007 to become the Act of the Parliament, as manifested from the proceedings of the National Assembly, as well as by the act of the Federal and Provincial Governments of not defending and supporting it--Will of the people of Pakistan was not included in the promulgation of the National Reconciliation Ordinance, 2007 because despite availability of the National Assembly the same was not placed before it as the then legislative authority, being holder of highest office under the Constitution, is presumed to know that it is a legislation which is being promulgated against the conscience of the Parliamentarians representing the people of Pakistan and inconsistent with the constitutional provisions including Art. 63(1)(h) of the Constitution, which provides for disqualification of a person from being elected or chosen as, and from being, a member of the Parliament, if he has been convicted by a Court of competent jurisdiction on a charge of corrupt practices, moral turpitude or misuse of power or authority under any law for the time being in force--Constitution has its own conscience being a living document, therefore, any law which negates any of the constitutional provisions shall be considered to be inconsistent with it. [Pp. 781 & 782] NNNN
PLD 1966 SC 229 ref.
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Proceedings have been withdrawn or terminated contrary to law--The cases or proceedings have been withdrawn or terminated contrary to law, initiated before 12th Oct. 1999, including pending trial proceedings, conviction/acquittal appeals, inasmuch as the transfer of pending proceedings under Section 33 of the National
Accountability Ordinance, 1999 have also been withdrawn or terminated--The manner in which Section 33-F of the Ordinance, 1999, has been couched, suggests that the 'holders of public office' involved in any proceedings, not only under the Ordinance, 1999 but also in the cases under other laws i.e. P.P.C., A.T.A., have been withdrawn or terminated, considering the holders of public office' as a distinct class from the accused/convicts against whom similar proceedings are pending in any Court, with immediate effect--How the Constitution, as per its conscience coupled with morality, can allow Supreme Court to maintain a law which is against all the norms of justice--Two things have become very significant; one is category of cases, initiated on a reference by the NAB inside or outside Pakistan and; second is that of the cases under any other law, for the time being in force covering all nature of crimes, heinous or minor--Aholder of public office' when enters into Parliament, he enjoys moral authority as he has been elected by the constituents, enjoying their trust--But a `holder of public office' whose case falls under disqualification prescribed in Art. 63(1)(h) of the Constitution, which includes conviction by a Court of competent jurisdiction, on the charge of corrupt practices under Section 9 of the National Accountability Ordinance, 1999, identifies persons, who are said to have committed the crime falling under this category--Second charge which falls under the definition of disqualification under Art. 63(1)(h) of the
Constitution is in respect of moral turpitude. [Pp.
783 & 784] OOOO
Constitution of Pakistan, 1973--
----Arts.
12, 13 & 89--National Reconciliation Ordinance, 2007, S. 7--National
Accountability Ordinance, 1999, S. 33-F--Scope of--Question of--Whether promulgation of a law would not be against morality and conscience of
Constitution--Right of franchise--Encouraged the offence of corruption--Third category relates to the cases of misuse of power or authority under any law for the time being in force--Category also squarely falls within the definition of corruption and corrupt practices as defined in Section 9 of the National
Accountability Ordinance, 1999--Thus question arises, whether a law which instead of eliminating, has encouraged the offence of corruption and moral turpitude, can at all not be enacted in exercise of powers under Art. 89 of the
Constitution; whether promulgation of such a law would not be against the morality and the conscience of the Constitution; whether the constituents, in exercise of their right of franchise, have not made out a case to strike down such a law, which is not only contrary to the constitutional provisions, but also calls upon Supreme Court to strike down such law as they believe that on account of their high moral and ethical codes, it has become their enforceable legal formulations [D.S. Nakara's case (AIR 1983 SC 130)]; and lastly whether it is not against the conscience of the Constitution which prohibits enactment and promulgation of any law inconsistent with its provisions--Answer to all the questions is in affirmative and could not be else--In Section 33F of the
National Accountability Ordinance, 1999 inserted by means of Section 7 of the
Ordinance, 2007 that holders of public office' shall also not be liable for any action in future as well for acts having been done in good faith before the said date--That immunity from future actions has also been provided contrary to the Constitution and the law--Art. 12, according to which protection to a person against retrospective punishment has been made permissible; and Art. 13, which protects a person against double punishment and self-incrimination--Thus, operation of Section 33-F of the Ordinance, 1999, inserted through Section 7 of the Ordinance, 2007 seems to be in contravention to the mandate of Section 31B of the Ordinance, 1999, which provides mechanism for withdrawal from the prosecution of any accused person in the manner prescribed therein, but as far as the protection against double punishment is concerned, it would only be available to a person who has already been punished but criminal proceeding right from the date of commencement up to final judgment has been withdrawn or terminated, making such a person as innocent, as he was before initiation of such proceedings at investigation stage--No case can be made out under Art. 13 of the Constitution against double punishment or self incrimination--Theholders of public office' have been saved from future action for the crimes committed by them as well as the crimes charged against them on the basis of reference filed by the NAB including corruption and corrupt practices--Neither the Constitution nor any other law permits the legislative authority i.e. the
President to promulgate a law, which fails to stand the test of Arts. 12 and 13 of the Constitution--By promulgation of the Ordinance, 2007, the holders of public office' have been saved from being charged of certain acts committed by them in good faith--Essentially, Section 33F of the Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, in generality, is dealing with the persons, facing criminal charges under any provision of law or the crime defined under the National Accountability
Ordinance, 1999--No exception has been created for the crimes committed under good faith except under some of the provisions of PPC, whereby protection has been given for committing an act in good faith--Section 52 of PPC defines the expressiongood faith' as nothing is said to be done or believed ingood faith', which is done or believed without due care and attention'. [Pp. 784 & 785] PPPP
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 36--Public servant performing duty on behalf of State--Public servant performing duty on behalf of State has been provided immunity in different statutes with reference to the nature of the crime--Expression has been used in Section 36 of the National Accountability Ordinance, 1999, which provides that no suit, prosecution, or any other proceedings shall lie against the Federal Government, Provincial Government, Chairman NAB, or any other member of the NAB or any person exercising any power or performing any function under Ordinance, 1999 or the Rules made under it for any act or thing, which has been done in good faith or intended to be done under Ordinance, 1999 or the rules thereof--As far as the persons against whom proceedings or investigation are pending before the Court of law including a High Court or Supreme Court, cannot be said to have committed the crime, in good faith, either heinous or minor in nature, as well as relating to corruption or corrupt practices, inside and outside the country--Legislature while enacting a law has to adopt certain measures before extending immunity to the functionaries of the State but at least Supreme Court can say that an accused or convict cannot enjoy protection for offences, or for his deeds, in the garb of good faith. [P. 786] QQQQ
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Withdrawal and termiantion of prolonged pending proceedings initiated prior to 12th Oct., 1999--Challenged the validity of National Reconciliation Ordinance under Art. 184(3) of
Constitution--While inserting Section 33F in the National Accountability
Ordinance, 1999, a mechanism has also been provided for withdrawal and termination of prolonged pending proceedings, initiated prior to 12th Oct., 1999'--One of the so-called reasons, prevailed upon the legislative authority to promulgate such provision on account ofprolonged pending proceedings initiated prior to 12th Oct. 1999'--On account of prolonged pending proceedings, initiated prior to 12th Oct. 1999, the cases have been withdrawn as according to it, necessity to promulgate the NRO, 2007 is "to promote national reconciliation, foster mutual trust and confidence amongst `holders of public office' and to remove the vestiges of political vendetta and victimization, to make the election process more transparent and to amend certain laws for that purpose and for matters connected therewith and ancillary thereto"--Assuming that the conditions for terminating the cases being prolonged pending proceedings is acceptable, then why the cases which have been finalized, resulting in the conviction or acquittal and proceedings in respect thereof were pending, have been withdrawn--Therefore, instead of withdrawing or terminating the proceedings, mechanism should have been followed for the disposal of cases by increasing manpower of investigating agencies and the number of Courts. [Pp. 786 & 787] RRRR
& SSSS
PLD 1999 SC 504.
Constitution of Pakistan, 1973--
----Art. 187--State must realize its duty--Power of Court--Supreme Court while interpreting different provisions of the Constitution has an authority to make an observation with an object that the State must realize its duty--Court is empowered to pass appropriate orders, as it deemed fit under Art. 187 of the Constitution as well as keeping in view the earlier precedents providing for monitoring of the cases pending in the Courts and the increase in number of Courts--As far as the supervision of the High Court is concerned, and for comprehending powers of Supreme Court under Art. 187 of the Constitution. [P. 787] TTTT
PLD 1995 SC 66 ref.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 33-F--National Reconciliation Ordinance, 2007, S. 7--Meaning of S. 33-F of NAO--Whether an accused is responsible for causing the prolonged delay to decide the case expeditiously--By means of Section 33F of the Ordinance, 1999, inserted through Section 7 of the Ordinance, 2007, cases or proceedings have been withdrawn or terminated, without spelling out the reasons, namely, as to whether an accused himself is responsible for causing the prolonged delay or the prosecution or the Courts have failed to decide the case expeditiously. [P. 789] UUUU
Constitution of Pakisan, 1973--
----Arts. 2-A, 8, 25, 62, 63 & 175--National Reconciliation Ordinance, 2007, Preamble--Discriminatory and inconsistent with fundamental rights--Contention--National Reconciliation Ordinance, 2007 is not only discriminatory and inconsistent with fundamental rights, enshrined in Art. 25 of the Constitution but also in conflict with other Arts. of the Constitution such as Arts. 62, 63 and 175, therefore, it is not a valid law rather it is a bad law--Art. 5 of the Constitution postulates that it is inviolable obligation of every citizen to obey the Constitution and the law, whereas, Art. 8 (2) prohibits the State from making any law which takes away or abridges fundamental rights conferred by the Constitution; therefore, if a law does so, then it shall be void, as such, the NRO, 2007, so promulgated, seems to be an intentional violation and disobedience of the Constitutional provision, contained in Art. 8 of the Constitution--Art. 2A of the Constitution requires that the authority of Allah Almighty, conferred upon the chosen representatives of the people of Pakistan, is to be exercised by them in accordance with the Constitution and within the limits prescribed by Allah Almighty--According to him various provisions of the National Reconciliation Ordinance, 2007 i.e--2, 3, 4, 6 & 7, are not valid provisions as they are void for various reasons, including, being against the Injunction of Islam, violative of the mandate of Art. 175 of the Constitution, and repulsive to the provisions of Art. 62 & 63 of the Constitution--Object of this law, for all intents and purposes, does not seem to be `reconciliation' but it paves the way and facilitates to those, charged with corruption and corrupt practices, plundering of national wealth and fraud, to come back, seize and occupy echelons of power again; its aim seems to be to legalize corruption and the crimes committed by those in power, in the past--Courts have been deprived, by virtue of this law, from their judicial functions by conferring powers to the administrative authority--National Reconciliation Ordinance, 2007, besides being discriminatory, has also been applied discriminately. [Pp. 792 & 793] VVVV
Procedure and Conduct Business in National Assembly Rules, 2007--
----R. 139--Constitution of Pakistan, 1973, Arts. 89 & 184(3)--National Reconciliation Ordinance, 2007, Preamble--Question of extending relief under NRO who had filed applications being Human Right--President has an authority under Art. 89 of the Constitution to promulgate an Ordinance, but cannot issue temporary legislation, which the Parliament is not empowered to do--A thorough perusal of the Federal and the Concurrent Lists persuades us to hold that the President was not empowered to issue the NRO, 2007 as the subjects covered by its Section 2, 6 and 7 fall beyond the scope of these lists--It has already been done by the Parliament before whom the NRO, 2007 was placed, but the same was withdrawn subsequently under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, as impliedly the National Assembly refrained itself from making it as an Act of Parliament--Inasmuch as, the actions taken from the date of its inception till the expiry of its constitutional life of 120 days under Art. 89 of the Constitution from 5th Oct. 2007 to 1st Feb. 2008, benefits derived by some of the person have not been protected, and the Government (either Federal or Provincial) has also not insisted to allow retention of the benefits derived out of it to the accused persons during the said period--None of the beneficiaries, who have drawn benefit during the said stipulated period from 5th Oct. 2007 to 31st July 2009, when vide judgment dated 31st July 2009, all the Ordinances were declared to have been shorn of permanency, have not come forward to protect their benefits, although hearing of these petitions has been widely publicized in print and electronic media--Thus in view of theory of ultra vires, explained in Cooley's Constitutional Limitations, reference of which has been made by Chief Justice Cornelius. [Pp. 796 & 797] WWWW
PLD 1963 SC 486 ref.
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss. 2, 6 & 7--Constitution of Pakistan, 1973, Art. 184(3)--Entitlement for withdrawn the cases--Therefore, the parties who had derived benefit would not be entitled for the same from 5th Oct. 2007 and all the cases withdrawn under Sections 2, 6 & 7 of the NRO, 2007 shall stand revived immediately--The Courts seized with the matters shall proceed to decide the same, considering that the National Reconciliation Ordinance, 2007 was never promulgated. [P. 797] XXXX
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss. 2, 6 & 7--Constitution of Pakistan, 1973, Arts. 4, 8, 12, 13, 25, 62(F), 63(1)(h), 63(1)(p), 89, 175 & 227--Declared void ab initio being ultra vires--Withdrawal of criminal cases--National Reconciliation Ordinance, 2007 as a whole, particularly its Sections 2, 6 and 7, is declared void ab initio being ultra vires and violative of Arts. 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution, therefore, it shall be deemed non est from the day of its promulgation i.e--5th Oct. 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect--Resultantly, all cases in which the accused persons were either discharged or acquitted u/S. 2 of NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to Supreme Court and any other such cases/proceedings which may not have been brought to the notice of Supreme Court, shall stand revived and relegated to the status of pre-5th of Oct., 2007 position--All the Courts including the Trial, the Appellate and the Revisional Courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the provisions of the NRO, 2007--Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent Courts in the said connection--Similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law--Any judgment, conviction or sentence recorded under Section 31-A of the Ordinance, 1999 shall hold the field subject to law and since the NRO, 2007 stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect. [Pp. 799 & 800] YYYY
Constitution of Pakistan, 1973--
----Art. 100(3)--National Reconciliation Ordinance, 2007, S. 7--National Accountability Ordinance, 1999, S. 33-F--Authorized to address communications to various authorities in foreign countries including switzer land--Requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn--Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status. [P. 801] ZZZZ
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 6--Lack of proper and honest assistance and cooperation on the part of Chairman NAB--Supreme Court displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Addl. P.G. of the NAB--Consequently, it is not possible for Supreme Court to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation--Federal Government might make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the National Accountability Ordinance, 1999 as also in terms of the observations of Supreme Court. [P. 801] AAAAA
PLD 2001 SC 607 ref.
National Reconciliation Ordinance, 2007 (LX of 2007)--
----S. 2--Monitoring cell--Progress and proceedings--Monitoring cell would be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in the noticed and other cases under the NAO, 1999--Monitoring cells shall be set up in the High Courts of all the Provinces comprising the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in which the accused persons had been acquitted or discharged under Section 2 of the National Reconciliation Ordinance, 2007. [P. 802] BBBBB
Per Ch. Ijaz Ahmad, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.
Interpretation Constitutional Provisions--
----Principle of historical modalities--Had benefit and privilege of going through the judgment recorded by Mr. Justice Iftikhar Muhammad Chaudhry, Hon'ble Chief Justice of Pakistan--In view of the importance of the matter it prudent to add few words in support thereto--Legislative history/past events are relevant for interpreting constitutional provisions on the principle of historical modalities--The Muslims had ruled sub continent for a considerable period--During the period of the Muslim rule, sub continent was rich in all spheres of life--Rate of literacy was very high above 90 percent as highlighted by Frishta while writing history of the sub continent--The western countries also had belief that sub continent was rich qua all types of resources such as minerals, wheat, rice etc as the land of the sub continent was very fertile as compared to other parts of the world--Sub continent was almost surrounded by mountains and large open area due to which according to the western countries this area is known as "Soonay ke Chiria"--The kingdom of Britain and France had entered in sub continent for the purpose of business--After death of Aurangzeb the system of justice, established by the Muslims, was totally dis-regarded and Muslims were fighting with each other for securing power--This was the time when the East India Company had taken benefit of its experience and ultimately had become rulers of the sub continent. [Pp. 802 & 803] CCCCC
Fundamental Rights--
----Very concept of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law. [P. 805] DDDDD
Dynamic Leadership--
----Nations can achieve goal under dynamic leadership and the nations who had a vision to see ahead as is evident from the speech of Lord Macaulay on the floor of the house and also from the character of the founder of Pakistan alongwith his vision. [P. 809] EEEEE
Constitution of Pakistan, 1973--
----Art. 7--Elements and Pillars of the state--Legislative and executive--Art. 7 of the Constitution prescribes all elements and pillars of the State for the purpose of imposing cess and tax, legislature and executive--Legislature had specifically not mentioned the judiciary in Art. 7 as the judiciary is duty bound to maintain the balance between all the organs, therefore, judiciary is mentioned in part VII under the heading of "Judicature" vide Art. 175. [P. 813] FFFFF
Constitution of Pakistan, 1973--
----Arts. 5, 7, 189 & 190--National Reconciliation Ordinance, 2007, Preamble--Role of judiciary--Salient features of constitution--Other two organs i.e. legislature and executive have no authority whatsoever to usurp or to take role of the judiciary as it is in violation of the salient features of the Constitution which cannot be changed by any canon of justice--Basic features of the Constitution could not be changed but unfortunately Supreme Court could not take that stand earlier except the judgments that is why the country since creation on 14-8-1947 till to date most of the time there was no democratic government around for about 37 years--Each and every organ must resolve to save the nation and country to remain within their spheres and discharge their duties in accordance with law--Art. 4 of Constitution compels every body to act in accordance with law whereas Art. 5 of the Constitution cast duty upon each and every organ/person to obey the command of the Constitution--Arts. 189 and 190 of the Constitution has prescribed duty to every organ to implement judgments of the Courts. [P. 813] GGGGG
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution of Pakistan, 1973, Arts. 4 & 184(3)--Challenging the validity of NRO under Art. 184(3) of Constitution--Third organ is also duty bound to remain within its sphere in terms of Art. 4 of the Constitution--Provisions of the impugned Ordinance are directly in conflict with the provisions of the Constitution--Salient features of the Constitution were changed in violation of the judgments and command of the various provisions of the Constitution. [Pp. 813 & 814] HHHHH
Constitution of Pakistan, 1973--
----Art. 89(2)--National Reconciliation Ordinance, 2007, Preamble--Challenging the validity of Ordinance, 2007, u/Art. 184(3) of Constitution--Principle of check and balance was incorporated--President had the same power as of the National Assembly to frame the laws, that is why principle of check and balance was incorporated in Art. 89(2) that life of the Ordinance would be four months and the parliament had power even to pass resolution disapproving the Ordinance by the assembly that it would automatically stand repealed after expiry of four months from its promulgation or before the expiration in case of resolution of its disapproval is passed--President had also power to withdraw the Ordinance at any time--President had to promulgate the ordinance at the advice of the cabinet--This fact brings the case in the area that it was the satisfaction of the Parliament under Art. 89(1) as is evident from the summaries produced before the Court by Acting Attorney General for Pakistan--Preamble of the NRO also does not reveal that any satisfaction was made before promulgating of the Ordinance--When a thing is to be done in a particular manner, it must be done in that manner and not otherwise--NRO was promulgated even in violation of Art. 89--Scheme of the Constitution is based on trichotomy but in case the Court read the Constitution as a whole then it automatically emerges that there is 4th pillar i.e--people of Pakistan for whose benefit every law be framed who are the real sovereign because the people of Pakistan had chosen the representatives of National Assembly and provincial assemblies and Senate--National Reconciliation Ordinance has not been framed for the welfare of the people of Pakistan--It had been framed by the then President of Pakistan for his benefit and benefit of the other privileged class--It is very difficult for Court to imagine that any written or unwritten constitution can allow framing law against the welfare of people of the country--Similarly the President had a power to pardon by virtue of Art. 45 of the Constitution but had no right whatsoever to give clean chit or to withdraw the case of the complainant whose near relations were murdered--The whole ordinance and preamble to Section 7 is in violation of various provisions of the Constitution. [Pp. 814 & 815] IIIII
Words & Phrases--
----Corruption--The word corruption has been defined as it has diverse meanings and far reaching effects on society, Government and people--In other words it has always been used in a sense which is completely opposite to honesty, orderly and actions performed according to law--A person working corruptly acts inconsistent with the official duty, the rights of others and the law governing it with intention to obtain an improbable advantage for self or some one else. [P. 815] JJJJJ
Constitution of Pakistan, 1973--
----Preamble--It is the document which contemplates the grundnorms of State and its laws--Aim of all jurisprudence is "public good" or "Welfare of the people"--No law can be wholesome and no state can be a welfare state unless the principles of amr bil maruf wan hi anil munkar is strictly adhered to--God Almighty has created mankind and He loves those who love its creation and strives for its welfare. [P. 818] KKKKK
Constitution of Pakistan, 1973--
----Preamble--The preamble, containing objective resolution, of the Constitution of Pakistan, 1973 cast a sacred duty on the chosen representative of the people and, that is, to exercise powers and authority to run the State in such manner which promotes: (i) principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam; (ii) Muslim to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam as set out in the Holy Quran and Sunnah; (iii) protection of minorities and backward and depressed classes; (iv) autonomy of the units of Federation; (v) Fundamental Rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, believe, faith, worship and association, subject to law and public morality; (vi) independence of judiciary; (vii) integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, in fact are the grundnorms and limitations of each organ of the State. [P. 819] LLLLL
Vires of a Statute--
----Scope--Validity of any law can be tested by its result or fruit--If a law evokes healthy feelings/atmosphere, then it is valid otherwise it is void--An illegal morsel gives birth to evils--Similarly any legislation which hurts the welfare of the people should not be allowed to stand among the people. [P. 819] MMMMM
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Corruption and corrupt practice--If Supreme Court allow to hide/swallow corruption and corrupt practices, then obviously it would not be conducive for the people of Pakistan and for the welfare of the State--The people of Pakistan might prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity if grundnorms stated in preamble are strictly followed--NRO, 2007 being an illegal morsel is declared a legislation viod ab initio--National Reconciliation Ordinance, 2007 is not valid. [Pp. 819 & 820] NNNNN & OOOOO
Constitution of Pakistan, 1973--
----Arts. 189 & 189(2)--National Reconciliation Ordinance, 2007, Preamble--Challenge the validity of NRO under Art. 184(3) of Constitution--Though there was no significant opposition to these petitions and even though the Federal Government did not defend the NRO the important constitutional issues raised through these petitions were thrashed out to ensure that there is adherence to the provisions and norms of the Constitution, not only for the sake of deciding these cases but also to lay down precedent for the institutions of the State and its functionaries in terms of Art. 189 of the Constitution. [P. 821] PPPPP
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--There can be no possible objection to the avowed objectives of the NRO as set out in its preamble, viz--promotion of national reconciliation and removal of the vestiges of political vendetta and victimization--These objectives, however, must be achieved through means which are permitted by the Constitution--The Court while exercising the judicial function entrusted to it by the Constitution is constrained by the Constitution and must, therefore, perform its duty of resolving matters coming before it, in accordance with the dictates of the Constitution and the laws made thereunder--Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution. [P. 821] QQQQQ
Constitution of Pakistan, 1973--
----Scope of--Court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution. [P. 821] RRRRR
PLD 2009 SC 879 ref.
Destabilization of Rule of Law--
----Plea to the Court to once again revert to the disastrous and rejected route of expediency and to tailor the outcome of these petitions by looking at the consequences which will follow, rather than the requirements of the Constitution--Path of expediency and subjective notions of `State necessity' are dead and buried--Democratically elected Federal Government should be imploring the Court to act in a manner otherwise than in accordance with law--Supreme Court will not take into account extraneous considerations while exercising its judicial powers and also that adherence to the Constitution can never lead to "destabilization of the rule of law." On the contrary, any breach of Constitutional norms is likely to destabilize the rule of law. [P. 823] SSSSS
Rule of Law--
----Stabilizing the rule of law falls on and must be assumed by the executive organ of the State which also commands a majority in the legislature--Requirement of the Parliamentary democratic dispensation ordained by Constitution--Political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit--The Court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law--Executive and legislative limbs of the State are also constitutionally obliged to apply the powers and resources at their command, in enforcing the Constitution and the rule of law without discrimination or undue favour to any person or class. [P. 823] TTTTT
Rule of Law--
----Good governance' andrule of law' became fashionable--Importance of good governance and the rule of law and their direct co-relation with political stability was recognized by enlightened rulers--He was told to build the walls of justice i.e--the rule of law and this would ensure peace, stability and freedom from the fear of enemies. [P. 823] UUUUU
Non-discriminatory law--
----By striking down the National Reconciliation Ordinance the Court does not foreclose the possibility or impinge on the prerogative of the legislature to enact a non-discriminatory law which can pass constitutional muster and is motivated by a desire to bring about a true and inclusive reconciliation which is genuinely national in its outreach and attempts to bring within its fold disparate groups harbouring valid grievances against oppressive and vindictive use of State machinery in the past--Even those who may have committed wrongs in the past and were not wronged against, are not beyond being redeemed through a compassionate law which heals the fissures in the nation's divided polity--These are, however, matters which fall squarely within the legislative and executive domains, should these organs of the State wish to act. [P. 824] VVVVV
Concept of Tauba--
----The concept of tauba and sincere repentance coupled with restitution of any ill-gotten gains and the expression of genuine remorse for past excesses provide an age-old matrix for fostering reconciliation--Where a Truth and Reconciliation Commission has been able to bring about a genuine national reconciliation between staunch opponents divided among other things, by race and embittered by decades of apartheid--An example of national reconciliation also appears in our own nation's history--It would, as noted above, be for the executive and the legislature to consider the potential and the possibilities of what can be achieved by way of reconciliation, as opposed to perpetuation of the venom and mutual recriminations which continuously divide the nation at the cost of its well-being--Supreme Court, however, can only abide by the rule of law and in order to do so it must limit itself to the adjudication of controversies in accordance with the Constitution and with laws made consistently therewith. [P. 824] WWWWW
Mr. Abdul Hafeez Pirzada, Sr. ASC, Mr. Salman Akram Raja, ASC and Mr. Ejaz Muhammad Khan, AOR, Assisted by: Mr. Abdul Mujeeb Pirzada, Sr. ASC, Mr. M.Afzal Siddiqui, ASC, Mian Gul Hassan Aurangzeb, ASC, Mr. Sikandar Bashir Mohmand, ASC, Barrister Feroze Jamal Shah, Adv., Mr. Hameed Ahmed, Adv., Mr. Mustafa Aftab Sherpao, Adv., Mr. Sameer Khosa, Adv., Mr. Umar Akram Chaudhry, Adv. & Malik Ghulam Sabir, Adv. for Petitioner (in Const. P. 76/2007).
Mr. Muhammad Ikram Ch. ASC and Mr. G. N. Gohar, AOR for Petitioner (in Const. P. 77/2007).
Dr. Farooq Hassan, Sr. ASC, Mr. Hashmat Ali Habib, ASC & Ch. Muhammad Akram, AOR for Petitioner (in Const.P.78/07).
Mr. Ashtar Ausaf Ali, ASC for Petitioner (in Const.P.79/07).
Mr. Tariq Asad, ASC (in person) (in Const.P.80/07).
Mr. A.K. Dogar, Sr. ASC for Petitioner (in Const. P. 59/09).
Mr. Shahid Orakzai (in person) for Petitioner (in CMA 4842/09).
Raja Muhammad Ibrahim Satti, Sr. ASC for Petitioners (in CA.1094/2009).
Nemo for Respondents (in HR. Cases)
Mr. Kamal Azfar, Sr. ASC, assisted by Mr. K.K. Agha, ASC, Raja Abdul Ghafoor, AOR for Respondents (in Const. P. 76-77/07)
Raja Abdul Ghafoor, AOR for Respondents (in Const. P. 78-80/07 & 59/09).
Dr. Danishwar Malik, PG, Mr. Abdul Baseer Qureshi, Addl: PG, Dr. Asghar Rana, ADPG, Ch. Akhtar Ali, AOR & Mr. Naveed Ahsan, Chairman NAB for NAB.
Mr. Shah Khawar, Acting Attorney General for Pakistan, Assisted by: Agha Tariq Mehmood Khan, DAG, Mr. Dil Muhammad Alizai, DAG, Raja Aleem Abbassi, DAG on Court Notice.
Dr. Salahuddin Mengal, AG on for Government of Balochistan.
Mr. Zia-ur-Rehman, A.G., Mr. Zahid Yousaf, Addl. A.G. and Mr. Naveed Akhtar, A.A.G. for Govt. of NWFP.
Mr. M. Hanif Khattana, Addl: AG & Ch. Khadim Hussain Qaiser, Addl: AG for Govt. of Punjab.
Mr. Yousaf Leghari, AG for Govt. of Sindh
Malik Muhammad Qayyum, Sr. ASC, Former Attorney General for Pakistan, Mr. Justice (R) M. Riaz Kiani, Secretary Law & Justice, Dr. Riaz Mehmood, Sr. Joint Secretary, Syed Nasir Ali Shah, Solicitor General and Mr. M. Salman Faruqui, Secretary General to the President on Court's Call.
Mian Allah Nawaz, Sr. ASC, Mr. Shaiq Usmani Sr. ASC, Mr. M. Sardar Khan, Sr. ASC Assisted By Mr. Idrees Ashraf, Adv. for Amicus Curiae.
Dates of hearing: 07-10 & 14-16.12.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Constitution Petition Nos. 76 to 80 of 2007 and 59 of 2009 have been filed, challenging the constitutionality of the National Reconciliation Ordinance, 2007 [hereinafter referred to as "the National Reconciliation Ordinance, 2007"], whereas Civil Appeal No. 1094 of 2009 (by leave of the Court), has been filed against the order dated 15th January 2009, passed by High Court of Sindh in Constitution Petition No. 355 of 2008, whereby the benefit of the NRO, 2007 has been declined to the appellant. Similarly, in Human Right cases, the applicants have prayed that the benefit of the NRO, 2007 may also be extended to them.
Brief facts, leading to filing of the listed petitions are that on 5th October 2007, the President of Pakistan [hereinafter referred to as "President"], while exercising his power under Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973 [herein after referred to as "the Constitution"], promulgated the NRO, 2007 vide Ordinance No. LX of 2007.
The above Ordinance came under challenge, immediately after its promulgation, before this Court, by invoking jurisdiction under Article 184(3) of the Constitution, in the listed Constitution Petitions, when, on 12th October 2007, after hearing the learned counsel for the petitioners at a considerable length and examining the case law, the Court passed an order, which is reproduced hereinbelow:--
"These petitions have been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as "the Constitution"] challenging the National Reconciliation Ordinance, 2007 (No. LX of 2007) [herein after referred to as "the impugned Ordinance"].
2. Mr. Salman Akram Raja, learned counsel appearing on behalf of petitioner in Constitution Petition No. 76 of 2007 argued that:--
(a) Section 7 of the impugned Ordinance being self-executory in nature amounts to legislative judgment, which is impermissible intrusion into the exercise of judicial powers of the State and thus falls foul of Article 175 of the Constitution which envisages separation and independence of the judiciary from other organs of the State.
(b) Legislative judgment cannot be enacted by the Parliament. [Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)].
(c) By promulgating Section 7 of the impugned Ordinance, Article 63(1)(h) and 63(1)(l) of the Constitution have been made ineffective, as regards chosen category of people, therefore, it is ultra vires the Constitution as it amounts to defeat the constitutional mandates.
(d) Impugned Ordinance exhorts about or indemnifies a particular class of people i.e. public office holders from proceedings, actions and orders passed by the competent authorities, whereas no such powers are available to the Parliament or, for that matter, to the President of Pakistan under Federal or Concurrent Legislative List. Further; the President is empowered only to pardon an accused person, under Article 45 of the Constitution, after passing of sentence by a Court of law, whereas by means of impugned Ordinance, the President has been empowered to indemnify or pardon an accused, against whom proceedings are pending before Investigating Agency or a Court of law or in appeal by giving a blanket cover.
(e) The impugned Ordinance violates the provisions of Article 25 of the Constitution because it is not based on intelligible differentia, relatable to lawful objects, therefore, deserves to be struck down.
(f) The impugned Ordinance is against the public policy because it also provides protection against future action in terms of its Section 7 and it had also rendered Articles 62 and 63 of the Constitution ineffective.
(g) Sub-sections (2) and (3) of Section 494 of Cr.P.C. added by means of impugned Ordinance are contrary to provisions of Subsection (1) of Section 494 of Cr.P.C. where it has been provided that cases can only be withdrawn with the consent of the Court, whereas, in newly added Sub-Sections, powers of the "Court" have been conferred upon the Review Boards of the Executive Bodies, therefore, these Sub-sections are also contrary to Article 175 of the Constitution.
and
No criteria has been laid down as to why the cases falling between the 1st day of January 1986 to 12th day of October 1999 have been covered under these provisions, inasmuch as definition of political victimization has not been provided in these Sub-sections, as a result whereof it has been left at the subjective consideration of Review Board/Executive Bodies to determine the same. Thus such provisions cannot exist in any manner.
(h) The impugned Ordinance has been promulgated in colorable exercise of Legislative powers and its various provisions have created discrimination among ordinary and classified accused, therefore, all these provisions tantamount to malice in law.
(i) The provisions of impugned Ordinance are so overbroad that these have provided blanket cover to all the holders of public offices, including chosen representatives and ordinary employees, therefore, the object of national reconciliation cannot be achieved by allowing it to exist.
(j) The provisions of Sections 4 and 5 of the impugned Ordinance are highly discriminatory in nature, therefore, are liable to be struck down.
(k) Section 6 of the impugned Ordinance is contrary to the basic principles relating to annulment of judgments, even if passed in absentia, in accordance with existing law, according to which unless the basis for the judgment, in favour of a party, is not removed, it could not affect the rights of the parties, in whose favour the same was passed but when the Legislature promulgated the impugned Ordinance, in order to remove the basis on which the judgment was founded, such judgment shall have no bearing on the cases. [Facto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)]. Hence, provisions of the impugned Ordinance as a whole are against the concept of equality of Islamic Injunction, provided under Article 2A of the Constitution, therefore, on this score as well, deserves to be struck down being ultra vires the Constitution.
(i) The impugned Ordinance is purpose specific and period specific, therefore, violates Article 25 of the Constitution.
(i) The impugned Ordinance is contradictory to and violative of the United Nation's Convention Against Corruption, enacted in 2005 and ratified by Pakistan on 31st of August 2007.
(ii) Under the Constitution, no indemnity or amnesty can at all be given to any one, except granting pardon in terms of Article 45 of the Constitution.
(iii) Sections 2, 4, 5 and 6 of the impugned Ordinance are violative of the doctrine of trichotomy of powers.
(iv) The impugned Ordinance has in fact changed the basic structure of the Constitution.
(v) The impugned Ordinance has also violated the principles of political justice and fundamental rights because it allows plundering of national wealth and to get away with it. More so, it tried to condone dishonesty of magnitude which is unconscientious and shocking to the conscience of mankind.
5. Mr. M.A. Zaidi, AOR appeared on behalf of Mr. Muhammad Akram Sheikh, Sr. ASC in Constitution Petition No.79 of 2007 and adopted the above arguments of the learned counsel for the petitioners.
6. Mr. Tariq Asad, ASC appearing in Constitution Petition No. 80 of 2007 also adopted the above arguments, while adding that:-
(a) The impugned Ordinance has been promulgated on the basis of personal satisfaction of the President of Pakistan but for extraneous reasons and to provide indemnity/immunity to the public office holders, therefore, is liable to be struck down.
7. Learned counsel appearing in Constitution Petition Nos. 76, 77 and 78 of 2007 prayed for suspension of operation of Sections 6 and 7 of the impugned Ordinance as according to their apprehension, both these Sections contain self-executory powers, therefore, if allowed to continue, the very object of filing of petitions will be frustrated because of extension of benefit to a public office holder, who intends to derive benefit out of the same.
9. Issue notices to the respondents as well as to Attorney General for Pakistan as required in terms of Order XXVIIA CPC and Order XXIX Rule 1 of the Supreme Court Rules, 1980. As important questions of public/national interest have been raised in these petitions, therefore, a request be sent to Mian Allah Nawaz, ASC (former Chief Justice of Lahore High Court), Mr. Shaiq Usmani (former Judge of Sindh High Court) and Mr. M. Sardar Khan, former Attorney General for Pakistan, to appear and assist the Court as amicus curiae.
Let these petitions be set for hearing for a date after three weeks."
Here it comes the episode of 3rd November 2007, when General Pervez Musharraf, the then President and also the Chief of Army Staff, proclaimed emergency in the country by means of Proclamation of Emergency Order, 2007 and apart from issuing Provisional Constitution Order, 2007, also issued Oath of Office (Judges) Order, 2007 and under the garb of these unconstitutional instruments, the Judges of Supreme Court, including Chief Justice of Pakistan, were restrained to perform their constitutional functions and many of them were put under house arrest, whereas, Abdul Hameed Dogar (the then Judge of this Court) took the oath of the office of Chief Justice of Pakistan along with four other Judges, out of eighteen Judges of this Court, on the same day i.e. 3rd November 2007.
It is pertinent to note that by means of Article 5(1) of the Provisional Constitution Order, 2007 dated 3rd November 2007 and then under Article 270AAA of the Constitution, inserted through the Constitution (Amendment) Order, 2007, all the laws including the Ordinances, issued by the then President, which were in force at the time of revocation of the proclamation of emergency, were provided permanency, as a result whereof the NRO, 2007 was also declared to be a permanent law.
On 6th February 2008, instant petitions were fixed before a Bench, comprising unconstitutional Chief Justice and four other Judges, when, on the request of the counsel, the same were adjourned for a date in office during last week of February 2008. Again, these matters were taken up on 27th February 2008 by the same Bench, when Dr. Mubashir Hassan (petitioner in Const. P.76/2007) requested for adjournment of the case on the ground that his counsel Mr. Abdul Hafeez Pirzada, Sr. ASC is undergoing medical treatment abroad. However, the Court, while dismissing Constitution Petition Nos. 78, 79 & 80/2007 for want of prosecution, adjourned the Constitution Petition Nos. 76 & 77/2007, to a date in office, due to indisposition of the learned counsel but without providing opportunity of hearing to the counsel for the petitioners and without issuing notices to amicus curiae, proceeded to modify order dated 12th October 2007, to the following effect:--
"The petitioners seek adjournment of these cases as their learned counsel (Mr. Abdul Hafeez Pirzada, Sr. ASC) is undergoing medical treatment abroad.
3. These Constitution Petitions are adjourned to a date in office due to indisposition of the learned counsel for the petitioners. Meanwhile, in view of the rule laid down in the case of Federation of Pakistan vs. Aitzaz Ahsan (PLD 1989 SC 61), the observations made by this Court in Para 8 of the order dated 12.10.2007 in Constitution Petition Nos. 76-80 of 2007 to the effect that "however, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution" are deleted. Resultantly, the Ordinance shall hold the field and shall have its normal operation. The Courts and authorities concerned shall proceed further expeditiously in the light of the provisions of the Ordinance without being influenced by the pendency of these petitions."
"186. Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.
187. It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.
188. In the light of the above, the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground." (emphasis provided).
It seems that the NRO, 2007 was laid before the National Assembly from where it travelled to the Standing Committee of the National Assembly on Law & Justice, where the matter was taken up in its meetings held on 29th & 30th October 2009, and subsequently, it was again brought on the floor of the National Assembly from where it was withdrawn as is evident from the documents placed on record. Details in this behalf, if needed, shall be considered subsequently.
These petitions remained pending in the office. In the meantime, another petition being, Civil Petition No. 142-K of 2009 (now Civil Appeal No. 1094/2009), was filed by one Fazal Ahmed Jat, praying therein that the benefit of the NRO, 2007 extended to the other accused of or convicted under the National Accountability Ordinance, 1999 [herein after referred to as "the NAO, 1999"] be also extended to him. The Constitution Petition Nos. 78, 79 & 80 of 2007, on the request of petitioner and with the consent of learned Acting Attorney General for Pakistan were restored on 7th, 14th & 8th October 2009, respectively. Meanwhile, Constitution Petition No. 59 of 2009 was also filed, challenging the vires of the NRO, 2007. Human Right Case Nos. 14328-P to 14331-P & 15082-P of 2009 filed by several convicts, claiming the benefit of the NRO, 2007 were also clubbed with the other petitions on the subject.
In all the Constitution Petitions, almost same prayers have been made, however, for reference, prayer clause from one of the petitions i.e. Constitution Petition No. 78 of 2007, filed by Qazi Hussain Ahmed, Amir Jamat-e-Islami, is reproduced hereinbelow for convenience:-
"The Ordinance entitled `National Reconciliation Ordinance, 2007' be declared as being utterly unconstitutional and violate both the Constitution, law of the land, and International Treaties & the UN Law.
It is further prayed that it be declared that the said Ordinance enacted on 5th October is contrary to Law and the Constitution as being mala fide, ultra vires and corum non judice and of no consequential effect ab initio.
Any identical relief pendente lite due to the petitioner ex debito justitae be graciously granted."
"Mr. Shah Khawar, Acting Attorney General for Pakistan, who is otherwise appearing in response to notice under Order XXVII-A CPC, has placed on record a written statement on behalf of Federation of Pakistan, relevant paras wherefrom, being No. 2&3, are reproduced hereinbelow:--
That the Federation believes in supremacy of the Constitution of 1973 and the Parliament.
That the National Reconciliation Ordinance, 2007 was promulgated by the previous regime and I am under instruction not to defend it.
Learned Advocates General of Sindh, NWFP & Balochistan, and Additional Advocate General Punjab, when enquired about their reaction in respect of statement, so filed by the Acting Attorney General for Pakistan, stated that they agree with the stance taken by the Federation of Pakistan. Learned Additional Prosecutor General NAB also adopted the above stance of the Federation of Pakistan."
During the course of hearing, Federation of Pakistan has submitted Civil Misc. Application Nos. 4875 & 4898 of 2009, of identical nature, wherein attention of the Court was drawn towards its earlier judgment passed in Sindh High Court Bar Association's case (PLD 2009 SC 879) and at pages 11 & 12 of the said applications, apprehension of destabilization of the system was expressed in the following terms:--
"If however, this Hon'ble Court wishes to rule upon wider issues other than those raised in the petition and prayer the Federation requests that fresh petitions be filed precisely stipulating these issues whereupon the Federation will seek instructions on such new petition.
Pak Today is poised at the cross roads. One road leads to truly federal democratic welfare state with the balance of power between an Independent judiciary, a duly elected Govt. representing the will of the people a determined executive which is fighting the war against terrorism and poverty. The second road leads to destabilization of the rule of law. The people of Pakistan await your verdict."
As in above statement apprehension of destabilization of the system has been expressed, therefore, Mr. Kamal Azfar, learned Sr. ASC, who had filed the Applications, referred to hereinabove, was called upon to submit an affidavit, clarifying the stand taken by him. Surprisingly, he, verbally, contended that "apprehension of destabilization of the democratic system is from GHQ and CIA". The words so uttered by him are as follows:--
"There are extra constitutional forces in Pakistan and outside Pakistan which are trying to destabilize this country. I say more openly, the dangers to Pakistan come from the CIA & GHQ."
The above statement on behalf of Federation was prominently noted by the leading newspapers. On the same day, learned Acting Attorney General once again made a categorical statement of accepting the decision, whatsoever, will be recorded by this Court. His such statement has also been recorded vide order dated 15th December, 2009, which is reproduced hereinbelow for convenience:--
"Learned Attorney General for Pakistan has concluded his submissions, while reiterating his stand, taken on the first day of hearing that the Federal Government is not defending the NRO. ........."
On the next date of hearing, another written statement was filed by Mr. Kamal Azfar, learned Sr. ASC, which reads as follows:--
"STATEMENT
In Compliance of the orders of the Hon'ble Supreme Court of Pakistan to appraise the Hon'ble Court as to how the Federation would interpret the wording "the second road leads to the destabilization of the rule of law", it is submitted as follows:--
(1) There is no mention of the wording `threat to democracy' in the Statement.
(2) The Federation supports the Prosecution, in accordance with law, of persons alleged to have done wrong doing. The Federation does not oppose the Petitions seeking a declaration that the National Reconciliation Ordinance 2007 (NRO) is illegal and unconstitutional.
(3) With regard to the "wider issues" mentioned in paragraph No. 9 these refer to those matters which were raised by the Petitioner's counsel during oral arguments and which find no mention whatsoever in the Petitions. For example, submissions made in respect of Articles 89 (in particular the alleged concept of "implied Resolution") and A.264 on the effect of Repeal.
(4) The Federation's view is that those who have benefited under the NRO should be proceeded against under the appropriate laws before the Courts having the competent jurisdiction. As factual matters need to be determined by the Trial Courts.
(5) So far as my comments made yesterday before this Hon'ble Court concerning the threat from GHQ, the CIA and the contents of paragraph 9 of the CMA are concerned these were my personal views and were not made on the instructions of the Federation of Pakistan. As such I withdraw the same, which should not be considered by this Hon'ble Court in any manner whatsoever and the same should be deleted and expunged from the record.
(6) It is emphasized that the Federation of Pakistan holds this Hon'ble Court in the highest esteem and has the greatest respect for the same."
The above statement, filed on behalf of Federation of Pakistan, has disclosed the intention of Federation of Pakistan, particularly to the effect that those who have acquired benefit under the NRO, 2007 should be proceeded against under the relevant laws, before the Courts of competent jurisdiction, as factually matters need to be determined by the Trial Court. Learned Acting Attorney General for Pakistan and learned counsel appearing for Federation of Pakistan have reiterated this stand, time and again, during the course of hearing.
(a) Reconciliation' is not a new phenomenon, as the same has been adopted in various jurisdictions of the World, going back right from the Fatah-e-Makkah, when a general amnesty was announced by the Holy Prophet (PBUH) for the people of Makkah, till 1995 when the same was provided in South Africa through Promotion of National Unity and
Reconciliation Act of 1995. Although, in the NRO, 2007 the wordnational reconciliation' has been borrowed from the history but it has nothing to do with it, in any sense.
(b) Section 7 of the NRO, 2007 is patently discriminatory on the ground that it has created unreasonable classification between the holders of public office' and the general public and then further created classification amongst theholders of public office' on the basis of time period, therefore, being promulgated in colourable exercise of legislative power, it is tantamount to malice in law.
(c) The classifications made through the NRO, 2007 are overbroad as a wide array of persons including politicians, bureaucrats, Army personnel and others have been included in it under the label of `holders of public office'. It is inclusive on the basis of time specification, as it does not cover the cases/proceedings initiated after 12th October 2007, as such, having irrational classification is liable to be struck down.
(d) The NRO, 2007 provides indemnity and potential cover to a particular class of persons involved in criminal cases including the `holders of public office' from the operation of law by withdrawing cases and termination of proceedings pending against them. This is tantamount to an affirmative action in favour of elite class.
(e) Section 7 of the NRO, 2007 is self executory provision, which took effect on its own terms, with effect from 5th October 2007.
(f) The NRO, 2007 although has lapsed on the expiry of its constitutional life but its effect is likely to remain intact, therefore, it has to be declared void ab initio and nullity in the eye of law.
(g) The preamble of the NRO, 2007 is not in consonance with the text of the statute and do not reconcile with each other. [reliance placed on the cases of Abdul Baqi v. Muhammad Akram (PLD 2003 SC 163) and Ghulam Mustafa Insari v. Govt. of the Punjab (2004 SCMR 1903)].
(h) The NRO, 2007 is time specific as it has created further classification amongst its subject i.e. period commencing from 1st January 1986 to 12th October 1999, therefore, being not based on intelligible differentia relatable to lawful object, is violative of Article 25 of the Constitution and is liable to be struck down. [reliance placed on the case of Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341)].
(i) The provisions of Section 2 of the NRO, 2007 provides benefit to the persons involved in the cases of murder, rape, kidnapping for ransom and Hudood cases, therefore, it is ultra vires to Article 2A of the Constitution being violative of the Injunctions of Islam.
(j) In view of Section 494 Cr.P.C., the permission to withdraw cases has to be given by the Court judiciously after due application of mind. By means of Section 2 of the NRO, 2007 sub-Sections (2) & (3) have been added in Section 494 Cr.P.C., whereby judicial powers of the Court have been vested in a Review Board (Executive body), which amounts to usurping such power of the Court, therefore, Section 2 of the NRO, 2007 is liable to be struck down being violative of Article 175 of the Constitution, regarding separation of powers between Executive and Judiciary. [reliance placed on the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), Bihar v. Ram Naresh Pandey (AIR 1957 SC 389), Rahul Agarwal v. Rakesh Jain {(2005) 2 SCC 377=AIR 2005 SC 910}, Liyanage v. The Queen {(1967) 1AC 259}, & Brandy v. Human Rights Commission (183 CLR 245)].
(k) The NRO, 2007 is a special law, which cannot purport to amend the general law i.e. Cr.P.C., therefore, such attempt is not allowable. It is also against the principle that a temporary law cannot amend the permanent law, as the maximum life of an Ordinance is 120 days and no amendment can survive beyond that period and lapses with the lapse of temporary legislation. [reliance placed on the cases of Government of Punjab v. Zia Ullah Khan (1992 SCMR 602) & Shabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66)].
(l) Section 7 of the NRO, 2007 whereby the cases and proceedings pending against the 'holders of public office' have been declared to stand withdrawn and terminated, amounts to legislative judgment, as such it is violative of the principles of independence of Judiciary and separation of powers as enshrined in Article 175 of the Constitution because it is impermissible intrusion in the domain of the judiciary. [reliance placed on the cases of Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341) & Smt. Indra Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)].
(m) Section 3 of the NRO, 2007 whereby the Representation of the People Act, 1976 has been amended, has no relevancy with the preamble of the NRO, 2007.
(n) Sections 4 & 5 of the NRO, 2007 whereby the sitting members of the Parliament and Provincial Assemblies have been provided protection from arrest, without recommendations of Special Parliamentary Committee on Ethics, are no more in field, after expiry of the constitutional life of the NRO, 2007.
(o) Section 6 of the NRO, 2007 whereby the orders or judgments passed by the Courts against an accused in absentia have been declared to be void ab initio and not to be acted upon, amounts to create a permanent hindrance in Article 63(1)(p) of the Constitution, as through the amendment in Section 31A of the NAO, 1999, certain persons, who were kept out of the Parliament have been allowed to enter into the Parliament.
(p) Section 7 of the NRO, 2007 also defeats the provision of Article 62(f) of the Constitution, as all the persons, against whom the cases or proceedings have been withdrawn or terminated would claim to be righteous and Ameen.
(q) The provisions of the NRO, 2007 i.e. Sections 6 & 7, are contrary to the basic principle relating to annulment of judgments, because the proceedings, orders or judgments passed by the competent Court in accordance with the existing law in favour of a party, cannot be annulled through a legislative instrument unless the law, underlying the basis of such proceedings, orders and judgments, will be removed. [reliance placed on the case of Fecto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)].
(r) The NRO, 2007 exhorts about or indemnifies a particular class of persons including the `holders of public office', from proceedings, actions and orders passed by the competent authorities whereas neither the legislature nor the executive has power to grant pardon by promulgation of an instrument or an Act of amnesty, except the power of the President to grant such pardon to an accused person under Article 45 of the Constitution. Such indemnity or protection under the NRO, 2007 cannot be equated with the pardon. He concluded his arguments while stating that the NRO, 2007 is bad in the eye of law whereby judicial functions have been vested in an executive body arbitrarily; it is, ex facie, might not be discriminatory but in fact it is discriminatory, promulgated in total violation of the constitutional provisions by the lawmaker, with mala fide intention. If it is allowed to remain on the statute book, it will be a permanent blot on conscience of nation.
(a) The NRO, 2007 is, as a whole, void ab initio, non est and never took birth, therefore, nothing, which is the product of this Ordinance, or done in pursuance of this Ordinance or under it, ever came into existence or survived.
(b) The NRO, 2007 is void because it is a fraud on the Constitution and transience well beyond the limited legislative power conferred by Article 89 of the Constitution on the President, as the President cannot go beyond the limits circumscribed therein.
(c) Word "reconciliation" has been defined in number of dictionaries but when the word national' is prefixed with it, its meaning becomes entirely different and it means "the reconciliation of the whole nation". The NRO, 2007 has no nexus with thenational reconciliation' rather it has trampled over the fundamental rights of the entire nation of Pakistan.
[referred to the concluding part of the Preamble of the Constitution to define the word `national reconciliation'].
(d) The NRO, 2007 is ex facie void for the reason that surprisingly its operation has been confined to a specific period commencing from 1st January 1986 to 12th October 1999.
(e) The NRO, 2007 is void ab initio because it violates the dictum laid down by this Court in Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), improved upon in Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869), wherein, after a great deal of efforts the Court virtually treated Article 4 of the Constitution as `due process clause'.
(f) The four salient features of the Constitution, identified in the judgments of this Court are; Parliamentary form of Government; Federating character of the State; Independence of Judiciary; and Fundamental Rights of the people along with Islamic provisions. Even the Parliament has no power to alter these salient features of the Constitution. The NRO, 2007 is clear invasion on the 3rd pillar of the State i.e. judiciary, without which the modern society cannot exist. [reliance placed on the case of Zafar Ali Shah (PLD 2000 SC 869)].
(g) The NRO, 2007 is not only usurpation of judicial powers but also usurpation of constitutional powers of the Parliament.
(h) The NRO, 2007 has directly violated and overridden the provisions of Articles 62 & 63 of the Constitution. It vitally affects the democratic rule in the country, by tampering and interfering with the qualifications and disqualifications of a candidate to be elected or chosen as a member of the Parliament and subsequent disqualification after having become the member of the Parliament.
AND
The Article 62 of the Constitution applies only at the time of filing of nomination papers or contesting elections, however, Article 63 of the Constitution continues to be in force even after a candidate has been elected as a member of the Parliament and he can be removed by the writ of quo warranto, by the Speaker of the National Assembly through reference or by the Chief Election Commissioner. This Court in number of judgments has held that conviction awarded in absentia is void, but this view needs to be revisited on the touchstone of Article 63(1)(p) of the Constitution because how a person can become a member of the Parliament if he is an absconder.
(i) Through the promulgation of the NRO, 2007, the conscience of the Constitution has been divorced. There are mixed constitutional and moral aspects and one cannot divorce the morality from the Constitution. [reliance placed on the cases of R.S.Jhamandas v. Chief Land Commissioner (PLD 1966 SC 229) and Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)].
(j) Even a validly enacted Ordinance does not necessarily have to have the statutory life of 120 days because before the expiry of the same, the National Assembly can strike it down through a resolution. In the case of NRO, 2007 the National Assembly has refused to own this law, even after expiry of its statutory life and this is tantamount to its rejection by the Parliament.
(k) The Constitution envisages for trichotomy of powers between the executive, legislative and judicial organs of the State. The NRO, 2007 is a clear intrusion by the legislature into the sphere of the judiciary, as such liable to be struck down being violative of doctrine of trichotomy of powers.
(l) The Judiciary is custodian of the Constitution and the fundamental rights. It is the superior observer of what is happening and to see that there is no transgression in the separation of power. It has its legal obligation, based upon the principle of checks and balances. That is why the Judiciary has not been made part of the State under Article 7 of the Constitution, which has to be read with Article 175 of the Constitution.
(m) The preamble of the NRO, 2007 poses the official avowed reason to promulgate this Ordinance, which is not the real object behind its promulgation as it was a deal between two persons, for their personal objectives and even the persons representing the people of Pakistan at that time in the Parliament, were not made aware of it. Therefore, it cannot be said a `national reconciliation' as there is total variance between the opening statement and the contents of the Ordinance.
(n) The Constitution does not make an
Ordinance a permanent law unless it is made an Act of Parliament. Applying the principle enshrined in Section 6 of the General Clauses Act, 1897, there are two types of repeals; first one is deeming repeal' and the other isactual repeal' and this Court has to consider both of them accordingly. Therefore, in order to save an Ordinance, the law has to be enacted retroactively by the
Parliament. But, this Court could not extend the life of the Ordinance beyond the constitutional life i.e. 120 days. More so, since the Article 270AAA of the
Constitution has been declared null and void by means of judgment in Sindh High
Court Bar Association's case (PLD 2009 SC 879), the NRO, 2007 has lost its permanency, provided by the said Article.
(o) The Executive has to act intelligently and responsibly in classifying actions, which ought to be saved under temporary law, particularly when fundamental rights are involved. The
NRO, 2007 is a bill of attainder' against the people of Pakistan which violates their fundamental rights enshrined in the Constitution and the spirit of Article 4 of the Constitution has been destroyed, which has been equated with thedue process clause'. [reliance placed on the case of Jamat-i-Islami Pakistan v.
Federation of Pakistan (PLD 2000 SC 111)]. Learned counsel concluded his arguments. However, when questioned about the consequences, in case the Court ultimately comes to the conclusion that the NRO, 2007 is void ab initio being ultra vires the Constitution, he replied that the consequence would be that the beneficiaries of the NRO, 2007 shall be relegated to the position as prevailing on 4th October 2007, prior to promulgation of the NRO, 2007.
Dr. Mubasher Hassan (petitioner in Constitution Petition No. 76/2007) appeared and stated with special permission of the Court that when the two organs of the State, as defined in Article 7 of the Constitution, become incapable of performing their duties entrusted to them under the Constitution, it is incumbent upon the third organ i.e. judiciary to come forward for rescue of the State.
Mr. Ikram Chaudhry, ASC for the petitioner in Constitution Petition No. 77 of 2007, appeared and argued that:--
(a) The NRO, 2007 is person specific, purpose specific and period specific, therefore, it violates the provisions of Article 25 of the Constitution.
(b) The Judiciary has been vested with important function of supervising the other organs of the State that is why Article 7 of the Constitution purposely excluded it from the definition of the State.
(c) The primacy and supremacy of the Chapter of fundamental rights remain the salient feature of the Constitution and when laws are examined on the touchstone of various provisions of the Constitution, Article 8 comes into play which provides that any law inconsistent with or in derogation of fundamental rights is void.
(d) The NRO, 2007 does not meet the criterion, laid down in Article 89 of the Constitution, particularly with regard to `satisfaction' of the President, which should always be fair, just and never arbitrary, therefore, the NRO, 2007 having inherent mischief in it, as it conceives to protect the interest of a particular person, is a bad law.
(e) Article 89 of the Constitution does not save the President from its intents and the purposes as in view of Article 5 of the Constitution he is bound to follow the law. Therefore, the promulgation of the NRO, 2007 is clear violation of Article 4 & 25 of the Constitution.
[reliance placed on the case of Jibendra Kishore, etc. v. Province of East Pakistan
(PLD 1957 SC 9)]. While concluding his arguments he referred to United Nations
Convention Against Corruption',Al-Farooq' by Allama Shibli Noumani, Grammar of Politics' by Harold J. Laski,Spirit of Liberty, Papers & Addresses of
Learned Hand' by Irving Dilliard, `The Supreme Court, America's
Judicial Heritage' by Patricia C. Acheson. He lastly argued that if the Court comes to the conclusion that the impugned Ordinance is bad law, then the consequential relief would be the restoration of all the cases to their original stage.
(a) The NRO, 2007 is void being violative of the fundamental rights contained in Article 25, 9 and possibly Articles 14, 24, 2 & 2A of the Constitution.
(b) The NRO, 2007 is the result of abuse of power, mala fides, and corum-non-judice as its objects are clearly outside the purview of ordinary and normal law making authority of the President under Article 89 of the Constitution, as such it is void in entirety.
(c) The NRO, 2007 amounts to subversion of the Constitution as it is the result of a deal between the dictator and next set of rulers. [referred to clippings of different newspapers].
(d) The subject matter of the NRO, 2007 is not found in either of the Legislative lists provided in Fourth Schedule of the Constitution, as such it is ultra vires the Constitution.
(e) Under the International Treaties i.e. "United Nations Convention Against Corruption", to which the Pakistan is also a signatory, no law can be passed which provides protection to corruption and corrupt practices.
He concluded his arguments while saying that the property of the Government is the property of the people of Pakistan, which has been misappropriated by the persons to whom protection has been provided under the NRO, 2007 therefore, it is liable to be struck down.
Mr. Tariq Asad, ASC for the petitioners in
Constitution Petition No. 80 of 2007 argued that Article 89 of the Constitution referred to satisfaction' of the President which would be eithersubjective' or objective'. On the basis of material, available on record, there were no such circumstances to promulgate the NRO, 2007 therefore, thesubjective' satisfaction of the President is missing, as such it becomes the objective' satisfaction, which is justiciable and subject to judicial review by the Court.
[reliance placed on State of Rajasthan v. Union of India (AIR 1977 SC 1361), A.K. Roy v. Union of India (AIR 1982 SC 710) and also to definition of the wordssatisfaction' & `subjective' from
Black's Law Dictionary].
Raja Muhammad Ibrahim Satti, Sr. ASC, appearing for appellant in Civil Appeal No. 1094 of 2009, while defending the NRO, 2007 made his submissions as follows:--
(a) It is nobody's case that the President has no power to promulgate the Ordinance under Article 89 of the Constitution or the said Article is redundant.
(b) The NRO, 2007 was validly promulgated as the pre-conditions for promulgation of an Ordinance by the President, under Article 89 of the Constitution were fulfilled.
(c) It is the duty of the Court to interpret the Constitution and to adjudge the validity of a law, whether proper assistance has been rendered or not. [reliance placed on Federation of Pakistan v. M. Nawaz Khokhar (PLD 2000 SC 26) & Ghulam Hassan v. Jamshaid Ali (2001 SCMR 1001)].
(d) During the statutory life of the NRO, 2007 both the Houses of the Parliament did not disapprove it through any resolution and allowed it to continue, therefore, if the Court ultimately comes to the conclusion that it was validly enacted and the benefits derived from its operation are allowed to continue, then the appellant shall also be entitled for the same benefit.
The
NRO, 2007 is a power sharing deal between the then President and the head of a political party. [reliance placed on the books i.e. Reconciliation, Islam, Democracy and the West' by late Mohtarma Benazir Bhutto andthe Way of the
World' by Ron Suskind].
On legal plane, he made the following submissions:--
(a) The NRO, 2007 is the result of abuse of `public office' for private gain.
AND
Because, corruption vitiates like fraud, which vitiates all transactions, therefore, the NRO, 2007 stands vitiated by the effect of abuse of public office for private gain.
AND
The NRO, 2007 is a document which is non est. It is like a still born which dies in mother's wombs. [reliance placed on Zafar Ali Shah's case (PLD 2000 SC 869) & Black's law Dictionary for the definition of 'corrupt'].
(b) Though Article 89 of the Constitution empowers the President to promulgate an Ordinance but Article 48(1) of the Constitution provides that such power lies with the Prime Minister and his Cabinet, who have to advise the President, therefore, the President cannot in his individual capacity issue an Ordinance, or enter into some negotiations and then issue an Ordinance. [reliance placed on Tirathmal v. The State (PLD 1959 Karachi 594)].
(c) The Ordinance making power, vested in the President, is a legacy of the British Rule, because in both kinds of democracies i.e. in the Parliamentary form of Government in UK and the Presidential form of Government in America, such power does not exit. This power is anti-democratic and only provided in the Constitutions of Pakistan and India, who remained under the British rule for such a long period.
(d) Gen. Pervez Musharraf was not constitutionally elected President, therefore, within the meaning of Article 89 of the Constitution, he had no such power to issue such Ordinance because he seized power by force and was self imposed President through Legal Framework Order, 2002 and 17th Amendment. [reliance placed on Sindh High Court Bar Association's case (PLD 2009 SC 879)].
(e) By virtue of Article 264 of the Constitution, a law, which is repealed can give rise to rights and obligation but not a law which does not exist from its very inception (as per statement of learned Attorney General) and is still born, therefore, under the NRO, 2007 no rights exist.
(f) This Court has no Ordinance issuing power, therefore, it could not give life to the NRO, 2007 which has lapsed on 5th February 2008 and this Court, could only extend its time under the law of necessity and not otherwise.
(g) The circumstances mentioned in the preamble of the NRO, 2007 itself are of permanent nature and do not require any immediate, emergent and quick treatment.
(h) A law cannot be amended through the Ordinance because it is violation of Articles 238 & 239 of the Constitution.
(i) Withdrawal from prosecution, as provided in Section 2 of the NRO, 2007 without hearing the complainants in the cases of murder, rape, etc. is violation of the principles of natural justice as such no such amendment can stay. [reliance placed on Zia Ullah Khan's case (1992 SCMR 602)].
(j) Section 4 of the NRO, 2007 by means of which immunity has been provided to sitting members of the Parliament from arrest, offends Articles 24 & 25 of the Constitution.
(k) Helping the rich and powerful persons, who have misappropriated millions of rupees, as against the victims of exploitation, is violation of Article 3 of the Constitution.
(l) With the advancement of civilizations, the moral and ethical codes have been converted into enforceable legal formulations. [reliance placed on D.S. Nakara's case {(1983) 1 SCC 305 = AIR 1983 SC 130} and Sindh High Court Bar Association's case (PLD 2009 SC 879)].
Learned counsel, while concluding his arguments stated that there are two enemies of mankind i.e. desire of wealth and desire of power and time is witness to it. According to him the NRO, 2007 is destructive to the entire nation.
(a) Any Ordinance promulgated by the President under Article 89 of the Constitution lapses on the day when the National Assembly is dissolved either by the President, Prime Minister or due to expiry of its constitutional term. [relied upon Article 76(3) of the Constitution].
(b) While issuing an Ordinance by the President, the advice of the Prime Minister or Cabinet is necessary in view of Article 48 of the Constitution and in absence of such advice, it will be the act of an individual.
(c) The word `or' used in Article 70 (1) means that a bill can be placed before the Parliament, regarding only one subject, either from the Federal Legislative List or from the Concurrent Legislative List and not regarding subjects from both the lists. As the NRO, 2007 contains the subjects of both the Legislative lists, therefore, it is violative of Article 70 (1) of the Constitution.
(d) Through the NRO, 2007 amendment has been made in the Cr.P.C. which has more application in the Provinces, as such the consent of Provincial Governments was necessary, while making such amendment. Therefore, the NRO, 2007 is violative of Article 142(c) of the Constitution.
(e) The word any' used in Article 70 of the Constitution, meanssimilar and more than one', therefore, the Ordinance cannot make laws relating to more than one subject at a time.
(f) The word `any' used in Article 184(3) of the Constitution refers to violation of one of the fundamental rights, therefore, the jurisdiction of this Court under the said provision would be attracted if only one fundamental right has been infringed and the same would not be available in a case which involved violation of more than one fundamental rights. Now this Court has to examine which one of the fundamental rights has been infringed by the NRO, 2007.
Mr. Ashtar Ausaf Ali, ASC appearing for petitioner in Constitution Petition No. 79 of 2007 adopted the arguments rendered Mr. Abdul Hafeez Pirzada, Sr. ASC. However, he placed on record some material in support of his petition.
Mr. Shah Khawar, Acting Attorney General for Pakistan, reiterated the stance taken by the Federal Government in the written statement dated 7th December 2009, to the effect that the NRO, 2007 was promulgated by the previous regime and he is under instructions not to defend it. He further stated that whatever decision will come, it will be honoured by the Government. On Court's query about the consequences, if ultimately the NRO, 2007 is declared to be void ab initio, he replied that let allow these petitions and let the law take its own course.
Mr. Kamal Azfar, learned Sr. ASC appeared and reiterated the stand taken in the statement dated 15th December 2009, to the effect that the Federation does not oppose the petitions seeking a declaration that the NRO, 2007 is illegal and unconstitutional.
Learned Advocates Acting General of the Provinces adopted the arguments of the Attorney General for Pakistan. However, except Advocate General Sindh, all the other Advocates General filed statements, stating therein that neither any Review Board was constituted nor the benefit of the NRO, 2007 was extended to any under trial accused, except those who were accused under the NAO, 1999.
Mr. M. Sardar Khan, Sr. ASC appeared as Amicus Curiae argued as follows :--
(a) The NRO, 2007 is not only inconsistent with fundamental rights enshrined in Article 25 of the Constitution but also is in conflict with other provisions of the Constitution such as Article 175. Therefore, it is not a valid law rather it is a bad law.
(b) The NRO, 2007 is violative of Article 5 of the Constitution, which postulates that it is inviolable obligation of every citizen to obey the Constitution and the law.
(c) Promulgation of the NRO, 2007 is intentional violation of Article 8(2) of the Constitution, which provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by the Constitution, if it does so, then it shall be void.
(d) The NRO, 2007 is violative of Article 2A of the Constitution which requires that the authority, which is conferred, is to be exercised in accordance with the Constitution and within the limits prescribed by the Almighty.
(e) The provisions of the NRO, 2007 i.e. Sections 2, 3, 4, 6 & 7, are void and invalid for being against the Injunctions of Islam, violative of the mandate of Article 175 of the Constitution, and repulsive to the provisions of Article 62 & 63 of the Constitution as it has given way to the ineligible persons to enter the Assemblies and to become public representatives.
(f) The object of this law for all intents and purposes does not seem to be `reconciliation' but to pave way and facilitate to those persons charged with corruption, plunders of national wealth and fraud, to come back, seize and occupy the echelons of power again. Its aim seems to legalize corruption and the crimes committed by those in power in the past.
(g) Courts have been deprived by virtue of this law of their judicial functions by conferring powers on administrative bodies.
(h) The NRO, 2007 is not only a discriminatory law but it has also been applied discriminately, therefore, liable to be struck down. [reliance placed on Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66)].
(j) Section 3 of the NRO, 2007 although is very innocent, but it has no nexus with the reconciliation. It is merely a cosmetic provision just to give colour of respectability to the NRO, 2007 and has no nexus with its preamble. [referred to Section 40 of the Representation of the People Act, 1976.]
(a) The NRO, 2007 is not a good law as it violates the intrinsic value of the law and intrinsic value of behaviors, therefore, liable to be struck down, otherwise it would create anarchy and greed in the society.
(b) Any law which flagrantly violates the theory of basic instincts and promotes the theory of satanic instincts should be struck down, otherwise the society will be swamped by the satanic instincts.
(c) The protection of the fundamental rights of the people is the soul of the Constitution. The NRO, 2007 is violative of the basic soul of the Constitution.
(d) The NRO, 2007 is classical manifestation of theory of kleptocracy, as it has been promulgated for the benefit of two persons, one who wanted to remain in power and the other who wanted to come to power.
(e) The NRO, 2007 is so bad and kleptocratic in nature that neither any provision of the Constitution validates it nor any law gives conscious to it.
(f) The actions taken and the benefits derived from the NRO, 2007 cannot be protected on the touchstone of Article 264 of the Constitution, as it is not applicable to the NRO, 2007 which is not just void but immoral. [reliance placed on Ram Prasad v. Union of India (AIR 1978 Raj. 131) and Bachan Singh v. State of Punjab (AIR 1982 SC 1325)].
While concluding his arguments he added that in case the NRO, 2007 is declared void ab initio then as a consequence whereof all the cases, which have been withdrawn under the NRO, 2007 will take rebirth.
(a) The NRO, 2007 cannot be justified on the ground that it was just an amnesty because even if it be considered so, it is not legitimate, as legitimate amnesty is one, which is accountable.
(b) The NRO, 2007 is violative of Article 8 of the Constitution, therefore, liable to be struck down.
(c) The NRO, 2007 being discriminatory, is violative of Article 25 of the Constitution, therefore, is liable to be struck down. [reliance placed on the case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041)].
(d) The NRO, 2007 is void ab initio as it is violative of the salient features of the Constitution and the principle of trichotomy of powers.
(e) The NRO, 2007 is violative of Article 89 of the Constitution.
He concluded his arguments while adding that the then Attorney General apparently had no authority to correspond with the foreign authorities for withdrawal of proceedings, as such if something contrary to law is done, the person, who has done so, is liable to be proceeded against.
Arguments addressed on behalf of the learned counsel appearing in support of petitions, inter alia, are that the NRO, 2007 be declared ultra vires the Constitution, void ab initio and non-est. During the course of arguments, they persuaded the Court to test the constitutionality of the NRO, 2007 in view of provisions of the Constitution.
The learned Acting Attorney General for Pakistan, counsel for the Federation and the NAB as well as Advocates General of Punjab, Sindh, Balochistan & NWFP, did not oppose the petitions and consistently reiterated the stand that they were not supporting the NRO, 2007.
It is a settled practice of the Courts that legal proceedings are not undertaken merely for academic purposes unless there are admitted or proven facts to resolve the controversy. As it has been pointed out hereinabove that till 12th October, 2007, when the petitions were filed, presumably, the benefit of the NRO, 2007 was not extended to any of the parties. Therefore, learned Prosecutor General, NAB and the Provincial Governments through their Advocates General were called upon to place on record accurate information of the accused persons, who had drawn benefit under Sections 2, 6 and 7 of the NRO, 2007. In response to Court's order, learned Advocate General Sindh placed on record the list of the persons, whose criminal cases falling under Sections 302, 307, 324, 365, 381, 381-A PPC, Section 16 of Offences of Zina (Enforcement of Hadood) Ordinance, 1979 and Section 14, 17(3) and 20 of Offences Against Property (Enforcement of Had) Ordinance, 1979, etc. were withdrawn. According to him more than 3000 criminal cases were withdrawn under Section 494 Cr.P.C. providing the benefit of Section 2 of the NRO, 2007 to approximately 8000 accused persons involved in above said heinous crimes. The statement of facts also showed the manner in which these cases were withdrawn. Similarly, the NAB through its Prosecutor General and Additional Prosecutor General also placed on record the list of beneficiaries (accused), who derived benefit under Sections 6 and 7 of the NRO, 2007. As per the list, 248 persons were extended benefit of the NRO, 2007 and the cases or proceedings pending against them, within and outside the country, were withdrawn or terminated. The authenticity of such details furnished by the NAB was required to be verified from them but unfortunately accurate list or details of the cases registered within and outside the country under the NAO, 1999, despite repeated directions of the Court, were not furnished. However, the Chairman and others brought on record the material, on the basis of which, cases on the basis of requests for mutual assistance and civil party to proceedings on request of Federal Government were withdrawn on the request of the then Attorney General for Pakistan. It is pertinent to mention here that the material information regarding the fact that the Ministry of Law & Justice, on the request of one of the Advocates of a beneficiary, had not conceded for issuance of directions for withdrawal of such cases, was withheld by them. More so, the Secretary General and Military Secretary of the President as well as Secretary to President (public side) also appeared on Court's call and when asked, placed on record their written statements, mentioning therein that no file, regarding permission to withdraw such cases and proceedings, was available in the office of the President.
It is to be observed that except in the Province of Sindh, in all other Provinces, no accused or convict has been extended the benefit of Section 2 of the NRO, 2007, therefore, learned Advocates General were quite comfortable in making statements in this regard. However, in the list furnished by the NAB, there were names of persons belonging to various Provinces, who had been extended the benefit of Sections 6 & 7 of the NRO, 2007.
Before dilating upon the respective arguments of the petitioners' counsel, we consider it appropriate to mention here that while hearing Sindh High Court Bar Association's case (PLD 2009 SC 879), which has been decided on 31st July, 2009, detailed reasons of which were released later, a fourteen member Bench of this Court, when confronted with the proposition i.e. `whether the Court, itself, can give decision that as the permanency attached to temporary legislation i.e. an Ordinance, through unconstitutional provision of Article 270AAA of the Constitution, should examine itself or the matter should be left for the Parliament to examine them'; there was no difficulty in declaring that Ordinance would stand repealed at the expiration of four months and three months, under Articles 89 and 128 of the Constitution, as the case may be. Prima facie, there was no justification for placing such legislations before the Parliament but on having taken into consideration the principle of trichotomy of powers, coupled with the fact that on the basis of bona fide apprehension, all the Ordinances, issued during the period, when the emergency was imposed in the country, commencing from 3rd November, 2007 up to 15th December, 2007, and all those temporary legislations, which were in force on 15th December 2007, were not placed before the Parliament, after attaining perpetuity through Article 270AAA of the Constitution, because such Ordinances had conferred rights and obligations upon the parties; therefore, it was considered appropriate to strengthen the Parliament, by sending these Ordinances for making them the Acts of the Parliament with retrospective effect, so the benefit derived by the masses, could also be protected. Relevant paras from the Sindh High Court Bar Association's case (PLD 2009 SC 879) have already been reproduced hereinabove. This is a fact that National Assembly, having 342 Members, who represent the nation, did not agree to make the NRO, 2007 as an Act of the Parliament, with retrospective effect, and ultimately it was withdrawn from the Assembly vide letter dated 7th December, 2009. Contents of the said letter are reproduced hereinbelow for convenience:--
"In continuation of this Secretariat's D.O. letter of even number, dated the 7th December, 2009 on the above subject, it is to state that report of the Standing Committee on National Reconciliation Ordinance, 2007 was finalized but before its approval by the Chairperson of the Committee, the Minister concerned had withdrawn the Bill under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 with the consent of the Honorable Speaker.
2. The minutes of the meeting of the Committee and draft report are submitted herewith."
We must mention here that this Court cherishes the democratic system and the will of the electorate. It also wants the Federation to remain strong and stable.
Admittedly, as it has been discussed hereinabove that, neither the Federation of Pakistan nor the Provincial Governments have defended the NRO, 2007 before this Court. It is also to be borne in mind that Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive and the judiciary. The legislature is assigned the task of law making, the executive to execute such law and the judiciary to interpret the laws. None of the organs of the State can encroach upon the field of the others. [State v. Ziaur Rahman (PLD 1973 SC 49), Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151), Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Syed Zafar Ali Shah v. General Pervez Musharrf (PLD 2000 SC 869), Nazar Abbas Jaffri v. Secy: Government of the Punjab (2006 SCMR 606), Sindh High Court Bar Association's case (PLD 2009 SC 879), Smt. Indra Nehru Ghani v. Raj Narain (AIR 1975 SC 2299) and Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789)].
Necessary inference can be drawn that the National Assembly and the Senate (the Parliament), which were required to approve or otherwise the NRO, 2007, and the same was sent along with other Ordinances to them, to make it an Act of the Parliament, with retrospective effect, did not consider it to be a valid temporary legislation, being an Ordinance promulgated under Article 89 of the Constitution on 5th October 2007.
Another factual aspect, relevant for disposal of these petitions and examination of the constitutionality of the NRO, 2007 pertains to the date of its promulgation i.e. 5th October, 2007, which seems to be the result of a deal between the representatives of a political party and the then President/Chief of Army Staff, General Pervez Musharraf, who was about to contest election for another term, in uniform, for the office of the President, as it is apparent from uncontroverted news, appeared in Daily Dawn dated 5th October, 2007 (Friday), referred to by Mr. Abdul Hafeez Pirzada, Sr. ASC, which reads as under:--
Mr. Abdul Hafeez Pirzada, Sr. ASC also referred to the book "Reconciliation: Islam, Democracy and the West" by late Mohtarma Benazir Bhutto, and read its different pages to substantiate the authenticity of the above news item. Similarly, Mr. A.K. Dogar, learned Sr. ASC also referred to the book "The Way of the World" by Ron Suskind and read its different pages to establish that the NRO, 2007 was nothing but the result of a deal between the two individuals.
It is equally important to note that candidature of General Pervez Musharraf, to contest the election for the office of the President, in uniform, was challenged before this Court, by invoking jurisdiction under Article 184(3) of the Constitution, in the case of Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), when a nine member Bench, disposed of the same as per majority view of 6 to 3, wherein, as per the majority view, petitions were held not maintainable within the contemplation of Article 184(3) of the Constitution, whereas, as per the minority view of three Hon'ble Judges of this Court namely Mr. Justice Rana Bhagwandas (as he then was), Mr. Justice Sardar Muhammad Raza Khan and Mr. Justice Mian Shakirullah Jan, all the petitions were held maintainable under Article 184(3) of the Constitution and were accepted. Against the acceptance of nomination papers of the General Pervez Musharraf by Election Commission of Pakistan, another Petition under Article 184(3) of the Constitution was filed by Justice (R) Wajih-ud-Din Ahmed, being Constitution Petition No. 73 of 2007. However, this petition was under consideration before eleven members Bench, when, on 3rd November, 2007, emergency was proclaimed in the country, which now has been declared unconstitutional, illegal, mala fide and void ab initio vide judgment dated 31st July 2009 in Sindh High Court Bar Association's case (PLD 2009 SC 879).
There is another principle of law, which casts duty upon this Court to the effect that it should normally lean in favour of constitutionality of a statute and efforts should be made to save the same instead of destroying it. This principle of law has been discussed by this Court on a number of occasions. Reference in this behalf may be made to the cases of Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC 854), Inam-ur-Rehman v. Federation of Pakistan (1992 SCMR 563), Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Asif Islam v. Muhammad Asif (PLD 2001 SC 499) and Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133). This principle has been appropriately dealt with in the case of Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) in the following terms:--
"that the law should be saved rather then be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rules of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex facie it is violative of a constitutional provision."
M/s Salman Akram Raja, ASC, Abdul Hafeez Pirzada, Sr. ASC, A.K. Dogar, Sr. ASC and M. Sardar Khan, Sr. ASC (Amicus Curiae) explained the objects and the purposes of the `national reconciliation' in the name of which the NRO, 2007 was promulgated. According to them, the NRO, 2007 would have been a valid legislation, had it promoted the national reconciliation in the country, but unfortunately it was the result of a deal between two persons for their personal objectives. Inasmuch, the persons representing the people of Pakistan, at that time, in the Parliament, were not made aware of it, as it was enacted on 5th October, 2007, through an Ordinance, issued under Article 89 of the Constitution, which is a temporary legislation, instead of enacting it through the Act of Parliament. They further stated that the NRO, 2007 is a power sharing deal between the then President and the head of a political party. This fact is evident from the contents of the two books; first is "Reconciliation: Islam, Democracy and the West" by late Mohtarma Benazir Bhutto and second is "The Way of the World" by Ron Suskind. Mr. M. Sardar Khan, learned Amicus Curiae has gone to the extent that the object of this law, for all intents and purposes, does not seem to be reconciliation but to pave the way and facilitate the persons, charged for corruption and corrupt practices, plundering of national wealth and commission of fraud, to come back, to seize and occupy the echelons of power again and to legalize corruption and crimes committed by those in power in past.
Mr. Abdul Hafeez Pirzada, Sr. ASC relied upon the proceedings of the National Assembly available in the shape of collection under the heading "Constitution Making in Pakistan" and contended that the Constituent Assembly, at the time of framing the Constitution of Pakistan, 1973, had taken all possible measures, to ensure that, on the basis of participation of the chosen representatives from all over the country, the document i.e. the Constitution, should be promulgated with national reconciliation. He further contended that in South Africa through promulgation of "Promotion of National Unity and Reconciliation Act, 1995, a historic bridge was provided between the past of a deeply divided society, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence for all South Africans, irrespective of color, race, etc. He further stated that although in the NRO, 2007 the word `national reconciliation' has been borrowed from the history but it has nothing to do with the national reconciliation.
As it has been noted hereinabove that the NRO, 2007 was promulgated, reportedly, as a result of deal, as is too evident from the contents of the newspaper `Daily Dawn' dated 5th October, 2007, which has already been referred to hereinabove and the said report so published in this newspaper, has not, so far, been contradicted. It is well settled by the time that, in forming the opinion, generally, as to the prevailing state of affairs, having bearing on the issue involved in a case, reports of the relevant period, from electronic and print media, can be taken into consideration. In this behalf we are fortified with the judgments in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Raja Muhammad Afzal v. Ch. Muhammad Iltaf Hussain (1986 SCMR 1736), Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77), Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130, Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Watan Party v. Federation of Pakistan (PLD 2006 SC 697) and Sindh High Court Bar Association's case (PLD 2009 SC 879).
We are conscious that non-denial of a solitary newspaper report, or even more reports for that matter, may not, in appropriate cases, form the basis of an opinion, one way or the other, therefore, we rely upon the written word of the late Mohtarma Benazir Bhutto herself. That will have more authenticity.
Relevant extract from the book "Reconciliation: Islam, Democracy and the West" by late Mohtarma Benazir Bhutto, as relied upon by M/s Abdul Hafeez Pirzada and A.K. Dogar, Sr. ASC are also reproduced hereinbelow for ready reference:--
"In August I called PPP leaders to New York. There we discussed giving General Musharraf a "nonpaper" of what we expected. Makhdoom Amin Fahim gave the "nonpaper" to General Musharraf on August 18. The "nonpaper" said that unless there was movement, by the end of August both sides would be free to go their own ways. General Musharraf and I had a long conversation over the phone that night. He said he would send a team to see me at the end of August.
The August team met me in London at my flat in Queens Gate. They discussed a whole new constitutional package. We increased the political price for the new package. They said they would come back in two days. They didn't. As the deadline approached for calling off talks, I got a call that the deadline would be extended. It was, but there was silence from the Musharraf camp.
The PPP and I met in London in September, and I announced that the date of my return to Pakistan would be given on September 14, 2007 from all the capitals and regions of Pakistan. I wanted the date announced from my homeland. The talks with Musharraf remained erratic. He didn't want us resigning from the assemblies when he sought reelection. There wouldn't be much difference in his winning whether we boycotted or contested, but we used this to press him to retire as army chief. He cited judicial difficulties. It was a harrowing period. After many, many late-night calls, he passed a National Reconciliation Order, rather than lift the ban on a twice-elected prime minister seeking office a third time, which he said he would do later. In exchange for the NRO, we reciprocated by not resigning from the assemblies, although we did not vote for him. We knew the matter still had to be decided by the Supreme Court. We thought Musharraf took the wrong decision to seek reelection from the existing Parliament, that it would only compound the crisis. But he had made his choice."
It appears from the above extract of the book, itself, of late Mohtarma Benazir Bhutto that the NRO, 2007 was designed to benefit a certain class of individuals against whom cases were registered between 1st January, 1986 to 12th October, 1999 subject to the scheme laid down therein. Thus we, prima facie, hold that the NRO, 2007 was not promulgated for achieving the object of national reconciliation as according to its substantive provision i.e. Section 2, it was meant to extend benefit to the accused persons, against whom cases were registered between 1st January, 1986 to 12th
October, 1999, subject to the scheme laid down therein. Likewise, under Section 7 of the NRO, 2007, the cases against holders of public office', involved in the offences, inside and outside the country, deemed to have been withdrawn, including the proceedings, initiated under Section 33 of the NAO, 1999 outside the country, through request for mutual assistance and civil party to proceedings, by the Federal Government, before the 12th October, 1999. These two provisions, abundantly, make it clear that the NRO, 2007 has extended benefit only to the criminals, involved in the minor or heinous crimes andholders of public office' involved in corruption and corrupt practices, as such it cannot be considered to be a legislation for achieving the object of national reconciliation.
We have yet to see a law pari materia with the NRO, 2007 according to which an accused, who being holder of public office', indulged into corruption and corrupt practices, plundering and looting of national wealth, etc., has been extended the benefit of withdrawal of his cases from the Court of competent jurisdiction. In order to understand the wordreconciliation' reference may be made to Black's Law Dictionary' wherein it has been defined asrestoration of harmony between persons or things that had been in conflict'. Likewise in Corpus Juris Secundum' the wordreconciliation' has been defined as the renewal of amicable relations between two persons who had been at enmity or variance usually implying forgiveness of injuries on one or both sides; it is treated, with respect to divorce'. The wordreconciliation' has been defined in Advanced Law Lexicon' 2005 Ed. asthe restoration to friendship and harmony; renewal of amicable relations between two person having been in conflict; literally the restoration of friendly relations after an estrangement'. As it has been argued by Mr. Abdul
Hafeez Pirzada, Sr. ASC that when the word national' is prefixed with the wordreconciliation', its meaning changes absolutely from its ordinary dictionary meanings, and national reconciliation' meansthe reconciliation of the entire nation'. Therefore, keeping in view the fact, noted hereinabove, that the NRO, 2007 was the result of deal between two individuals for their personal objectives, coupled with its dictionary meaning, it cannot be called `national reconciliation'.
Mian Allah Nawaz, learned Sr. ASC has also placed on record the thesis by Barrister Saifullah Ghouri on 'The Acquiescence of UK Courts to Foreign Legislation in Particular the NRO', in which, he while discussing the NRO, 2007, has made the reference to National Commission for
Forced Disappearance' in Argentina;Indian Residential Schools Trust and
Reconciliation Commission' in Canada; National Truth & Reconciliation
Commission' andNational Commission on Political Imprisonment & Torture' in Chile; United Nations Truth Commission' in El. Salvador;Reconciliation
& Unity Commission' in Fiji; Truth & Reconciliation Commission' in
South Africa;Truth & Reconciliation Commission' in South Korea;
Greensboro Truth & Reconciliation Commission' andJoshua Micah Marshall' in USA; etc. Interestingly, none of these commissions have dealt with the financial and ordinary crimes but amazingly the NRO, 2007 is the only law, wherein cases pertaining to ordinary and financial crimes, committed by the accused and `holders of public office', who indulged themselves into corruption and corrupt practices, have been declared to be withdrawn or terminated.
For the foregoing reasons, we are of the opinion that the NRO, 2007 was not promulgated for national reconciliation' but for achieving the objectives, which absolutely have no nexus with thenational reconciliation' because the nation of Pakistan, as a whole, has not derived any benefit from the same. Contrary to it, it has been promulgated for achieving the individuals' reconciliation, explained before this Court with the help of admitted evidence, noted hereinabove.
Learned counsel appearing for the petitioners stated that the NRO, 2007 has violated the provisions of Articles 4, 8, 25, 62(f), 63(1)(p), 89, 175 and 227 of the Constitution, therefore, it may be declared void ab initio with all consequences, likely to flow after declaring it so.
There is no cavil with the proposition that Article 8 of the Constitution provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void; and the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. Needless to observe that Article 8 of the Constitution is covered under Chapter I of the Constitution, which deals with fundamental rights. Article 25 of the Constitution, being one of the important Articles of the Constitution, professes that all citizens are equal before law and are entitled to equal protection of law.
At this stage, reference to Article 4 of the Constitution is also necessary, which deals in respect of the rights of individuals to be dealt with in accordance with law. This Article of the Constitution is not placed in the Chapter of fundamental rights, perhaps on account of its implications, as is evident from the language employed therein; namely, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. So, a uniform protection of law, being an inalienable right of every citizen and the person, who is, for the time being within Pakistan, has been provided under this Article. Nexus of Article 4 of the Constitution can conveniently be made with Article 25 of the Constitution or any other Article, relating to fundamental rights, including Article 9 of the Constitution.
It is important to note that on proclamation of emergency, fundamental rights, guaranteed under Articles 15, 16, 17, 18, 19
& 24, of the Constitution, can be suspended in terms of Article 233 of the
Constitution, but during the emergency, the provisions of Article 4 of the
Constitution remain operative. The phrase rule of law' has been used since the time of Aristotle, in the fourth century B.C.; it has meant different things to different authors and theorists; Aristotle's concept of rule of law is contained in his simple saying: "the rule of law is to be preferred to that of any individual" -- In other words, the rule of law is anathema to the rule of men; in the words of the Constitution of the State of Massachusetts, it means "a government of law and not of men"; in brief, it means supremacy of law. [Comparative Constitutional Law by Hamid Khan & Muhammad
Waqar Rana (page 48)]. The prominent Jurist A.V. Dicey in his work "Law of the Constitution" said thatrule of law' was one of the main features of the Constitution of United Kingdom. He highlighted the following three distinct concepts:--
(i) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of restraint.
(ii) When we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
(iii) The general principles of the constitution (as for example the right to personal liberty, or the right to public meeting) are with us as the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution. ......"
Elaborating upon the second concept Dicey commented: "with us every official, from the Prime Minister down to constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen." He further wrote on the second concept that "the rule of law" in this sense excludes the idea of any exemption of officials or other from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals........; the notion which lies at the bottom of the administrative law known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil Courts and must be dealt with by special and more or less official bodies."
(i) The rule of law excludes arbitrariness; its postulate is intelligence without passion' andreason freed from desire';
(ii) Wherever we find arbitrariness or unreasonableness there is denial of the rule of law;
(iii) What is a necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of policy seeks to ensure this element by making the framers of the law accountable to the people. [Bachan Singh v. State of Punjab (AIR 1982 SC 1325)].
Therefore, now we have to consider as to whether a law, which is inconsistent with the fundamental rights, is liable to be declared void to the extent of such inconsistency. Article 13 of the Indian Constitution is pari materia to Article 8 of the Constitution of Pakistan and according to the former, "all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void". This Article is covered by Part-III of the Indian Constitution, which deals with the fundamental rights. More so, Article 14 of the Indian Constitution deals with one of the fundamental rights i.e. `equality before the law', whereas in our Constitution, Article 25 deals with the said subject.
As far as jurisdiction of this Court to examine the constitutionality of a law is concerned, there is no dispute either. Sub-Article (1) of Article 8 of the Constitution uses the word `inconsistent' purposely, regarding any law which was promulgated in the past or is in existence presently. Whereas, sub-Article 2 of Article 8 of the Constitution debars the State not to make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. Same is the position in the Indian Constitution, as it has been noted hereinabove. So, inconsistency or contravention of a law passed, or the existing law, shall be examined to the extent of violation of fundamental rights and such laws are not void for other purposes.
As far as the term void' is concerned, it has been defined in Black's Law Dictionary, 7th Edn. (1999), as "of no legal effect; null." Corpus Juris Scecundum, Vol.92 at pp 1021 to 1022 definesvoid" as follows:--
"The word `void' may be used in what is variously referred to as its literal, absolute, primary, precise, strict, and strictly accurate sense, and in this sense it means absolutely null; null and incapable of confirmation or ratification; of no effect and incapable of confirmation; of no force and effect; having no legal force or binding effect, having no legal or binding force; incapable of being enforced by law; of no legal force or effect whatever; that which has no force and effect; without legal efficacy, without vitality or legal effect; ineffectual; nugatory; unable in law to support the purpose for which it was intended". (emphasis added).
The expression void' has also been commented upon in Province of East Pakistan v. M.D.
Mehdi Ali Khan (PLD 1959 SC 387), Syed Abul A'la Maudoodi v. Government of West
Pakistan (PLD 1964 SC 673), Bhikaji
Narain v. State of M.P.
(AIR 1955 SC 781). This Court in Haji Rehmdil v. Province of Balochistan
(1999 SCMR 1060) defines that "term "void" signifies something absolutely null, incapable of ratification or confirmation and, thus, having no legal effect whatsoever". Similarly, the wordvoid ab initio' has been defined in Black's Law Dictionary, 7th Edn. (1999) as "null from the beginning".
However, the powers of this Court to examine the constitutionality of a law have been discussed in number of judgments at number of times. Reference in this behalf may be made to Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457 at 596), Benazir Bhutto's case (PLD 1988 SC 416 at 485), Azizullah Memon's case (PLD 1993 SC 341 at 354), Government of NWFP v. Muhammad Irshad (PLD 1995 SC 281 at 296), Civil Aviation Authority v. Union of Civil Aviation Employees (PLD 1997 SC 781 at 796), Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263 at 1313 & 1357), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697 at 731) and Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642 at 671, 675, 676).
It is important to note that as per the command of Article 4 of the Constitution all the citizens without any discrimination shall be dealt with in accordance with law, so enforcement of the law leaves no room for creating any distinction between the citizens, except a particular class, on the basis of intelligible differentia. The principle challenge to the NRO, 2007, is of its being discriminatory in nature.
It is the case of the petitioners' that the NRO, 2007, being violative of
Article 25 of the Constitution, deserves to be declared void ab initio, non est, thus never took birth, therefore, nothing, which is the product of the
NRO, 2007 or done in pursuance of it or under it, ever came into existence or survive. It is also contended that the NRO, 2007 is void because it is a fraud on the Constitution. According to the learned counsel for the petitioners, the
NRO, 2007 has violated the dictum laid down by this Court in Mahmood Khan
Achakzai's case (PLD 1997 SC 426) improved upon in Syed Zafar Ali Shah's case
(PLD 2000 SC 869), wherein, after a great deal of efforts, the Court eventually came to treat Article 4 of the Constitution as due process clause'. So far as the provision of Article 25 of the Constitution is concerned, it has been discussed time and again by this Court in a good number of cases, reference to which may not be necessary, except the one i.e. Azizullah Memon's case (PLD 1993 SC 341), wherein inconsistency of the provisions of Criminal Law (Special Provisions)
Ordinance, 1968 were examined on the touchstone of Articles 8 and 25 of the
Constitution, and ultimately appellant's (Government of Balochistan) appeal was dismissed, declaring the Criminal Law (Special Provisions) Ordinance, 1968, to be void being inconsistent with the fundamental rights enshrined in
Article 25 of the Constitution.
In this judgment, with regard toreasonable classification', following two principles have been highlighted:--
"in order to make a classification reasonable, it should be based:-
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
As far as `intelligible differentia' is concerned, it distinguishes persons or things from the other persons or things, who have been left out. The Indian Supreme Court, while relying upon the statement of Professor Willis in Charanjit Lal v. Union of India (AIR 1951 SC 41), observed that "any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed". Same principle has been highlighted in Shazia Batool v. Government of Balochistan (2007 SCMR 410).
Thus, keeping in view the above principles and the definition of classification "intelligible differentia" means, in the case of the law differentiating between two sets of the people or objects, all such differentiations should be easily understood as logical and lucid and it should not be artificial or contrived.
It may be noted that the NRO, 2007 has extended benefit to three categories of persons in the following manner:--
(1) By virtue of amendment of Section 494 Cr.P.C. the cases of accused persons, including the absconding accused, involved in criminal cases, for political reasons or through political victimization, initiated between 1st January, 1986 to 12th October, 1999 including those against whom, judgments have been pronounced by the Trial Court, were to be withdrawn.
(2) By adding clause (aa) in Section 31A of the NAO, 1999, it is declared that an order and judgment passed by the Court in absentia against an accused is void ab initio and shall not be acted upon.
(3) By inserting Section 33F in the NAO, 1999, the proceedings under investigation or cases pending in any Court including a High Court and the Supreme Court of Pakistan, initiated by or on a reference by the NAB, inside and outside Pakistan, including the proceedings initiated under Section 33 (ibid) by making requests for mutual assistance and civil party to proceedings, by the Federal Government, before the 12th day of October, 1999, against 'holders of public office' stood withdrawn and terminated and such `holders of public office' shall also not be liable for any action in future as well under this Ordinance for acts having been done in good faith before the said date.
"494. Effect of withdrawal from prosecution. Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and upon such withdrawal:
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
In above provision, emphasis is upon "effect of withdrawal from the prosecution with the consent of the Court". A plain reading of above provision categorically provides for an important role of the Court as without its consent, no effect of withdrawal from prosecution shall take place. In Saad Shibli v. State (PLD 1981 SC 617), it has been observed as follows:--
"It follows therefore, that on disclosure of satisfactory objective grounds, relatable to public policy, or public peace, and administration of justice, an application under Section 494 Cr.P.C., for seeking Court's permission to withdraw from the prosecution can be filed. The Court's duty is to ensure that such a course "is not an attempt to interfere with the normal course of justice for illegitimate reason or purposes"- AIR 1957 SC 389 or that Courts "own functioning is not thereby pre-empted"- PLD 1977 SC 451."
To extend the benefit of the NRO, 2007 following amendment was made in Section 494 Cr.P.C. which is reproduced hereinbelow:--
"2. Amendment of section 494, Act V of 1898.
In the Code of Criminal Procedure, 1898 (Act V of 1898), section 494 shall be renumbered as sub-section (1) thereof and after sub-section (1) renumbered as aforesaid, the following sub-section (2) and (3) shall be added, namely:
"(2) Notwithstanding anything to the contrary in sub-section(1), the federal government or a provincial government may, before the judgment is pronounced by a Trial Court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimization in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of subsection (1) shall apply.
(3) For the purposes of exercise of powers under sub-section (2) the federal government and the provincial government may each constitute a review board to review the entire record of the case and furnish recommendations as to their withdrawal or otherwise.
(4) The review board in case of Federal Government shall be headed by a retired judge of the Supreme Court with Attorney-General and Federal Law Secretary as its members and in case of Provincial Government it shall be headed by a retired judge of the high Court with Advocate-General and/or Prosecutor-General and Provincial Law Secretary as its members.
(5) A review board undertaking review of a case may direct the public prosecutor or any other concerned authority to furnish to it the record of the case."
A cursory glance on amended Section 494 Cr.P.C. leads to conclude that powers of the Court under Section 494 (1) Cr.P.C were conferred upon the Review Board, to be constituted by the Federal Government and the Provincial Government, composition of which has been provided under sub-Section (4) of Section 494 Cr.P.C. In simple words consent of the Court has been replaced with the recommendations of the Review Board i.e. an executive body, for all intent and purposes. The Review Board on whose recommendations, all the cases, in which judgment has not been pronounced by the Trial Court, are to be withdrawn from the prosecution, including the cases of absconding accused, who were found to be falsely involved for the political reasons or political victimization. Essentially, declaring a person absconder is the job of the Trial Court, after submission of challan and observing codal formalities under Sections 87 and 88 Cr.P.C. As far as involving a person falsely for political reasons or through political victimization, is concerned, it is a question which could only be examined by the Court of law, before whom challan has been submitted because once a challan is filed, the accused can be discharged or acquitted under Cr.P.C., if there is no evidence against the accused, as the case may be, or by applying for quashment of the case under Section 561-A Cr.P.C. or approaching the Revisional Court for terminating the proceedings, if the same are not founded on correct disclosure of information for involvement of the accused. However, as far as absconding accused is concerned, prima facie, he is considered to be fugitive from law. Therefore, without surrendering to the Court, legally no concession can be extended to him by the executive authority. Surprisingly, action initiated under the NRO, 2007 in terms of above provision is tantamount, in clear terms, to deny the independence of judiciary, which is hallmark and also one of the salient features of the Constitution, as it has been held in Syed Zafar Ali Shah's case (PLD 2000 SC 869). Relevant paras therefrom are reproduced hereinbelow for convenience:--
"We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai's case (supra), power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of `State necessity'. We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features i.e independence of Judiciary, federalism and parliamentary form of government blended with Islamic Provision cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6."
It may be noted that as far as independence of Judiciary is concerned its security has been provided by the Constitution itself in Article 2A of the Constitution but the principle and concept of the same shall be discussed after examining the constitutionality of various provisions of the NRO, 2007 including the one which is under discussion.
In order to decide the issue of withdrawal of criminal cases, registered against the accused persons, during the specific period, commencing from 1st January, 1986 to 12th October, 1999, Mr. Yousaf Leghari, Advocate General Sindh was called upon to place on record the details of all cases. However, except furnishing one list of the cases, he could not handover the list of all other cases, which according to his statement, noted by this Court vide order dated 14th December 2009, is to the effect that the Department has not been able to get a detailed list/ names of absconders, whose cases were recommended by the Review Board and thereafter withdrawn under amended Section 494 Cr.P.C. In respect of other Provinces, neither any benefit of the NRO, 2007 was extended to any of the accused, nor was any Provincial Review Board constituted, as submitted by the Advocates General of the respective Provinces. However, a perusal of the material so furnished by the Advocate General Sindh, reveals that Provincial Review Board constituted under the above provision of amended Section 494 Cr.P.C., examined criminal cases on 9th October 2007 and has drawn the conclusion on the same day that after having gone through the available record and bearing in mind the provisions contained in the amended Section 494 Cr.P.C. the Board is of unanimous view that all the cases were falsely registered and for political reasons, therefore, it would be futile exercise to keep them pending particularly when most of the cases are very old and there is hardly any cogent evidence to connect the accused with the alleged offences, as none of them would result in conviction, if tried by the respective Courts, as such, notwithstanding the fact that any one of the accused has been declared absconder, the Board recommended the Provincial Government that those cases may be withdrawn forthwith. Exact figure of such cases has not been brought on record but as per verbal statement of the learned Advocate General Sindh, there were more than three thousand cases which have been withdrawn, in which about eight thousand accused were involved. We fail to understand whether hundreds of cases can be decided within few hours, for the purpose of making recommendations by the Provincial Review Board. Therefore, inference would be that just to fulfill the formality, meeting of the Board was convened in order to get recommendations for the withdrawal of cases. The list so made available by the learned Advocate General Sindh indicates that the cases including the criminal cases, involving murder, attempt to murder, dacoity, kidnapping for ransom, robbery, gunrunning, theft, extortion, etc. have been recommended by the Board for withdrawal forthwith. Needless to observe that after the amendment in PPC, in pursuance of judgment of this Court in Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633), the cases pertaining to Qisas, Diyat, Arsh, etc. were not allowed to be compounded without the permission of the victim or the heirs of decease and even if such permission is sought by entering into compromise, under Chapter XVI of the PPC, no withdrawal or compromise of such cases is permissible in noncompoundable cases. Interestingly, in the list, submitted by the learned Advocate General Sindh, there are cases, relating to offences, which are non-compoundable and even the Court of law, before whom matter is subjudice, is not empowered to make recommendations for withdrawal of the same or allowed to enter into compromise. Admittedly, the victim or heirs of the deceased, in body-hurt cases, covered by Chapter XVI PPC, had an inalienable right to be heard by a Court of law, as sometimes permission is accorded by the Court to compound the offence, subject to payment of Diyat, Daman, Arsh, etc., as the case may be. But by substituting the Court with the Review Board, mandatory procedure of law has been compromised. At this juncture, reference to the following para from the Hakim Khan v. Govt. of Pakistan (PLD 1992 SC 595) would not be out of context:--
As regards the merits of the question involved in the case, the punishments of death awarded were not by way of Qisas. The sentences of death awarded were under Ta'zir. Just as a sentence of Ta'zir is imposed on State's command and not as a right of the individual under God's law, the State as represented by the President, has and continues to have in respect of Ta'zir punishments, the right of commutation, remission etc.
As per the above principle of law, no question of pardon arises if the punishment of Qisas has been awarded. However, in respect of Ta'zir, the President continues to enjoy the power to grant pardon. It is further observed that in terms of Articles 45 and 2A of the Constitution, the Court has no power to apply the test of repugnancy by invoking Article 2A of the Constitution for striking down Article 45 of the Constitution. This principle has been highlighted by the seven member bench of this Court in the case of Abdul Malik v. The State (PLD 2006 SC 365). Relevant para therefrom is reproduced hereinbelow for convenience:--
"The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed, where relief or clemency is for the honour of the State. In the former case, the discretion has to be exercised with care, keeping in mind the duty to maintain justice, so as to prevent the erosion of the deterrent effect that judicial punishment must retain. The scope of the power of the President under Article 45 is basically discretionary, in view of Article 48(2) of the Constitution. The power under Article 45 being at the apex and unfettered, the President, whilst commuting a sentence (on a number of counts) or different sentences, can order the commuted sentences to run concurrently inter se and/or concurrently with any other or others imposed by the Court."
No assertion could be made by either of the parties about the punishment to an accused, whose case has been withdrawn despite likelihood of his getting punishment under Qisas or Ta'zir. The Court, trying an accused for a particular crime, based on a particular charge, prayed against him by the prosecution, has no reasons to enter into discussion whether on account of political victimization, he has been involved in the case or otherwise; because the Court is required to decide the case on merits, in exercise of its jurisdiction, following the consistent principles of administration of justice in criminal cases that if no case is made out on merits, it is free to discharge or acquit the accused without waiting for conclusion of the trial.
The amendment in Section 494 Cr.P.C. has not only undermined the independence of judiciary by substituting the Court, before whom the trial of an accused was pending, with the Review Board, but, at the same time, had also created discrimination with the accused, who were facing trial prior to 1st January, 1986 or had been charged for the offence after 12th October, 1999. The preamble of the NRO, 2007 coupled with any of its substantive part, had not disclosed the reasons, calling for so called `national reconciliation' in between this period, presuming that an accused, facing charge entailing major penalty of death, is not entitled for discharge, by means of extra judicial forum, or for the same treatment, if he has committed the crime after 13th October, 1999, and up till now. We have posed a question to ourselves i.e. whether there had been no political victimization after 12th October, 1999 uptill now, on account of which accused persons were involved falsely in the commission of the offence but we could not succeed in getting the answer of the same except observing that specific dates were incorporated in the NRO, 2007 for achieving specific object as well as the specific purpose, which has been highlighted by one of the learned counsel, whose argument in this behalf has been noted hereinabove.
Somehow, the Indian Supreme Court had to face with identical situation in Rajender Kumar v. State (AIR 1980 SC 1510). As per the facts of the case, the Government of India, in exercise of powers conferred by Section 196(1)(a) of the Code of Criminal Procedure 1973, and Section 7 of the Explosive Substances Act, 1908, by its order dated 6th September, 1976 accorded sanction for the prosecution of George Mathew Fernandes alias George Fernandes, Chairman of Socialist Party of India and Chairman of All India Railwaymen's Federation and 24 others, for alleged offences under Sections 121-A & 120-B of Indian Penal Code, read with Sections 4, 5 and 6 of Explosive Substances Act, 1908 and Sections 5(3)(b) and 12 of the Indian Explosives Act, 1884, on the allegations that after the issuance of the proclamation of Emergency on 25th June, 1975 by the President of India in exercise of the powers conferred by clause (1) of Article 352 of the Constitution, George Mathew, sought to arouse resistance against the said emergency by declaring that the said emergency had been "clamped" on the country by the "despotic rule" of Smt. Indira Gandhi, Prime Minister of India and to entertain an idea that a conspiracy be hatched with the help of the persons of his confidence, to over-awe the Government and in pursuance of the conspiracy do such acts which might result in the destruction of public property and vital installations in the country. On 24th September, 1976 the Deputy Superintendent of Police, Special Police Establishment Central Bureau of Investigation, filed a charge-sheet in the Court of the Chief Metropolitan Magistrate, Delhi, against the said accused persons for the offences mentioned in the order sanctioning the prosecution. Besides the accused, who were sent up for trial, two accused, namely, Shri Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Court and were examined as approver under Section 306(4) Cr.P.C., notwithstanding the fact that the case was exclusively triable by the Court of Session. Out of 25, two accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Court. At that stage, on March 26, 1977, N. S. Mathur, Special Public Prosecutor filed an application under section 321 of the Criminal Procedure Code 1973, for permission to withdraw from the prosecution. On the same day the Chief Metropolitan Magistrate, expressed the opinion that it was "expedient to accord consent to withdraw from the prosecution", granted his consent for withdrawal from the prosecution. One Dr. Rajender Kumar Jain, an Advocate, filed a petition in the High Court of Delhi, under Section 397 of the Criminal Procedure Code for revision of the order of the Chief Metropolitan Magistrate giving his consent to the Special Public Prosecutor to withdraw from the prosecution, but the same was dismissed on the ground that the applicant had no locus standi. Dr. Rajender Kumar Jain filed appeal before the Supreme Court of India, after obtaining special leave from the Court, mainly on the ground that the Public Prosecutor had abdicated his function and had filed the application at the behest of the Central Government without applying his mind, and that S. N. Mathur who had filed the application for withdrawal from the prosecution was not the Public Prosecutor, in-charge of the case and the application was therefore, incompetent. The Supreme Court, ultimately, while dismissing the petitions for leave to appeal, concluded as under:--
Before bidding farewell to these cases it may be appropriate for us to say that Criminal justice is not a plaything and a Criminal Court is not a play-ground for politicking. Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost. So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases. But under no circumstances should he allow himself to become anyone's stooge.
The provision of Section 2 of the NRO, 2007, is also contrary to the dictum laid down in Saad Shibli's case (PLD 1981 SC 617), wherein it has been held as under:--
A bare reading of this section discloses that the statute conferring the power of withdrawal on the Public Prosecutor prescribes no guidelines and indicates no controlling features, except that such a power can be exercised before the judgment is pronounced and is subject to "consent of the Court". From such a general dispensation certain consequences necessarily follow. In the first place, the power conferred is of the widest amptitude but not so wide as to amount to a fiat or ipsi dixit of the Public Prosecutor. Such a limitation necessarily follows the requirement of "consent of the Court." It has been held that "where Court's permission is sought or required, such a motion seeks the active exercise of the sound judicial discretion of the Court" (22 A CJS 7). Judicial discretion of the Court is required to be exercised according to reasonably well settled principles, which are capable of being formulated and applied as standards by higher Courts when entertaining appeals against the manner in which they have been exercised. In this sense, therefore, "judicial" refers to the exercise of discretion in accordance with "objective" standards as opposed to subjective considerations of policy and expediency."
Above discussion, in the light of the facts disclosed by the learned Advocate General Sindh, persuades us to hold that the classification amongst the accused persons, facing trial during the specific period i.e. 1st January 1986 to 12th October 1999, is based on arbitrariness and no reasons have been disclosed in the NRO, 2007 for entering into so called reconciliation' with particular group of accused persons, except in the name ofnational reconciliation' on the pretext that the cases were politically motivated against them. Therefore, the NRO, 2007 to the extent of discussion on Section 2, is arbitrary and irrational as it has failed the test of reason to conclude in its favour that it is not a bad law.
Similarly on the basis of intelligible differentia for reasonable classification, the differentiation has not been understood logically and it seems that for specific purpose, an artificial grouping was made, causing injustice to the accused persons, who were placed in the same position and instead of achieving the national reconciliation' the NRO, 2007 had served the purpose ofindividual reconciliation'.
It has been argued by one of the learned counsel i.e. Mr. Abdul Hafeez Pirzada, Sr. ASC that by means of Section 6 of the NRO, 2007, a new provision i.e. (aa) has been added in Section 31A of the
NAO, 1999 and stated that this provision is contrary to Article 63(1)(p) of the
Constitution, for the reason that if holder of public office' is an absconder, in view of conviction recorded against him in absentia under Section 31A of the
NAO, 1999, suchholder of public office' is not competent to sit in the
Parliament on the basis of his conviction as well as morality. Therefore, by promulgation of Section 6 of the NRO, 2007, conscience of the Constitution has been divorced. Reliance in this behalf has been placed by him upon Jamal Shah v. Election Commission (PLD 1966 SC 1) and Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416). On the Court's question, he replied that if Section 6 of the NRO, 2007 is declared void for these two reasons, then the convicts must surrender before the will of the Constitution. He added that this is the mandate of the Constitution. According to him if Article 63(1)(p) of the
Constitution could not be considered to be self-executory then no other provision of the law could be so dealt with.
It would be advantageous to reproduce hereinbelow Section 31A of the NAO, 1999:--
"31A. Absconding to avoid service of warrants Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable with imprisonment which may extend to three years notwithstanding the provisions of section 87 and 88 of Code of Criminal Procedure, 1898, or any other law for the time being in force."
The above Section has been amended by means of Section 6 of the NRO, 2007, which reads as under:--
"6. Amendment of section 31A, Ordinance XVIII of 1999.
In the said Ordinance, in section 31A, in clause (a), for the full stop at the end a colon shall be substituted and thereafter the following new clause (aa) shall be inserted, namely:--
"(aa) An order or judgment passed by the Court in absentia against an accused is void ab initio and shall not be acted upon."
As far as Article 63(1)(p) of the Constitution, referred to by the learned counsel, relating to disqualification for becoming the member of the Parliament, is concerned, it provides that a person shall be disqualified from being elected or chosen, as and from, being a member of the Majlis-e-Shoora (Parliament) if he has been convicted and sentenced to imprisonment for having absconded by a competent Court under any law for the time being in force. On Court's query, NAB has provided the list of the persons, convicted under Section 31A of the NAO, 1999 because we wanted to ascertain whether there is any case of convict/absconder who has been extended benefit of this provision. In view of available material, it was considered appropriate to examine the constitutionality/ vires of this provision of the NRO, 2007 as well.
It is important to note that this Court has earlier granted relief to the convicts under Section 31A; firstly in an unreported judgment in Gulzaman Kasi v. The State (Criminal Appeal No. 269 of 2003), wherein allegation against the appellant was that he in his capacity as the Minister for Development Government of Balochistan/Chairman, Quetta Development Authority, in connivance with Mr. Abdus-Saleem Durrani, Director General, converted a plot meant for school/play ground, into six residential plots and allotted the same to their close relatives and associates and thereby committed offence under Section 9(b) of the NAO, 1999. The learned Bench of three Hon'ble Judges of this Court, has held that the impugned conviction of the appellant cannot be sustained for two reasons; firstly that trial in absentia has been declared violative of Article 9 of the Constitution in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445); and secondly appellant was subsequently arrested in the matter and was tried on the allegations which form subject matter of the reference, in which he was convicted in absentia; his appeal was dismissed by High Court of Balochistan and his Criminal Petition No. 68-Q of 2003 is pending decision before this Court and would be decided along with this appeal; therefore, the convict was released.
It is to be noted that this case is distinguishable from the case relating to disqualification of a person being elected as a member of the Parliament, or from being a member of the Parliament, because the question as to whether he has been rightly convicted in absentia or otherwise, is to be decided by the Court of law and the powers of the Court could not be substituted or conferred according to Section 6 of the NRO, 2007 on the legislature to declare that an order or judgment passed by a Court of competent jurisdiction in absentia is void ab initio and shall not be acted upon. It may also be kept in mind that; firstly Section 6 of the NRO, 2007 is general in its nature and benefit of the same can be derived by a candidate for becoming the member of the Parliament, or a member of the Parliament, or by other ordinary person; secondly, it has not been made applicable for a specific period. Therefore, if it being an amended provision continued to remain intact for all the times to come, conviction in absentia under Section 31A of the NAO, 1999 shall be void and for all practical purposes Section 31A of the NAO, 1999 shall be deemed to have been annulled. Before proceeding further, it is necessary to answer that the observation made in Mehram Ali's case (PLD 1998 SC 1445) and in Gulzaman Kasi's case (Criminal Appeal No. 269 of 2003) could have not been made in view of the distinctive facts, namely, in the said case Court was authorized to remove the accused from the Court on his misbehaviour and in his absence the trial was concluded and he was sentenced to death, therefore, it was considered violation of Article 9 of the Constitution. Be that as it may, Hon'ble same Judge of this Court i.e. Mr. Justice Tassaduq Hussain Jillani, in his subsequent judgment in the case of Manzoor Qayyum v. The State (PLD 2006 SC 343) has held as follows :--
"6. The question whether the petitioner had absconded, "in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance" would be a question of fact to, be decided by the Trial Court in the light of the material brought before it. The reference by learned counsel for the petitioner to a judgment of the Karachi High Court, Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 may not be relevant at this stage before this Court. It rather contains instructive guidelines for a Trial Court seized of a case under section 31-A of the NAB Ordinance. In the said case, the learned Karachi High Court delved at length on the scope of the aforereferred section, the nature of evidence the prosecution has to produce to prove the avoidance of service of notice or of execution of warrants particularly when an accused allegedly leaves the country. But having observed all this, the Court directed the appellant to appear before the Trial Court "as and when required by the said Courts for further proceedings in accordance with law". In the case of N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR (29) 1942 Madras 289, a trial Magistrate had issued warrants of attachment and proclamation on account of non-appearance of the accused and the same were set aside by the High Court but the main complaint pending before the said Magistrate was not interfered with. The High Court held as under:--
"It is obvious that when the Magistrate was informed that the petitioner had already left India, the orders for attachment and proclamation are without jurisdiction, unless he was satisfied that the accused was willfully absconding, knowing of the warrant. He could not have known of the warrant which was issued after he had left India. When it was clear that the accused had left India in March, it could not possibly be said that he absconded or that he is concealing himself so that the warrant cannot be executed, which is a condition precedent under S.87, Criminal P.C. for the issue of a proclamation. It is also a condition precedent for the issue of attachment under S.88. It was at first said that the petitioner was still in India and that he is concealing himself somewhere in India. If this is so, the action of the Magistrate would be perfectly justified. I asked the complainant whether he would state so in an `affidavit, and I gave him an opportunity of stating it in an affidavit. In the affidavit filed by him he has not contradicted the statement made on behalf of the petitioner that he left India in March. Under these circumstances, I hold that the orders of proclamation and attachment are without jurisdiction and as such they are set aside."
In the instant case as well, the learned High Court while setting aside the conviction under section 31-A of NAB Ordinance, left the matter to Trial Court to decide it afresh. The precise question which the learned Trial Court would be seized of now is whether the allegation of absconsion or avoidance of service of the process of the Trial Court is borne out from the record or material placed before it or not. This Court would not pre-empt the function of the Trial Court. In these circumstances, the judgment of the learned High Court is unexceptionable. However, the petitioner would be within his right to move an application under section 265-K, Cr.P.C. and if such an application is moved, the learned Trial Court shall decide the same on merit with independent application of mind within 15 days of its presentation as assured by learned Deputy Prosecutor General of NAB."
On having gone through the above judgment, it is crystal clear that offence falling within the mischief of Section 31A of the NAO, 1999 is distinct offence, from the allegations made in the reference, which was filed against an accused and if the convict has been acquitted in the reference or the reference has been withdrawn, even then the conviction under Section 31A of the NAO, 1999 remain operative and the convict has to avail remedy, for getting it set aside, by approaching the next higher judicial forum, as envisaged under Section 32 of the NAO, 1999.
As discussed above, conviction in absentia is a final order, therefore, no other forum can declare such conviction as void, except a judicial forum, that too, by filing an appeal. But in instant case, as it has been pointed out hereinabove, by amending a law, such conviction has been declared void, therefore, the amendment in Section 31A of the NAO, 1999 by inserting clause (aa), by means of Section 6 of the NRO, 2007, is declared void being against the provisions of Section 31A read with Section 32 of the NAO, 1999, which provides remedy to the convict to file appeal.
There is another judgment in the case of The State v. Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), in which appeal filed by the State against the acquittal of the respondent, has been dismissed, inter alia, for the reason that the respondent convict under Section 31A of the NAO, 1999, voluntarily surrendered himself before the High Court, where appeal against his conviction was pending; he was acquitted of the charge under Section 31A by the High Court, which was considered to be unexceptional and the State appeal was dismissed. This Court in another judgment in State v. Naseem-ur-Rehman (2004 SCMR 1943) in respect of the respondent, convicted under Section 31A of the NAO, 1999 observed that it was obligatory upon the convict to approach the Court; first of all he should surrender to the order of his imprisonment, meaning thereby that on surrendering before the Court he should be taken into custody and the Court might order for his release in appeal and if such person is not taken into custody or not admitted to bail, then he will be deemed to be fugitive from law and would not be entitled to any relief.
The above discussion poses another important question, namely, whether the legislature by means of an enactment can undo the effect of the judgment in which the person has been convicted for an offence and if he is `holder of public office', his such conviction is a disqualification to be elected as a member of the Parliament, or to be a member of the Parliament, under Article 63(1)(p) of the Constitution? In this behalf the simple answer would be that with reference to a person, who intended to become the member of the Parliament, or is a member of the Parliament, no legislation is possible to grant him relief in presence of the provisions of the Constitution, being a parent law. It is well settled by the time that no legislation on any subject is permissible which is against the specific provision of the Constitution. In this behalf we are fortified with the judgment in Wattan Party v. Federation of Pakistan (PLD 2006 SC 697), wherein it has been held as under:--
".................. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. ......................... (emphasis provided).
It is also important to note that this law has opened the door of the Parliament, for the persons, convicted in absentia, as the disqualification for a person to become a member of Parliament and for a member of Parliament under Article 63(1)(p) of the Constitution has been removed by means of clause (aa) inserted in Section 31A of the NAO, 1999, a person, who has been convicted under Section 31A of the NAO, 1999, in absentia, with a stigma of a convict, has been made qualified to enter into the Parliament, contrary to the Constitutional provisions as well as law laid down in the case of Abdul Baqi v. Muhammad Akram (PLD 2003 SC 163).
As far as nullifying the effect of a judgment by means of a legislation is concerned, there are certain limitations including the one i.e. by amending the law with retrospective effect, on the basis of which the order or judgment has been passed, thereby removing the basis of the decision. Reference in this behalf can be made to Tofazzal Hossain v. Province of East Pakistan (PLD 1963 SC 251), Tirath Ram Rajindra Nath v. State of U.P. (AIR 1973 SC 405), Mamukanjan Cotton Factory v. Punjab Province (PLD 1975 SC 50) and Misrilal Jain v. State of Orissa (AIR 1977 SC 1686). However, in the case of I.N. Saksena v. State of Madhya Pradesh (AIR 1976 SC 2250), following principle has been laid down:--
"Firstly, whether the legislature possesses competence over the subject matter, and, secondly, whether by validation the legislature has removed the defect which the Courts had found in the previous law. To these we may add a third. Whether it is consistent with the provisions of Part III of the Constitution.
It is to be noted that the NAB has placed on record the material pointing out the names of the beneficiaries, who have derived benefit under Section 6 of the NRO, 2007 but applying the test laid down hereinabove, we can safely conclude that the insertion of clause (aa) in Section 31A of the NAO, 1999 is without lawful authority, as it has not amended the original Section 31A of the NAO, 1999, which is still intact with all its consequences and effects. It is pertinent to mention here that the language used in an enactment must show the intention of the lawgiver that it would apply with retrospective effect and shall be deemed always to have been so inserted in the respective statute. In this behalf reference may be made to Fecto Belarus Tractor v. Government of Pakistan (PLD 2005 SC 605). Relevant para therefrom is reproduced hereinbelow for convenience:--
"........Before considering this question it would be appropriate to make certain general observations with regard to the power of validation possessed by the legislature in the domain of taxing statutes. It has been held that when a legislature intends to validate a tax declared by a Court to be illegally collected under an invalid law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to have taken place effectively. It will not be sufficient merely to pronounce in the statute by means of a non obstante clause that the decision of the Court shall not bind the authorities, because that will amount to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the legislature. It is therefore necessary that the conditions on which the decision of the Court intended to be avoided is based, must be altered so fundamentally, that the decision would not any longer be applicable to the altered circumstances. One of the accepted modes of achieving this object by the legislature is to reenact retrospectively a valid and legal taxing provision, and adopting the fiction to make the tax already collected to stand under the reenacted law. The legislature can even give its own meaning and interpretation of the law under which the tax was collected and by "legislative fait" make the new meaning binding upon Courts. It is in one of these ways that the legislature can neutralize the effect of the earlier decision of the Court. The legislature has, within the bounds of the Constitutional limitations, the power to make such a law and give it retrospective effect so as to bind even past transactions. In ultimate analysis, therefore, the primary test of validating piece of legislation is whether the new provision removes the defect which the Court had found in the existing law and whether adequate provisions in the validating law for a valid imposition of tax were made.................................................................. it is clear from the provisions of section 5 of the Finance Act, 1988 that by the device of the deeming clause the newly-inserted section 31-A is to be treated as part and parcel of the Act since its enforcement in 1969. Undoubtedly, therefore, the section is retrospective in operation. It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested rights cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested rights can be taken away by such a legislation and it cannot be struck down on that grounds. However, it has also been laid down in Province of East Pakistan v. Sharafatullah PLD 1970 SC 514 that A statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred. In that case that following postulation has been made:--
"In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends."
This is an important principle which has to be kept in mind in the context of the present case. Reference may also be made to another principle followed is several decisions but to quote from Mehreen Zaibun Nisa v. Land Commissioner, Multan (PLD 1975 SC 397) where it was observed:
"When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. V. Finsbury Borough Council (1952) AC 109) namely:-
`Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
However, in that case aforesaid principle was subjected in its application to a given case to condition that the Court has to determine the limits within which and the purposes for which the legislature has created the fiction. It has been quoted from an English decision that "When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
"If the legislature would prescribe a different rule for the future from that which the Courts enforce, it must be done by statute, and cannot be done by a mandate to the Courts, which leaves the law unchanged, but seeks to compel the Courts to construe and apply it not according to the judicial, but according to the legislative judgment. But in any case the substance of the legislative action should be regarded rather than the form; and if it appears to be the intention to establish by declaratory statute a rule of conduct for the future, the Courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is the best, most decorous and suitable that could have been adopted or not.
If the legislature cannot thus indirectly control the action of the Courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry."
"210. The independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve this objective, Article 175 provides that "the Judiciary shall be separated progressively from the executive". The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualifications for appointment of Judges of the High Courts, prescribing the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a Judge from a High Court to the Federal Shariat Court. Furthermore, the Supreme Court judgments in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, in as much as, they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive.
211. In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens' inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society.
The above principle has been reiterated in Sindh High Court Bar Association's case (PLD 2009 SC 879), with approval.
Undoubtedly, the legislative authority has to perform those functions, which have been recognized by the Constitution. There is no such provision on the basis of which a judgment can be annulled, except in civil cases, that too, subject to following the principles laid down hereinabove. As far as matters relating to criminal administration of justice are concerned, where a judgment has been announced on the basis of law, the legislative authority cannot annul such judgment without pointing out any flaw in the law, which is the basis of such a judgment; as in the instant case, no amendment has been made in the original text of Section 31A of the NAO, 1999, therefore, it would lead us to the conclusion that the judgment pronounced under the law, by a Court of competent jurisdiction, is a judgment which has been pronounced legally, according to the mandate, conferred upon the Court and such judgment or order cannot be annulled by means of an enactment. It is well settled principle of law that upon feeling aggrieved by any judgment pronounced in the criminal administration of justice, the aggrieved person has been provided with the remedies to invoke the jurisdiction of the higher Courts, within the hierarchy. Similarly, in the case in hand, if a person is aggrieved by an order of conviction/sentence recorded against him under Section 31A of the NAO, 1999, he has remedy under Section 32 of the NAO, 1999 to file an appeal before the High Court.
As it has been noted hereinabove that if the legislative authority is not aggrieved, in any manner, by the judgment pronounced by the Courts discharging its functions under Section 31A of the NAO, 1999, the said judgment could only be set aside, varied, suspended as per the procedure laid down in the NAO, 1999 and not by enforcing or adopting legislative measures. In this behalf, this Court, in Abdul Kabir v. State (PLD 1990 SC 823), has highlighted this aspect, in the following manner:--
".................. A conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. During the pendency of an appeal, appellate Court may suspend the sentence under section 426, Cr.P.C. So execution of sentence of petitioner is suspended and not his conviction which remains operative till it is set aside by the higher appellate Courts. Pendency of the appeal for decision does not ipso facto mean that the conviction is wiped out. The appellate Court has no authority under section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means proving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under section 426, Cr.P.C. but it does not mean that the conviction is erased. Therefore, in view of the fourth proviso, the third proviso to section 497(1), Cr.P.C. is not attracted to the case of the petitioner."
In the case in hand, without any reasonable justification, both, the conviction and the sentence, have been declared void, by adding clause (aa) in Section 31A of the NAO, 1999, which definitely is against the norms and the principles of justice.
32. Appeal [and revision]:
(a) Any person convicted or the Prosecutor General Accountability, if so directed by Chairman NAB, aggrieved by the final judgement and order of the Court under this Ordinance may, within ten days of the final judgement and order of the Court prefer an appeal to the High Court of the Province where the Court is situated:
Provided that no appeal shall lie against any interlocutory order of the Court.
(b) All Appeals against the final judgement and Order filed before the High Court will be heard by a Bench of not less than two judges constituted by the Chief Justice of the High Court and shall be finally disposed of within thirty days of the filing of the Appeal.
(c) No revision shall lie against any interlocutory order of the Court.
Thus, no other forum including the legislature is empowered to declare an order or judgment, whereby conviction has been recorded under Section 31A of the NAO, 1999, to be void ab initio except in civil cases pertaining to the tax matters, etc., as discussed above. As far as Articles 2A and 175 of the Constitution are concerned, they furnish guarantee for securing the independence of judiciary. This is not the only case in which we are confronted with such situation. Right from the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) to Mehram Ali's case (PLD 1998 SC 1445), followed by in Liaquat Hussain's case (PLD 1999 SC 504), this Court has always interpreted Article 175 of the Constitution read with one of the items of the Objective Resolution, which has been enshrined in Article 2A of the Constitution, guaranteeing independence of judiciary.
The observations made above are not in derogation to the powers of the Parliament. There may indeed be cases in which Parliament may, by appropriate legislation, and by manifestation of appropriate intent and use of language, be competent to nullify the effect of a judgment in the given circumstances of the case. This, however, is not such a case as an unspecified number of convictions, on differing facts and evidence, are sought to be set aside in one swipe. This is going beyond legislative competence and Parliament itself wisely decided not to intervene to make permanent a temporary law (Ordinance) by enacting as an Act of Parliament. We are only endorsing the will of the elected representatives in following their intent.
"11. From the above case-law the following legal position obtaining in Pakistan emerges:--
(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law.
(ii) That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(iii) That our Constitution recognizes only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.
(iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vest in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution.
(vi) That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions."
"For the reasons to be recorded later on, we dispose of the above cases as under:--
(i) Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fired upon;
(ii) section 10 of the Anti-Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search;
(iii) section 19(10)(b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid;
(iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal";
(v) section 26 of the Act is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words by a police officer not below the rank of a Deputy Superintendent of Police' by the wordsJudicial
Magistrate';
(vi) that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act;
(vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government;
(viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary."
Subsequent thereto, Article 175 of the Constitution has been interpreted in Liaquat Hussain's case (PLD 1999 SC 504). As per the facts of this case, petitioner Liaquat Hussain challenged the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 promulgated on 20th November, 1998 whereby the civilians were to be tried by the Military Courts for the civil offences, mentioned, inter alia, in the schedule of the Ordinance, on various grounds concerning the jurisdiction of the Courts to discharge judicial functions. The Court, while taking into consideration the principles highlighted in Mehram Ali's case (PLD 1998 SC 1445) observed as follows:--
"15. The above-quoted extract from the above judgment in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), indicates that it has been inter alia held that our Constitution recognises only such specific Tribunals to share judicial power with the Courts referred to in Articles 175 and 203, which have been specifically provided by the Constitution itself, like Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225) and that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. Admittedly the Military Courts to be convened under section 3 of the impugned Ordinance do not fall within the category of the Courts referred to in the above Articles. This was even so contended by the learned Attorney-General as reflected from his arguments reproduced hereinabove in para. 11. Neither the above Military Courts nor the personnel to man the same qualify the other requirements spelled out in the case of Mehram Ali reproduced hereinabove in para.14.
The question which needs examination is, as to whether by virtue of invocation of Article 245 of the Constitution for calling the Armed Forces to act in aid of civil power, the impugned Ordinance could have been promulgated for convening Military Courts in terms of section 3 thereof. This will, inter alia involve the determination as to the meaning and import of the expression "The Armed Forces shall.........and, subject to law, act in aid of civil power when called upon to do so" used in clause (1) of Article 245 of the Constitution. I may, at this stage, reproduce the above Article 245 of the Constitution, which reads as follows:
"245. Functions of Armed Forces.--(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.
(2) The validity of any direction issued by the Federal Government under clause (1), shall not be called in question in any Court.
(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245:
Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.
(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil powers and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting."
It may be highlighted that the original Article 245 comprised what is now clause (1) thereof. Clauses (2) to (4) were added by the Constitution (Seventh Amendment) Act, 1977 (Act 23 of 1977) with effect from 21st April, 1977.
It may be stated that the above-quoted clause (1) imposes two Constitutional duties on the Armed Forces to be performed upon the direction of the Federal Government:
(i) To defend Pakistan against external aggression or threat of war; and
(ii) subject to law, act in aid of civil power when called upon to do so.
Whereas clause (2) thereof lays down that the validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court.
It may further be noticed that clause (3) thereof provides that a High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article, but subject to the proviso that the jurisdiction of the High Court is not to be affected in respect of the proceedings pending immediately before the day on which the Armed Forces start acting in aid of civil power.
It may also be pointed out that clause (4) thereof lays down that any proceedings in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil powers and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting."
"After hearing the learned counsel for the petitioners, the petitioners in person, the learned Attorney-General for Pakistan and the learned Advocate-General, Sindh, for the reasons to be recorded later, we are of the view that Ordinance No. Xll of 1998 as amended up to date in so far as it allows the establishment of Military Courts for trial of civilians charged with the offences mentioned in section 6 and the Schedule to the above Ordinance is unconstitutional, without lawful authority and of no legal effect and that the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and the cases stand transferred to the Anti-Terrorist Courts already in existence or which may hereinafter be created in terms of the guidelines provided hereunder for disposal in accordance with the law. The evidence already recorded in the above cases and the pending cases shall be read as evidence in the cases provided that it shall not affect any of the powers of the Presiding Officer in this regard as is available under the law. The above declaration will not affect the sentences and punishments already awarded and executed and the cases will be treated as past and closed transactions."
To ensure expeditious disposal of the case, the guidelines have also been provided under para 3, which reads as under:--
"3. Since we are seized of these petitions in exercise of our Constitutional jurisdiction under Article 184(3) of the Constitution, we lay down the following guidelines which may contribute towards the achievement of the above objective:
(i) Cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti-Terrorism Act, 1997 (hereinafter referred to as A.T.A.) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445);
(ii) One case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it;
(iii) The concerned Special Court should proceed with the case entrusted to it on day to day basis and pronounce judgment within a period of 7 days as already provided in A.T.A. or as may be provided in any other law;
(iv) Challan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court;
(v) An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal;
(vi) Any lapse on the part of the Investigating and Prosecuting Agencies shall entail immediate disciplinary action according to the law applicable;
(vii) The Chief Justice of the High Court concerned shall nominate one or more Judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines;
(viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court;
(ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A., the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence."
Inter alia, mechanism was provided for appointment of monitoring teams by the Chief Justice of the High Court concerned, who were required to nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals shall be disposed of in terms of these guidelines. However, Chief Justice of Pakistan was also allowed to nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines and to ensure that if any petition for leave to appeal or any appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court, etc.
"10. The Supreme Court is the apex Court. It is the highest and the ultimate Court under the Constitution. In my view the inherent and plenary power of this Court which is vested in it by virtue of being the ultimate Court, it has the power to do complete justice without in any manner infringing or violating any provision of law. While doing complete justice this Court would not cross the frontiers of the Constitution and law. The term "complete justice" is not capable of definition with exactitude. It is a term covering variety of cases and reliefs which this Court can mould and grant depending upon the facts and circumstances of the case. While doing complete justice formalities and technicalities should not fetter its power. It can grant ancillary relief, mould the relief within its jurisdiction depending on the facts and circumstances of the case, take additional evidence and in appropriate cases even subsequent events may be taken into consideration. Ronald Rotunda in his book "Treatise on Constitutional Case Substance" (Second-Edition), Volume 2 at page 90 has stated that "The Supreme Court is an essence of a continual Constitutional convention". The jurisdiction and the power conferred on the Supreme Court does empower it to do complete justice by looking to the facts, circumstances and the law governing a particular case. Article 187 does not confer any jurisdiction. It recognises inherent power of an apex Court to do complete justice and issue orders and directions to achieve that end. Inherent justification is vested in the High Court and subordinate Courts while dealing with civil and criminal cases by virtue of provisions of law. The inherent jurisdiction of this Court to do complete justice cannot be curtailed by law as it may adversely affect the independence of judiciary and the fundamental right of person to have free access to the Court for achieving complete justice. This enunciation may evoke a controversy that as Article 175(2) restricts Article 187 it will create conflict between the two. There is no conflict and both the Articles can be read together. The conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other provision of the Constitution. They have to live together, exist together and operate together. Therefore, while interpreting jurisdiction and power of the superior Courts one should look to the fundamental rights conferred and the duty cast upon them under the Constitution. A provision like Article 187 cannot be read in isolation but has to be interpreted and read harmoniously with other provisions of the Constitution. In my humble view this Court while hearing appeal under a statute has the jurisdiction and power to decide the question of vires of the statute under which the appeal has arisen and can even invoke Article 184(3) in appropriate cases."
"216. Judicial power means that the Superior Courts can strike down a law on the touchstone of the Constitution, as this Court did in Mehram Ali's and Sh. Liaquat Hussain's cases. The nature of judicial power and its relationship to jurisdiction are all allied concepts and the same cannot be taken away. The concept of judicial review was laid down in the United States by Chief Justice John Marshal in the case William Marbury v. James Medison (2 Law Ed. 60), ruling that it was inherent in the nature of judicial power that the Constitution is regarded as the supreme law and any law or act contrary to it or infringing its provisions is to be struck down by the Court in that the duty and function of the Court is to enforce the Constitution. The concept of judicial review did not exist in England because the supreme law in England was that the Queen-in-Parliament can do anything and that once an Act of Parliament has been passed, the Courts were to follow it. The Founding Fathers of the United States Constitution, however, deviated from it and in doing so followed the view expounded by Montesquieu in his treatise "Spirit of Law", which enumerates the concept of Separation of Powers: the judicial, the legislative and the executive powers. Montesquieu based his opinion on the practice but not the law of England, in that, in practice there was Separation of Powers in England but not in theory. Unlike the Constitution of Pakistan, the Constitution of United States does not confer any power on the Supreme Court to strike down laws but the Supreme Court of United States ruled so in the case of William Marbury v. James Medison (supra).
217. ...................................................................
218. ...................................................................
Similarly in Wattan Party (PLD 2006 SC 697), the power of judicial review of this Court has been discussed in the following terms:--
"47. Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior Courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. Prior to the case of Zafar Ali Shah, this Court had examined different laws and declared that provisions of some of them were contrary to the provisions of the Constitution. Reference to the cases of Mehram Ali ibid, Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), etc is pertinent. Keeping in view the principles defining the powers of judicial review of this Court to examine a law at the touchstone of the Constitution, we have considered the arguments put forward by learned counsel for the petitioner and have also minutely gone through the provisions/sections of the Ordinance 2000 referred to by the learned counsel in his arguments to ascertain as to whether any of them negates the provisions of the Constitution."
In exercise of judicial powers, as it has been discussed in above referred judgments, while examining the vires of a statute, the powers of this Court are limited to examine the legislative competence or to such other limitations as are in the Constitution and while declaring a legislative instrument as void, it is not because the judicial powers are superior in dignity to the legislative powers but because it enforces the Constitution as a paramount law or where the legislative instrument is in conflict with the Constitutional provisions so as to give effect to it or where the legislature fails to keep it, within its constitutional limitations. [Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457)]. There are cases wherein this Court has examined the constitutional provisions challenged therein, as well, but while remaining within its limited sphere, as noted above. Reference may be made to Wukala Mahaz Barai Tahafaz Dastoor's case (PLD 1998 SC 1263).
Similarly, in the neighbouring country as well, the constitutional provisions have been challenged from time to time. Reference in this behalf may be made to Smt. Indira Nehru Gandhi's case (AIR 1975 SC 2299). Brief facts of this case are that the High Court of Allahabad vide judgment dated 12th June, 1975 observed that the appellant (Smt. Indra Nehru Ghandi) held herself out as a candidate from 29th December, 1970 and was guilty of having committed corrupt practice by having obtained the assistance of Gazetted Officers in furtherance of her election prospects; the High Court further found the appellant guilty of corrupt practice committed under Section 123(7) of the Representation of the People Act, 1951, by having obtained the assistance of Yashpal Kapur a Gazetted Officer for the furtherance of her election prospects; the appellant was held to be disqualified for a period of six years from the date of the order as provided in Section 8(a) of the 1951 Act. Subsequently, the matter was brought under challenge before the Supreme Court in appeal, during the pendency whereof the Constitution (Thirty-ninth Amendment) Act, 1975, was enacted, whereby, apart from other amendments in the Constitution, Article 329A was inserted in the Indian Constitution. Clause (4) of Article 329A, provided that no law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void under any such law and notwithstanding any order made by any Court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. Consequently, the above noted Thirty-ninth amendment in the Constitution of India was also brought under challenge before the Supreme Court of India in above noted case. Validity of the legislative judgment, whereby the above referred amendments were made, was the moot question before the Supreme Court including the questions that whether by amending a law, action of judgment can be nullified and whether it is upon the constitutional authority to declare an order or findings to be void and of no effect or whether such declaration can only be made under either any judicial proceedings or on a proceedings before higher Court. The answer to this proposition has been replied in the following paras :--
"189. Another aspect of part (iv) of Clause (4) relates to the question as to whether it is open to the constituent authority to declare an order and a finding of the High Court to be void and of no effect or whether such a declaration can be made only either in separate judicial proceedings or in proceedings before a higher Court.
190. A declaration that an order made by a Court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the Court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 (at page 392) = (AIR 1970 SC 192), Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. (1970) 3 SCR 745 (at page 751) = (AIR 1971 SC 57), Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc. (1971) 1 SCR 288 = (AIR 1970 SC 1292) and State of Tamil Nadu v. M.Rayappa Gounder (AIR 1971 SC 231).
191. The position as it prevails in the United States, where guarantee of due process of law is in operation, is given on pages 318-19 of Vol. 46 of the American Jurisprudence 2d. as under:
"The general rule is that the legislature may not destroy, annul, set aside, vacate, reverse, modify, or impair the final judgment of a Court of competent jurisdiction, so as to take away private rights which have become vested by the judgment. A statute attempting to do so has been held unconstitutional as an attempt on the part of the legislature to exercise judicial power, and as a violation of the Constitutional guarantee of due process of law. The legislature is not only prohibited from reopening cases previously decided by the Courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an act affecting remedies does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal.
With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the Court, it may be annulled by subsequent legislation.
Question arises whether the above limitation imposed upon the legislature about its competence to declare a judgment of the Court to be void would also operate upon the constituent authority?
View has been canvassed before us that the answer to the above question should be in the negative. Although normally a declaration that the judgment of a Court is void can be made either in separate proceedings or in proceedings before the higher Court, there is, according to this view, no bar to the constituent authority making a declaration in the Constitutional law that such an order would be void especially when it relates to a matter of public importance like the dispute relating to the election of a person holding the office of Prime Minister. The declaration of the voidness of the High Court judgment is something which can ultimately be traced to part (i). Whether such a declaration should be made by the Court or by the constituent authority is more, it is urged, a matter of the mechanics of making the declaration and would not ultimately affect the substance of the matter that the judgment is declared void. According to Article 31B, without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. The effect of the above article, it is pointed out, is that even if a statute has been declared to be void on the ground of contravention of fundamental rights by a Court of law, the moment that statute is specified by the constituent authority in the Ninth Schedule to the Constitution, it shall be deemed to have got rid of that voidness and the order of the Court declaring that statute to be void is rendered to be of no effect. It is not necessary in such an event to make even the slightest change in the statute to rid it of its voidness. The stigma of voidness attaching to the statute because of contravention of fundamental rights found by the Court is deemed to be washed away as soon as the statute is specified by the constituent authority in the Ninth Schedule and the judgment of the Court in this respect is rendered to be inoperative and of no effect. In the case of Don John Douglas Liyange v. The Queen 1967 AC 259 the Judicial Committee struck down as ultra vires and void the provisions of the Criminal Law (Special Provisions) Act, 1962 on the ground that they involved the usurpation and infringement by the legislature of the judicial powers inconsistent with the written Constitution of Ceylon. Their Lordships, however, expressly referred on page 287 to the fact that the impugned legislation had not been passed by two-thirds majority in the manner required for an amendment of the Constitution contained in Section 29(4) of the Constitution. It was observed:
"There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority. But such a situation does not arise here. In so far as any Act passed without recourse to Section 29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. "
The above observations, it is urged, show that the restriction upon the legislature in encroaching upon judicial sphere may not necessarily hold good in the case of constituent authority.
194. The above contention has been controverted by Mr. Shanti Bhushan and he submits that the limitation on the power of the legislature that it cannot declare void a judgment of the Court equally operates upon the constituent authority. It is urged that the constituent authority can only enact a law in general terms, even though it be a Constitutional law. The constituent authority may also, if it so deems proper change the law which is the basis of a decision and make such change with retrospective effect, but it cannot, according to the learned Counsel, declare void the judgment of the Court. Declaration of voidness of a judgment, it is stated, is a judicial act and cannot be taken over by the constituent authority. Although legislatures or the constituent authority can make laws including those for creation of Courts, they cannot, according to the submission, exercise judicial functions by assuming the powers of a super Court in the same way as the Courts cannot act as a super legislature. It is in my opinion, not necessary to dilate upon this aspect and express a final opinion upon the rival contentions, because of the view I am taking of part (iii) of Clause (4)."
"690. The Parliament, by Clause (4) of Article 329-A, has decided a matter of which the country's Courts were lawfully seized. Neither more nor less. It is true, as contended by the learned Attorney-General and Shri Sen, that retrospective validation is a well known legislative process which has received the recognition of this Court in tax cases, pre-emption cases, tenancy cases and a variety of other matters. In fact, such validation was resorted to by the legislature and upheld by this Court in at least four election cases, the last of them being Kanta Kathuria v. Manak Chand Surana (1970) 2 SCR 835 = (AIR 1970 SC 694). But in all of these cases, what the legislature did was to change the law retrospectively so as to remove the reason of disqualification, leaving it to the Courts to apply the amended law to the decision of the particular case. In the instant case the Parliament has withdrawn the application of all laws whatsoever to the disputed election and has taken upon itself to decide that the election is valid. Clause (5) commands the Supreme Court to dispose of the appeal and the cross-appeal in conformity with the provisions of Clause (4) of Article 329-A, that is in conformity with the "judgment" delivered by the Parliament. The "separation of powers does not mean the equal balance of powers" says Harold Laski, but the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our cooperative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.
Likewise, recently the Constitutional Court of Italy examined the constitutionality of Article 1 of law No. 124 of 23rd July 2008 [the provision ordering the suspension of criminal proceedings against the high offices of state]. Brief facts of the said case are that the above said law was promulgated in Italy to provide protection to some of the politicians including the Silvio Berlusconi, the President of the Council of Ministers. Article 1(1) of the said law provided that "without prejudice to the cases governed by Articles 90 and 96 of the Constitution, any criminal proceedings against individuals which occupy the offices of President of the Republic, President of the Senate of the Republic, President of the Chamber of Deputies and President of the Council of Ministers, shall be suspended from the time when the office or function is taken up until the end of the term in office; the suspension shall also apply to criminal proceedings for conduct prior to taking up the office or function". Whereas sub-section (7) of the said Article provided that "the provisions of the Article shall also apply to criminal proceedings in progress, at every stage, state or instance, at the time when the present law enters into force". During the course of criminal proceedings, the Tribunale di Milano, by referral order of 26th September, 2008 (referral order No. 397 of 2008), raised the question with regard to the constitutionality of Article 1(1) and (7) of law No. 124 of 23rd July 2008, with reference to Articles 3, 136 and 138 of the Constitution. However, ultimately the matter came up before the Constitutional Court of Italy, when the Court concluded that the procedural suspension provided for, under the contested provision, is aimed essentially at protecting the functions of the members and Presidents of certain constitutional organs and, at the same time, creates a clear difference in treatment before the Courts. Therefore, it was held that both of the prerequisites for constitutional privileges are satisfied, which means that, that matter is not susceptible to regulation through ordinary legislation. It was further held that in particular, the contested legislation confers on the holders of four high institutional offices an exceptional and innovative protected status, which cannot be inferred from the constitutional provisions on privileges and which therefore is not covered under constitutional law, therefore, it does not constitute a source of law of an appropriate level to make provision over this matter. Thus the Court, eventually, declared that Article 1 of law No. 124 of 2008 is unconstitutional due to violation of the combined provisions of Articles 3 and 138 of the Constitution, in relation to the arrangements governing privileges contained in Articles 68, 90 and 96 of the Constitution.
Thus, in view of above discussion, it is held that amendment in Section 31A of the NAO, 1999 by inserting clause (aa) in it, by means of Section 6 of the NRO, 2007 is unconstitutional and void ab initio.
Section 7 of the NRO, 2007 further added Section 33F in the NAO, 1999, by means of which, following categories of the persons have benefitted:
(i) The persons, against whom investigation is pending but no trial has commenced; the investigation has come to an end.
(ii) The persons, against whom the trial is pending but no conviction/acquittal has been recorded; the trial comes to an immediate end.
(iii) The persons, who have been convicted but have merely filed an appeal or some proceedings, against that conviction before the High Court or the Supreme Court and whether or not such conviction/sentence has been suspended, before the promulgation of the NRO, 2007; everything stands terminated and withdrawn.
(iv) The persons, who have been acquitted and against their acquittal an appeal is pending; they also stand absolved.
(v) The persons, against whom, request for mutual legal assistance and civil party to proceedings, have been initiated by the Federal Government; that stand withdrawn or terminated.
(vi) holders of public office', whose cases have been withdrawn or terminated, shall also not be liable to any action in future, as well, under the NRO, 2007, for acts having been done in good faith before the cut off date.
"7. Insertion of new section, Ordinance, XVIII of 1999. In the said Ordinance, after section 33E, the following new section shall be inserted, namely:
"33F. Withdrawal and termination of prolonged pending proceedings initiated prior to 12th October, 1999.
(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court including a High Court and the Supreme Court of Pakistan initiated by or on a reference by the National Accountability Bureau inside or outside Pakistan, including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public office shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date;
Provided that those proceedings shall not be withdrawn and terminated which relate to cases registered in connection with the cooperative societies and other financial and investment companies or in which no appeal, revision or constitutional petition has been filed against final judgment and order of the Court or in which an appellate or revisional order or an order in constitutional petition has become final or in which voluntary return or plea bargain has been accepted by the Chairman, National Accountability Bureau under section 25 or recommendations of the Conciliation Committee have been accepted by the Governor, State bank of Pakistan under section 25A.
(2) No action or claim by way of suit, prosecution, complaint or other civil or criminal proceeding shall lie against the Federal, Provincial or Local Government, the National Accountability Bureau or any of their officers and functionaries for any act or thing done or intended to be done in good faith pursuant to the withdrawal and termination of cases under sub-section (1) unless they have deliberately misused authority in violation of law."
The above provision seems to be open ended, as on account of non-obstante clause, it directs that notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court, including a High Court and the Supreme Court of Pakistan, initiated by or on a reference by the National Accountability Bureau, inside or outside Pakistan, including proceedings continued under Section 33, requests for mutual assistance and civil party to proceedings, initiated by the Federal
Government, before the 12th October, 1999, against holders of public offices, stand withdrawn and terminated with immediate effect and such holders of public office' shall also not be liable to any action in future, as well, under this Ordinance, for acts having been done in good faith, before the said date.
This is for the first time that in the newly inserted Section 33F of the NAO, 1999 by means of Section 7 of the NRO, 2007, the connotationholders of public office' has been used. The definition of the `holders of public office' has been provided in Section 5(m) of the NAO, 1999, which reads as follows:--
5(m). "Holder of Public Office" means a person who :--
(i) has been the President of Pakistan or the Governor of a Province.
(ii) is, or has been the Prime Minister, Chairman Senate, Speaker of the National Assembly, Deputy Speaker National Assembly, Federal Minister, Minister of State, Attorney General and other Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), Advisor to the Prime Minister, Special Assistant to the Prime Minister, Federal Parliamentary Secretary, Member of Parliament, Auditor General, Political Secretary, Consultant to the Prime Minister and holds or has held a post or office with the rank or status of a Federal Minister or Minister of State;
(iii) is, or has been, the Chief Minister, Speaker Provincial Assembly, Deputy Speaker Provincial Assembly, Provincial Minister, Advisor to the Chief Minister, Special Assistant to the Chief Minister, Provincial Parliamentary Secretary, Member of the Provincial Assembly, Advocate General including Additional Advocate General and Assistant Advocate General, Political Secretary, Consultant to the Chief Minister and who holds or has held a post or office with the rank or status of a Provincial Minister;
(iv) is holding, or has held, an office or post in the service of Pakistan, or any service in connection with the affairs of the Federation, or of a Province, or of a local council constituted under any Federal or Provincial law relating to the constitution of local councils, cooperative societies or in the management of corporations, banks, financial institutions, firms, concerns, undertakings or any other institution or organization established, controlled or administered by or under the Federal Government or a Provincial Government, other than a person who is a member of any of the armed forces of Pakistan, except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank, financial institution, undertaking or other organization established, controlled or administered by or under the Federal Government or a Provincial Government or, notwithstanding any thing contained in the Pakistan Army Act, 1952 (XXXIX of 1952), or any other law for the time being in force, a person who is a civilian employee of the armed forces of Pakistan;
(v) has been, the Chairman or Vice Chairman of a zila council, a municipal committee, a municipal corporation or a metropolitan corporation constituted under any Federal or Provincial law relating to local councils; and
"Explanation"- For the purpose of this sub-clause the expressions "Chairman" and "Vice Chairman" shall include "Mayor" and "Deputy Mayor" as the case may be, and the respective councilors therein.
(va) is or has been a District Nazim or Naib Nazim, Tehsil Nazim or Naib Nazim or Union Nazim or Naib Nazim;
(vi) has served in and retired or resigned from or has been discharged or dismissed from the Armed Forces of Pakistan."
It may be noted that NAO, 1999 was promulgated on 16th November, 1999, after military takeover in the country, on 12th October, 1999. Although in its application the NAO, 1999 during the regime of General Pervez Musharraf has been the subject of debate, pro and con, it has not been amended by any succeeding Parliament. In fact, the promulgation of the NAO, 1999 was claimed to have been expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases, involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. [The underlined words have been added in the preamble vide Ordinance No. CXXXIII of 2002 dated 23rd November 2002]. Similarly, an emergent need was also found for the recovery of outstanding amounts from the persons, who have committed default in the repayment of amounts to Banks, Financial Institutions, Government agencies and other agencies. Likewise, it was also felt that there was a grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority. Yet there was another important aspect of the preamble, which was inserted vide Ordinance No. XXXV of 2001 dated 10th August 2001 which speaks that there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matters connected, ancillary or incidental thereto.
It may be noted that the word `corruption' has been defined by this Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869), in the following terms:--
"233. `Corruption' is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, government and the people. Of late, the culture of corruption and bribe has embedded in our society to the extent that even routine works which should be done without any approach or influence are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rahman Anatulay, Chief Minister of Maharashtra was prosecuted for, corruption Sabyasachi Mukharji, J. lamented as follows:--
"Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is common place today. A new value orientation is being undergone in our life and culture. We are at the threshold of the cross-roads of values. It is for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters."
234. .......................................... When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of "corruption eruption", but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes."
One of the learned counsel appearing for the petitioners argued that the NRO, 2007 is the result of abuse of public office for private gain, therefore, it is like a virus which has infected the body of politics. According to him corruption vitiates like fraud, which vitiates all transactions, therefore, the NRO, 2007 stands vitiated by the effect of abuse of public office for private gain. He further added that the NRO, 2007 is a document which is non est; it is like a still born, which dies in mother's wombs.
Thus the theme of the NAO, 1999, as it is evident from its preamble and substantive part, is to deal with the cases of corruption and corrupt practices, strictly to achieve the object spelt out in preamble. The expression "corruption and corrupt practices" has been defined in Section 9 of the NAO, 1999, as under:--
Corruption and Corrupt Practices.--(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:--
(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for-bearing to do any official act, or for showing or for-bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or
(ii) If he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or
(iii) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or
(iv) If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; or
(v) If he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for, or maintains a standard of living beyond that which is commensurate with his source of income; or
(vi) If he misuses his authority so as to gain any benefit or favour for himself or any other person, or render or attempts to render or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority;
(vii) If he has issued any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; or
(viii) if he commits an offence of willful default; or
(ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; or
(x) if he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large;
(xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has dominion;
(xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).]; and
(b) All offences under this Order shall be non-bailable and, notwithstanding anything contained in sections 426, 491, 497, 498 and 561A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Order.
(c) If after completing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody.]
"266. A perusal of the Preamble of the NAB Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigating agency; which deals with several aspects of `corruption' etc. The NAB does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of Court. Bargain out of Court is now an established method by which things are settled in several developed societies. It was necessary in cases where the criminal is a potential investor and is inter-linked with the economy of the society after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the Accountability Courts to exercise their judicial power in appropriate proceedings. Rather this is in the nature of a facility provided to the accused. There is nothing wrong with the NAB Ordinance providing for a procedure of bargaining.
267.
Moreover, the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Chairman NAB cannot be ignored straight away. At the outset, most of the lawyers tend to consider the question of settlement out of Court. There is need to focus attention on this significant fact of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges leveled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement, compoundability of offence during the course of proceedings by the Courts after protracted litigation is wasteful. Viewed in this perspective, a power has been vested in the Chairman
NAB to facilitate early settlement for recovery of dues through plea bargaining' where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. Chairman NAB/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like theplea bargaining' envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance. Establishing this procedure at the investigation/inquiry stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/ compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended."
The provisions of the NAO, 1999 as well as their interpretation, as noted in the preceding paras, provide high moral authority to the functionaries, to discharge their duties for curbing corruption and corrupt practices, to achieve the object namely, conviction and effecting the recovery of national wealth, even before the trial, keeping in view the solid mechanism provided under Section 25 of the NAO. As far as its provisions, embedded in Section 21, are concerned, it lays down procedure for international cooperation and request for mutual legal assistance. It reads as follows:--
International Cooperation - Request for mutual legal assistance:
The Chairman NAB or any officer authorized by the Federal Government may request a Foreign State to do any or all of the following acts in accordance with the law of such State:--
(a) have evidence taken, or documents or other articles produced;
(b) obtain and execute search warrants or other lawful instruments authorizing search for things relevant to investigation or proceedings in Pakistan believed to be located in that State, and if found, seize them;
(c) freeze assets, by whatever processes are lawfully available in that State, to the extent to which the assets are believed on reasonable grounds to be situated in that State;
(d) confiscate articles and forfeit assets to the extent to which the articles or assets, as the case may be, are believed to be located in that State;
(e) transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets;
(f) transfer in custody to Pakistan a person detained in that State who consents to assist Pakistan in the relevant investigation or proceedings;
(g) Notwithstanding anything contained in the Qanune-Shahadat Order 1984 (P.O.10 of 1984) or any other law for the time being in force all evidence, documents or any other material transferred to Pakistan by a Foreign Government shall be receivable as evidence in legal proceedings under this Ordinance; and
(h) notwithstanding anything to the contrary contained hereinabove, the Chairman NAB may, on such terms and conditions as he deems fit, employ any person or organization, whether in Pakistan or abroad, for detecting, tracing or identifying assets acquired by an accused in connection with an office under this Ordinance, and secreted or hoarded abroad, or for recovery of and repatriation to Pakistan of such assets."
A perusal of above Section indicates that on account of international cooperation, request for mutual legal assistance means, the NAB or any officer, authorized by the Federal Government, has been empowered to make a request to a Foreign State to do any or all things mentioned therein; to freeze assets by whatever processes are lawfully available in that State, to the extent to which the assets are believed, on reasonable grounds, to be situated in that State; and to transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds, realized from the disposal of such articles or assets. As far as, confiscation or realization of the national wealth, situated within the country, is concerned, there is no difficulty for the NAB to deal with it, in accordance with the procedure provided under the NAO, 1999. However, for achieving the object to save the assets outside the country, allegedly belonging to the nation, a mechanism has been provided on the basis of international cooperation.
Marcos was elected as President of Philippines in November 1965 and re-elected in 1969. On 21st September 1972 he declared Marshal Law in the country which was lifted on 7th January 1981. He was re-elected as President in 1981 and remained on this position till February 1986, when he was removed through a popular revolt in 1986.
In 1986, on the basis of documents lost by him in the Presidential palace, assets worth US$ 356 millions were discovered in his name in Swiss Banks. The said assets were freezed on the request filed through Swiss Lawyers in February 1986.
On 28th February 1986 the Philippine Presidential Commission on Good Government (PCGG) formed under the Presidential Order No. 1 of 1986 to recover Marcos-linked assets in the Philippines and abroad.
On 24th March 1986 the Swiss Federal Council imposed an unprecedented unilateral and exceptional freeze order on Marcos assets, after it was informed by a Swiss Bank that De Guzman, a Filipino Banker, with power of attorney from Marcos and his wife, had requested for the transfer of assets to an Australian Bank belonging to him, in anticipation of the Philippine Governmental claim. This was done without any mutual legal assistance treaty on criminal matters between Switzerland and Philippines, just on the basis of the Swiss Federal Act on International Mutual Assistance in criminal matters (Act on International Criminal Assistance, IMAC).
On 18th April 1986 the Philippines Government made informal request for continuation of freeze order but the freezing order was rescinded on 23rd April 1986, however, the assets were re-freezed on 20th July 1986, after a formal request, made by the Philippines Government through a diplomatic note, for continuation of freeze order.
In 1989 the Government of Philippines brought Court cases in the US District Courts, California and Hawaii, however, these cases were dropped when the Marcos family agreed to transfer certain assets held in US, to the Philippine government.
On 20th December 1990, Swiss Federal Court (Supreme Court) accepted that, in principle, the frozen assets should be returned to the Philippines and also ordered for transmission of Banking documents pertaining to Marcos's deposits to Philippines government, subject to some conditions.
On 17th December 1991 the PCGG filed civil case in the Filipino Court of Sadiganbayan seeking recovery of Marcos properties and assets just four days prior to the deadline of 21st December 1991.
On 28th December 1993 the government of Philippines entered into 75/25(%) sharing agreement with Marcos family through PCGG which was declared invalid by the Philippines Supreme Court on 9th December 1998.
On 10th December 1997, the Swiss Federal Court (Supreme Court) took decisive steps by issuing decision to transfer US$ 540 million (increased to US$ 658 million with interest) of Marcos, to the custody of Sadiganbayan, under the IMAC. The revised law made it, in principle, essential for the country to which the funds are to be restituted, to prove the illegal origin and the legal ownership of the funds through a legally binding judgment. However, the Republic of Philippines guaranteed that the decision about the seizure or restitution of the assets to the entitled parties would be taken in judicial proceedings, to satisfy the requirement of Article 14 of the International Covenant on Civil and Political Rights 1966 (ICCPR).
In September 2000 Filipino Anti-Corruption Court Sadiganbayan's first division, made, prima facie, decision that the entire US$ 627 million of Marcos funds, repatriated from Switzerland, were to be considered the property of Philippines.
On 15th July 2003, Philippines Supreme Court ruled that the funds transferred from Switzerland are illgotten and must, therefore, be handed over to the Philippine Government, confirming Swiss Federal Court's decision concerning the illegitimate origin of the funds. The money was to be used for buying the land for its distribution to poor farmers.
On 5th August 2003 Swiss and Filipino authorities expressed their satisfaction on the said decision and opined that the funds transferred from Switzerland to PNB escrow account, can now be transferred into the care of the government of Philippines, which was ultimately remitted to the Philippine treasury on 4th February 2004.
Afterwards the Federal Supreme Court of Switzerland vide partial decision dated 18th August 2006, freezed the assets of GEI Inc (owned by Marcos/associates) and set a deadline of 31st December 2006 for filing or decision of the Court of first instance about the seizer of said assets, which was provided on 28th December 2006. The beneficiaries/associates of Marcos filed appeals which were dismissed vide order dated 1st June 2007.
It may be noted that on account of above proceedings against Marcos, the money/funds belonging to Philippine Government were returned by the Swiss Courts.
Sani Abacha began his career as second lieutenant in the Nigerian Army in 1963, rose through the ranks to the Armed Forces Ruling Council (AFRC) and eventually became head of State. He died on 8th June 1998 suddenly of a heart attack. He was listed as the world's fourth most corrupt leader in recent history by Transparency International in 2004.
General Abdulsalami Abubakar's interim government had delivered a clear message that Abacha had looted huge sums, and it had to be restored. Members of the Abacha family and some of their accomplice `voluntarily' returned approximately US$ 1 billion to the Federal Government of Nigeria, during that tenure.
Obasanjo's government has implicated the deceased General Abacha and his family in wholesale looting of Nigeria's coffers. According to post-Abacha government sources, some US$ 3 billion in the shape of foreign assets have been traced, in the name of Abacha, his family members, representatives and accomplices.
In 1999 Nigeria transmitted a request for judicial assistance to Switzerland against Sani Abacha and fourteen other persons, for blocking of their assets, channeled into Switzerland and also disclosing the relevant banking documents. The FOG blocked amount of US$ 83 million in the banks of Geneva and Zurich.
In October 1999 Geneva's judiciary initiated various proceedings against family members and business friends of Abacha including Mohammed Abacha and Atiku Bagudu, on suspicion of money laundering, fraud and taking part in a criminal organisation. In furtherance whereof the accounts already blocked in the judicial assistance proceedings as well as other accounts, traced during the criminal investigation, were blocked. In the course of the proceedings, an amount of US$ 70 million was transferred to the bank of International Settlement, in the year 2000.
In February 2005, the Swiss Federal Court rejected the appeal filed by the Abachas against the repatriation of the most of the funds frozen in Switzerland, totaling about US$ 468 million, approximately, however, US$ 40 million, the remaining frozen until the Abachas were given the opportunity to attempt to demonstrate that they were not of criminal origin.
An additional US$ 700 million were `voluntarily' returned or forfeited in the context of criminal proceedings initiated in Switzerland, Jersey and Liechtenstein.
From September 1999 to date, approximately US$ 1.2 billion have been repatriated to the Federal Republic of Nigeria (including from Switzerland, Luxembourg, Jersey, Liechtenstein, Belgium and the UK).
The BAE Systems was under a contract with Saudi Arabia for the purchase of Al-Yamamah aircrafts. In relation to this contract, several allegations of bribery had been made against the BAE. The Serious Fraud Office (SFO) had been appointed to investigate into the matter. In the course of this investigation the BAE was asked to disclose the details of payments to agents and the consultants with respect to the contract of the aircrafts.
In response to this, the solicitors for BAE wrote back to SFO saying that the investigations should be halted; as the continuing investigations would seriously affect the diplomatic relations between the U.K and Saudi Arabia and also that the safety of the British Citizens would be affected. Further, also that the investigations would prevent UK from clinching the largest export contract of Al-Yamamah aircrafts. This however, did not stop the investigations from continuing.
In July 2006, the SFO was about to access the Swiss Bank accounts of BAE. This caused a stir and made the Prince Bandar of Arabia to convey to the then Prime Minister of UK, that if the SFO did not stop looking at the Swiss Bank accounts of BAE, and also cease other investigation, then the contract for the aircrafts would be called off and both intelligence and diplomatic relations between the two countries would be seriously ceased.
This made the government to rethink its policy, and it was agreed among the Prime Minister and other ministers that if the investigation into this continued then the relations between the two countries would be affected and a severe blow would also be dealt on UK's foreign policy objectives in the Middle East. Further, there would be a threat to the internal security of the country.
In light of the above developments on 14 December 2006 the Director of SFO terminated all investigation proceedings as it was felt that the continued investigation posed a serious threat to the country's National and International security and would also affect the lives of their citizens. It was in this light that an NGO called Corner House Research, applied for a judicial review of the decision to terminate the investigation process.
The Court, apart from other findings, made the following observations:--
The principle of separation of powers cannot be applied in the cases of executive's decisions affecting foreign policy. The Courts can take notice of those cases where the threat involved is not simply against the country's commercial, diplomatic and security interest but also against its legal system.
It is the responsibility of the Court to provide protection. Threats to the administration of public justice within a country are the concern primarily of the Courts, not the executive.
The rule of law requires that the Director should act in a manner consistent, the well recognized standards, which the Courts impose by way of judicial review. At the heart of the obligations of the Courts and of the judges lies the duty to protect the rule of law.
The Rule of law is nothing if it fails to constrain overweening power.
The Courts fulfill their obligation to protect the rule of law by ensuring that a decision maker on whom statutory powers are conferred, exercises those powers independently and without surrendering them to a third party.
The executive, Director and the attorney should not make any decision in submission to the threats. The Courts cannot exercise jurisdiction on the foreign state, however, the legal relationships of the different branches of the government and the separation of power depends upon internal constitutional arrangements. They are of no concern to foreign states.
A resolute refusal to any foreign threat is the only way to protect national interest. While exercising statutory power an independent prosecutor is not entitled to surrender to the threat of a third party or the foreign state.
The discontinuation of the investigation has in fact caused actual damage to the national security, the integrity of criminal justice system and the rule of law.
The Director has acted on erroneous interpretation of Art 5 of OECD and both the Director and the government have failed to recognize that the rule of law required the decision to discontinue to be reached as an exercise of independent judgment, in pursuance of power conferred by statute. To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat. That threat was intended to prevent the Director from pursuing the course of investigation. It achieved its purpose.
On the basis of above findings, the Court ultimately came to the following conclusion:--
"The Court has a responsibility to secure the rule of law. The Director was required to satisfy the Court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No one whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of govt. and the defendant to bear the essential principle in mind that justifies the intervention of this Court. We shall hear further arguments as to the nature of such intervention. But we intervene in fulfillment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 Dec 2006, Prime Minister said that this was the clearest case for intervention in the public interest he had seen. We agree."
"The purposes of this Convention are:
(a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively;
(b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;
(c) To promote, integrity accountability and proper management of public affairs and public property.
Recalling the work carried out by other international and regional organizations in this field, including the activities of the African Union, the council of Europe, the Customs Cooperation Council (also known as the World Customs Organization), the European Union, the League of Arab States, the Organization for Economic Cooperation and Development and the Organization of American States, Taking note with appreciation of multilateral instruments to prevent and combat corruption, including inter alia, the Inter-American Convention against Corruption, adopted by the Organization of American States on 29 March 1996, the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, adopted by the Council of the European Union on 26 May 1997, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the Organization for Economic Cooperation and Development on 212 November 1997, the Criminal Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe on 27 January 1999, the Civil Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe and 4 November 1999, and the African Union Convention on Preventing and Combating Corruption, adopted by the Heads of State and Government of the African Union on 12 July, 2003.
Welcoming the entry into force on 29 September, 2003 of the United Nations Convention against Transnational Organized Crime."
The Government of Pakistan is also signatory to the above UN Convention as it has been ratified by Pakistan on 31st August, 2007, regarding international cooperation in criminal matters in accordance with Articles 44 to 50 of the above noted UN Convention, according to which, where appropriate and consistent with their domestic legal system, the State Parties shall consider assisting each other in investigation or proceedings in civil and administrative matters, relating to corruption.
Learned counsel appearing for the petitioners vehemently contended that on the one hand, the Government of Pakistan is signatory to the UN General Assembly Regulation No. 58/41 of 31st October, 2003, on the international cooperation relating to corruption but at the same time, by means of adding Section 33F in the NAO, 1999 through Section 7 of the NRO, 2007, the prolonged pending proceedings, initiated prior to 12th October 1999, against `holders of public office', inside or outside the country, and cases at the stage of investigation or pending before the High Court or Supreme Court, have been ordered to be withdrawn and terminated by means of the same legislative order; therefore, this amendment is in clear contravention to the provisions of the NAO, 1999 as well as to the above referred international treaty. This act of the legislative authority is not only unconstitutional but simultaneously against the principle of the trichotomy of powers.
There is no need to undertake the lengthy discussion relating to powers to withdraw cases. However, as it has been pointed out hereinabove, that according to the scheme of the NAO, 1999 Section 25 of the NAO, 1999 provides that notwithstanding anything contained in Section 15 or in any other law, for the time being in force, where a holder of public office' or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains, acquired or made by him in the course, or as a consequence of any offence, under this Ordinance, the
Chairman NAB may accept such offer and after determination of the amount, due from such person, and its deposit with the NAB, discharge such person from all his liability in respect of the matter or transaction in issue. In this provision of law as well the wordwithdrawal' has not been used, which is akin to process of discharge or acquittal of an accused under the system of criminal administration of justice.
So far as withdrawal of a case is concerned, that is possible only with the consent of the Court, as provided in Section 494 Cr.P.C, detailed discussion, in respect whereof has already been made in the preceding paras, while examining the vires of Section 2 of the NRO, 2007.
The words "termination of the proceedings, under investigation or pending in any Court, including a High Court and the Supreme Court", are not recognized under any legal instrument, including the Constitution of Pakistan, Cr.P.C. or NAO, 1999. Much discussion has already been undertaken in this behalf, while examining the constitutionality of newly inserted clause (aa) in Section 31A of the NAO, 1999, whereby the judgments passed by the Court in absentia under the NAO, 1999, have been declared void ab initio by the legislative authority.
The President of Pakistan being an authority to issue temporary legislation can discharge his functions under Article 89 of the Constitution, subject to limitation provided therein but admittedly, no such legislation can be issued, which is against the fundamental rights or any of the provisions of the Constitution. It seems that without caring about the fundamental rights of the non-beneficiaries of the NRO, 2007, on 5th October 2007, the then President had promulgated the NRO, 2007. On our query, learned Acting Attorney General for Pakistan (Mr. Shah Khawar) has placed on record the summary regarding promulgation of the NRO, 2007, for the Prime Minster of Pakistan. A careful perusal of the same indicates that on 5th October 2007, when the summary was moved, the Cabinet in its meeting, held on the same day, had approved the draft of the NRO, 2007, in pursuance whereof, the Prime Minister was requested to advise the then President to approve and sign the NRO, 2007, as such on the same day i.e. 5th October 2007, the NRO, 2007 was promulgated. It is also interesting to note that both the proceedings and the cases of corruption and corrupt practices, were being terminated or withdrawn in terms of Section 7 of the NRO, 2007, whereby Section 33F has been added in the NAO, 1999 regarding withdrawal and termination of prolonged pending proceedings initiated prior to 12th October 1999. The object, disclosed in the summary for the Cabinet, for issuance of the NRO, 2007 was that it was expedient to promote national reconciliation, foster mutual trust and confidence amongst `holders of public office' and to make the election process more transparent. Ultimately, on the same day, the Ordinance was promulgated when the election of General Pervez Musharraf as the President (in uniform) was scheduled to be held on the very next day i.e. 6th October 2007. At that time, a petition filed by Jamat-e-Islami (PLD 2009 SC 549), was pending and during the course of hearing, vide order dated 5th October, 2007, General Pervez Musharraf was allowed to contest the election conditionally. However, remaining details with regard to issuance of the NRO, 2007 have already been published in Daily Dawn dated 5th October, 2007.
We are conscious of the fact that temporary legislation cannot be struck down, taking into consideration the mala fide or subjective consideration for the issuance of such legislation but simultaneously this Court is empowered to examine the contents of the temporary legislation, if it is inconsistent with the fundamental rights, guaranteed by the Constitution or of any of the provisions of the Constitution has been violated. The Indian Supreme Court, when met with this situation, in the case of State of Rajasthan's case (AIR 1977 SC 1361), observed as under:--
"144. But when we say this, we must make it clear that the constitutional jurisdiction of this Court is confined only to saying whether the limits on the power conferred by the Constitution have been observed or there is transgression of such limits. Here the only limit on the Power of the President under Art. 356, cl. (1) is that the President should be satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of United States has described as "judicially discoverable and manageable standards." It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences, public reaction, motivations and responses of different classes of people and their anticipated future behaviour and a host of other considerations, in the light of experience of public affairs and pragmatic management of complex and often curious adjustments that go to make up the highly sophisticated mechanism of a modern democratic government. It cannot, therefore, by its very nature be a fit subject matter for judicial determination and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot in the circumstances, go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the function of the Central Government and in doing so, enter the `Political thicket', which it must avoid if it is to retain its legitimacy with the people. In fact it would not be possible for the Court to undertake this exercise, apart from total lack of jurisdiction to do so, since by reason of Art. 74 cl. (2), the question whether any and if so what advice was tendered by the Ministers to the President cannot be enquired into by the Court, and moreover, "the steps taken by the responsible Government may be founded on information and apprehensions which are not known to and cannot always be made, known to, those who seek to impugn what has been done., (Vide Ningkan v. Government of Malaysic, 1970 AC 379). But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it, because in that case there would be (sic-no?) satisfaction of the President in regard to the matter which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Art. 356, cl. (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is, no satisfaction at all. On such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself.
Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all. It must of course be concerned that in most cases it would be difficult, if not impossible, to challenge the exercise of power under Art. 356, cl. (1 ) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds. This proposition derives support from the decision of the Judicial Committee of the Privy Council in King Emperor v. Banwari Lal Sarma (72 Ind App 57: (AIR 1945 PC 48) where Viscount Simon, L.C. agreed that the Governor General in declaring that emergency exists must act bona fide and in accordance with his statutory powers. This is the narrow minimal area in which the exercise of power under Art. 356, cl. (1) is subject to judicial review and apart from it, it cannot rest with the Court to challenge the satisfaction of the President that the situation contemplated in that clause exists."
However, subsequently, by means of 44th Amendment, Clause (4) of Article 123 of the Indian Constitution, which provided that "notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground", has been omitted. Therefore, in the case of A.K. Roy v. Union of India (AIR 1982 SC 710), the judgment passed in State of Rajasthan's case (AIR 1977 SC 1361), was considered and it was held that "the Rajasthan case is often cited as an authority for the proposition that the Courts ought not to enter the "political thicket"; it has to be borne in mind that at the time when that case was decided, Article 356 contained clause (5) which was inserted by the 38th Amendment, by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any Court on any ground; clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case, on the basis of that clause, cannot any longer hold good; it is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction". Be that as it may, this Court, while dealing with the same proposition, in Fauji Foundation's case (PLD 1983 SC 457), has observed as under:--
207. The learned counsel for the respondent relied on Basanta Chandra Ghose and others v. Emperor (AIR 1944 FC 86), to impress that the Legislature cannot usurp judicial power in the guise of enacting law. In this case clause (2) of section 10 of the Restriction & Detention Ordinance (3 of 1944) was challenged on the ground that "it was an arrogation of judicial power by legislative authority," as what it achieved was direct disposal of cases by the Legislature itself. In accepting this argument Spens, C. J., held that such a provision was an exercise of judicial power and not an enactment of law as it discharged the pending proceedings which raised questions of fact which had to be determined in reference to facts, as for example the competency of the detaining authority or the colourable nature of the act or the order though purporting to be passed by an authority was not in reality the act of that authority ; and as the determination did not depend on any rule of law it was clearly a judicial act and not an enactment of law. The ratio of this case brings out the distinction between the exercise of judicial power and legislation. Essentially as was held the High Court was called upon to decide a controversy which involved the determination of facts which did not depend on any rule of law. Clearly there was, therefore, an exertion of judicial power, which within its ambit involves an inquiry and investigation of facts and then declaring and enforcing liabilities as they stand on present or past facts, and under any law which already exists, which could not be done otherwise than by the High Court which was seized of the matter. In this situation the Federal Court construed this provision as an exercise of judicial power by a legislative enactment. In Prentis v. Atlantic Coast Line Co. (53 Law Ed. 158), at p. 158, Justice Holmes distinguished the two (legislation and judicial power) in the following words:
"A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing condition by making a new rule, to be applied thereafter to all or some part of those subject to its power."
111. The present case is singular and on its own. We do not even have to go into whether there was any objective basis for the satisfaction required by Article 89 of Constitution, nor into the issue whether such satisfaction is to be entirely subjective. Present case can be resolved simply on the ground that the Federal Government has not even defended the NRO, 2007 and thus not even asserted that there was indeed any such satisfaction at all, subjective or objective. There should at least have been an assertion, howsoever weak it may have been, for the Court to undertake the exercise envisaged in the State of Rajasthan's case (AIR 1977 SC 1361). In the absence of even a simple assertion by the Government we can easily hold that there was no satisfaction at all.
As discussed hereinabove that firstly, the NRO, 2007 as a whole and in particular, its Sections 2, 6 & 7, are inconsistent with Article 25 of the Constitution, as it has created unreasonable classification, having no rational nexus with the object of the NRO, 2007.
Besides above, the principle of equality (Musawat), as enshrined in Article 25 of the Constitution, has its origin in the Islamic teachings. Reference in this behalf may be made to Muhammad (PBUH) Encyclopedia of Seerah (Sunnah, Da'wah and Islam), 1st Edn. 1986. Vol.IV (p:147-148). Relevant portion therefrom, on the subject of "Equality" is reproduced hereinbelow for convenience:--
"Equality
Equality is an essential requisite of justice, because when there is discrimination and partiality between people, there is no justice. The Code of Allah demands absolute equality of rights between all people without any discrimination or favouritism between man and man and between man and woman on any count.
The Qur'an declares. "O mankind! Behold, we have created you all out of a male and a female, and have made you into nations and tribes, so that you may know each other. Surely, the noblest of you in the Sight of Allah is the one who is most pious." (49:13)
This verse clearly establishes equality of all men and women on the basis of common parentage, and as such discounts all claims of superiority or discrimination for any person or group of persons. There is no rational or logical ground for such claims, and therefore, it is unreal and unnatural to demand discrimination between man and man or between man and woman on any count.
Besides' all human beings are servants (ibid) of Allah and therefore equal.
They are all created by Allah and all are His servants alone. As such they are all equal and enjoy equal rights in all areas of life. In His service and obedience, all humans are equal and stand on the same level without any discrimination all as one race and one people before Him, no one claiming any special privileges and honours.
In Surah al-A'raf we have these words: "When your Lord drew forth from the children of Adam from their loins their descendants, and made them testify concerning themselves, saying: `Am I not your Lord?' They said: Yes we do testify.'" (7:172). And then we find these words; "Surely, this Brotherhood of yours is single Brotherhood, and I am your Lord: therefore serve and obey Me (and no other)." (21:92 and 23:52))
This concept of equality bestows equal rights upon all members of the human race and leaves no room for any discrimination of any kind, whether by colour, creed, race or sex. If there is any discrimination anywhere, it is man made, not divinely ordained, and therefore, must be denounced, condemned and discarded.
Any such discrimination is unnatural and artificial and goes against the basic Doctrine of Tawhid. As such it will endanger the right balance and stability of human social life.
If there is any discrimination for any man or woman in Islam, it is on merit and on merit alone. Those who develop their personal relationship with Allah fear Allah, attain degrees of piety and taqwa of Allah, and reach higher stations of excellence in the Sight of Allah.
However, even they stand equal with others in the enjoyment of rights in society, and can claim no superiority or favouritism over others so far as social rights are concerned.
This basic doctrine also demands equality of all men and women before the law and negates any kind of discrimination between them. This is the essential requirement of the Rule of Law in Islam: that all men and women are equal in the eyes of the Law and must be treated as such. Respect for human dignity, upon which the Prophet of Islam laid so much emphasis, also demands equality for all men and women in all fields of human activity. (For details see under "Basic Human Rights" in Volume III of this work)
Equality of Rights
It is implicit in the Doctrine of Tawhid and is also an essential ingredient of justice and equality that all people must enjoy equal rights without discrimination on any count in all fields and departments of life. In the enjoyment of social, political and religious rights, there must not be any discrimination between ruler and ruled, employer and employee, rich and poor and man and woman: all should enjoy these rights freely, equally and without any check or restriction. Denial of any of these rights to any member would, in fact, be a denial of the Doctrine of Tawhid.
Equal Treatment
The logical consequences of the above principle in practice demands absolutely equal treatment of all citizens, without any reservation, in all areas of life. It also requires: (a) equality of opportunity of education, training, employment and promotion in all services for all citizens, irrespective of their social or political status and influence; (b) equal treatment in all departments, without discrimination of any kind between rich and poor, big and small or workers and employers; (c) the right to a livelihood of every member of the Muslim state. It is the birthright of every person to have a guaranteed decent living and decent wage from the state. This calls indirectly for equitable distribution of wealth between all the members of the state on the principle of maximum circulation of the total wealth of the nation, discouraging, as far as possible, the concentration of wealth among a few people (59:7); and (d) it is also implicit in the above principle that for the political and social stability of society and state, matters of national interest must be decided through a process of consultation with the people, and all state affairs on all levels must be decided on the basis of the concept of consultation in its true sense, as envisaged by the Qura'n (42:38) and practiced by the Prophet Muhammad (PBUH)."
Corruption and corrupt practices, being a crime, if proved, against a `holder of public office' takes away his qualification to contest the election because, prima facie, he has breached the trust of his electorate. Therefore, by inserting Section 33F in the NAO, 1999 by means of Section 7 of the NRO, 2007, possibility of raising objection on the qualification of a person to be elected or chosen as a member of the Parliament has been negated for limited purpose, in view of Article 62(f) of the Constitution, a person having been convicted/sentenced by the Court under the NAO, 1999 shall stand absolved as the case has been withdrawn against him or the proceedings have been terminated, pending in any Court including the High Court and Supreme Court, in appeal or whatever the case may be. Therefore, instead of following the command of Article 5 of the Constitution, Section 7 of the NAO has contravened Article 62(f) of the Constitution. It is true that Section 62(f) of the Constitution cannot be considered self-executory but if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment, his candidature on the touchstone of Article 62(f) of the Constitution can be adjudged to the effect whether he is sagacious, righteous, non-profligate, honest or Ameen.
It is true that on an objection against a candidate, without any support of evidence, the provisions of Article 62 of the Constitution cannot be pressed into service, because it is a provision of Constitution which is not self executory. Reference in this behalf may be made to Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCMR 1736).
However, with reference to examining the vires of Section 7 of the NRO, 2007, in pursuance of which Section 33F has been inserted in the NAO, 1999, with an approach that a holder of public office', as per the mandate of law, has been absolved without following the legal course from the allegations of corruption or corrupt practices, which also keeps the element of trust in its fold, and washed him from all such like sins, then how he can be considered qualified to contest the election because conviction and sentence under Section 9 of the NAO, 1999 has not been set aside legally, and whether suchholder of public office', with a stigma upon him to be corrupt and involved in corrupt practices, can become a member of the Parliament, which is a sovereign body, representing the people of Pakistan. Article 62 (f) has been incorporated in the Constitution by means of President's Order No. 14 of 1985 (The Revival of Constitution Order, 1985) and it being a part of the
Constitution has to be taken into consideration by the Courts, while examining the case of a convict, involved in corruption and corrupt practices, who has attained the status of innocent person by means of a law which has washed away his conviction/sentence by withdrawal or termination of cases or proceedings, however, subject to furnishing strong evidence for establishing the allegation mentioned in Article 62(f) of the Constitution. As it has been noted hereinabove that this provision was inserted by a dictator but it is still continuing although five National Assemblies and Senate had been elected and completed their terms, but no effective steps, so far have been taken in this behalf.
Now turning towards the question under consideration in respect of insertion of Section 33F in the NAO, 1999 by means of Section 7 of the NRO, 2007, on the basis of which either the proceedings have been terminated or the cases have been withdrawn, as far as the withdrawal of proceedings under Section 494 Cr.P.C. is concerned, it has already been discussed hereinabove. while examining the implications of Section 2 of the NRO, 2007 wherein it was held that no withdrawal without the consent of the Court, seized with the case, is possible and this provision itself being discriminatory has been found in derogation to the fundamental rights enshrined in Article 25 of the Constitution and at the same time withdrawal of the criminal cases, particularly the murder cases, without hearing the heirs of victims. Likewise, while examining the vires of Section 6 of the NRO, 2007 it has been held that the legislature is not empowered to declare any judgment void ab initio, however, subject to following the principles, discussed hereinabove, which are lacking in the instant case. As far as principles of withdrawal of cases under the NAO, 1999 is concerned, Section 25 of the NAO, 1999 contains that:--
"25. (a) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue:
Provided that the matter is not sub judice in any Court of law.
(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution, company, body corporate, co-operative society, statutory body, or authority concerned within one month from the date of such deposit."
Subject to exercise of above powers, a case can be withdrawn on the basis of entering into plea bargain, with all consequences. So far as, withdrawal from the prosecution under Section 31B of the NAO, 1999, is concerned, that is also subject to consent of the Court. Section 31B of the NAO, 1999 reads as follows:--
"31B. Withdrawal from Prosecution. The Prosecutor General Accountability may, with the consent of the Court, withdraw from the prosecution of any accused Person generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal:
(i) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; and
(ii) if it is made after a charge has been framed, he shall be acquitted in respect of such offence or offences."
It is important to note that a person, who enters into plea-bargain as per the mandate of Section 25 of the NAO, 1999, would be disqualified to contest the election or to hold the public office. The language employed in Section 33F of the NAO, 1999, inserted by means of Section 7 of the NRO, 2007 does not indicate that the withdrawal had to take place, subject to any of the above provisions, either under Section 25 or under Section 31B of the NAO, 1999, with the consent of the Court.
So far as withdrawal from the cases inside or outside the country, as per Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, is concerned, it would mean that the `holders of public office' have been absolved from the charge of corruption and corrupt practices, therefore, by adopting such procedure, the legislative authority had transgressed its jurisdiction, because such powers are only available to the judiciary and the Constitution provides guarantee to secure the independence of the judiciary. Reference in this behalf may be made to Article 175 of the Constitution, which has been extensively interpreted in Mehram Ali's case (PLD 1998 SC 1445) and Liaquat Hussain's case (PLD 1999 SC 504).
A perusal of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007 further reveals that while using the expressions withdrawal' andtermination', it was not considered that in the cases of the offences, falling within the mischief of the NAO, 1999, charged against the holders of public office', no such judicial powers can be given to the legislature to withdraw or terminate the cases or proceedings. As far as, the wordstermination of prolonged pending proceedings', are concerned, these are alien to the system of criminal administration of justice, prevailing in the country under Criminal Procedure Code and the NAO, 1999.
In order to ascertain that as to how many persons have benefited from Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, the NAB was asked to furnish the details of the same. Accordingly, after a great deal of difficulty, the list was provided by the Chairman NAB, which indicates that there are two categories of the beneficiaries i.e. `holders of public office'; whose cases were pending (a) inside Pakistan and (b) outside Pakistan, in which US$ 60 million are involved for which a request for mutual legal assistance and civil party to proceedings, has been made by the Federal Government. As far as the category (a) is concerned, this Court, in exercise of its powers conferred under Article 187 read with Article 190 of the Constitution, may direct the NAB or any executive authority to supply requisite information.
So far as Article 190 of the Constitution is concerned, it imposes a constitutional obligation upon all the executives and judicial authorities, throughout the country to act in aid of the Supreme Court. Reference in this behalf may be made to Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), but in implementing the judgment, in letter and spirit, regarding the cases outside the country, the Court may feel handicapped. Therefore, it would be an obligation and the duty of the executive to ensure initiation of proceedings according to law.
At this juncture, it may be noted that as per the list provided by the NAB, regarding cases falling within category (b) in which a huge amount is involved, it was also pointed out that to get back this money, subject to determination, belonged to the people of Pakistan, an amount ranging between 660 million to 2 billion rupees was spent but despite our directions, the Chairman NAB could not furnish the exact figure. This Court asked the learned Prosecutor General to furnish the details in respect of the amount involved in the cases out side the country, in pursuance of request for mutual legal assistance and civil party to proceedings, was made by the Federal Government.
In reply, the learned Prosecutor General NAB furnished the following details:--
(a) The Magistrate after considering the material opined that, prima facie, case has been made out and sent it to the Attorney General for launching the proceeding and also passed the order for freezing of account.
(b) The accused filed appeal against the said order, which was also dismissed being based on vague grounds.
(c) Our lawyer informed that the Attorney General in Geneva had decided not to prosecute the accused further and the Court expressed its dissatisfaction over it.
(d) The Magistrate in Geneva has passed an order for de-freezing of the money.
In respect of item (c) above, the learned Prosecutor General NAB admitted that in the proceedings, reference was made to a letter sent by the then Attorney General for Pakistan (Malik Muhammad Qayyum). Whereas, Malik Muhammad Qayyum, the then Attorney General for Pakistan, who appeared on Court's call, informed the Court that he had sent a letter to the Attorney General of Geneva, mentioning therein the relevant provisions of the NRO, 2007, regarding withdrawal of cases. Similarly, learned Acting Attorney General for Pakistan (Mr. Shah Khawar) appeared and stated that the request for mutual legal assistance and civil party to proceedings, was made by the Federal Government through the Attorney General, therefore, he would apprise the Court of the position of cases etc. According to him, so far as the amount lying in the Swiss Banks was concerned, 25 other individuals had also filed claims against it; however, a request was made by the former Attorney General for Pakistan (Malik Muhammad Qayyum) for withdrawal of money but as per his knowledge that request was not acceded to by the Attorney General Office of Switzerland as well as by the concerned Magistrate because their version was that they would deal with the case in accordance with their local laws. However, on 15th December 2009, the then Attorney General for Pakistan (Malik Muhammad Qayyum) again appeared on Court's call; he read Section 7 of the NRO, 2007 with reference to withdrawal of cases and informed the Court that Constitution Petition No. 265 of 2008 (Asif Ali Zardari v. Government of Pakistan) was filed before the High Court of Sindh, whereby directions were sought for the Federation and the NAB, both, that they should withdraw all the cases pending in Pakistan and specifically proceedings in Geneva and in London and all others under the provisions of the NRO, 2007; the NAB authorities appeared before the Sindh High Court and made a statement that they would make efforts to withdraw the proceedings from all the Courts in and outside Pakistan; the Court, vide order dated 4th March 2008, directed to do the needful within a period of two weeks; he further stated that in pursuance of said order and also under the instructions of the then President, he issued a letter dated 9th March 2008 to the Attorney General of Geneva regarding withdrawal of proceedings. Copy of said letter has also been placed on record, which is reproduced hereinbelow in extenso:--
"Re: P/11105/1997 and CP 289/97, Republic of Pakistan Vs/ Asif Ali Zardari and Jens Schlegelmich
Dear Mr. Attorney General, We write you further to our meeting of 7 April 2008.
We hereby confirm that the Republic of Pakistan having not suffered any damage withdraws in capacity of civil party not only against Mr. Asif Ali Zardari but also against Mr. Jens Schlegelmich and any other third party concerned by these proceedings. This withdrawal is effective for the above captioned proceedings as well as for any other proceedings possibly initiated in Switzerland (national or further to international judicial assistance). The Republic of Pakistan thus confirms entirely the withdrawal of its request of judicial assistance and its complements, object of the proceedings CP/289/97.
Request for mutual assistance made by the then government, which already stand withdrawn, was politically motivated. Contract was awarded to preshipment inspection companies in good faith in discharge of official functions by the State functionaries in accordance with rules.
The Republic of Pakistan further confirms having withdrawn itself as a damaged party and apologizes for the inconvenience caused to the Swiss authorities.
Your sincerely, Sd/-
Malik Muhammad Qayyum
Attorney General for Pakistan."
"a letter was addressed to Law Ministry by Mr. Farooq H. Naik, ASC (on behalf of Mohtarma Benazir Bhutto and Asif Ali Zardari), requesting therein that since this NRO, 2007 has been promulgated, as such all cases should be dropped, emphasizing upon the cases in Geneva Court; that application was processed and in routine placed before the then Minister Law (Zahid Hamid), who opposed the request and wrote a detailed note that it is not within their ambit so kindly contact the foreign office. After that file does not show anything".
Likewise, Mr. Salman Faruqui, Secretary General to the President also appeared on Court's call and informed that no such file existed in his office or at President's Camp Office, Rawalpindi.
As far as issuing a letter to Attorney General of Geneva dated 7th April 2008 by Malik Muhammad Qayyum (the then Attorney General) is concerned, it seems that he had done so in his personal capacity, against the Rules of Business, 1973. In this behalf it may be noted that under Rule 14 of the Rules of Business, 1973, he was required to consult the Law, Justice and Human Rights Division on all legal questions, arising out of any case. Had he consulted the Law, Justice & Human Rights Division, he would have been advised not to send any letter in this regard because the Ministry of Law & Justice had already declined such request as was pointed out by the Secretary Law & Justice Division, whose statement has been referred to hereinabove.
It is also important to note that under sub-Rule (2) of Rule 14 of the Rules of Business, 1973, no Division shall consult the Attorney General except through the Law, Justice & Human Rights Division and in accordance with the procedure laid down by that Division. Beside it, stand taken by Malik Muhammad Qayyum that he was asked by the then President of Pakistan to do so, does not seem to be correct because under Rule 5(11-A) of the Rules of Business, 1973, verbal orders given by a functionary of the Government should, as a matter of routine, be reduced to writing and submitted to the issuing authority; if time permits, the confirmation shall invariably be taken before initiating action; however, in an exigency, where action is required to be taken immediately or it is not possible to obtain written confirmation of the orders before initiating actions, functionary to whom the verbal orders are given shall take the action so required and at the first available opportunity, obtain the requisite confirmation while submitting to the issuing authority a report of the action taken by him. The statement of Mr. Salman Faruqui, Secretary General to the President, reflects that no such file exists. Since Malik Muhammad Qayyum, the then Attorney General for Pakistan has done so in violation of the Rules of Business, 1973, therefore, he is liable to account for his such action.
Section 21 of the NAO, 1999 is a comprehensive provision of law, which spells out the nature of the request to a Foreign State for mutual legal assistance including; freezing of assets to the extent to which the assets are believed on reasonable ground to be situated in that State; confiscate articles and forfeit assets to the extent to which the articles or assets, as the case may be, are believed to be located in that State; transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets, etc. We believe that to curb the culture of corruption and corrupt practices globally it has become necessary to enact such law on the basis of which the objects noted hereinabove could be achieved.
Learned counsel appearing for the petitioners impressed upon the arguments that on the one hand in pursuance of the NRO, 2007, the cases against the holders of public office' either have been withdrawn or terminated, who should have been found guilty for the corruption or corrupt practices (under Section 9 of the NAO, 1999) and sentenced to imprisonment as well as fine, and on the other hand, theholders of public office' who have been convicted and sentenced, and against their convictions, appeals pending either before the High Court or the Supreme Court, have been withdrawn. Similarly against those `holders of public office', who were acquitted but against their acquittal proceedings were pending before the superior Courts, have also been illegally provided clean-chit by withdrawal or termination of the proceedings, contrary to constitution and the law, knowing well that this country is signatory to the UN Convention Against Corruption. A perusal of UN Convention Against Corruption indicates that the state had responsibility to develop and implement or maintain effective, coordinated anti-corruption policies; to take measures to prevent money laundering; to take measures for freezing, seizure and confiscation of proceeds of crime, derived from offences established in accordance with the Convention, or the property the value of which corresponds to that of such proceeds, property, equipment or other instrumentalities used in or destined for use in offences established in accordance with the Convention, etc.; State parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to corruption; as well as affording to one another the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to the offences covered by the Convention; prevention and detection of transfers of proceeds of crime. On the other hand, the promulgation of the NRO, 2007, instead of preventing corruption and corrupt practices, has encouraged the same. We have no option but to agree with the contention of the learned counsel for the petitioners, as the same is based on legal and logical premise.
We have already pointed out in the preceding paras of this judgment that under the provisions of NAO, 1999, there is a separate scheme for the withdrawal of cases. However, Article 45 of the Constitution confers power upon the President of Pakistan to the effect that the President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority. The cases under Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, are also not covered under Article 45 of the Constitution and in this behalf no other law has been referred to by any of the learned counsel appearing for the parties. There is no cavil with the proposition that the criminal Courts, including the Trial, Appellate and Revisional, are empowered to acquit, set aside the conviction/ sentence or quash the proceedings, but without adhering to this provision, the legislative authority, in its wisdom, has withdrawn or terminated the cases or proceedings, purportedly, in exercise of power, not vested in it. Consequently, all the `holders of public office' have not been dealt with in accordance with law, principle of which has been enshrined in Article 4 of the Constitution.
At this juncture, it may occur in one's mind that what are the judicial powers. This question has not been discussed in Mehram Ali's case (PLD 1998 SC 1445) or in Liaquat Hussain's case (PLD 1999 SC 504). However, one of the learned counsel has placed on record a judgment in the case of Brandy v. Human Rights & Equal Opportunity Commission (183 CLR 245) from the Australian jurisdiction passed by High Court of Australia, which is the Apex Court of the country. Relevant portion therefrom is reproduced hereinbelow for ready reference:--
"9. Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a Court, constitute the exercise of judicial power but, when performed by some other body, do not (66 See Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353 at 368). These difficulties were recognized by the Court in Precision Data Holdings Ltd. v. Wills (67 [1991] HCA 58; (1991) 173 CLR 167 at 188-189):
"The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power."
One is tempted to say that, in the end, judicial power is the power exercised by Courts and can only be defined by reference to what Courts do and the way in which they do it, rather than by recourse to any other classification of functions. But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive.
It is traditional to start with the definition advanced by Griffith CJ in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (68 [1909] HCA 36; (1909) 8 CLR 330 at 357) in which he spoke of the concept of judicial power in terms of the binding and authoritative decision of controversies between subjects or between subjects and the Crown made by a tribunal which is called upon to take action. However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power. A legislative or administrative decision may answer that description. Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law. That is to say, it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion. Thus Kitto J in Reg. v. Gallagher; Ex parte Aberdare Collieries (69 (1963) 37 ALJR 40 at 43) said that judicial power consists of the "giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct". But again, as was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (70 [1987] HCA 29;(1987) 163 CLR 140 at 149) , the exercise of nonjudicial functions, for example, arbitral powers, may also involve the determination of existing rights and obligations if only as the basis for prescribing future rights and obligations."
It is a principle of law that binding judgment, either of acquittal or conviction, can only be withdrawn by the
Courts of law, therefore, the question for determination would be as to which forum is a Court' and which is not. Answer to this proposition has been given in Rehman Khan v. Asadullah Khan (PLD 1983 Quetta 52). In this very judgment the wordCourt' has been defined, after a considerable discussion, and it has been held that "hence, the Courts are only such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence, in arriving at just and fair conclusions. As far as the definition of `Court' is concerned, the Hon'ble late Mr. Justice Zakaullah Lodhi (the then Acting CJ) concluded that "the Courts are only such organs of State which administer justice under guidance of procedural laws as to conduct of proceedings as well as evidence; since such methodology helps the Court in administering justice, in accordance with law, therefore, all other bodies which have a free hand in the matter of deciding disputes are not Courts".
Applying the above test on the provisions of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, relating to withdrawal or termination of cases or proceedings, inescapable conclusion would be that the legislative authority of the President had acted contrary to judicial norms by allowing withdrawal and termination of cases and proceedings. However, as noted hereinabove, that on the basis of judicial interaction by the Court of law, having jurisdiction, appropriate orders can be passed.
Essentially withdrawal or termination of cases or proceedings in the manner as it has been done by means of contents of
Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, does not fall within the definition of pardon',amnesty' or commutation of sentence'.
As per the Corpus Juris Secundum, Vol.67,pardon' and `amnesty' has been defined as follows:--
"Pardon.--a pardon is an executive act of grace which exempts and individual from the punishment the law inflicts for a crime, he has committed. It is full or partial accordingly as it absolves the recipient of all or only a portion of the legal consequences of his crime; and it is conditional or absolute accordingly as it does or does not make its operation or continued operation, depend on a condition precedent or subsequent."
"Amnesty.--Amnesty is an exercise of the sovereign power by which immunity to prosecution is granted by wiping out the offence supposed to have been committed by a group or class of persons prior to their being brought to trial."
Who May Exercise Authority.--Under constitutional provisions, the granting of pardons is within the province of the executive department of the State or nation, as the case may be.
...........................................................................
Legislature. As a general rule, the legislature cannot exercise the pardoning power where the constitution of the State does not confer such power on the legislature, but lodges it else where."
The expressions pardon' andamnesty' have been defined in Black's Law Dictionary, 7th Edn. (1999), as under:--
"Pardon.--The act or an instance of officially nullifying punishment or other legal consequences of a crime; a pardon is usu. granted by the chief executive of a government [the President has the sole power to issue pardons for federal offences, while State Governors have the power to issue pardons for State crimes]."
"Amnesty.- A pardon extended by the Government to a group or class of persons, usu. for the political offences; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted; unlike an ordinary pardon, amnesty is usu. addressed to crimes against State sovereignty - that is, to political offences with respect to which forgiveness is deemed more expedient for the public welfare then prosecution and punishment. Amnesty is usu. general, addressed to classes or even communities."
Admittedly, neither the holders of public office' have been pardoned nor amnesty has been given to them and similarly, their sentences have also not been commuted.
Therefore, on the basis of such legislative document i.e. the NRO, 2007, which has no legal sanctity behind it, the benefit drawn by theholders of public office' is not sustainable.
Article 5 of the Constitution in unambiguous terms provides that loyalty to the State is the basic duty of every citizen; and obedience to the Constitution and the law is the inviolable obligation of every citizen, wherever he may be and of every other person for the time being within Pakistan. Therefore, while promulgating the NRO, 2007, the President has to conform to the norms and response to the voice of the Constitution, as per the mandate of Article 5 of the Constitution and any action on his part which negates the dictates of the Constitution including the fundamental rights shall be tantamount to promulgating a law which is neither acceptable by the nation or internationally, being not in line with the dictates of the Constitution. Therefore, the President who is under oath to protect the Constitution in all circumstances is not competent to promulgate an Ordinance in the name of national reconciliation, which is not permissible under any of the legislative lists i.e. Federal or Concurrent, as per Fourth Schedule of the Constitution, perusal whereof abundantly makes it clear that no law in the nature of the NRO, 2007 can be promulgated which instead of eliminating exploitation etc. amongst the citizens, as per Article 3 of the Constitution, tends to perpetuate corruption and corrupt practices as discussed above. There is no need to cite any judgment in this behalf except making reference to the case of Ch. Zahur Ilahi v. Zulfikar Ali Bhutto (PLD 1975 SC 383) to emphasize that it is the duty of every one to obey the Constitution.
It is the prerogative of the Parliament or Provincial Assembly to promulgate laws according to their respective spheres allocated to them, inter alia, taking into consideration the provisions of Article 227 of the Constitution, relating to promulgation of law according to Islamic provisions. Sub-Article (1) of Article 227 has two parts; according to its first part all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. As per its plain reading, it refers to the laws which were existing when the Constitution of Pakistan, 1973 was enforced i.e. on 14th August 1973. As per its second part, which commands that no law shall be enacted which is repugnant to such injunctions. Clause (2) of Article 227 of the Constitution provides that effect shall be given to the provisions of clause (1) only in the manner provided in Part-IX of the Constitution, thus it leads to a reference to Article 228, which provides for composition of Council of Islamic Ideology, to which a reference may be made by the Parliament, the President or the Governors of the Provinces on a question whether a proposed law is or is not repugnant to the injunctions of Islam, in terms of Article 229 of the Constitution. On receipt of such question so referred under Article 229 of the Constitution, the Council has to inform within 15 days, from the receipt of the reference, to the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice. Article 230 of the Constitution further provides that where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that, in the public interest, the making of the proposed law, in relation to which the question arose, should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished; but at the same time it is also provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the House or, as the case may be, the Provincial Assembly, the President or the Governor shall reconsider the law so made. This is how the scheme of Part IX of the Constitution, relating to Islamic provisions, works.
As it has been discussed hereinabove, by making reference to a book tilted as "Muhammad (PBUH) Encyclopedia of Seerah", that principle of equality in Islam is an essential requisite of justice because when there is discrimination and partiality between the people, there is no justice. A code of Allah demands absolute equality of rights between the people without any discrimination or favouritism between man and man, and man and woman, on any count. Therefore, without any fear of doubt, it can be held that Article 25 of the Constitution, namely, all citizens are equal before the law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex alone, has its origin in Quranic injunctions. Once it has been held that any law is void, insofar as, it is inconsistent with or in derogation of fundamental rights, therefore, it would also be against the injunctions of Islam and no such law shall be enacted which is repugnant to such Injunctions.
Thus for the foregoing reasons, we are of the opinion that the NRO, 2007 has been promulgated not in consonance with Injunctions of Islam in terms of Article 227(1) of the Constitution. We may add a word of caution since there is a tendency among some litigants to invoke such precepts of Islam as do not have universal acceptance even among the jurists and schools of Islamic Sharia, or who will invoke, on vague and unspecific grounds, recourse to the morality and conscience of the Constitution or to international conventions. These cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law. The Constitution remains supreme and the primary reason for striking down the NRO, 2007 has been its being ultra vires the express and stated provisions of the Constitution. The observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations that can be construed as a reconfirmation of the essential and inherent invalidity in the light of the other express provisions contained in the Constitution. The Primary touchstones remain the other provisions of the Constitution specified in the judgment.
This Court in more than one cases including the Azizullah Memon's case (PLD 1993 SC 341), I.A. Sherwani's case (1991 SCMR 1041) and Liaquat Hussain's case (PLD 1999 SC 504) has held that different laws can be enacted for different sexes and age groups, but in the present case the basic question is as to the vires of the NRO, 2007 on the ground of being violative of Article 25 of the Constitution as it has provided protection to a certain class of persons against the crimes committed during a certain period.
It may be noted that newly inserted Section 33F of the NAO, 1999, under Section 7 of the NRO, 2007, has not only made classification between the general public and the holders of public office' but also amongst theholders of public office' on account of time period, as well, on the basis of which, benefit to a particular class i.e. the persons against whom the proceedings were initiated prior to 12th October 1999, has been extended on the criteria that prolonged proceeding are pending against them. At this juncture, it may be noted that prior to the NAO, 1999, Ehtesab
Act, 1997 was in field, which was repealed on the promulgation of the NAO, 1999, as a result whereof, the proceedings initiated under the said Act, were protected by means of Section 33 of the NAO, 1999, which provides that any and all proceedings pending before the Court under the Ehtesab Act, 1997 shall stand transferred to a Court, as soon as it is constituted under this
Ordinance, within the same Province, and it shall not be necessary to recall any witness or again to record any evidence, that may have been recorded. As far as Ehtesab Act is concerned, it was enacted on 31st May 1997 and was made effective w.e.f. 6th November 1990, so through the NRO, 2007 benefit of withdrawal or termination of the cases or proceedings has been extended to persons whose cases are covered between the period from 6th November 1990 and 12th October 1999. Interestingly, neither the benefit of the NRO, 2007 has been extended to the holders of public office', against whom cases were registered prior to 6th November 1990 nor to thoseholders of public office' against whom cases have been registered after 12th October 1999, although the cases were registered against such persons, even before and after these cutoff dates. Thus for this reason as well, all the holders of public office' against whom cases have been initiated before 6th November 1990 and after 12th October 1999 are also entitled for equal protection of law because they are similarly placed.
Therefore, on the basis of intelligible differentia, no distinction can be drawn between both the groups, as such the above sub-classification within the class ofholders of public office' is not based on an intelligible differentia, having no rational nexus to the object, sought to be achieved by the relevant classification under the NRO, 2007 as such, it, being a discriminatory law, deserves to be declared void ab initio [I.A. Sherwani's case (1991 SCMR 1041)].
It is also contended with vehemence by the petitioner's counsel, particularly Mr. Abdul Hafeez Pirzda and Mr. A.K. Dogar, learned Advocates that the NRO, 2007 was promulgated against the morality and the conscience of the Constitution. To elaborate their argument, they relied upon R.S. Jhamandas' case (PLD 1966 SC 229), Benazir Bhutto's case (PLD 1988 SC 416) and D.S. Nakara's case (AIR 1983 SC 130).
It is a universally accepted principle that Constitution of the country, may be written or otherwise, represents the voice of the people. The Constitution being a supreme law of the country provides for guarantee of peace, welfare and amity of the people, subject to their rights and obligations, against all forms of exploitation, socio-economic justice and principles of good governance, transformed in the principles of policy, to make the document as a living instrument, sufficient to cater for the present and future requirements of a nation. An instrument like the Constitution of 1973, to achieve the objects spelt out in the preamble, has the support of 176 million people, meaning thereby that this instrument has on its back moral strength of the nation, therefore, it would be their earnest desire and wish that everyone must show loyalty to the State and obedience to the Constitution and the law, as it has been envisaged under Article 5 of the Constitution. This object can be achieved if the moral or ethical values, the desires of the nation, have been transformed into a legally enforceable formulation. In instant case the Parliamentarians i.e. the representatives of the people of Pakistan, by their high moral conduct have already demonstrated, by not allowing the NRO, 2007 to become the Act of the Parliament, as manifested from the proceedings of the National Assembly, referred to hereinabove, as well as by the act of the Federal and Provincial Governments of not defending and supporting it. As it has been discussed earlier that will of the people of Pakistan was not included in the promulgation of the NRO, 2007 because despite availability of the National Assembly the same was not placed before it as the then legislative authority, being holder of highest office under the Constitution, is presumed to know that it is a legislation which is being promulgated against the conscience of the Parliamentarians representing the people of Pakistan and inconsistent with the constitutional provisions discussed hereinabove, including Article 63(1)(h) of the Constitution, which provides for disqualification of a person from being elected or chosen as, and from being, a member of the Parliament, if he has been convicted by a Court of competent jurisdiction on a charge of corrupt practices, moral turpitude or misuse of power or authority under any law for the time being in force. The Constitution has its own conscience being a living document, therefore, any law which negates any of the constitutional provisions shall be considered to be inconsistent with it. In R.S. Jhamandas's case (PLD 1966 SC 229), this Court being conferred with the powers of judicial review in the orders passed by Land Commissioner under para 27 (1) of the West Pakistan Land Reforms Regulation, 1959 overruled the objection and observed that "what is hit is something which in the terms of the present Constitution, may well be described as the constitutional conscience of Pakistan". This judgment supports the arguments that any law which is not promulgated in accordance with the Constitution would be considered against its conscience. As far as the question of morality is concerned, it has already been discussed hereinabove. However, note of it was also taken by this Court in Benazir Bhutto's case (PLD 1988 SC 416) while examining the implications of Article 17(1) of the Constitution. An elector, while exercising his right of franchise, confers/places trust upon the representative, being chosen by him. If such representative betrays his trust by involving himself into corruption or the offence of moral turpitude, he disqualifies himself to continue as a member of the Parliament, according to the guidelines provided in Article 63(1)(h) of the Constitution. It is also to be noted that plain reading of Article 63(1)(h) of the Constitution reveals that it introduces two types of situation; one disclosing disqualification qua a candidate to become a member of the Parliament and; second disqualification qua the elected member of the Parliament.
It may be noted that Section 33F(1) in the NAO, 1999, inserted through Section 7 of the NRO, 2007, giving it overriding effect, by using non abstante clause, has allowed the prolonged pending proceedings to be withdrawn with immediate effect. In Black's Law Dictionary, 7th Edn. (1999) word `proceeding' has been defined as follows:--
"(1) the regular and orderly progression of a law suit, including all acts and events between the time of commencement and the entry of judgment. (2) any procedural means for seeking redress from a tribunal or agency. (3) an act or step that is part of a larger action. (4) the business conducted by a Court or other official body; a hearing. ......"
As per the above definition, the cases or proceedings have been withdrawn or terminated contrary to law, as it has been discussed hereinabove, initiated before 12th October 1999, including pending trial proceedings, conviction/acquittal appeals, etc., inasmuch as the transfer of pending proceedings under Section 33 of the NAO, 1999 have also been withdrawn or terminated. The manner in which Section 33F of the NAO, 1999, has been couched, suggests that the 'holders of public office' involved in any proceedings, not only under the NAO, 1999 but also in the cases under other laws i.e. Pakistan
Penal Code, Anti-Terrorism Act, etc. have been withdrawn or terminated, considering the holders of public office' as a distinct class from the accused/convicts against whom similar proceedings are pending in any Court, with immediate effect. How the Constitution, as per its conscience coupled with morality, can allow this Court to maintain a law which is against all the norms of justice. As explained above, two things have become very significant; one is category of cases, initiated on a reference by the NAB inside or outside
Pakistan and; second is that of the cases under any other law, for the time being in force covering all nature of crimes, heinous or minor. It may be noted that aholder of public office' when enters into Parliament, he enjoys moral authority as he has been elected by the constituents, enjoying their trust. But a `holder of public office' whose case falls under disqualification prescribed in Article 63(1)(h) of the Constitution, which includes conviction by a Court of competent jurisdiction, on the charge of corrupt practices under Section 9 of the NAO, 1999, identifies persons, who are said to have committed the crime falling under this category.
Second charge which falls under the definition of disqualification under Article 63(1)(h) of the Constitution is in respect of moral turpitude. The expression `moral turpitude' has not been defined under the Constitution, however, in Black's Law Dictionary, 6th Ed. its definition as under:--
"The act of baseness, vileness or the depravity in private hand social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man. Act or behaviour that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offences as distinguished from others. The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita."
Similarly, in Webster Dictionary, the term moral turpitude' has been defined as "an act or behaviour that gravely violates moral sentiment or accepted moral standards of community." In Law Lexicon by P. Remnatha Aiyar Vol.III, 3rd
Ed. (2005), the termmoral turpitude has been defined as under:--
"Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness of depravity in private and social duties which a man owes to his fellowmen, or to society in general, contrary to accepted and customary rule of right and duty between man and man. ....................
Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude, so that embezzlement involves moral turpitude."
Likewise, in Corpus Juris Secundum, Vol.1, 8th Ed. the term `moral turpitude' has been defined as under:--
"`moral turpitude' is not a new term, but, rather, it is a term which is old in the law, and which has been used in the law for centuries. It is a term which has been the subject of many decisions and which has been much defined by Courts. ................."
Third category relates to the cases of misuse of power or authority under any law for the time being in force. This category also squarely falls within the definition of corruption and corrupt practices as defined in Section 9 of the NAO, 1999.
Thus question arises, whether a law which instead of eliminating, has encouraged the offence of corruption and moral turpitude, can at all not be enacted in exercise of powers under Article 89 of the Constitution; whether promulgation of such a law would not be against the morality and the conscience of the Constitution; whether the constituents, in exercise of their right of franchise, have not made out a case to strike down such a law, which is not only contrary to the constitutional provisions, discussed hereinabove, but also calls upon this Court to strike down such law as they believe that on account of their high moral and ethical codes, it has become their enforceable legal formulations [D.S. Nakara's case (AIR 1983 SC 130)]; and lastly whether it is not against the conscience of the Constitution which prohibits enactment and promulgation of any law inconsistent with its provisions. Answer to all above questions is in affirmative and could not be else.
It is mentioned in Section 33F of the NAO, 1999 inserted by means of Section 7 of the NRO, 2007 that holders of public office' shall also not be liable for any action in future as well for acts having been done in good faith before the said date. This immunity from future actions has also been provided contrary to the Constitution and the law. There are two provisions in the Constitution i.e. Article 12, according to which protection to a person against retrospective punishment has been made permissible; and Article 13, which protects a person against double punishment and self-incrimination. Thus, operation of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007 seems to be in contravention to the mandate of Section 31B of the NAO, 1999, which provides mechanism for withdrawal from the prosecution of any accused person in the manner prescribed therein, but as far as the protection against double punishment is concerned, it would only be available to a person who has already been punished but criminal proceeding right from the date of commencement up to final judgment has been withdrawn or terminated, making such a person as innocent, as he was before initiation of such proceedings at investigation stage. So far as Article 13 of the Constitution is concerned, no case can be made out under this Article of the Constitution against double punishment or self incrimination. It seems that theholders of public office' have been saved from future action for the crimes committed by them as well as the crimes charged against them on the basis of reference filed by the NAB including corruption and corrupt practices.
Neither the Constitution nor any other law permits the legislative authority i.e. the President to promulgate a law, which fails to stand the test of
Articles 12 and 13 of the Constitution.
By promulgation of the NRO, 2007, the
holders of public office' have been saved from being charged of certain acts committed by them in good faith. Essentially, Section 33F of the NAO, 1999, inserted through
Section 7 of the NRO, 2007, in generality, is dealing with the persons, facing criminal charges under any provision of law or the crime defined under the NAO, 1999. As far as the last mentioned law is concerned, under it no exception has been created for the crimes committed under good faith except under some of the provisions of PPC, whereby protection has been given for committing an act in good faith. Section 52 of PPC defines the expressiongood faith' as nothing is said to be done or believed ingood faith', which is done or believed without due care and attention'. In Black's Law Dictionary, 7th Edn. (1999), the expression good faith' has been defined asa state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business or (4) absence of intent to defraud or to seek unconscionable advantage - also termed bona fide". In Industrial Development Bank of
Pakistan v. Saadi Asamatullah (1999 SCMR 2874), the expression good faith' has been defined asan act is said to be done in good faith when it is done with due care and attention'. Similarly in Fazal Ullah Siddiqui v. State (2006 SCMR 1334), it has been held that `nothing done without due care and caution can be accepted as having been done in good faith'.
It may also be noted that a public servant performing duty on behalf of State has been provided immunity in different statutes with reference to the nature of the crime etc. This expression has been used in Section 36 of the NAO, 1999, which provides that no suit, prosecution, or any other proceedings shall lie against the Federal Government, Provincial Government, Chairman NAB, or any other member of the NAB or any person exercising any power or performing any function under this Ordinance or the Rules made under it for any act or thing, which has been done in good faith or intended to be done under this Ordinance or the rules thereof. As far as the persons against whom proceedings or investigation are pending before the Court of law including a High Court or Supreme Court, cannot be said to have committed the crime, in good faith, either heinous or minor in nature, as well as relating to corruption or corrupt practices, inside and outside the country. The legislature while enacting a law has to adopt certain measures before extending immunity to the functionaries of the State but at least we can say that an accused or convict cannot enjoy protection for offences, noted hereinabove, or for his deeds, in the garb of good faith.
Another important aspect of Section 7 of the
NRO, 2007 is that while inserting Section 33F in the NAO, 1999, a mechanism has also been provided for withdrawal and termination of prolonged pending proceedings, initiated prior to 12th October, 1999'. One of the so-called reasons, prevailed upon the legislative authority to promulgate such provision on account ofprolonged pending proceedings initiated prior to 12th October 1999'. It may be noted that in the preamble of the NRO, 2007, besides other things, the prolonged pending proceedings was never the consideration. It does not seem to be that on account of prolonged pending proceedings, initiated prior to 12th October 1999, the cases have been withdrawn as according to it, necessity to promulgate the NRO, 2007 is "to promote national reconciliation, foster mutual trust and confidence amongst `holders of public office' and to remove the vestiges of political vendetta and victimization, to make the election process more transparent and to amend certain laws for that purpose and for matters connected therewith and ancillary thereto". Assuming that the conditions so mentioned therein for terminating the cases being prolonged pending proceedings is acceptable, then why the cases which have been finalized, resulting in the conviction or acquittal and proceedings in respect thereof were pending, have been withdrawn.
Therefore, instead of withdrawing or terminating the proceedings, mechanism should have been followed for the disposal of cases by increasing manpower of investigating agencies and the number of Courts etc. In Liaquat Hussain's case
(PLD 1999 SC 504), somehow identical objection was raised on the creation of
Military Courts and this Court while disposing of the matter, provided a mechanism to monitor the proceedings with a view to ensure expeditious disposal of cases pending in Courts. Relevant para therefrom has already been reproduced hereinabove. In addition to it, prolonged pending proceedings, in no way, can constitute a ground for the withdrawal or termination of the proceedings, in view of discussion made hereinabove elaborately. More so, Article 37 of the
Constitution casts a duty upon the State to ensure inexpensive and expeditious justice, therefore, the Government by invoking this provision can increase the number of Courts and paralegal staff to ensure expeditious disposal of the cases of persons charged for various offences.
This Court while interpreting different provisions of the Constitution has an authority to make an observation with an object that the State must realize its duty. As in the case in hand, the Court is empowered to pass appropriate orders, as it deemed fit under Article 187 of the Constitution as well as keeping in view the earlier precedents providing for monitoring of the cases pending in the Courts and the increase in number of Courts. As far as the supervision of the High Court is concerned, it has already been discussed hereinabove and for comprehending powers of this Court under Article 187 of the Constitution, reference can be made to Sabir Shah's case (PLD 1995 SC 66). In this case, Chief Justice Sajjad Ali Shah (as he then was) while discussing the powers of this Court, observed as under:--
"22. In support of the proposition that this Court has more than ample powers to do complete justice, as contemplated under Article 187 of the Constitution, reference can be made to Order XXIII Rule 6 of the Supreme Court Rules, 1980, which also provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. This rule is consistent with the spirit and amplitude of the jurisdiction and power as conferred upon it by the Constitution."
Likewise, Justice Saleem Akhtar (as he then was) observed as under:--
"10. The Supreme Court is the apex Court. It is the highest and the ultimate Court under the Constitution. In my view the inherent and plenary power of this Court which is vested in it by virtue of being the ultimate Court, it has the power to do complete justice without in any manner infringing or violating any provision of law. While doing complete justice this Court would not cross the frontiers of the Constitution and law. The term "complete justice" is not capable of definition with exactitude. It is a term covering variety of cases and reliefs which this Court can mould and grant depending upon the facts and circumstances of the case. While doing complete justice formalities and technicalities should not fetter its power. It can grant ancillary relief, mould the relief within its jurisdiction depending on the facts and circumstances of the case, take additional evidence and in appropriate cases even subsequent events may be taken into consideration. Ronald Rotunda in his book "Treatise on Constitutional Case Substance" (Second-Edition), Volume 2 at page 90 has stated that "The Supreme Court is an essence of a continual Constitutional convention". The jurisdiction and the power conferred on the Supreme Court does empower it to do complete justice by looking to the facts, circumstances and the law governing a particular case. Article 187 does not confer any jurisdiction. It recognises inherent power of an apex Court to do complete justice and issue orders and directions to achieve that end. Inherent justification is vested in the High Court and subordinate Courts while dealing with civil and criminal cases by virtue of provisions of law. The inherent jurisdiction of this Court to do complete justice cannot be curtailed by law as it may adversely affect the independence of judiciary and the fundamental right of person to have free access to the Court for achieving complete justice. This enunciation may evoke a controversy that as Article 175(2) restricts Article 187 it will create conflict between the two. There is no conflict and both the Articles can be read together. The conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other provision of the Constitution. They have to live together, exist together anti operate together. Therefore, while interpreting jurisdiction and power of the superior Courts one should look to the fundamental rights conferred and the duty cast upon them under the Constitution. A provision like Article 187 cannot be read in isolation but has to be interpreted and read harmoniously with other provisions of the Constitution. In my humble view this Court while hearing appeal under a statute has the jurisdiction and power to decide the question of vires of the statute under which the appeal has arisen and can even invoke Article 184(3) in appropriate cases."
It is worth to mention here that by means of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, cases or proceedings have been withdrawn or terminated, without spelling out the reasons, namely, as to whether an accused himself is responsible for causing the prolonged delay or the prosecution or the Courts have failed to decide the case expeditiously. After the promulgation of National Judicial Policy, 2009 by the National Judicial Policy Making Committee, despite strict monitoring of the proceedings of the Court, we have observed that the Courts and the Investigating Agencies are taking all necessary steps to dispose of the cases expeditiously according to law but it is a hard fact that accused, for one or other reasons, known to them, attempt to protract the proceedings.
By means of Section 3 of the NRO, 2007, amendment has been made in Section 39 of the Representation of the People Act, which reads as under:--
"3. Amendment of section 39, Act LXXXV of 1976. (1) In the Representation of the People Act, 1976 (LXXXV of 1976), in section 39, after sub-section (6), the following new sub-section (7) shall be added, namely:--
"(7) After consolidation of results the Returning Officer shall give to such contesting candidates and their election agents as are present during the consolidation proceedings, a copy of the result of the count notified to the Commission immediately against proper receipt and shall also post a copy thereof to the other candidates and election agents."
Intention enshrined in above said Section cannot be doubted but it seems that this provision is cosmetic in its nature, comparing to Sections 2, 6 and 7 of the NRO, 2007. However, the benefit of the same cannot be drawn immediately by a candidate, who is always interested to get the certified copy of the result and such arrangement is already available in Section 38 of the Representation of the People Act, 1976, which provides that the Presiding Officer shall give a certified copy of the statement of count and the ballot paper account to such of the candidates, their election agents or polling agents as may be present and obtain a receipt for such copy because as far as the consolidation of a result is concerned, it takes place subsequent to polling day, as per the schedule fixed by the Election Commission. If at all, the intention of the legislature was to ensure transparent election free from rigging of any kind, then emphasis should have been for the strict compliance of Section 38 (11) of the Representation of the People Act, 1976, which reads as under:--
"38. Proceedings at the close of poll.--
...............................................................
................................................................
(11) The Presiding Officer shall give a certified copy of the statement of the count and the ballot paper account to such of the candidates, their, election agents or polling agents as may be present.
...............................................................
................................................................"
Mr. Shaiq Usmani, learned Amicus curiae started his arguments by saying that he would draw the canvas before the Court, which is necessary to be seen, that what possible arguments could be raised in defence of the NRO, 2007 by the other side. He argued that in criminal justice system, there are two systems of justice; one is retributory and the other is restorative; first one entails prosecution and punishment, just very simple, whereas restorative does not believe in prosecution or punishment rather it tries to resolve the issues through accountability. According to him if, presumably, it was an act of amnesty by means of the NRO, 2007, then the question arises whether it was legitimate and if so, could it justify the derogation from the fundamental rights. He added that amnesty is manifestation of restorative justice and is resorted to, with a view to end the internal conflict on the basis of negotiation with the leaders, who committed the crimes, either political or the other. He stated that there are two further types of amnesties; one is compromised by the two parties for their mutual interest; and other is accountable amnesty where there is open admission of guilt, because victims do not, necessarily, always want punishment, but certainly want the admission of guilt. According to his version, the only legitimate amnesty is the one which is accountable, so in the case in hand, the amnesty, if it could be called as amnesty, is not a legitimate one, hence not permissible; therefore, on this ground, too, it falls. He further stated that the NRO, 2007 is violative of Article 25 of the Constitution on the ground of discrimination because on the face of it, it is discriminatory; therefore, looking at the I.A. Sherwani's case (1991 SCMR 1041) there was a definite classification of people. He argued that the NRO, 2007 is violative of the salient features of the Constitution and principle of trichotomy of powers, as it is the domain of the judiciary to see whether a criminal case should be withdrawn or not, inasmuch as there is encroachment upon the domain of judiciary, which is certainly violative of the principle of trichotomy of powers, as such it is void. He strenuously argued that corruption is nothing but theft of public money; when the National Assembly cannot make a law to condone theft, how can the President issue an Ordinance to condone theft. While referring to Section 21 of the NAO, 1999, he argued that Attorney General has no power at all to withdraw the cases; therefore, anything done by the then Attorney General, is of no consequences.
The above arguments of the learned Amicus Curiae have been considered and need no further deliberations being comprehensive in their form, in view of above discussion on different aspects of the case noted in the forgoing paras.
Mian Allah Nawaz, another learned Amicus
Curiae submitted his formulations on the NRO, 2007 by saying that man is a complex, complicated in it; there is no definition of man; even the Allah
Almighty has said that the creation, which is being sent to this globe, is flawed, and is a blend of two great positive and negative reservoirs of instincts; one instinct is goodness, the good, the tranquility, peace; and the other is greed, lust, bloodshed etc.; so the man is beautiful combination of both. He quoted the saying of Jeremy Bentham, a great philosopher, that if you keep twenty wolfs at one place and twenty men at the same place, it would be difficult to manage the men'. According to him another philosopher has rightly said thatlaw is necessity of the man' because he can't discipline himself; he can't undertake his own examination; man is such a creature that he needs three instincts, i.e. instinct of preservation, instinct of peace and the instinct of law, which compel him to travel on the path of law. He added that laws are those minimum requirements, patterns, modes; which if recognized, each man will be saved from the warring, lust and greed; and this is beginning of the law.
According to him law is not necessarily be a divine law, it may be a temporal law and it may be a secular law but whatever it is, the main thing is that it is for the peace, tranquility and goodness. He stated that any law, which violates the intrinsic value of the law' orintrinsic value of behaviour', is not a good law, and it has to be struck down otherwise it would create simple anarchy, lust, greed and would lead to monumentally horrendous things. He argued that if the basic fundamental philosophy of law was not kept in view, neither the Constitution nor the law or the problem facing the nation could be understood and no solution could be found. In this behalf he referred to Surah
Al-Baqarah from the Holy Quran. According to him the morality of law has two aspects to be assumed as sine qua non; one is internal voice of a human being and the other is external voice i.e. conduct of a human being; these two can be called as a soul, conscience, discipline, etc. of human being; as the same are contemporaneous not simultaneous; naturally embodied in the human being, who is to be tested on these touchstones.
With regard to NRO, 2007, he stated that the NRO, 2007 is not only a bad law but it's a dirty law, a kleptocratic law, which converts the very form of the Government. While explaining the word `kleptocracy', he stated that it is a classical manifestation of evolution of gradual supremacy of satanic forces. He further stated that there is not a single provision in the Constitution, validating the NRO, 2007 or giving a conscience to it under any statute, because our Constitution is based upon morality of Muslims. According to him the NRO, 2007, from the beginning to end, after preamble, is a master piece of savagery, therefore, from the commencement to finish, irrespective of certain cosmetic provisions, it is a so bad law that it must be struck down, as a piece of paper, which never deserved to be put on the statute book.
The above arguments of the learned amicus curiae are self-explanatory; therefore, there is no need to further dilate upon them.
Mr. M. Sardar Khan, learned amicus curiae, made his submissions to the effect that the NRO, 2007 is not only discriminatory and inconsistent with fundamental rights, enshrined in Article 25 of the Constitution but also in conflict with other Articles of the Constitution such as Articles 62, 63 and 175, therefore, it is not a valid law rather it is a bad law. According to him Article 5 of the Constitution postulates that it is inviolable obligation of every citizen to obey the Constitution and the law, whereas, Article 8 (2) prohibits the State from making any law which takes away or abridges fundamental rights conferred by the Constitution; therefore, if a law does so, then it shall be void, as such, the NRO, 2007, so promulgated, seems to be an intentional violation and disobedience of the Constitutional provision, contained in Article 8 of the Constitution. He further contended that Article 2A of the Constitution requires that the authority of Allah Almighty, conferred upon the chosen representatives of the people of Pakistan, is to be exercised by them in accordance with the Constitution and within the limits prescribed by Allah Almighty. According to him various provisions of the NRO, 2007 i.e. 2, 3, 4, 6 & 7, are not valid provisions as they are void for various reasons, including, being against the Injunction of Islam, violative of the mandate of Article 175 of the Constitution, and repulsive to the provisions of Article 62 & 63 of the Constitution. He argued that the object of this law, for all intents and purposes, does not seem to be `reconciliation' but it paves the way and facilitates to those, charged with corruption and corrupt practices, plundering of national wealth and fraud, to come back, seize and occupy echelons of power again; its aim seems to be to legalize corruption and the crimes committed by those in power, in the past. He further argued that Courts have been deprived, by virtue of this law, from their judicial functions by conferring powers to the administrative authority. He contended that the NRO, 2007, besides being discriminatory, has also been applied discriminately.
With regard to Article 247 of the Constitution, learned counsel contended that this Court has always favoured application of fundamental rights to ensure that there should not be any discrimination amongst citizens and the State shall not make any law which takes away or abridges the rights so conferred. In this behalf he relied upon the case of Government of NWFP v. Muhammad Irshad (PLD 1995 SC 281), wherein Regulation No. I of 1975 dated 26th July 1975, known as Provincially Administered Tribunal Areas Criminal Laws (Special Provisions) Regulation, 1975 was declared void, being inconsistent with the fundamental rights guaranteed under Article 25 of the Constitution. On the arguments that under Article 8(1) of the Constitution, examination of Regulation, framed by the President or the Governor in exercise of powers under sub-Articles (4) and (5) of Article 247 of the Constitution, is not included in the expression `any law', this Court maintained the judgment of the High Court, in the following terms:--
"20. It seems difficult to subscribe to the view canvassed by Mr. Samadani that the expression any law' as used in Article 8(1) does not encompass a Regulation made under Article 247(4) or that the termState' as occurring in Article 7 does not include the President and the
Governor. Article 8(1), ibid, reads as follows:
"Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void."
The word any' is ordinarily used to enlarge the amplitude of the term to which it is attached and there seems to be no reason why the expressionany law' as occurring in Article 8(1) be so narrowly construed as to exclude from its purview a Regulation which possessed the efficacy of law in a part of Pakistan, particularly when its effect has been extended to all customs and usages which have the force of law. Article 7 falls in Part II of the Constitution which bears the rubric Fundamental Rights and Principles of Policy. The said Article reads as follows:
"7. Definition of the State.--In this Part, unless the context otherwise requires, `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."
It will be noticed that the definition of the State' as given in this Article is fairly wide; on its plain reading it would appear to encompass all authorities which perform executive and legislative functions in any part of the country. So far as the Areas are concerned, the President and the Governor while exercising their powers under Article 247 stand in the position of the Federal and the
Provincial Governments. There is therefore no reason why they should be excluded from the definition of theState' so far as the Areas are concerned.
In fact, to hold otherwise, would tend to deprive a sizeable part of the
Pakistan citizenry of the Fundamental Rights enshrined in the Constitution which could never have been the intention of the Constitution-makers."
Learned counsel, while heavily relying upon the above judgment, stated that this Court has not shown any flexibility, while interpreting constitutional provisions, dealing with the case pertaining to Tribal Area, where the President and the Government have dominating authority to issue regulation, then as to why not the NRO, 2007 be declared ultra vires to the Constitution, void ab initio and of no consequences for the reason discussed hereinabove.
We are in agreement with the above arguments of the learned counsel.
Raja Muhammad Ibrahim Satti, learned counsel appearing in Civil Appeal No. 1094 of 2009, however, supported the NRO, 2007 for the following reasons :--
(i) On 12th October 2007, while admitting the Constitution Petition, challenging the NRO, 2007, its operation was not suspended, therefore, presumably it was a good law.
(ii) On 27th February 2008, order dated 12th October 2007 was modified without declaring the NRO, 2007 ultra vires the Constitution, as such presumably the NRO, 2007 is a valid law.
(iii) The President, in exercise of powers under Article 89 of the Constitution, on having been satisfied that the circumstances prevailed for issuing the NRO, 2007, exercises his authority with immediate effect and it is no body's case that the NRO, 2007 has been issued by the President in exercise of powers, beyond the scope of the Constitution, therefore, it being a valid law deserves to continue.
(iv) The NRO, 2007 along with other Ordinances was not declared ultra vires the Constitution at the time of examination of the validity of Proclamation of Emergency of 2007 and Provisional Constitution Order, 2007 by this Court in Sindh High Court Bar Association's case (PLD 2009 SC 879), as by extending its constitutional life, it was sent to the Parliament for examination and making it an Act of the Parliament, therefore, it may be presumed that this Court having ample powers, refused to exercise the same for declaring the NRO, 2007 ultra vires the Constitution.
(v) Appellant is entitled for the same relief, which has been extended to the beneficiaries, between the period from 5th October 2007 to 1st February 2008, so that he is not discriminated.
As far as the reference of the learned counsel for the appellant to order dated 12th October 2007 is concerned, on this date notice was issued to the respondents and while examining the request of the counsel for the petitioners for suspending the operation of the NRO, 2007, it was observed that "ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc.; however, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution. Therefore, the argument of the learned counsel is of no help to him.
Next crucial date pointed out by the learned counsel is 27th February 2008, when order dated 12th October 2007 was modified, which does not mean that the law has been validated. In addition to it, it may be stated that the appellant Fazal Dad Jat was not a party in those proceedings, therefore, this argument has no substance.
So far as the argument of the learned counsel regarding referring of the NRO, 2007 along with other Ordinances to the National Assembly in the case of Sindh High Court Bar Association's case (PLD 2009 SC 879), is concerned, reasons in this behalf have already been explicitly explained therein and discussion in this regard had already taken place hereinabove, whereby, it has been held that this Court believes in trichotomy of powers, therefore, instead of examining the constitutionality of such Ordinances, including the NRO, 2007, for the detailed reasons, mentioned in the judgment, the Ordinances along with the NRO, 2007 were sent to the National Assembly for examination. It is an admitted fact that the National Assembly had not made the NRO, 2007 as an Act of the Parliament, although it was tabled before it; therefore, the argument of the learned counsel that its constitutionality being inapt is not acceptable.
As far as the question of extending relief under the NRO, 2007 to the appellant and the convicts, who have filed applications being Human Right Case Nos. 14328-P to 14331-P & 15082-P of 2009, is concerned, it is to be observed that it depends upon the final verdict about the constitutionality of the NRO, 2007.
Now turning towards the arguments of the learned counsel about the Ordinance issuing powers of the President, there is no denial to it, but subject to discussion made hereinabove on this subject.
It may be noted that the President has an authority under Article 89 of the Constitution to promulgate an Ordinance, but cannot issue temporary legislation, which the Parliament is not empowered to do. A thorough perusal of the Federal and the Concurrent Lists persuades us to hold that the President was not empowered to issue the NRO, 2007 as the subjects covered by its Section 2, 6 and 7 fall beyond the scope of these lists. As far as its manifestations is concerned, it has already been done by the Parliament before whom the NRO, 2007 was placed, but the same was withdrawn subsequently under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, as impliedly the National Assembly refrained itself from making it as an Act of Parliament. Inasmuch as, the actions taken from the date of its inception till the expiry of its constitutional life of 120 days under Article 89 of the Constitution from 5th October 2007 to 1st February 2008, benefits derived by some of the person have not been protected, and the Government (either Federal or Provincial) has also not insisted to allow retention of the benefits derived out of it to the accused persons during the said period. More so, none of the beneficiaries, who have drawn benefit during the said stipulated period from 5th October 2007 to 31st July 2009, when vide judgment dated 31st July 2009, all the Ordinances were declared to have been shorn of permanency, have not come forward to protect their benefits, although hearing of these petitions has been widely publicized in print and electronic media. Thus in view of theory of ultra vires, explained in Cooley's Constitutional Limitations, reference of which has been made by Chief Justice Cornelius (as then he was) in Fazlul Quader Chowdhry v. Muhammad Abdul Haque (PLD 1963 SC 486), wherein it has been observed that "for the constitution of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it, since such body or officer must exercise a delegated authority, and one that must necessarily be subservient to the instrument by which the delegation is made; in any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity", we are of the opinion that the NRO, 2007 is void ab initio, therefore, the parties who have derived benefit shall not be entitled for the same from 5th October 2007 and all the cases withdrawn under Section 2, 6 & 7 of the NRO, 2007 shall stand revived immediately. The Courts seized with the matters shall proceed to decide the same, considering that the NRO, 2007 was never promulgated.
It is also to be noted that while examining the vires of a statute the Court is free to examine the same on the touchstone of different constitutional provisions as it has been held in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602):
"52. In this behalf it may be noted that this Court, in exercise of constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Articles 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well-settled by this time that being the apex Court, it has also been vested with inherent Powers to regulate its own authority of judicial review, inasmuch as, that in Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it has been held by the full Court that "so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the superior Courts. " Argument by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution, section 2-A of the STA, 1973 can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qader Chowdhry (ibid) would indicate that "superior Courts have inherent duty, together with the appurtenant power, to ascertain and enforce the provisions of the Constitution in any case coming before them." In the case of A.M. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that " ----------in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the constitutional provision in the absence of any bar either express or implied." Similarly, in Messrs Electric Lamp Manufacturers of Pakistan Ltd. v. The Government of Pakistan (1989 PTD 42), it has been held that "the Parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution." Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it is held that "-----------when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits." In the case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), the conclusion was that "Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a constitutional provision. In Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck down the imposition of preshipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights. Relevant para reads as under:--
"Considering the case from all angles, although the Federal Legislature is competent to legislate for the imposition of fees within the meaning of Entry 54, in the Federal Legislative List, Fourth Schedule to the Constitution, but again as already discussed hereinbefore, one has to see what is the nature of the legislation and whether the same could have been legislated within the ambit of the powers of the Federal Legislature. No doubt, legislation can be made to impose fee in respect of any of the matters in the Federal Legislative List, but definitely not for pre-inspection, the benefit of which has to go to the companies appointed to carry out the inspection and not to the payees of the fees. The imposition of such fee is not in lieu of services to be rendered for the benefit of its payees --------------------------
For the foregoing reasons, we are of the view that the imposition of service charge as imposed under section 18-B of the Act towards the pre-shipment inspection is ultra vires of the powers of the Federal Legislature."
Likewise, in the case of Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) this Court observed that "the function of the judiciary is not to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decisions provided the law is competently made; its vires can only be challenged being violative of any of the provisions of the Constitution and not on the ground that it nullifies the judgment of the superior Courts." In this judgment the use of expression `any, has widened the jurisdiction of the Court and extended it to the extent of the violation of any of the provisions of the Constitution including fundamental rights. Similarly in Ghulam Mustafa Ansari v. Government of Punjab (2004 SCMR 1903) it was held that "ordinarily it is not for us to question the wisdom of the Legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons, unless it be violative of a constitutional provision including the fundamental rights"."
We have examined the respective contentions of the learned counsel for the parties as well as the vires of the NRO, 2007 on the touchstone of various Articles of the Constitution, and have come to the conclusion that the NRO, 2007 as a whole, particularly its Sections 2, 6 and 7, is declared void ab initio being ultra vires and violative of Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution, therefore, it shall be deemed non est from the day of its promulgation i.e. 5th October 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect.
Resultantly, all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO, 2007 or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position.
All the concerned Courts including the Trial, the Appellate and the Revisional Courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO, 2007.
The Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent Courts in the said connection.
Similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO, 2007 shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law.
It may be clarified that any judgment, conviction or sentence recorded under Section 31-A of the NAO, 1999 shall hold the field subject to law and since the NRO, 2007 stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect.
Since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/Courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for mutual legal assistance or abandoning the status of a civil party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum.
Since the NRO, 2007 stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/ authorities/Courts withdrawing the requests earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status.
In view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection.
We place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAO, 1999 as also in terms of the observations of this Court made in Khan Asfandyar Wali's case (PLD 2001 SC 607). However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment.
A Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in the above noticed and other cases under the NAO, 1999. Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in which the accused persons had been acquitted or discharged under Section 2 of the NRO, 2007.
The Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases.
Hereinabove are the reasons of our short order dated 16th December 2009.
Chief Justice.
Judge (1) Judge (2) Judge (3)
Judge (4) Judge (5) Judge (6)
Judge (7) Judge (8) Judge (10)
Judge (11) Judge (12) Judge (13)
Judge (14) Judge (15) Judge (16)
Judge (17)
Islamabad
16.12.2009
Irshad /\
APPROVED FOR REPORTING.
Ch. Ijaz Ahmed, J. I have had the benefit and privilege of going through the judgment recorded by Mr. Justice Iftikhar Muhammad Chaudhry, Hon'ble Chief Justice of Pakistan and generally agree therewith. In view of the importance of the matter, I deem it prudent to add few words in support thereto. The facts and contentions have already been narrated in detail by the Hon'ble Chief Justice of Pakistan, therefore, reiteration thereof are not required.
Legislative history/past events are relevant for interpreting constitutional provisions on the principle of historical modalities. The Muslims had ruled sub continent for a considerable period. During the period of the Muslim rule, sub continent was rich in all spheres of life. It is interesting to note that rate of literacy was very high above 90 percent as highlighted by Frishta while writing history of the sub continent. Even otherwise sub continent was known as the richest part of the world. The western countries also had belief that sub continent was rich qua all types of resources such as minerals, wheat, rice etc as the land of the sub continent was very fertile as compared to other parts of the world. Sub continent was almost surrounded by mountains and large open area due to which according to the western countries this area is known as "Soonay ke Chiria". The kingdom of Britain and France had entered in sub continent for the purpose of business.
After death of Aurangzeb the system of justice, established by the Muslims, was totally dis-regarded and Muslims were fighting with each other for securing power. This was the time when the East India Company had taken benefit of its experience and ultimately had become rulers of the sub continent. It is pertinent to mention that Lord Macaulay had made speech at the floor of the British Parliament on 2nd February, 1835 which is to the following effect:--
"I have traveled across the length and breadth of India and I have not seen one person who is a beggar, who is a thief. Such wealth I have seen in this country, such high moral values, people of such caliber, that I do not think we would ever conquer this country, unless we break the very backbone of this nation, which is her spiritual and cultural heritage, and, therefore, I propose that we replace her old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will lose their self-esteem, their native self-culture and they will become what we want them, a truly dominated nation".
(a) HISTORY OF CONCEPT OF EQUALITY BEFORE LAW.
Holy Quran says; "if Ye Judge between mankind, that Ye Judge justly". The Holy Prophet (PBUH) proclaimed; "people are all equal as the teeth of a comb".
The concept was introduced by Islam and further highlighted, implemented and explained by the Holy Prophet (PBUH). See Pakistan Petroleum Workers Union's case (1991 CLC 13). The relevant observations are as follows:--
"This Article guarantees to all citizens of Pakistan equality before law and equal protection of law. These rights guaranteed by the Constitution are now universally applied and practised in all the civilized world. It finds recognition in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. An examination of Constitutions of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According to the jurists term "equal protection of law" finds it origin in the 14th Amendment of the American Constitution. In my humble view the concept of both terms "equality before law" and "equal protection of law" is not of so recent origin in jur isprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principles of "equal protection of the law" were for the first time given and firmly practised by the Holy Prophet (be peace on him). Therefore, it can be traced as far back as 1400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, Declaration of Human Rights and the theory of Rule of Law as enunciated by the Western Jurists. The Last Sermon of the Holy Prophet (be peace on him) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference:--
"........O Ye people, Allah says: O people We created you from one male and one female and made you into tribes and nations, so as to be known to one another. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the while except in Godconsciousness."
"All mankind is the progeny of Adam and Adam was fashioned out of clay.
Behold! Every claim of privilege whether that of blood or property, is under my heels except that of the custody of the Ka'ba and supplying of water to the pilgrims.............."
"Behold! All practices of the days of ignorance are now under my feet. The blood revenges of the days of ignorance are remitted........All interest and usurious dues accruing from the times of ignorance stand wiped out......."
"O people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your actions."
"12. The concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practised equality throughout the life and sermon deliveed on the occasion of last Haj performed by the Holy Prophet (peace be upon him) is the first landmark in the history of mankind. It was clear for all times to come that there is no difference amongst the individuals on the basis of race, colour and territory. The relevant portion reads as under:--
16. The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida, the last Haj, performed by him, that .........O! people, hear me, your Lord is one and your father is one. No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man save in respect of piety and fear of Allah'."
(i) Francis Corolie Mullin's case (AIR 1981 SC 746)
(ii) A.K. Roys' case (AIR 1982 SC 710)
(iii) Bandhu Mukti Moracha's case (1984 SC 802)
(iv) Bachan Singh's case (AIR 1982 SC 1235)
(v) Weereja Chaudhry's case (AIR 1984 SC 1099)
(vi) Suo Motu Constitutional Petition: (1994 SCMR 1028)
It is a settled maxim that the very concept of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law. See Jibendra Kshore's case (PLD 1957 SC 9).
It is settled principle of law that where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it has actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab initio since its inception. See Waris Mehi's case (PLD 1957 SC (Pak) 157), Benazir's case (PLD 1988 SC 416) and I.A. Sherwani's case (1991 SCMR 1041) and Azizullah Memon's case (PLD 1993 SC 341 at 358). In Azizullah Memon's case vires of the criminal law ordinance were attacked on the ground that they were in conflict with fundamental rights guaranteeing equality before law, equal protection of law etc. Saleem Akhtar, J (as then he was) had discussed all previous precedents rendered by superior Courts. The relevant observatio n is as follows:--
"(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based -----
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
(b) CONCEPT OF ISLAM AS UNDERSTOOD BY DEWAN
"This judgment cannot be completed without having a glimpse of Islamic Legal System. Mr. Vijay Kumar Dewan in his Book Prosecuting System in India (Practice and Procedure) discussed the legal system of Islam in the following terms:--
"As like the Hindu law the concept of Muslim Law also held that the king derived his authority from Qura'n and the ruler was subordinate to law the main source of Islamic law of Muslim Law i.e. Shar in Qura'n and Sunnah or Hadis. The Prophet was considered to be the best interpreter of Qur'an. On all matters on which Qura'n was silent Sunnah or Hadis was regarded as authority. Because of divergent views taken on various provisions of Qura'n by eminent Muslim Jurists, four well defined braches or schools of Muslim law came to be recognized by different sections of the Muslims. Out of the four the Hanafi School founded by Abu Hanifa (699-767 A.D.) was the most popular in India, few in India however, followed the Shafi School founded by Muhammad Ibn Idris Ash-Shafi (767-820 A.D.). The other two i.e. the Maliki School founded by Malik Ibn Annas (713-797 A.D.) and the Hanbali School based on the teachings of Ahmad Ibn Hanbal (780-855 A.D.) were not popular in India."
The author further classified criminal offences under the Islamic Penal law as follows:--
(i) Offences against God.
(ii) Offences against the State, and
(iii) Crimes against private individuals.
"... The works of judiciary however, worked systematically in view of considerable importance attached by Akbar and his successors and Akbar had definite zeal to administer justice impartially and he had once remarked. If I were guilty of an unjust act I would rise in judgment against myself. What shall I say then of my sons, my kindred and others. (In this regard reference may be made to the book History and Culture, Vol. 7, pages 547 to 552, Aini Akbari Vol. III p.434; Akbarnama, Vol.III and Storia do mogar, Vol. I, p. 167) Akbar used to devote some time every morning for judicial works at the Jharoka Darshan and Thursday was exclusively kept for judicial work, wherein the top officers such as Chief Qazi, Mufties and other law dignitaries and Kotwal of the town used to participate. He used to decide cases after hearing and ascertaining the law from the jurists. Abdul Fazal the Chronicile Writer of Akbar's Court has given an account of the Royal Court--
`He (Akbar) opens the gates of justice and holds an open Court. In the investigation in to the cases of the oppressed, he placed no reliance on testimony or on the oaths, which are resources of the crafty, but draws his conclusions from the contradictions in the narratives, the physiognomy, and sublime resources and noble conjectures. Truth takes her place in this centre. In this work he spends not less than one and half pahars (i.e. about five hours)'.
Jahangir followed the ideals of his father. He also in addition to deciding cases every morning had set apart Tuesday exclusively for judicial work. Shahjahan also upheld the maxim of his father that justice must be enforced. Aurangzeb was also very keen in administrating impartial justice except in cases which concerned the interest of prestige of Islam the arrangement of transacting judicial business personally by the sovereign was not disturbed even when the Emperor happened to be on tours on when he was engaged in a military expedition. The Emperor decided both civil and criminal cases and his Court was not only the highest Court of appeal, but also sometimes a Court of first instance. Sometimes the Emperor used to appoint a commission of inquiry and issue instructions to decide cases on the basis of facts revealed in the investigation on the spot. Usually the cases deserving capital punishment were decided by the King himself. Such cases even if tried by Governors or other authorities, were forwarded to the capital for the Kings' final order. The standing instructions were that no one was to be executed until the Emperor had given his orders for the third time."
Keeping in view the historical background of the creation of the country beginning with the struggle started by late Sultan Haider Ali of Maysor and his noble, brave and courageous son Tipu Sultan Shaheed who gave his precious life including life of his two beloved sons who fought for freedom, and ultimately achieved the goal of freedom under dynamic leadership of Quaid-e-Azam Muhammad Ali Jinnah, who was motivated by the spirit of great national poet Dr. Allama Muhammad Iqbal; and sacrifices made by millions of Muslims of this subcontinent, we must remember that this freedom was formally recognized by the imperial power by passing the Independence Act, 1947 which gave birth to our esteemed country. Before coming to final conclusion, let me quote that once late Mian Muhammad Mushtaq Gormani met Lord Wavel who during discussion made some remarks about the founder of Pakistan which are very relevant to reproduce here for the purpose of building national character. Lord Wavel said:--
"He (Founder of Pakistan) is not only honest but he is intellectually honest."
Once the rulers of Muslims had deviated from the said principle of providing justice to the people then Great Britain who had entered initially through East India Company for the purpose of commercial business, had got the opportunity to get the benefit of said situation and had been able to take over the power and continued till 1947. Muslims had launched freedom movement in 1857 but could not succeed due to their internal contradictions and on account of non cooperation of the Hindu community with the Muslims.
Subsequently, British established its rule in the sub-continent with active support and connivance of Hindus and few Muslim phonies. Bal Gangadhar Tilak, first popular independence fighter after war of Independence of 1857 was convicted and sentenced by the trial Court where Founder of Pakistan appeared as his counsel. Interestingly, Bal Gangadhar Tilak again engaged Quaid-e-Azam at the appellate stage in the High Court where Quaide-Azam for the first time distinguished between the offence against the state and the offence against public functionaries on ground of which appeal was accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916 Bombay 9). This episode of Muslim counsel of a Hindu convict gave birth to a little lived assumption that both the nation can together toil hard for self rule. The founder of Pakistan did not want division of the sub continent but on account of behaviour of the Hindu community, he had demanded a separate homeland on the basis of two nations theory. See Benazir Bhutto's case (PLD 1988 SC 416).
It is settled maxim that nations can achieve goal under dynamic leadership and the nations who had a vision to see ahead as is evident from the speech of Lord Macaulay on the floor of the house and also from the character of the founder of Pakistan alongwith his vision.
The founder of Pakistan was nominated as member of legislative assembly and participated in the proceedings of Legislative Council qua bill relating to Criminal Law (Emergency Powers) Bill on 14th March, 1919 but according to his conscience he did not support government and tendered his resignation from the membership of council as a protest against passing of the Bill and the manner in which it was passed.
(c) AFTER CREATION OF COUNTRY.
16. The word "Ameen" difined in the following books which is to the following effect:
1 The Concise Encyclopedia of Islam at page 41:
"al-Amin. A name of the Prophet, given to him by the Quraysh before the revelation of Islam, meaning the `Trustworthy One'. The word is used as a title for an organization official in a position of trust, such as the treasurer of a charitable organization, a guild, and so forth".
Urdu Daera-e-Maharafil Islamia at page 279-80.
The Encyclopaedia of Islam (New Edition) Vol.1 at 436-37
"Amin, safe',secure'; in this and the more frequent from amin (rarely ammin, rejected by grammarians) it is used like amen and (Syriac) amin with Jews and Christians as a confirmation or corroboration of prayers, in the meaning answer Thou' orso be it' see examples in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al-Nashr, ii, Cairo 1345, 442 f., 447. Its efficacy is enhanced at especially pious prayers, e.g. those said at the Ka'ba or those said for the welfare of other Muslims, when also the angels are said to say amin. Especially it is said after sura i, without being part of the sura. According to a hadith the prophet learned it from Gabriel when he ended that sura, and Bilal asked the prophet not to forestall him with it. At the salat the imam says it loudly or, according to others, faintly after the fatiha, and the congregation repeats it. It is called
God's seal (taba or khatam) on the believers, because it prevents, evil.
"Amin" (Ar. Pl.
umana), trustworthy, in whom one can place ones's trust', whence al-Amin, with the article, as an epithet of Muhammad in his youth. As a noun, it meanshe to whom something is entrusted, oversear, administrator': e.g. Amin al Wahy, `he who is entrusted with the revelation', i.e. the angle Gabriel. The word also frequently occurs in titles, e.g. amin al-Dawla (e.g. Ibn al-Tilmidh others), Amin al Din (e.g. Yakut), Amin al-Mulk, Amin al-Saltana".
"MORALITY".
Words and Phrases, Permanent Edition Volume 27A:
"Morality" The words "morality" and "character" may have the same meaning when standing alone, but when used together the word "moral" defines the kind of character required by the rule, that attorney must be of good moral character. When so sued, the word "moral" is in contradistinction, to the word "immoral". Warkentin v. Klein-watcher, 27 P.2nd 160, 166 Okl. 218."
"Morality" The word "morality" is not used in any narrow sense, but in a general sense, such as the law of conscience, the aggregate of those rules and principles of ethics which relate to upright behavior and right conduct of elected representatives and prescribe the standards to which their action and in particular those who are Muslims, who are guided by the Holy Qur'an and Sunnah should conform, in their dealings with each other or with institutions or the State". M. Saifullah Khan Vs. M. Afzal. :PLD1982 Lah.77.
(d) CONSTITUTION BE READ AS AN ORGANIC WHOLE
(a) Legislature to frame laws.
(b) Executive to implement laws.
(c) The Judiciary to interpret the laws
This is a very beautiful scheme and defined areas of each and every organ to keep the balance. Once this balance is disturbed then the document is dead. Article 7 of the Constitution prescribes all elements and pillars of the State for the purpose of imposing cess and tax, legislature and executive. The legislature had specifically not mentioned the judiciary in article 7 as the judiciary is duty bound to maintain the balance between all the organs, therefore, judiciary is mentioned in part VII under the heading of "Judicature" vide Article 175. It is settled proposition of law that other two organs i.e. legislature and executive have no authority whatsoever to usurp or to take role of the judiciary as it is in violation of the salient features of the constitution which cannot be changed by any canon of justice as laid down by this Court in various pronouncements. Se Zyed Zafar Ali Shah's case (PLD 2000 SC 869), Mehmood Khan Achakzai's case (PLD 1997 SC 426) and Farooq Ahmed Khan Leghari's case (PLD 1999 SC 57). It is pertinent to mention here that Supreme Court of India had taken this view which is before us that basic features of the Constitution could not be changed but unfortunately we could not take that stand earlier except the aforesaid judgments that is why the country since creation on 14-8-1947 till to date most of the time there was no democratic government around for about 37 years. Now it is high time that each and every organ must resolve to save the nation and country to remain within their spheres and discharge their duties in accordance with law. Article 4 of our Constitution compels every body to act in accordance with law whereas article 5 of the Constitution cast duty upon each and every organ/person to obey the command of the Constitution. Similarly Articles 189 and 190 of the constitution has prescribed duty to every organ to implement judgments of the Courts.
It is pertinent to mention here that 3rd organ is also duty bound to remain within its sphere in terms of article 4 of the Constitution. The provisions of the impugned ordinance are directly in conflict with the aforesaid provisions of the Constitution. In fact through the impugned ordinance, the salient features of the constitution were changed in violation of the aforesaid judgments and command of the various provisions of the Constitution.
(e) POWER OF PRESIDENT TO PROMULGATE ORDINANCE.
(b) National Assembly is not in session.
(c) President if satisfies that circumstances exist which render it necessary to take immediate action make and promulgate the ordinance as the circumstances may require.
(f) PRINCIPLE OF CHECK & BALANCE.
Hazrat Abu Bakr Siddique (RA), First Caliph of Islam in his first address had said that in case he violated any injunction of Islam, then people should guide him to be on right path. And there rose a Bedouin sitting in the audience who remarked that in case he violated the principles of Islam, then they would ( ) set him on right path (Nazay ki nook par)
The second Caliph Hazrat Umar Farooq (RA) had a shirt (Choga) on his body. He was asked to explain regarding the cloth of that shirt because the cloth of shirt according to his share ~~~ was much less than the body of Caliph. The Caliph replied that he had used the share of his son for making his own shirt. This is the type of accountability which we have to follow to save the nation to put on a right path.
(g) IMPUGNED ORDINANCE VIS-AVIS FUNDAMENTAL RIGHTS.
The word corruption has been defined as it has diverse meanings and far reaching effects on society, government and people. In other words it has always been used in a sense which is completely opposite to honesty, orderly and actions performed according to law. A person working corruptly acts inconsistent with the official duty, the rights of others and the law governing it with intention to obtain an improbable advantage for self or some one else.
The word corruption is well known to our nation as National Assembly and Provincial Assemblies were dissolved by the President and Governors under Article 58(2)(b) and article 112 of the constitution respectively as these articles were part of the constitution which were introduced through 8th amendment. See:--
(i) Khalid Malik's case (PLD 1991 Karachi 1)
(ii) Khawaja Ahmed Tariq Rahim'ds caxse (PLD 1990 Lah. 505)
(iii) Khawaja Ahmed Tariq Rahim's case (PLD 1991 Lah. 78)
(iv) Khawaja ahmed Tariq Rahim's case (PLD 1992 SC 646)
(v) Aftab Ahmed Khan sherpao Case (PLD 1992 SC 723)
(vi) Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473)
(vii) Benazir Bhutto's case (PLD 1998 SC 388)
Our Constitution clearly envisages that sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him as a sacred trust. See Shahid Nabi Malik's case (PLD 1997 SC 32).
The word corruption is also defined by this Court in Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473 at 837-838) which is to the following effect:--
"The word `corruption' has not been defined by any law, but it has diverse meaning and far-reaching effects on society, Government and the people. It covers a wide field and can apply to any co lour of influence, to any office, any institution, any forum or public. A person working corruptly acts inconsistent with the official duty, the rights of others and the law governing it with intention to obtain an improbable advantage for himself or someone else. Dealing with corruption in Khalid Malik's case I had observed as follows:--
"This bribe culture has plagued the society to this extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rehman Antulay, Chief Minister of Maharashtra was prosecuted for corruption Sabyasachi Mukharji, J. laments as follows:--
"Values in public life and perspective of values in public live, have undergone serious changes and erosion during the last few decades. What was unheard before is commonplace today.
A new value orientation is being undergone in our life and culture. We are at threshold of the cross-roads of values. It is, for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters.
The degeneration in all walks of life emanates, from corruption of power and corruption of liberty. Corruption breeds corruption. `Corruption of liberty' leads to liberty of corruption'."
Corruption and bribery adversely affect the social, moral and political life of the nation. In society rampant with corruption peoples lose faith in the integrity of public administration. In India in 1964 Committee on the Prevention of Corruption known as Sanathanam Committee observed as follows:--
"It was represented to us corruption has increased to such an extent that people have started losing faith in the integrity of public administration. We had heard from all sides that corruption, in recent years, spread even to those levels of administration from which it was conspicuously absent in the past. We wish we could confidently and without reservation assert that at the political level Ministers, legislators, party officials were free from the malady. The general impressions are unfair and exaggerated. But they very fact that such impressions are there causes damage to social fabric.'
The Committee also observed that there is a popular belief of corruption among all classes and strata which `testifies not merely to the fact of corruption but its spread'. Such belief has a social impact causing' damage to social fabric.' The anti-corruption and penal laws have remained ineffective due to their inherent defect in adequately meeting the fast multitudinous growth of corruption and bribery. Corruption in high places has remained unearthed leading to a popular belief that immunity is attached to them. To combat corruption the whole process and procedure will have to be made effective and institutionalized."
In other words written constitution of county is a document which defines the regular form or system of the government, containing the rules that directly or indirectly affect distribution or exercise of the sovereign power of the state and it is thus mainly concerned with creation of three organs of State and the distribution of authority of the government among them and the definition of their mutual relation. We must remember that a constitution is not just a document but a living frame work for the government of the people and its successful working depends upon the democratic spirit underlying it being respected in letter and spirit. Whenever the spirit of the Constitution was violated, the result was chaos and this fact finds support from following extracts of Shahabnama by Qudrat Ullah Shahab:
The raison d'etre of any constitution is to constitute a country and it is the document which contemplates the grundnorms of State and its laws. Aim of all jurisprudence is "public good" or "Welfare of the people". No Law can be wholesome and no state can be a welfare State unless the principles of amr bil maruf wan hi anil munkar is strictly adhered to. God Almighty has created mankind and He loves those who love its creation and strives for its welfare. Our forefathers were conscious of this principle and, therefore, the objective resolution was passed. The preamble, containing objective resolution, of the Constitution of Islamic Republic of Pakistan, 1973 cast a sacred duty on the chosen representative of the people and, that is, to exercise powers and authority to run the State in such manner which promotes: (i) principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam; (ii) Muslim to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam as set out in the Holy Quran and Sunnah; (iii) protection of minorities and backward and depressed classes; (iv) autonomy of the units of Federation; (v) Fundamental Rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, believe, faith, worship and association, subject to law and public morality; (vi) independence of judiciary; (vii) integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, in fact the above said are the grundnorms and limitations of each organ of the State.
Validity of any law can be tested by its result or fruit. If a law evokes healthy feelings/atmosphere, then it is valid otherwise it is void. An illegal morsel gives birth to evils. Similarly any legislation which hurts the welfare of the people should not be allowed to stand among the people. In this regard, I may quote the following couplet from Molana Roumi's Masnevy:--
From the legal morsel which born knowledge, love and tenderness. If you see that jealousy, deception, ignorance, negligence is born from a morsel, know that it was unlawful. The morsel is a seed and thoughts are its fruit. The morsel is the seed and thoughts are its pearls.
In view of above perspective if we allow to hide/swallow corruption and corrupt practices, then obviously it would not be conducive for the people of Pakistan and for the welfare of the State. The people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity if grundnorms stated in preamble are strictly followed. In this view of the matter, the national Reconcilliation Ordinance, 2007 being an illegal morsel is declared a legislation viod ab-initio.
However, taking advantage of brevity, I simply hold that the National Reconciliation Ordinance, 2007 is not valid and in this regard, I endorse the view of our celebrated poet Sagar Siddiqui, which he expressed in this following poetic couplet:--
For the purpose of maintaining balance between each and every organ of the State, I conclude the note and suggest all organs to obey the command of the Constitution from core of their hearts which is possible on working as per saying of Wasif Ali Wasif (Philosophical Islamic Writer) and Moulana Roomi respectively which are to the following effect:
(Justice Ch. Ijaz Ahmed)
Jawwad S. Khawaja, J.--I have gone through the detailed reasons recorded by Hon'ble the Chief Justice, for the short order announced on 16.12.2009. These reasons exhaustively examine the arguments advanced before us by learned counsel for the parties and by the amicii curiae who ably assisted us in these matters. While agreeing with the reasoning of Hon'ble the Chief Justice, I would like to add this note to emphasize aspects of the case which I consider to be of special relevance when examined in the context of the constitutional history of Pakistan.
At the very outset it must be said, without sounding extravagant, that the past three years in the history of Pakistan have been momentous, and can be accorded the same historical significance as the events of 1947 when the country was created and those of 1971 when it was dismembered. It is with this sense of the nation's past that we find ourselves called upon to understand and play the role envisaged for the Supreme Court by the Constitution. The Court has endeavoured to uphold the Constitution and has stood up to unconstitutional forces bent upon undermining it. It is in this backdrop that these petitions have been heard and decided.
It is to be noted that though there was no significant opposition to these petitions and even though the Federal Government did not defend the NRO, the important constitutional issues raised through these petitions were thrashed out to ensure that there is adherence to the provisions and norms of the Constitution, not only for the sake of deciding these cases but also to lay down precedent for the institutions of the State and its functionaries in terms of Article 189 of the Constitution.
I would also like to add that there can be no possible objection to the avowed objectives of the NRO as set out in its preamble, viz. promotion of national reconciliation and removal of the vestiges of political vendetta and victimization. These objectives, however, must be achieved through means which are permitted by the Constitution. The Court while exercising the judicial function entrusted to it by the Constitution is constrained by the Constitution and must, therefore, perform its duty of resolving matters coming before it, in accordance with the dictates of the Constitution and the laws made thereunder. If the Court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the `law' of necessity or salus populi suprema lex, with the same disastrous consequences which are a matter of historical record. This Court has, in its judgment in the case of the Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879) emphatically held that it will not deviate from strict adherence to the law and the Constitution. Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution.
It has now been firmly and unequivocally settled that the Court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution. It is for this reason that while deciding the case of Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879), the Court assiduously avoided validating any of the unconstitutional acts of General Musharraf including his attempt to clothe 37 Ordinances (NRO included) with permanence in violation of the Constitution. It was, in accordance with the scheme of the Constitution and its democratic character that the right of the legislature to enact these Ordinances with retrospective effect was recognized and upheld. It is a matter of record, as noted in the reasons recorded by Hon'ble the Chief Justice, that the elected representatives of the people chose not to resurrect the NRO or to give cover to any acts thereunder through retrospective legislation.
In the foregoing context it will be evident that while the Court is obliged to eschew expediency and any other extraneous considerations such as the fall-out and consequences of its judgments, the executive and legislative limbs of the State do not suffer from similar constraints. As such the consequences of executive and legislative decisions are a legitimate concern of these organs of the State. Legislators and functionaries performing executive functions may resort to expediency, compromise and accommodation in achieving political and policy objectives considered appropriate in their judgment. As long as such decisions conform to and are not violative of the Constitution, the executive and the legislature are only accountable to the electorate and not to Courts. This is the democratic principle enshrined in the Constitution.
One reason for giving the above background is to examine and comment on the applications (CMA Nos. 4875 and 4898 of 2009) submitted by Mr. Kamal Azfar, Sr. ASC on behalf of the Federal Government. The relevant contents of these applications have been duly noted in the main judgment. Of particular concern to me are the following excerpts from these applications:--
"Pak today is poised at the cross roads. One road leads to a truly federal democratic welfare state with the balance of power between an independent judiciary, a duly elected Govt. representing the will of the people and a determined executive which is fighting the war against terrorism and poverty. The second road leads to destabilization of the rule of law. The people of Pakistan await your verdict."
There is, implicit in the above words, a plea to the Court to once again revert to the disastrous and rejected route of expediency and to tailor the outcome of these petitions by looking at the consequences which will follow, rather than the requirements of the Constitution. I would like to state most emphatically that the path of expediency and subjective notions of `State necessity' are dead and buried. I find it quite extraordinary that a democratically elected Federal Government should be imploring the Court to act in a manner otherwise than in accordance with law. It was emphasized to Mr. Kamal Azfar while considering the aforesaid applications in Court, and it now needs to be reiterated in the strongest terms that this Court will not take into account extraneous considerations while exercising its judicial powers and also that adherence to the Constitution can never lead to "destabilization of the rule of law." On the contrary, any breach of Constitutional norms is likely to destabilize the rule of law.
The onus, therefore, of stabilizing the rule of law falls on and must be assumed by the executive organ of the State which also commands a majority in the legislature. This is the requirement of the Parliamentary democratic dispensation ordained by our Constitution. Political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit. The Court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law. The executive and legislative limbs of the State are also constitutionally obliged to apply the powers and resources at their command, in enforcing the Constitution and the rule of law without discrimination or undue favour to any person or class.
Almost a millennium before good governance' andrule of law' became fashionable buzz-words in political discourse, the importance of good governance and the rule of law and their direct co-relation with political stability was recognized by enlightened rulers. In the Siyasatnama written by Nizam- ul-Mulk Toosi the incident is narrated where the Governor of
Hamas (in present day Syria) wrote to the Caliph seeking funds to rebuild the protective wall to defend the State against its enemies, that is, to ensure the stability of the government. The reply he received is instructive. He was told to build the walls of justice i.e. the rule of law and this would ensure peace, stability and freedom from the fear of enemies.
This brings me to the decisions recorded in the short order of 16.12.2009 and the detailed reasons for the same. The NRO has been declared unconstitutional and void ab initio. It has thus met the fate it richly deserved as a black law created and prolonged by the corrupt and malevolent hands of a military dictator. The fact that the incumbent democratic government chose not to defend such a vile law bodes well for constitutionalism and the rule of law.
There is, of course, the matter of persons who may be innocent of any wrongdoing but were victimized due to political vendetta. For such persons this judgment ought to be seen as a boon. Instead of living in the shadow of a malignant cloud for the rest of their lives, their reputations sullied by the foul intervention of a scheming mind, these persons are enabled through this judgment to clear their good name of any taint with which they of necessity, stood branded on account of the NRO. This indeed would be the most potent rejoinder to those who maliciously may have initiated false cases to harm their reputations for ulterior political considerations. As the sage Sheikh Saadi said centuries ago, in these ageless words:--
It should also be mentioned that by striking down the NRO the Court does not foreclose the possibility or impinge on the prerogative of the legislature to enact a non-discriminatory law which can pass constitutional muster and is motivated by a desire to bring about a true and inclusive reconciliation which is genuinely national in its outreach and attempts to bring within its fold disparate groups harbouring valid grievances against oppressive and vindictive use of State machinery in the past. Even those who may have committed wrongs in the past and were not wronged against, are not beyond being redeemed through a compassionate law which heals the fissures in the nation's divided polity. These are, however, matters which fall squarely within the legislative and executive domains, should these organs of the State wish to act.
The concept of tauba and sincere repentance coupled with restitution of any ill-gotten gains and the expression of genuine remorse for past excesses provide an age-old matrix for fostering reconciliation. It has been applied successfully in ancient as well as modern societies, the most recent example being that of South Africa where a Truth and Reconciliation Commission has been able to bring about a genuine national reconciliation between staunch opponents divided among other things, by race and embittered by decades of apartheid. An example of national reconciliation also appears in our own nation's history. This has been commented upon in the main judgment. It would, as noted above, be for the executive and the legislature to consider the potential and the possibilities of what can be achieved by way of reconciliation, as opposed to perpetuation of the venom and mutual recriminations which continuously divide the nation at the cost of its well-being. This Court, however, can only abide by the rule of law and in order to do so it must limit itself to the adjudication of controversies in accordance with the Constitution and with laws made consistently therewith.
Judge
(R.A.)
PLJ 2010 SC 825 [Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmud & Mahmood Akhtar Shahid Siddiqui, JJ.
MUHAMMAD TARIQ @ TARA and another--Petitioners
versus
STATE--Respondent
Crl. Appeals No. 448 and 449 of 2005, decided on 6.5.2009.
(On appeal from the judgment dated 9-6-2005 of the Lahore High Court, Lahore passed in Crl. Appeal No. 703 of 2000).
Administration of Justice--
----Where no rebuttal was available as to the motive set up by the prosecution, the Courts below correctly held that the motive stood established. [P. 828] A
Constitution of Pakistan, 1973--
----Art. 184(2)--Jurisdiction quo pronounce declaratory judgment--Where occurrence being day-light and the accused having been properly identified, and the FIR having been promptly launched with their names in it, no mis-reading or non-reading of any legal infirmity having been pointed out in the impugned judgment, the case against the appellants was deemed to be proved--Appeals were dismissed. [P. 829] B
Ch. Abdus Saleem, Barrister-at-Law Sr. ASC for Appellant (in Crl. A. No. 448/05)
Qari Abdur Rasheed, ASC for Appellant (in Crl. A. No. 449/05).
Ms. Rukhsana Malik, Addl. P.G. Punjab for Respondent.
Nemo for Complainant.
Date of hearing: 6.5.2009.
Judgment
M. Javed Buttar, J.--These appeals, by leave, are directed against the judgment dated 09.06.2005 passed by a learned Division Bench of Lahore High Court, whereby Criminal Appeal No. 703/2000 filed by the appellants was dismissed, sentence of death passed by the trial Court was confirmed, and Murder Reference No. 335/2000 forwarded by the trial Court was answered in affirmative.
The appellants Muhammad Tariq alias Tara and Muhammad Nawaz alias Kaka were tried by Hon'ble Additional Sessions Judge, Lahore in case FIR No. 406 dated 24.09.1995 registered at Police Station, Lower Mall, Lahore for the offences under Sections 302/324/34 PPC at the instance of complainant Shahid Mahmood (PW. 1) for an occurrence which allegedly took place on the same day at 4.00 p.m. in which Zahid Mahmood, brother of the complainant got killed for having suffered fire-arm injuries and PW.2 Bashir Ahmad sustained fire-arm injuries, which were attributed to the appellants who were respectively armed with Gun Pump Action and 30 bore pistol. Learned trial Court vide its judgment dated 08.05.2000 convicted both the appellants under Section 302 PPC for committing the murder of Zahid Mahmood deceased and sentenced them to death and compensation of Rs. 25000/- each payable to the legal heirs of the deceased or to further suffer six months S.I. each. They were also convicted under Section 324 PPC for the murderous assault and sentenced to seven years R.I. each. They were further convicted and sentenced to three years R.I. each and to payment of Daman of Rs.10,000/- each for causing injuries on the person of Bashir Ahmad (PW.2) and in case of non-payment of Daman they were to further undergo six months S.I. each.
The relevant facts are that the complainant Shahid Mehmood (PW. 1), brother of the deceased, got recorded, his statement in the Emergency Ward of Mayo Hospital, Lahore on 24.09.1995 at 5.30 p.m. alleging that both the appellants armed as above entered in the shop of the deceased raising lalkara to teach him a lesson for the prosecution of case registered against them vide FIR No. 403 dated 21.09.1995. It was narrated that both the appellants fired indiscriminately which hit on various parts of the body of the deceased and when PW.2 Bashir Ahmad tried to intervene, he was also targeted and fired upon as a result of which he also received fire-arm injuries. It was alleged that the occurrence took place within the view of the complainant (PW. 1), the injured Bashir Ahmad (PW.2) and PWs Zulfiqar Ahmad and Ishtiaq Ahmad who had also reached the spot. It was further stated that both the injured were rushed to the hospital and the deceased succumbed to the injuries in the hospital.
As per motive, the case of the prosecution was that the appellants had made indiscriminate firing at the shop of Abdul Hameed, an uncle of the deceased on 21.09.1995. A case was registered against them vide FIR No. 403/1995 dated 21.09.1995 under sections 506/34/PPC. The deceased was pursuing the said case. The appellants had warned the deceased to stay away from prosecution of the said case. The present incident was out come of the fact that the deceased continued pursuing the said case.
On receipt of intimation of the occurrence, S.I. Haseeb Anjum (PW.14) reached Mayo Hospital, Lahore. He recorded the statement of the complainant, which became the basis of the FIR. Investigation was carried out. Weapons of offence were recovered at the pointation of the appellants. Challan was submitted and the appellants were tried.
PW.6 Dr. Mian Azhar Ahmad examined injured PW Bashir Ahmad and found two injuries on his person which have been detailed in the impugned judgment.
He also examined the deceased Zahid Mahmood in an injured condition and found five injuries on his person which have also been re-produced in the impugned judgment.
Multiple Pellets like metallic pieces were recovered from the dead body of the deceased.
The prosecution examined fifteen witnesses. Reports of Chemical Examiner and Forensic Science Laboratory were tendered in evidence.
The appellants in their statements under Section 342 Cr.P.C. denied the allegations and stated that some un-known persons had committed the dacoity in the shop of the deceased and had murdered the deceased and injured PW.2 Bashir Ahmad, and they had been falsely involved in the present case on account of enmity. They did not lead any evidence in defense and opted not to appear as their own witnesses under Section 340(2) Cr.P.C.
We have heard the learned counsel for the appellants, learned Additional Prosecutor General, Punjab for the State and have also seen the available record with their able assistance. It is submitted by learned counsel for the appellants that the prosecution had failed to prove its case against the appellants, the eye-witnesses were closely related inter-se and were interested witnesses, the recoveries of arms effected from the appellants were fake, the motive was false, it was an incident of dacoity in which the appellants were falsely involved on account of enmity because there was a petty dispute between the appellants and the deceased over a small shop and that appellants were behind the bars since 24.09.1995 and in the alternate their long incarceration has earned them a right to a lesser punishment.
On the other hand, learned Additional Prosecutor General, Punjab while opposing the appeals has submitted that the prosecution was able to fully prove its case, the motive was established, the eye-witness account was natural and consistent, the deposition of injured eye-witness (PW.2) proved the prosecution case beyond any shadow of doubt, that mere inter-se relationship of the eye-witnesses per-se cannot be a lawful reason for discarding their statements if otherwise, their testimonies are reliable, truthful and confidence inspiring and that the eye-witness account was fully corroborated by medical evidence and recoveries.
No rebuttal is available as to the motive set up by the prosecution. The Courts below, therefore, correctly held that the motive stood established.
The ocular account was furnished by the complainant Shahid Mahmood (PW. 1) and Bashir Ahmad injured (PW.2). Both of them were present at the shop at the time of the occurrence alongwith the deceased and his father Rasheed Ahmed, when the appellants launched the attack which resulted in the death of deceased and injuries to Bashir Ahmed PW.2. Close relationship of the PWs is no ground to discard their testimonies. Reference can be made to Ijaz Ahmad vs. The State 2009 SCMR 99. PW.2 Bashir Ahmed received fire-arm injuries in the incident, He fully supported the complainant and the prosecution case. His presence on the spot at the time of the occurrence cannot be doubted. He was rushed to the hospital but was not in senses at the time when he was medically examined. The I.O. moved an application dated 24.05.1995 (Exh. PP) to the medical Officer but he was not able to examined Bashir Ahmad because medical Officer recorded his opinion, on the same, that Bashir Ahmad was not able to make his statement. It was a day light occurrence. There is no doubt about the identity of the accused. FIR was promptly lodged, therefore, there was no fabrication. Both the eye-witnesses were consistent in their statements and remained unshaken during cross-examination. As to the recoveries, appellant Muhammad Tariq alias Tara got recovered 12 bore Gun from his house which matched the crime empties recovered from the spot. The said recovery further corroborated the prosecution case. The appellant Muhammad Nawaz alias Kaka, got recovered a pistol. The empties recovered from the spot did not match with the pistol. The said recovery was, therefore, inconsequential. This, however, does not make the case against the appellant Muhammad Nawaz alias Kaka as doubtful because the evidence discussed above, fully proved his participation alongwith the appellant Muhammad Tariq.
Medical evidence fully corroborated the ocular account and the prosecution case. Multiple Pellets like metallic pieces were recovered from the dead body of the deceased. The dimensions of injuries established that two types of weapons were used in the occurrence. Thus both the appellants had caused injuries to the deceased.
The argument that some un-known persons had killed the deceased and had caused injuries to the injured PW.2 Bashir Ahmad has no basis. It was a day light occurrence. They were properly identified. FIR was lodged promptly in which they were named. Their respective roles were described and the weapons used by them were also described.
No mis-reading or non-reading of evidence or any legal infirmity has been pointed out in the judgment impugned before us. In our opinion, the prosecution was able to prove its case against both the appellants beyond any shadow of doubt. Furthermore, the role of both the appellants was identical and evidence against both of them is same.
The argument that since the appellants are behind the bars from 24.09.1995 and their long incarceration has earned a light in their favour for lesser punishment, has also no force. Reference can be made to Abdul Malik vs The State and others PLD 2006 Supreme Court 365. Otherwise also, we have failed to find any mitigating circumstance in favour of the appellants.
In view of the above mentioned, we find no merit in these appeals which are dismissed.
(A.A.) Appeals dismissed.
PLJ 2010 SC 829 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
MUHAMMAD ZAHEER KHAN--Appellant
versus
GOVERNMENT OF PAKISTAN through Secretary Establishment and others--Respondents
Civil Appeal No. 762 of 2002, decided on 9.10.2009.
(On appeal from the judgment dated 6-11-2000 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1142(R)/1998.)
Civil Establishment Code--
----R. 6(3)--Witnesses, cross examination of--It is mandatory for an Inquiry Officer to provide the accused officer the opportunity of cross examination of the witness appearing against him. [Pp. 830 & 831] A
Administration of Justice--
----Right of defence to accused--Principle of audi alteram partem is to be read as a part of every statute, Rule or Regulation--Appeal accepted. [P. 831] B
Mr. Abdul Rahim Bhatti, ASC for Appellant.
Mr. Agha Tariq Mehmood, DAG for Respondents.
Date of hearing: 9.10.2009.
Judgment
Sardar Muhammad Raza Khan, J.--The appellant, with leave of Court, has filed this appeal against the judgment dated 6.11.2000 of the learned Federal Service Tribunal Islamabad, whereby, his appeal against dismissal dated 16.7.1998 from service on charges of misconduct and corruption, was dismissed.
On the allegations mentioned in Para-5 of the impugned judgment, Muhammad Zaheer Khan, former Chairman State Life Insurance Corporation of Pakistan was proceeded against. The inquiry officer Muhammad Hassan Bhutto, Secretary Labour etc. submitted his inquiry report (PP:64-84) and in conclusion held him guilty of misconduct. As a result thereof, the appellant was dismissed from service.
The only grievance strongly alleged by the appellant before the inquiry officer, before the Tribunal and also before this Court is that he was grossly condemned unheard, that none of the witnesses holding him guilty were examined by the inquiry officer and so none of them was cross-examined by the appellant. That the golden principle of audi alteram partem was blatantly violated thereby condemning him through mala fide political victimization. In order to ascertain the truth or otherwise of the contentions, one has to revert to the very inquiry report.
It is conclusively proved, rather admitted that for the allegations leveled against the appellant, the inquiry officer had sent interrogatories to different concerned officers of the Corporation. That the answers to such interrogatories were made basis of the findings. Para-iii at P:68 of the inquiry report indicates the names of as many as fourteen officers who were sent the interrogatories, in answer whereto their statements were placed as appendix 4 to 17. Quite amazing it is to observe that despite the fact that all allegations constituted extensive questions of fact (appendix 4 to 17 concerning such questions of fact), not a single officer from amongst those fourteen was examined by the inquiry officer. The opportunity of cross-examining them being besides the point, even their examination-in-chief was never recorded. Nothing could be a better example of condemnation unheard where no witness was examined and cross-examined by the inquiry officer before arriving at such a serious conclusion relating to extensive questions of fact.
Rule 6(3) of Civil Establishment Code makes it mandatory for an inquiry officer to afford opportunity to the accused officer of cross-examining the witnesses appearing against him. Interestingly, in the
instant case no witness had even appeared and had given his statement in respect to the interrogatories. Throughout, the matter remained between the inquiry officer and the witnesses who never subjected themselves to be cross-examined by the appellant.
"..... audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence....."
The above case is mentioned only with reference to the centuries old history of audi alteram partem. So far as the principle, as such, is concerned, there is no dearth of cases where the violation of the principle was seriously condemned. A full Bench of this Court in National Bank of Pakistan Vs. Muhammad Iqbal (1986 SCMR 234) had refused to grant leave to the Bank where the respondent officer was denied opportunity to cross-examine the witnesses. Where mandatory procedural requirements by the authority concerned are not satisfied, this Court in case of Rana Muhammad Sarwar Vs. Government of Punjab (1990 SCMR 999) declared it to be a mala fide of law. Same view was held in Deputy Directory Food Vs. Akhtar Ali (1997 SCMR 343) and in Secretary to Government of NWFP Vs. Saifur Rehman (1997 TD (Service) 247), where the non-affording of opportunity to cross-examine was condemned as inherent legal defect. This view is maintained in our latest judgment in Syed Sajjad Haider Kazmi's case (2007 SCMR 1643). In the circumstances and in view of the abundance of case law, we hold that the appellant was condemned unheard and the inquiry proceedings being void ab initio, could not be used against the appellant.
It may be recalled at this juncture that this appeal is fixed for rehearing, having already been accepted by a full Bench of this Court. In the earlier hearing, we were confronted with a legal question as to whether the matter should be sent back to the department concerned for initiating de novo proceedings or not. While writing the judgment it was felt that the arguments addressed in this behalf might not have been sufficient. Normally, in the given circumstances, the Court and the Tribunal do remand the cases for de novo inquiries but the distinguishing feature in the instant case was that the appellant, only about a month or so after inquiry, happened to retire on superannuation. On this crucial point we have fully satisfied ourselves by resorting to rehearing.
The learned counsel for the appellant in that behalf referred us to F.R.54-A which, for ready reference is reproduced below as inserted by SRO. 1143(I)/80 dated 10th November, 1980:
"[54A. If a Government servant, who has been suspended pending inquiry into his conduct attains the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such Government servant shall retire with full pensionary benefits and the period of suspension shall be treated as period spend on duty.]"
From the plain reading of the above Rule it become abundantly clear that what to talk of sending the case back to the department, even the pending disciplinary proceedings against an officer abate if the latter attains the age of superannuation. The Rule entitles such officer to retire with full pensionary benefits and period of suspension is bound to be treated as period spent on duty. In the circumstances, the question of now sending the matter back to the department for holding de novo inquiry stands out of question. It may be stated at this juncture that the appellant has stated at the bar that he is not interested in claiming any back benefits and that he is only interested in getting the stigma removed.
The question relating to retirement during disciplinary proceedings has not remained restricted to the rule aforesaid but various forums have also taken notice of it. In Bilquis Nargis' case (1983 PLC (CS)1141), the Punjab Service Tribunal held such proceedings to have abated if the officer retired during the course of action. In case of Deputy Director Food Vs. Akhtar Ali (supra), it was held by a full Bench of this Court that an officer superannuating during disciplinary proceedings seizes to be a civil servant as was rightly so excluded by Section (2)(1)(b) of Punjab Service Tribunals Act, 1974. In case of Abdul Wali (2004 SCMR 678(b), it was again held that an employee could not be proceeded against after superannuation. The principle was reiterated in Sajjad Haider Kazmi's case (supra) where the officer was not only condemned unheard but also had retired. The holding of fresh inquiry was, therefore, disapproved. Muhammad Akhtar former headmaster was proceeded against by the department after one year of his retirement. It was condemned by this Court in Muhammad Akhtar's case (2007 PLC (CS) 400). The fundamental principle laid down in FR.54-A duly supported by the aforementioned cases decided by this Court leads us to the only unescapable conclusion that the case of the present appellant cannot be remanded back to the authority for holding de novo proceedings, after eleven years of his superannuation.
As a sequel to the above discussion we hold that the appellant was condemned unheard and the order dated 16.7.1998 of his dismissal suffered from mala fide of law. The appeal is hereby accepted and the impugned judgment dated 6.11.2000 of the learned Tribunal is set aside alongwith the order dated 16.7.1998 impugned before the Tribunal.
(A.A.) Appeal accepted.
PLJ 2010 SC 833 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Anwar Zaheer Jamali & Khilji Arif Hussain, JJ.
Syed LAKHAT-E-HASNAIN--Petitioner
versus
STATE--Respondent
Crl. Petition No 731 of 2009, decided on 26-12-2009.
(On appeal from the order dated 29-10-2009 of the Lahore High Court, Lahore passed in Crl. Misc. 12754 of 2009)
Administration of Justice--
----Production of documents--Certificate of Chartered Accounts having not been produced before the investigating agency or the trial Court or the High Court, the same could not be relied upon in deciding whether the Trial Court rightly declined bail to the petitioner or not. [P. 838] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Prevention of Electronic Crimes Ordinance, 2008, Ss. 4, 7, 8 & 9--Foreign Exchange Regulation Act, 1947, Ss. 4, 5, 8(i) & 23--Pakistan Penal Code, (XLV of 1860), Ss. 409, 420, 468 & 471--Prevention of Corruption Act, 1947, S. 5(2)--Grant of bail--Bail was always under the discretion of the Court and the discretion was to be exercised upon the facts and circumstances of each case according to sound judicial principle--Nature of the offence and overall attending circumstances, which promoted it to Court to grant or refuse a bail in non-bailable offence. [P. 838] B
Administration of Justice--
----Authenticity of documents--It is for the Trial Court after recording of evidence to determine the authenticity of the same--Court had only to see whether accused was connected with the commission of the crime or not and for that purpose only tentative assessment of the evidence was to be made--Petition dismissed. [P. 838] C
Bail--
----Discretion to grant of bail--Accused were holding a license from SBP to deal with money exchange business and was not only violated rules and regulations of SBP but apparently also acted against the interest of the country by scuffing huge amounts of foreign exchange--Held: Discretion to grant bail cannot be exercised in favour of the accused. [P. 839] D
PLD 2009 SC 446 ref.
Mr. S.M. Zafar, Sr. ASC and Mr. Arshad, AOR for Petitioner
Mr. Azam Nazir Tarar, ASC/Special Public Prosecutor for Respondent.
Dates of hearing: 22.12.2009, 23.12.2009 and 24.12.2009.
Judgment
Khilji Arif Hussain, J.--The Petitioner seeks leave to appeal against the order dated 29.10.2009 passed by the Lahore High Court, Lahore whereby Petitioner's post arrest bail in case FIR No. 9 of 2009 dated 21.2.2009, registered under Sections 4, 5, 8(1) and 23 of Foreign Exchange Regulation Act, 1947 read with Sections 409, 420, 468, 471,109 PPC, Sections 4, 7, 8 and 9 of Prevention of Electronic Crimes Ordinance 2008 and Section 5(2) of Prevention of Corruption Act 1947 at Police Station FIA Crime Circle, Lahore has been declined.
The prosecution case as narrated in the FIR, is that the M/s. ZARRCO company engaged in collecting money in home currency as well as in foreign currencies for inland and outland remittance against the instructions issued by the State Bank of Pakistan. In doing so, it collected huge amounts but did not remit to its destinations. The company had also engaged many franchise dealers to receive money for exchange and remittance. The amounts collected by the franchise dealers were also not paid to the relevant quarters. It is also alleged in the FIR that the company was authorized by the State Bank of Pakistan for home remittances, but it also started received amounts for remittance in foreign currencies.
Mr. S. M. Zafar, learned Sr. ASC for the petitioner after taking us through the various entries pertaining to remittance inwards and outwards of the country, heavily relied upon the certificate issued by M/s. Atta Ullah & CO. Chartered Accountants, Lahore and argued that a sum of Rs. 80.00 million was found as cash paid to the CEO / petitioner on 24.2.2009, but the same was subsequently received back by the Company on seven different dates (viz from 27th February 2009 to 26th March 2009) and a sum of Rs. 6.187 million about which it was alleged that it was not found as remitted abroad but was paid to the Pakistan Telecommunication Authority. The arguments advanced by the learned counsel show that the allegation of sufficiency of the huge amount by the Petitioner is without any basis. The learned Counsel however, while concluding his arguments, expressed regret on behalf of the Petitioner for the difficulties faced by the general public, not receiving their remittance outside Pakistan and stated that this was on account of the investigation undertaken by the Federal Investigation Agency. It was further stated that a substantial portion of the said claim has been adjusted by the order of the Lahore High Court from the sum security amount lying with the State Bank of Pakistan. Learned counsel stated that the outstanding amount pertaining to the owner to whom the franchise was given are allowed to establish booths, the petitioner will pay the amount at his earliest, but at present the petitioner's company is out of business and it is not possible for him to meet the liabilities. The company is a verge of partial winding up. It was further contended that even otherwise it is a dispute between the two private persons and can be death between the parties.
On the other hand Mr. Azam Nazir Tarar, ASC/ Special Public Prosecutor, and FIA for the respondents argued that after receiving the information about the flight in capital from the country, the State Bank of Pakistan wrote letters to FIA to look into the matter some time in February, 2009. The Federal Investigation Agency probed into the matter and collected the information with the assistance of an expert in the field and came to the conclusion on the basis of the material collected that the petitioner was involved in an offence tribe under Section 23 of the Foreign Exchange Regulation Act 1947, as well as under Sections 409, 420, 468, 471 & 109 PPC. Action was thus taken against the petitioner. The Learned counsel argued that as per instructions, the petitioner is/was required to hold at least 15% of the foreign remittance received by him so as to have a support of the foreign exchange of the Government of Pakistan, but in contravention of the said rules, the petitioner remitted foreign currency over and above in land remittance by different modes. In this regard, the learned Counsel drew our attention to the statement placed on record and argued, that from July 2006 to June 2009 the total remittance was Rs. 63.83 billion as against which outwards remittance was Rs. 71.46 billion. The Learned counsel argued that instead of having dealt through the proper channel, the petitioner company involved in Hundi/Hawala and transacted the amount in and outside Pakistan without proper documentation. In support of his contentions he drew our attention to various documents on record particularly some telex messages showing that the petitioners were using issued cheques which they received from their associate company. After receiving the amount from their customers, instead of reporting the matter to the State Bank of Pakistan, they issued the cheques so that they could calculate the amount outside Pakistan and likewise in Pakistan. He further contended via various documents placed on record that it is a code word used by the dealers dealing with the business of foreign currency that instead of remitting the foreign currency, they received the amount paid by their customers outside Pakistan and on the telephone instructed their counterpart in Pakistan to pay the amount to the concerned persons in Pakistani Currency. The Learned counsel further stated that as per the instructions of the State Bank of Pakistan to avoid money laundering and to remit foreign currency, any money dealer is required to report all the matters pertaining to remittances of an amount over and above US $ 50,000. The petitioner bifurcated the amount like US$ 50,000 into US$ 40,000 and 20,000 respectively and remitted the same outside Pakistan to cover his fraud and illegal activity. The Petitioner used CNIC cards of their customers without their knowledge. The Learned counsel in support of his contentions relied upon the statement recorded during the investigation of one Sardar Muhammad Farid, Advocate who categorically denied that at any time he remitted an amount to China and stated that a copy of the CNIC was given to the Petitioner while receiving the amount remitted to him by his close relative from America and Canada, and the same was used by the petitioner company. It was argued by the learned Counsel that by splitting the amount for the purpose of using the same by trader the petitioner has given loss to Government of Pakistan in the shape of sales tax and customs tax. It was further argued by the learned Counsel that the petitioner was doing business under the license issued by the State Bank of Pakistan. He further contended that the petition not only misappropriated a huge amount of their customers franchised, but also violated Rules and Regulations framed from time to time by the State Bank of Pakistan.
We have taken into consideration the arguments advanced by the learned Counsel for the parties and have carefully perused the record.
From the perusal of various documents on record, it appears that the petitioners being owner of ZARCO Exchange Company (Pvt) Limited (ZECPL), holding 99.99 shares in it, and having, all material times, absolute control over the affairs of the Company. After having obtained the information that some companies dealing in Foreign Currencies are involved in illegal business of Hundi/Hawala through different methods, and after having noted that this was in violation of the State Bank of Pakistan rules/regulations in foreign exchange Government of Pakistan. The SBP asked FIA to look into the matters sometime in February 2008. The FIA after the investigation, collected various documents, recorded statements of various persons/customers of money dealer, came to the conclusion that the petitioners were found to be involved in the illegal business of Hundi/Hawala. A lump sum amount of Rs. 71.48 billion was sent outside Pakistan, as against 67.83 billion remittances inside the country in violation of the SBP rules and regulations. The FIA also brought this information to the notice of SBP through their letter dated 27th May 2009. The SBP being an authority and expert in the subject of Foreign Exchange Dealing and also confirmed a violation of its rules and regulations through the letter dated 4th August, 2009.
We have gone through various documents placed on record by the petitioners, as well as by the respondents. From the perusal of the documents, tentatively we are of the view that the petitioners apparently not only violated the rules/regulations of the SBP while dealing with the inwards and outwards of foreign currency but were also prima facie involved in scuffing of foreign currencies from Pakistan. The petitioners were required to withhold at least 15% of the foreign currency remittance and the balance amount could be remitted outside the country, but apparently instead of keeping of 15% amount of foreign currencies, the petitioners remitted an amount much more than that remitted inward, outside Pakistan.
We have taken into consideration the arguments advanced by the learned Counsel for the parties and have carefully perused the record. From the summary of statement of the inward and outward remittances from July 2009 to June 2009, which was retrieved from the computer circular of the petitioners it appears that a sum of Rs. 63.83 billions was remitted inside Pakistan, whereas the petitioners remitted about Rs 7.46 billions outward Pakistan, which is not only against the rules and regulations of SBP but also adversely effected the foreign reservation of the Government of Pakistan, thus de-stabilized the economy of the country.
From the summary of statement of the inward and outward from July 2006 to June 2009, retrieved from the server of the petitioner's computer, it appears that a sum of Rs. 63.83 billion was remitted inside Pakistan whereas petitioners remitted about Rs. 71.46 billion outward Pakistan, which is not only against the rules and regulations of SBP, but also adversely effected foreign reserves of the Government of Pakistan and so de-stabilized the economy of the country.
Mr. S. M. Zafar, learned Sr. ASC having relied upon a certificate issued by the Chartered Accountant, to show that the allegation of a fuzzed foreign exchange is without any basis. From the record, it appears that the certificate of the Chartered Accountant dated 12.12.2009 was not produced before the investigating agency nor before the trial Court or the High Court, and since presented for the first time, we would not like to rely upon it at this stage, while deciding the question whether the trial Court rightly declined bail to the petitioner or not.
The respondents have brought for the record in the form of retrieved e-mails, from perusal of which, it appears that money was takenout from Pakistan instead of through banking channel, but through other modes, like hawala, etc. The State Bank of Pakistan in response to a letter of FIA, confirmed that the company ledgers reflect that prima facie Rs. 422 million was diverted from Zarco in favour of the petitioner during the period of November 2006 to May 2009, which is against the rules and regulations of SBP.
The question of granting or refusing bail depends upon particular circumstances of each case. The discretion of grant or refusal of bail under Section 497 must be exercised on judicial principle. Bail is always under the discretion of the Court and this discretion is necessarily to be exercised upon the facts and circumstances of each case according to sound judicial principle. The nature of the offence and the overall attending circumstances, which promoted it to Court to grant on refuse a bail in non-bailable offence. Section 409 PPC provides mischief prohibition contained in sub-section (1) of Section 497 Cr.P.C., therefore, the power to grant bail is remitted to the conditions laid down in the exceptional clause and provision thereto.
We are not likely to make any comments on the authenticity of the documents placed on record, as at the first instance it is for the Trial Court after recording of evidence to determine the authority of the same, Court had only to see whether accused was connected with the commission of crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation of evidence and circumstances appearing in the case were neither desirable nor permissible at bail stage.
The case of Collector of Custom, Collectorate of Customs Rawalpindi v. Khyd-e-Noor and others, 2006 SCMR 1609, while dealing with the question of foreign currencies being smuggled to China from Islamabad, the Customs authorities conducted a raid and recovered US Dollars from different persons more than US $ 10,000 in each case. The High Court set aside the conviction/sentences awarded to the accused persons, against which leave was granted to examine the question of interpretation of the amended Section 4 of the Protection of Economic Reforms Act 1992. Whilst setting aside the judgment of the High Court, it was observed that:
"This aspect of the case can also be looked into from another angle i.e. no doubt that under the Act, 1992 certain facilities have been given for the purpose of development and promotion of the economic activities in the country but simultaneously , it is also be checked that the foreign currency is not moved out unauthorizedly otherwise it would promote the office of money laundering, as well as and as a result whereof public exchequer would be effected badly and its ultimate result has to be borne by the common man."
"It is not a case wherein such discretion is to be exercised, against such person, who being a Banker having custodian of public proper, dared to cause toss to it with the connivance/assistance of another outsider."
In the instant case the petitioners are holding a license from SBP to deal with the money exchange business and was not only violated rules and regulations of SBP but apparently also acted against the interests of the country by scuffing huge amounts of foreign exchange We are of the view that the discretion to grant bail cannot be exercised in favour of the petitioners. The petition has no merits and is accordingly dismissed. Leave to appeal is refused.
However, we direct the Trial Court to expedite the proceedings and if possible, to conclude the trial within a period of six months, keeping in view the judicial policy framed by this Court.
(A.A.) Petition dismissed.
PLJ 2010 SC 840 [Appellate Jurisdiction]
Present: Javed Iqbal & Muhammad Sair Ali, JJ.
SECRETARY LOCAL GOVERNMENT AND RURAL DEVELOPMENT, GOVERNMENT OF PUNJAB, LAHORE and another--Petitioner
versus
AHMED YAR KHAN--Respondent
Civil Appeal No. 2142 of 2006, decided on 2.11.2009.
(On appeal from the judgment dated 8-5-2004 passed by Punjab Service Tribunal, Lahore in Appeal No. 4 of 2004)
Administration of Justice--
----Having once been punished as a result of disciplinary proceedings initiated against him cannot be punished again by any other authority under a different law--Held: No one would be punished or put in peril twice for the same matter. [P. 843] A
Administration of Justice--
----Appellate Authority, power of--Appellate Authority can differ with the report of the Inquiry Officer but it is mandatory that some reasoning must be given for not concurring with the inquiry report--Appeal dismissed. [P. 844] B
Limitation--
----Question of--Jurisdictional domain of service tribunal--Sufficiency of cause for condonation of delay being question of fact is within exclusive jurisdictional domain of Service Tribunal and once a discretion condoning the delay has been exercised by Service Tribunal, it can neither be interfered with nor disturbed by Supreme Court. [P. 845] C
Dr. Mohy-ud-Din Qazi, ASC for Appellants.
Mr. Hafiz Tariq Naseem, ASC for Respondent.
Date of hearing: 2.11.2009.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against judgment dated 8.5.2004 passed by the Punjab Service Tribunal, Lahore whereby the appeal preferred on behalf of respondent has been accepted.
(i) Whether the respondent could be dealt with under the Punjab Local Councils (Audit) Rules, 1981 simultaneously or subsequently to the disciplinary proceedings taken under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000; and
(ii) Whether the penalty of recovery of Rs.3,71,836/- was justifiable in the facts and circumstances of the case."
"Now, therefore, you Mr. Ahmad Yar Khan, formerly EAC/Administrator, Town Committee, Zahirpir now EAC, Haroonabad hereby charge sheeted as under:--
(i) That as per Auction of Octroi contract for the year 1998-99 of Town Committee, Zahirpir auctioned to the extent of Rs.25,00,000/- but you awarded/managed to award the said contract to the Contractor for amounting to Rs.17,00,000/- due to this the Town Committee, Zahirpir sustained a loss of Rs. 8,00,000/-
(ii) That you failed to produce the relevant record of Contract of Octroi for the year 1998-99 while enquiring the matter by the Assistant Commissioner, Khanpur."
The respondent denied the charges, however, as a result of disciplinary proceedings initiated against him under the Punjab Removal from Service (Special Powers) Ordinance, 2000, minor penalty of censure was awarded by the Competent Authority under Section 3(1) (e) of the Punjab Removal from Service (Special Powers) Ordinance, 2000 read with the Punjab Removal from Service (Special Powers) (Amendment) Ordinance, 2001. The penalty of censure was not challenged by the respondent. Pursuant to the inquiry report dated 6.6.2001 of the Divisional Director Local Fund Audit held under Rule 27 of the Punjab Local Councils (Audit) Rules, 1981, the respondent was held responsible for the loss occurred to the Town Committee Zahirpir and a penalty of Rs.3,71,836/- was imposed upon the respondent as well as to the Chief Officer due to their negligence with the direction to make the payment within 30 days otherwise the amount was to be recovered as arrears of land revenue.
Dr. Mohy-ud-Din Qazi, learned ASC entered appearance on behalf of the Secretary Local Government (petitioner) and contended that the appeal filed by the respondent being barred by time should not have been entertained by the Punjab Service Tribunal. It is argued that without assigning any reason the appeal has been accepted without adverting to the point of limitation causing serious prejudice against the petitioner. It is next contended that the provisions as enumerated in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, Section 403 Cr.P.C. and Section 11 CPC have been misinterpreted and misconstrued as the above provisions of law could not have been made applicable in the case which was initiated and finalized under the Punjab Removal from Service (Special Powers) Ordinance, 2000. It is also contended that no bar whatsoever has been imposed for initiation of criminal proceedings simultaneously besides the disciplinary proceedings under the relevant law which distinction could not be appreciated by the learned Service Tribunal. It is next contended that the surcharge amount was determined by the Competent Authority as envisaged under Section 135 of the Punjab Local Government Ordinance, 1979 read with Rule 27 of the Punjab Local Councils (Audit) Rules, 1981 duly saved under Section 196(2) of the Punjab Local Government Ordinance, 2001. It is also contended that no relief could have been given to the respondent as the judgment impugned is not sustainable on the touched stone of justice, equity and public interest.
Hafiz Tariq Naseem, learned ASC appeared on behalf of respondent and controverted the view point vehemently as canvassed at bar by Dr. Mohy-ud-Din, learned ASC for the petitioner with the submission that the judgment impugned being well based does not warrant interference and besides that no question of law of public importance is involved in the matter. It is next contended that the penalty imposed on the respondent amounts to double jeopardy as no action could have been taken against the respondent under Section 135 of the Punjab Local Government Ordinance, 1979 read with Rule 27 of the Punjab Local Councils (Audit) Rules, 1981 irrespective of the fact whether it has been saved under Section 196(2) of the Punjab Local Government Ordinance, 2001 or otherwise. It is further argued that the imposition of penalty is not in consonance with the provisions as enumerated in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, Section 403 Cr.P.C. and Section 11 CPC after the initiation of action under the Punjab Removal from Service (Special Powers) Ordinance, 2000 and imposition of minor penalty. According to Hafiz Tariq Naseem, learned ASC it was a past and closed transaction which cannot be re-opened by the Divisional Director Local Fund Audit in view of the bar as provided under Section 11 of the Punjab Removal from Service (Special Powers) Ordinance, 2000.
We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire record with the eminent assistance of learned counsel and perused the judgment impugned vigilantly. The pivotal question which needs determination would be that the respondent having already been punished as a result of disciplinary proceedings initiated against him under the Punjab Removal from Service (Special Powers) Ordinance, 2000 by the
Competent Authority by means of order dated 26.1.2002 can be punished again by any other Authority for the same charge but under a different law? The answer would be in negative. It is well entrenched legal proposition rather a principle of universal application envisaged in the provisions enumerated in
Article 13 of the Constitution of the Islamic Republic of Pakistan, Section 403
Cr.P.C, Section 11 CPC and in the ancient maxim nemo debet bis vexari pro eadem causa' (no person should be twice disturbed for the same cause) and the common law principle of the well known pleas ofautre fois acquit' (formerly acquitted) and `autre fois convict' (formerly convicted), which mean that no one shall be punished or put in peril twice for the same matter. (Essa Noori v. Deputy
Commissioner PLD 1979 Quetta 188, Ramkrishna v. State 1956 Cri. L Jour 1073, Purnananda Das Gupta v. Emperor
AIR 1939 Cal.
65, Yeok Kuk v. Emperor AIR 1928 Rang. 252, Saifuddin E. Contractor v. State 1979 PCr. L. J. 258, Sunderlal Bhagaji v. State AIR 1954 Madh B 129, Srinivasulu v. P.V Subbamma 1959 Cr. L. Jour 1137, T. Bangarappa v. Ranganatha Rao
AIR 1953 Mys. 64). It is well established by now that no person can be punished twice for the same offence. As mentioned herein above that as a result of disciplinary proceedings minor penalty of censure was imposed under Section 3(1) (e) of the Punjab Removal from Service (Special Powers) Ordinance, 2000 and the Punjab Removal from Service (Special Powers) (Amendment) Ordinance, 2001 upon the respondent by means of order dated 26.1.2002 and the amount in question could have been recovered by imposing penalty under the relevant provisions of the Punjab Removal from Service (Special Powers) Ordinance, 2000 which was not done for the reasons best known to the Competent Authority. In our view, it would be too late in the day to initiate fresh action under the garb of
"surcharge" or any other provision of the Punjab Local Councils
(Audit) Rules, 1981. It may not be out of place to mention here that when action was initiated under the provisions as enumerated under Rule 27 of the
Punjab Local Councils (Audit) Rules, 1981 and inquiry was got conducted through
Inquiry Officer, the respondent was exonerated from all the charges as a result of inquiry but the Appellate Authority did not agree without assigning any reason which aspect of the matter requires consideration. The Appellate
Authority can differ with the report of the Inquiry Officer but it is mandatory that some reasoning must be given for not concurring with the inquiry report.
We are of the considered opinion that any proceeding other than those mentioned in Section 11 of the Punjab Removal from Service (Special Powers) Ordinance, 2000 cannot be initiated. The learned Service Tribunal has dilated upon the said issue in a comprehensive manner in the judgment impugned which is reproduced herein below for ready reference:--
"7. The last point urged by the learned counsel for the appellant has also lot of weight. Section 11 of the Punjab Removal from Service (Special Powers) Ordinance 2000 reads as under:--
"The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Punjab Civil Servants Act, 1974 (VIII of 1974) and the rules made there-under and any other law for time being in force."
"The provision of law slams absolute bar and amounts to a non-obstinate clause rendering subservient, anything, contained in the Act, if it is in direct conflict to the provisions of the Ordinance. Section 3 of the Ordinance read with Section 11 makes it more than clear that every act of misconduct or inefficiency by a civil servant shall be dealt with under the provisions of the Ordinance and if after inquiry, which may be dispensed with in certain cases by giving reasons, a civil servant who is found guilty shall be punished with a major or minor penalty. Any other law including the Act and the rules made thereunder if it endeavours to assume to itself the powers to punish a civil servant for misconduct or inefficiency it shall forthwith be rendered nugatory by the provisions of Section 11 of the Ordinance enabling the provisions of Section 3 ibid to enjoy superiority. As observed in the preceding paragraphs of this judgment the show cause notice issued in this appeal contains allegations of misconduct and inefficiency. These allegations could only be probed and dealt with under the provisions of the Ordinance by virtue of Section 11 of the Ordinance for the reason that Section 3 of the Ordinance also deals with the penalties to be imposed on a civil servant in case of misconduct and inefficiency. A manifest conflict appears on the surface between the provisions of the Ordinance and the show cause notice and by virtue of Section 11 of the Ordinance, at the cost of repetition, the provisions of the Ordinance relating to removal from service of a civil servant as embodied in Section 3 of the Ordinance shall over-ride the provisions of Section 12(i) of the Act."
We have also dilated upon the question of limitation. It is well settled by now that sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdictional domain of learned Service Tribunal and once a discretion condoning the delay has been exercised by the learned Service Tribunal, it can neither be interfered with nor disturbed by this Court. In this regard we are fortified by the dictum laid down in cases titled Ali Hassan Rizvi v. Islamic Republic of Pak. (1986 SCMR 1086), Muhammad Azhaar Khan v. Service Tribunal, Islamabad (1976 SCMR 262), Yousaf Khan Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar (1976 SCMR 268), WAPDA v. Abdul Rashid Dar (1990 SCMR 1513), Sher Bahadur v. Govt. of NWFP (1990 SCMR 1519), Zahida v. Deputy Director (1990 SCMR 1504).
We are conscious of the fact the simultaneous action under the Disciplinary Rules and Criminal Law can be initiated subject to certain legal exceptions but in view of the peculiar circumstances of the case simultaneous action cannot be initiated against the respondent as pressed time and again by the learned ASC on behalf of petitioner for the reason that action against the respondent has already been finalized and penalty imposed under the Punjab Removal from Service (Special Powers) Ordinance, 2000 has attained finality. The recovery could have been made by the Competent Authority i.e. Chief Secretary but only minor penalty was imposed probably for the reason that the respondent has been exonerated by the Inquiry Officer qua the alleged loss suffered due to Octroi Contract for the year 1998-99 of Town Committee, Zahirpir allegedly executed by the respondent.
In view of what has been discussed herein above, the judgment impugned being well based does not warrant interference. The appeal being devoid of merit is dismissed.
(A.A.) Appeal dismissed.
PLJ 2010 SC 846 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
GHULAM MURTAZA--Appellant
versus
Mst. ASIA BIBI and others--Respondent
Civil Appeals No. 1378, 1379 and 1380 of 2006, decided on 21.10.2009.
(On appeal from judgment of Lahore High Court dated 17-5-2004 passed in CRs No 1975, 2217 & 1974 of 2002 respectively.)
Benami Transaction--
----Meaning of--A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of another--These are transactions where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without the intention that the title shall so vest permanently--If such motive is available and is also reasonable and plausible, a transaction can be held as benami, otherwise not--Appeals dismissed. [P. 848] A & B
Revisional Jurisdiction--
----Concurrent findings--Litigation ensued regarding properties purchased during subsistence of wedlock--Claiming exclusive title to the properties on the ground that the wife, in transactions was a mere benami and husband was real owner having paid entire amount of consideration--Ingredients of benami transaction had not been proved--Validity--Even if the husband had proved himself to be source of consideration, yet no transaction could have been set aside if made with positive intention of transferring or conferring title to other beneficiary--Held: When husband and wife were amicably living, no one can turn around subsequently to claim exclusive title when relations becomes strained and the spouses fall apart--If the amount had been paid by husband which it is not proved yet he could not have turned around to claim that the wife was a benami beneficiary. [P. 849] C & D
Mian Atta-ur-Rehman, AOR for Appellant.
Mian Israr-ul-Haq, ASC for Respondents.
Date of hearing: 21.10.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Ghulam Murtaza son of Mehr Habib, with leave of the Court, has filed these appeals against the judgment dated 17.5.2004 of a learned Judge in chambers of Lahore High Court, whereby, exercising revisional jurisdiction, the learned Judge had set aside the concurrent findings of two Courts below in favour of the appellant and had dismissed his two suits decreeing the third one of Mst. Asia against him.
All the appeals involving same questions of law and fact are taken up together. The relevant background is to the effect that appellant Ghulam Murtaza and Asia Bibi, were husband and wife. They fell apart whereafter the present litigation ensued regarding properties purchased during the subsistence of the wedlock.
Through a registered sale deed dated 28.6.1989, Ex.P-7/2 (P:185), both Ghulam Murtaza and Asia Bibi had purchased property measuring four marlas 25 sq.ft. from one Haji Muhammad Sharif. Similarly another property measuring four marlas 98 sq.ft. was purchased in the name of husband and wife from one Masood Ahmed vide registered sale deed dated 20.3.1985, Ex.P-7/1 (P:181). Through another registered sale deed dated 20.12.1992, Ex.P-7/16 (P:224), the husband Ghulam Murtaza sold the same in favour of his wife Asia Bibi for a sum of Rs.80,000/-
After separation, Mst. Asia Bibi brought a suit on 12.5.1993, claiming her title to the properties purchased as aforesaid. As a counter blast, the husband Ghulam Murtaza also brought two suits on 26.6.1993 and 3.7.1993 claiming exclusive title to the aforesaid properties on the ground that the wife, in disputed transactions, was a mere benami and husband was the real owner having paid the entire amount of consideration. All the three suits were consolidated. The learned trial Court vide judgment and decree dated 22.5.2001, decreed both the suits of husband and dismissed that of the wife. The three appeals filed by the wife were also dismissed by the learned District Judge vide judgment dated 3.8.2002. The same decisions were, however, upset by the High Court as aforesaid.
The learned Judge in chambers of Lahore High Court has minutely appreciated the entire evidence, oral as well as documentary and thereafter proceeded to disagree with both the learned Courts holding that the evidence on record was seriously non-read as well as misread. That the learned Additional District Judge never applied his own mind and wrote a judgment that happened to be a verbatim copy of the judgment of the trial Court. In the given conditions, we have also minutely gone through the evidence on record produced by both the parties and hold that it was rightly appreciated by the learned High Court.
The evidence aforesaid was appreciated in the light of the judgment of this Court in case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), wherein a criteria was given in order to check as to whether some transaction was benami in character or not. It included the (i) source of consideration; (ii) from whose custody the original title deed came; and (iii) who is in possession and (iv) motive for benami transaction. From the detailed appreciation of evidence, we are led to observe that both the husband and wife claim to have worked in Saudi Arabia. The husband could not tell the exact nature of job while the wife, during her total stay of six years, had earned a lot through the job of independent stitching. Regarding the sending of money to Pakistan or keeping that mount in their specific account, the evidence of both is at par and not very conclusive. The payment of amount of consideration exclusively by the husband was not proved though the initial burden lay upon him. On the other hand, the payment of Rs.80,000/- before the Registrar at the time of attestation of deed (Ex.P-7/16) by the wife is sufficiently proved. It is also on record that the shops in question are managed and tenants are dealt with by the wife. Resultantly, we hold that the learned High Court has rightly appreciated the evidence and has rightly differed with the concurrent findings of two Courts, which as said earlier, is practically the finding of only one Court. We have no reasons to differ.
At this juncture, we may clarify that the motive part in the benami transactions is the most important one. A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own sources for his minor son or daughter keeping in mind that the property shall vest in the minor. Such transaction subsequently cannot be challenged by the father as benami simply because the amount was paid by him. There are people who, with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that other.
As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without the intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with ones own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the named vendee, it would shatter the most honest and bonafide transactions thereby bringing no end to litigation.
In the instant case, we have already held that the ingredients of a benami transaction have not been proved by the husband in all the three transactions. Still, we are of the view that even if the husband had proved himself to be the source of consideration, yet no transaction could have been set aside if made with positive intention of transferring or conferring title to the other beneficiary. We also hold that while purchasing property from Haji Muhammad Sharif vide deed dated 28.6.1989, the positive intention was that Asia Bibi should be a bonafide co-vendee or co-owner. Same is the case of the other transaction vide deed dated 20.3.1985 (Ex.P-7/1), whereby both husband and wife had purchased the same from Masood Ahmed. At one time the husband came out with reason that name of his wife was entered merely to please her. Here comes the principle of bonafides, goodwill and sanctities attached to a transaction. Once having done so, when the husband and wife were amicably living, no one can turn around subsequently to claim exclusive title when the relations become strained and the spouses fall apart. We, therefore, hold in the instant case that even if the amount had been paid by the husband (which it is not proved) yet he could not have turned around to claim that the wife was a benami beneficiary.
Consequent upon what has been discussed above, we find no merit in the appeals which are hereby dismissed.
(A.A.) Appeals dismissed.
PLJ 2010 SC 849 [Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk & Anwar Zaheer Jamali, JJ.
MUHAMMAD AHMED and others--Appellants
versus
STATE--Respondent
Criminal Appeals No. 860 and 861 of 2006, decided on 1.10.2009.
(On appeal from the judgment dated 6-7-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No 895 of 2002 and Murder Reference No 55-T of 2002).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 2(e) Evidence--Ocular testimony--Value of--Ocular testimony could not be thrown out merely because there was background of enmity with the convict--However test for accepting the same is that there are establishing circumstances regarding their presence at place of occurrence at the relevant time and whether they could have witnessed the occurrence and that they were in a position to identify the culprits and that the number of culprits described by them could be accepted as dependable. [P. 861] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Qatl-e-Amd--Lesser penalty when to be awarded--Only when circumstances that led to the murder or the manner in which the crime had got committed invoked some sympathy for the convict.
[P. 864] B
Administration of Justice--
----Essentials of admissibility of evidence--Exception--Opinions only of experts and that also on a point of foreign law or of science, or art, or as to the identity of handwriting or finger impressions--Appeal dismissed. [Pp. 864 & 865] C
Sovereign Power of Courts--
----Scope of--Determination of guilt or innocence of the accused--If an accused person could be let off or acquitted only because Investigating Officer was of the opinion that such an accused person was innocent then why could not on the same principle, another accused person be hanged to death only because the investigating officer had opined about his guilt. [P. 865] D
Sardar Muhammad Ishaq Khan, Sr. ASC for Appellants (in Cr. A. 860/2006).
Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Appellants (in Cr. A. 861/2006).
Raja Abdul Rehman, ASC for Complainant.
Syed Ali Imran, DPG for State.
Malik Waheed Anjum, ASC a/w Mr. Fida Hussain, DSP & Mr. Ahmed Ali, Inspector (Rtd.) on Court's Notice.
Dates of hearing: 29 & 30.9.2009, 1.10.2009.
Judgment
Khalil-ur-Rehman Ramday, J.--In the occurrence which is the subject matter of these appeals, filed through leave of this Court, eight persons were murdered while two others had also been assaulted who had received fire-arm injuries but had survived. Ten persons, accused of the commission of the said crime, were found guilty of the same and were punished with death under Section 302(b) of the PPC read with Section 149 of the said Code, on eight counts, besides imposition of some other punishments under Section 148 PPC and Section 324/149 of the Pakistan Penal Code.
It is admitted on all sides that the episode commenced at about 5:00 a.m. on 9.1.1997 when Fida Hussain, Inspector and Ahmed Ali, S.I. (PW.22) raided village Mir Muhammad and arrested eight persons of the complainant-party out of whom six are the deceased persons of the present case while two others, namely, Ghulam Nabi complainant (PW.9) and Master Asghar (PW.8) are the injured witnesses of the said occurrence. Five persons of the present convict-party and four others, apparently not connected with these two parties, out of whom Khizar and Asim also got killed in the present occurrence, were also arrested. The said arrests of these persons and of some others had been made under Section 107 read with Section 151 of the Cr.P.C. allegedly on account of apprehension of breach of peace on their part. It may be mentioned here that one Abdul Rehman, who was a brother of Ayyaz and Pervaiz convict-appellants before us, had been murdered on 23.9.1996 i.e. about four months prior to the present occurrence with respect to which murder the said Ayyaz appellant had lodged an F.I.R. accusing Akbar deceased and Abdullah deceased of the present case and some others of the complainant-party, of the commission of the said murder which had led to the tension between the parties and the said apprehensions.
All these persons arrested in pursuance of the said preventive proceedings, were taken to Police Station Raja Jhang. It was the prosecution case that a brother of the above-mentioned Ayyaz and Pervaiz appellants namely, Khalid Bhatti and one Hafeez Ahmed came to the Police Station at about 7:30 a.m. on the said day and requested the S.H.O. to release the said Ayyaz and Pervaiz appellants. According to the two injured eye-witnesses, Fida Hussain, Inspector/S.H.O. obliged and had released the said two appellants and had even returned the fire-arm weapons to them which had been recovered from them at the time of their arrest in the above-mentioned raid. The claim of Ahmed Ali, S.I. (PW.22), however, was that the said Hafeez and Khalid had come and had met the S.H.O. with the said request but the S.H.O. had refused to oblige. It may be added here that the said Khalid Bhatti and Hafeez had also been cited as accused persons of the present case but had got murdered during the course of the trial.
It is also admitted on all sides that at about 12:30 p.m. the same day, all these arrested persons were taken to the Courts at Kasur for their production before the competent Magistrate. All of them except Ayyaz, Pervaiz, Rauf and Mahmood appellants and one Bashir (who absconded and is a Proclaimed Offender) were put in a DALLA (a pick-up used for transportation of goods) with three constables including Mehr Ali Shah, H.C. (CW.1) sitting on the front seat alongwith the driver which vehicle had then left for Kasur. According to the two injured eye-witnesses Rauf appellant, Mahmood appellant and Bashir P.O. were put in a private taxi car with Ahmed Ali, S.I. (PW.22) which followed the said DALLA. However, according to the said Ahmed Ali, S.I. (PW.22), Ayyaz and Pervaiz appellants had also been made to sit in the same taxi car and it was five of the said arrested persons alongwith him and the driver, making a total of seven persons, who were sitting in the said taxi.
It is further admitted on all sides that when the said DALLA reached near the Health Centre of Rao Khanwala, it was ambushed by the accused persons; that its driver tried to speed away but the assailants fired at the tyres of the said vehicle which got burst as a result of which the same stopped whereafter the assailants mounted an assault on the members of the complainant-party present in the DALLA which resulted in the death of six of them and in injuries to Ghulam Nabi complainant (PW.9) and Master Asghar (PW.8). It may be added that besides the above-mentioned six deceased persons, two others, namely, Khizar and Asim who were also being taken to the Court in the same DALLA, had also got killed in the said occurrence making a total of eight dead and two injured.
It was the case of the two injured witnesses that the culprits who had ambushed the said DALLA included Ayyaz and Pervaiz appellants who had, though been arrested in the morning raid but had subsequently been released by Fida Hussain Inspector/S.H.O. but according to Ahmed Ali, S.I. (PW.22), the said two were present in the taxi car with him. Again, according to the two injured witnesses, this taxi car which was following the DALLA had reached the place of occurrence while the attack was still in progress and the occupants of the same i.e. Rauf appellant, Mahmood appellant and Bashir P.O. had then also joined in the assault but according to Ahmed Ali, S.I. (PW.22) and Mehr Ali Shah, H.C. (CW. 1), this taxi car reached the spot after the occurrence was over.
When confronted with the prosecution case under Section 342 Cr.P.C, it was pleaded by the accused persons that five of them, namely, Ayyaz appellant, Pervaiz appellant, Rauf appellant, Mahmood appellant and Bashir P.O. were in the taxi car which had never reached the place of occurrence during the course of the assault and they had thus not participated in the same and further that the DALLA in question had been ambushed by some un-known persons and that none of the accused persons had anything to do with the said occurrence and further that they had been falsely implicated on account of the previous enmity between the parties.
Another feature of the case which needs to be mentioned at the outset is that the complainant-party had vehemently claimed, from the very beginning i.e. with the lodging of the F.I.R., that the crime in question had been committed by the convict-party in collusion with Fida Hussain, Inspector/S.H.O. and Ahmed Ali, S.I. who were then also arraigned as the accused persons of the present case. However, on an application submitted by them for their acquittal under Section 265-K of the Cr.P.C., the complainant-party had joined in the said request for their acquittal as a result whereof the said two were acquitted of the said charges and it was thereafter that Ahmed Ali, S.I. had entered the witness box as a prosecution witness.
Mr. Muhammad Akram Sheikh, the learned Sr. ASC representing the appellants except Rauf and Mahmood appellants, took us through the record and then canvassed acquittal for the said eight appellants on the ground that the three eye-witnesses including the two injured witnesses were inimical towards the appellants; that no corroboration was available to support the said interested testimony; that the said appellants had been maliciously implicated in the occurrence in question on account of the previous enmity between the parties especially the above-mentioned murder of Abdul Rehman who was a brother of Ayyaz and Pervaiz appellants; that the eye-sight of PW.9 was very weak who thus, could not have identified any of the assailants; that no reliance could be placed on the testimony of Ahmed Ali, S.I. (PW.22) as he was reciprocating the favour shown to them by the complainant side in securing acquittal for him; that the testimony of Mehr Ali Shah, H.C., (CW. 1) was also of no real assistance to the prosecution because he had admitted that he did not know the assailants and that in the circumstances, the said appellants deserved acquittal. He had pleaded, in the alternative that since the genesis of the occurrence in question was not known and since it was humanly impossible to establish as to which of the culprits had fired at whom, therefore, in such-like situations imposition of sentences of death would be against the principles of safe administration of justice. The learned counsel had also cited the following judgments in support of his case which judgments mentioned some principles which are too well known. The said cited cases are:--
"(i) PLD 1960 SC 387 at 390
(ii) 1998 SCMR 25 at 29
(iii) 1996 SCMR 1855 at 1857
(iv) 1995 SCMR 175 at 177
(v) 2001 SCMR 424 at 440 & 441 at 491
(vi) PLD 2003 SC 350 at 354
(vii) 1978 P.Cr.L.J. 490 at 496
(viii) 1984 SCMR 1069 at 1074"
Sardar Muhammad Ishaque, the learned Sr. ASC appearing for Rauf and Mahmood appellants in Criminal Appeal No. 860 of 2006 submitted that the said two appellants were real brothers inter se; that they were not the residents of village Mir Muhammad where the two parties resided and were in fact residents of Chak No. 100 of Tehsil Cheecha Watni of District Sahiwal which would be around 100 K.Ms., away from the place of occurrence; that the said two appellants were the real brothers of the wife of Ayyaz appellant; that it was a day prior to the present occurrence i.e. on 8.1.1997 that they had come to village Mir Muhammad to meet their sister; that the next morning a raid was conducted in the village in which they were also arrested as being present in the house of Ayyaz appellant; that at the time of occurrence, even according to the eye-witnesses, they were travelling in the taxi car which was following the DALLA, that the taxi car, according to Ahmed Ali, S.I. (PW.22) and Mehr Ali Shah, H.C. (CW.1), had never reached the place of occurrence while the said occurrence was still in progress; that the list of the accused persons appearing at the very beginning of the application (Ex.PH) which had been submitted by Ghulam Nabi complainant and which then formed the basis of the F.I.R. of the present case, the names of Rauf and Mahmood appellants had not been cited as the culprits; that the said two appellants were burdened only with an allegation of general indiscriminate firing; that no specific injury was ascribed to any of them and that in the circumstance the participation of the said two appellants in the occurrence in question was more than a doubtful affair who then deserved to be acquitted of the charges levelled against them.
We propose to take up, first, the case of Rauf and Mahmood appellants.
They were admittedly not the residents of village Mir Muhammad and would thus have no direct involvement in the enmity between the two parties. It is also a fact, not denied, that they were the brothers of the wife of Ayyaz appellant. It is their case, as noticed above, that they had come to village Mir Muhammad to meet their sister in the evening preceding the morning of the raid and had been arrested only because they happened to be present in the house of Ayyaz appellant. This explanation of the two appellants of their presence in village Mir Muhammad on the morning on 9.1.1997 and of their arrest at the time of the raid in question could not be said to be un-reasonable.
It is admitted even by the private eye-witnesses including the two injured witnesses, that these two appellants were in custody and were travelling in the taxi car which was following the DALLA. It was the case of Ahmed Ali, S.I. (PW.22) and Mehr Ali Shah, H.C. (CW. 1) that this taxi car had not reached the place of occurrence during the course of the occurrence in question. One may have some reservations about the testimony offered by Ahmed Ali, S.I. (PW.22) for more than one reasons but the evidence offered by Mehr Ali Shah, H.C. (CW. 1) who was travelling in the DALLA, rings true to some extent. It was the driver of the said taxi car who was in control of the said vehicle and was admittedly not a person involved in the designs of the appellant-party and it was then Ahmed Ali, S.I. (PW.22) travelling in the said taxi who would be otherwise in command of the same being the senior police officer escorting the said arrested persons. It is not reasonably believable that after noticing an attack on the DALLA wherein a fairly large number of persons armed with fire-arm weapons had mounted an assault on the occupants thereof, the said driver and the said Ahmed Ali, S.I. (PW.22) would decide to move in, risking their own lives. Even if it be presumed that the taxi car was not far behind the said DALLA, it is understandable that the moment the one in control and command of the said taxi car would witness the brutal and callous attack in the said DALLA, they would not pick-up the courage to come within the firing range of the fire-arm weapons being used in the said occurrence. Ahmed Ali, S.I. (PW.22) might well have been a party to the conspiracy for the elimination of the deceased persons, though the complainant-party had subsequently exonerated him of the said charge, yet he would not, in any case, like to risk his own life for the purpose. The site-plan (Ex.PE) also offers us significant indication that the said taxi car had never reached the place of occurrence during the continuance of the attack. A perusal of the said site-plan which had been prepared, inter alia, on the information and instructions provided by the three private eye-witnesses would reveal that while the DALLA in question had been shown at the point of occurrence, the said taxi car finds no mention at all in the said site-plan. Needless to say that if the said taxi, car had reached the place of occurrence and if the occupants thereof had joined the assault then the same should have been and would have been indicated in the said site-plan which had, however, not been done.
We have also gone through the application (Ex.PH) submitted by Ghulam Nabi complainant for the registration of the F.I.R. of the present case and although the names of the said two appellants appear in the body of the said application indicating that the complainant was cognizant of the presence of the said appellants amongst the arrested persons yet the omission of their names from the list of the accused persons in the opening part of the said application, was quite conspicuous.
As has been mentioned above, Rauf and Mahmood appellants were alleged to have reached the place of occurrence when the assault bad already commenced and as per the F.I.R. itself, they had joined the others after the fire-arm injuries already stood inflicted on the bodies of the victims thereof and it was then that the said two appellants were accused of having joined in the indiscriminate firing. It is significant to notice that while the other appellants had been saddled with specific injuries on the persons of the victims, no such injury had been ascribed to the said two appellants. The question whether any indiscriminate firing had been made at the said stage of the occurrence also deserves further examination. It is on record that besides the ten victims (eight dead and two surviving) Imran, Nazir, Hidayat Masih and Munir Masih were also sitting in the said DALLA alongwith the said victims while three constables including Mehr Ali Shah, H.C. (CW.1) and the driver were also available in the said vehicle. Needless to say that not even a scratch had got caused to the four arrested persons sitting alongwith the said ten victims and like-wise not even a scratch had got caused on the persons of the said constables and the driver of the DALLA. No marks of any bullets had been found on the body of the said DALLA except a broken windscreen. The blackening discovered around, some of the wounds of the victims; the availability of wads in the bodies of the said victims and the damage caused to the brain and faces of some of the deceased persons, is a clear pointer that most of the shots had been fired from a rather close range. This then appears to be a case of victim-specific and targeted killing and not a case of indiscriminate firing wherein the projectiles had been sprayed. This casts a rather serious doubt about any indiscriminate firing having been made during the course of the occurrence which doubts are further strengthened by the recovery of only seventeen crime empties from the place of occurrence. Needless to add that some of the crime empties had been found and collected from within the DALLA which indicates that some of the assailants would have climbed onto the part of the DALLA where the victims were sitting and it was from there that shots had been fired at the said victims.
What emerges from the examination of the available record is that at least Rauf and Mahmood appellants were admittedly travelling in the taxi car; that the reaching of the taxi car at the place of occurrence while the occurrence was still in progress was a more than doubtful claim and further that similarly doubtful was the prosecution allegation of any indiscriminate firing having been made by any of the assailants especially Rauf and Mahmood appellants.
Having so concluded, we find that, the present was not a case where it could be said that the prosecution had succeeded in proving the guilt of Mahmood and Rauf appellants beyond reasonable doubts. Consequently, Criminal Appeal No. 860 of 2006 filed by the said Muhammad Ahmed (Mahmood Ahmed) son of Sana Ullah and his brother Rauf Ahmed, is allowed as a result whereof the impugned conviction and punishments recorded against each one of them are set aside. They are acquitted of the charges levelled against them and shall be set at liberty forthwith, if not required to be detained in any other case.
This brings us to the case of the remaining eight appellants, namely, Ayyaz, Suleman, Rahim, Sarwar, Yahya, Nawaz alias Nikki, Younas and Pervaiz. The prosecution case against these appellants rests mainly on the testimony offered by the three private eye-witnesses, namely, the injured Master Ashgar (PW.8), the injured Ghulam Nabi complainant (PW.9) and Saeed (PW.10) and the eye-witness account offered by Ahmed Ali, S.I. (PW.22) and the statement of Mehr Ali Shah, H.C. (CW. 1).
Since we have found and held above that the taxi car of which Ahmed Ali S.I. (PW.22) was also one of the occupants, had never reached the place of occurrence during the course of the transaction in question and since we were also of the view that the said taxi car could not have come within the firing range, therefore, any reliance on the testimony of Ahmed Ali, S.I. (PW.22), at least to the extent of identification of the culprits and the witnessing of the firing of shots by the assailants, would be un-safe. Mehr Ali Shah, H.C. (CW. 1) was another eye-witness of the occurrence as he was travelling in the `DALLA' escorting the fourteen persons being taken to the Court at Kasur. He had, however, declared at the very outset that he did not know the assailants and that their names had been told to him later on by Rasheed Inspector. No test identification parade had been organized which could have given the Courts some clue whether, according to him, the accused under trial were or were not the ones who had mounted the assault. Therefore, his testimony, to the extent of identification of the assailants, is also of no real assistance.
This leaves us with the statements of the two injured witnesses and of Saeed (PW.10). The said PW.10 was closely related to some of the deceased persons. His explanation for his presence at the place of occurrence was that in the morning of the day of occurrence he had gone to Rao Khanwala in connection with some un-specified work; that at about 1:00 p.m. he happened to be standing on the Rao Khanwala road for returning home when he heard the report of fire-arm weapons originating from near the Health Centre of Rao Khanwala; that he rushed to the spot and saw the accused persons, identified and specified by him, firing at the deceased persons. He is thus admittedly a chance witness of the occurrence in question with no reasonable explanation for his availability at the place of occurrence at the relevant time. The evidence emanating from him could, therefore, be taken only with a pinch of salt.
The success or failure of the prosecution case then rests essentially on the acceptance or rejection of the testimony offered by the two remaining above-mentioned eye-witnesses, namely, Master Asghar (PW.8) and Ghulam Nabi complainant (PW.9). The obvious objection to the acceptance of their testimony is that they were admittedly interested witnesses who were inimical towards the convict-party being locked up in a blood feud with them.
The treatment deserved by such-like inimical testimony has been confronting the superior Courts rather frequently. And the following is how the superior Courts responded to the said situation:--
"Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused, without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, THEIR EVIDENCE MAY, IN THE ABSENCE OF ANYTHING MAKING IT UNSAFE TO DO SO, BE ACCEPTED WITHOUT CORROBORATION, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up this plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt."
(emphasis and under-lining has been supplied)
NIAZ VS. THE STATE (PLD 1960 SC (PAK.) 387)
The law laid down by this Court in Niaz's Case supra was further explained by this Court in the case of Nazir and others vs. The State (PLD 1962 SC 269) in the following terms:--
"By what we said in Niaz v. The State ........ WE HAD NO INTENTION OF LAYING DOWN AN INFLEXIBLE RULE THAT THE STATEMENT OF AN INTERESTED WITNESS (by which expression is meant a witness who has a motive for falsely implicating an accused person) CAN NEVER BE ACCEPTED WITHOUT CORROBORATION. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
(emphasis and under-lining has been supplied)
The matter was again examined in the case of Abdur Rashid vs. Umid All and 2 others (PLD 1975 SC 227) and what was held by this Court was:--
"It may be mentioned in this context that ALTHOUGH AS A RULE OF PRUDENCE, THE COURTS HAVE MORE OFTEN THAN NOT INSISTED ON INDEPENDENT CORROBORATION BEFORE PLACING RELIANCE ON THE TESTIMONY OF INTERESTED WITNESSES YET IT IS NOT AN INLEXIBLE RULE TO BE RIGIDLY AND UNEXCEPTIONALLY APPLIED. There might be cases in which the witnesses related to the deceased might be otherwise, quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence, EVEN THEIR UNCORROBORATED TESTIMONY MAY BE IMPLICITLY RELIED UPON OF COURSE IN THE CONTEXT OF OTHER RELEVANT CIRCUMSTANCES OF EACH CASE. Reference may be made in this regard to this Court's judgment in Jahan Khan v. State (1) Niaz v. State (2) and Nazir and others v. State (3). These judgments were referred to with approval in Muhammad Ismail vs. Khushi Muhammad and 7 others."
(emphasis and under-lining has been supplied)
The same principles were re-iterated in the case of Muhammad Ali vs. The State (1985 SCMR 203). To the same effect was the judgment delivered in ABDUL MAJEED'S CASE (2001 SCMR 90).
(a) it is a mistaken notion that reliance could never ever be placed on the uncorroborated testimony of interested witnesses;
(b) looking for corroboration before placing reliance on interested testimony, was only a rule of caution prescribed by the Courts and not a rule of law commanded by the legislature;
(c) that even the said was not an inflexible rule;
(d) the crucial test for accepting or rejecting a piece of evidence was its intrinsic worth and not really the source from which the same emanated; and finally that
(e) corroboration, even if required for the satisfaction of the conscience of the Court, did not always have to come from independent sources of un-impeachable character but could be gathered even from the circumstances available on record.
In view of the above-noticed established principles, what could be said at the very outset was that the ocular testimony offered by Master Asghar (PW.8) and Ghulam Nabi complainant (PW.9) could not be thrown out only because they had a background of some enmity with the convict-party. What would have to be determined would be, FIRSTLY, whether there were circumstances available on record which could establish their presence at the place of occurrence at the relevant time and the fact whether they could have witnessed the occurrence; SECONDLY, whether they were in a position to identify the culprits and THIRDLY, whether the number of culprits cited by them could be accepted as dependable or whether any sifting was warranted in the said connection.
Analysing the ocular testimony in the light of the said established principles, we find that both the said eye-witnesses had been arrested during the above-mentioned raid conducted by the police in the early hours of the day of occurrence and were thus admittedly amongst the persons who were present in the DALLA and were being taken to the Kasur Courts. They had both received injuries in the occurrence in question and thus their presence at the place of occurrence and the witnessing of the said occurrence by them was not open to any doubt. All the convict-appellants were residents of the same village where the said two witnesses resided. The two parties stood locked up in criminal litigation and it would thus be un-deniable that these two witnesses knew the convicts like the back of their hands. The only question which would thus require consideration would be whether as many as eight convicts i.e. Ayyaz, Suleman, Rahim, Sarwar, Yahya, Nawaz, Younis and Pervaiz could have actually participated in the murderous attack or whether the number of culprits appeared to be an exaggerated version of the occurrence only to widen the net.
It stood admitted on record that the number of persons being transported in the DALLA was fairly large i.e. eight dead; two surviving injured witnesses; Imran, Nazir, Hidayat Masih and Munir Masih making it a total of fourteen persons. The assailants who had launched a planned attack, would be expected also to know that these fourteen arrested persons who were present in the DALLA would be accompanied by some policemen and the ones so escorting them, as per the record, were three police employees including Mehr Ali Shah, H.C. (CW. 1). Mounting an assault on such a large number of persons which could include police employees who could be expected to be armed, could not reasonably be a job expected to be accomplished by one or two persons. While determining this aspect of the matter, the number of victims i.e. eight dead and two injured survivors, would also be a rather potent and a relevant factor. The number of injuries received by the said ten victims would also be another valid factor which injuries in the present case were forty-five in number. It is also discernable from the record that three different kinds of weapons had been used in the commission of the crime in question. Keeping these facts and circumstances in view, it can be safely concluded that the aggression in question would have been launched by a fairly large number of persons and the number of culprits alleged by the eye-witnesses thus appears to be in consonance with the above-noticed facts and circumstances.
Having thus found that the presence of the two injured eye-witnesses at the place of occurrence at the relevant time did not admit of any doubt; that similar was the position regarding the identification of the culprits by the said witnesses and further that the above-noticed facts and circumstances, including the number of victims and the number of injuries received by the said victims, also indicated that the number of convicts was not an unbelievably exaggerated claim, we hold that placing reliance on the testimony of the said witnesses vis-a-vis the above-mentioned eight appellants was not open to any exception.
It may also be mentioned here that relying upon an admission of Ghulam Nabi complainant that his eye-sight was very weak and that he was almost blind, it had been argued by the defence that his claim of having identified the assailants at the time of occurrence, was not believable. It is true that the said PW had so admitted while appearing as a witness at the trial which was more than a year and eight months after the occurrence but in the same breath he had also declared that this was a post-occurrence development and that during the days of occurrence, his eye-sight was perfect. This assertion of this PW is being more than amply corroborated by the fact that he had been, admittedly, arrested in the above-mentioned raid in the morning of the day of occurrence and, at the time of occurrence, he was being taken to the local Courts, in custody. Needless to add that it is not digestible that the police would be apprehending breach of peace and commission of violent crime by a blind man who could not even see, which was a fairly valid circumstance leading to the conclusion that the complainant's claim of good eye-sight during the days of occurrence, was a valid claim.
Mr. Muhammad Akram Sheikh, the learned Sr. ASC then argued vehemently to distinguish the case of Ayyaz and Pervaiz appellants from the case of their co-convicts submitting that as per Ahmed Ali, SI. (PW.22), the said two appellants were travelling in the taxi car which had never reached the place of occurrence at the time in question and that their participation in the occurrence in question thus stood negated.
It is true that Ahmad Ali, S.I. had so stated at the trial and we may add that Mehr Ali Shah, H.C. (CW.1) had also made a similar statement though he had not named Ayyaz and. Pervaiz as being in the taxi but he had said that five persons of Ayyaz group were made to sit in the said taxi. On the other hand, the claim of the private eye-witnesses, from the very outset, starting with the
F.I.R., was that Ayyaz and Pervaiz appellants had been arrested at the time of the morning raid; that they had also been brought to the police station alongwith the other arrested persons; that at about 7 a.m. Khalid and Ahmad accused (since dead) came to the police station and had a private meeting with
Fida Hussain, Inspector/SHO and settled the matter with him; that at about 11:30 a.m., the said SHO released the said two appellants and had even returned them the fire-arm weapons recovered from them at the time of the morning raid; that these two appellants were not amongst the persons who were being taken to the Courts and were thus neither in the DALLA' nor even in the taxi and that they were amongst the culprits who had intercepted theDALLA' and had then attacked the same. These eye-witnesses had further asserted that only three members of Ayyaz group, namely, Rauf appellant; his brother Mahmood appellant and Bashir P.O. were in the taxi who were accompanied by Ahmad Ali, S.I.
The private eye-witnesses were interested witnesses and their testimony thus could not be blindly followed. Ahmad Ali, S.I. and Fida Inspector, had been accused, by the complainant-party from the very beginning, of collusion with the convict-party and for reasons mentioned in the earlier part of this judgment, no implicit reliance could be made even on the statement of Ahmad Ali, S.I.
We would, therefore, have to find out which of these two versions was being supported by the facts and circumstances which stood admitted on all sides. The FIRST such fact was that the taxi in question was an ordinary motorcar and was not a six-door stretched limousine. The SECOND fact was that the said taxi was being driven by its driver with Ahmad Ali, S.I. sitting on the front seat. The THIRD fact was that the only space then available for the arrested persons in the said car was the back seat. And the FOURTH fact was that it would have been almost impossible for five grown-up persons to be sitting in the back seat of an ordinary car. What then emerges from these facts is that the claim of the private eye-witnesses that only three accused persons i.e. Rauf, Mahmood and Bashir P.O. were present in the taxi was more plausible as compared to the defence claim and the claim of Ahmad Ali, S.I. that Ayyaz and Pervaiz appellants were also sitting in the said taxi alongwith Rauf, Mahmood and Bashir. The next admitted circumstance available on record is that Ayyaz and Pervaiz appellants were real brothers inter-se; that their third brother, namely, Abdur Rehman had been killed prior to the present occurrence; that Ayyaz appellant was the complainant of the said murder case who had accused the members of the present complainant-party as the murderers of his brother and that in the circumstances, the said two appellants had direct motive to avenge their brother's murder. Another factor available on record is that these two appellants were alleged to have used .12 bore guns in the occurrence and at least thirteen crime empties of .12 bore had been recovered from the venue of the present occurrence.
Our conclusion, on the strength of these facts and circumstances, is that the claim of the private witnesses regarding participation of Ayyaz and Pervaiz appellants in the occurrence in question was being corroborated by the admitted facts and circumstances available on record and we consequently believe them vis-a-vis the said issue.
Mr. Muhammad Akram Sheikh, the learned Sr. ASC, finally prayed, in the alternative, for reduction in the quantum of punishments awarded the said eight appellants.
This prayer of the learned counsel, to say the least, comes as a surprise to us. The lesser of the two penalties prescribed for QATL-E-AMD, is meant only for situations where the circumstances which had led to a murder or the manner in which such a crime had got committed invoked some sympathy for the convict. The present occurrence, however, was a barbaric, a brutal and a savage display of a reckless dis-regard for human lives where the perpetrators of the crime did not deserve any mercy or leniency.
Consequently, Criminal Appeal No. 861 of 2006 filed by the eight convicts in question is dismissed.
Before we part with this judgment, we would like to bring on record our concern and our dis-pleasure about the manner in which the trial in question had been conducted. The learned trial judge allowed matters to come on record which were not admissible in evidence. We were pained to find that during the course of cross-examination of prosecution witnesses and the examination of defence witnesses, questions were allowed soliciting the opinion of the police officers about the guilt or innocence of some of the accused persons under trial. It appears to us that not only the learned cross-examiner but even the learned trial judge was ignorant of even the basic provisions of law of evidence which prescribed that the witnesses could only state facts i.e. what they had themselves seen or heard or perceived through any of their senses and that the opinions or beliefs or impressions of third person were, as a general rule, irrelevant and, therefore, inadmissible. As a necessary exception to this rule what had been made admissible in evidence, besides the facts, were opinions but only of experts and that also on a point of foreign law or of science, or art, or as to the identity of handwriting or finger impressions (Section 59 of the Qanoon-e-Shahadat Order, 1984). It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the investigating officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why couldn't, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. It may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer only to investigate a case. "INVESTIGATION" stands defined by the provisions of Section 4(1)(l) of the said Code in the following terms:-
"Investigation includes all the proceedings under this Code for the COLLECTION OF EVIDENCE conducted by a police officer ......."
(emphasis and under-lining has been supplied)
This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the competent Court. Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer would be vis-a-vis his field of operation, namely, collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctors or with respect to archaeological matters to determine whether an item was or was not an antique or about hand-writings or foot-prints or finger-prints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has to be, then how come he could be considered an expert and his opinion becoming admissible vis-a-vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose, under the law of evidence. The prohibition contained in Section 161 Cr.P.C. and in Section 172 of the said Code regarding in-admissibility of the statements recorded by an Investigating Officer under the said Section 161 or the case diaries prepared by him under the said Section 172, would further clarify the said proposition. Reference may also be made to a Judgment of the Lahore High Court, authored by one of us which is reported as Haji Muhammad Hanif vs The State (PLD 1992 Lahore 314).
We were also pained to notice that the learned trial Judge had also, persistently, allowed `HEARSAY' evidence to come on record which again shows ignorance of the said learned trial Judge of the legal provisions regulating the subject and the lack of control of the learned Presiding Officer over the proceedings being conducted by him.
Another agonizing fact which we noticed from the record was the lengthy, protracted and verbose cross-examination of the prosecution witnesses. For instance, Ghulam Nabi PW was cross-examined for ten days on different dates of hearing extending from 4.7.1998 to 21.10.1998. The cross-examination covered more than thirty pages or to be exact, 32 pages of the file. The situation with respect to other P.Ws. was no better. This is sheer harassment of a witness and a mockery of the provisions permitting cross-examination. Such a limitless cross-examination, besides being a criminal waste of public time, only indicates lack of grasp on the matter by the one cross-examining a witness and absence of any management of the Court proceedings by the one presiding over the same.
We, therefore, feel compelled to advise the learned Presiding Officers and also the learned members of the bar to acquaint themselves with the relevant provisions of law of evidence and with the art of cross-examination before embarking upon trials and Court proceedings.
Copies of this judgment shall be sent to the Registrars of all the four High Courts in the country who shall send the same to the learned Sessions Judges throughout their respective provinces for circulation to all the learned Presiding Officers within their respective jurisdictions, for the guidance and compliance.
(A.A.) Appeal dismissed.
PLJ 2010 SC 867 [Appellate Jurisdiction]
Present: M. Javed Buttar & Ijaz-ul-Hassan, JJ.
MUHAMMAD ILYAS and others--Appellants
versus
Mst. AMRAIZAN and another--Respondents
Civil Appeal No. 2237 of 2001, decided on 16.12.2008.
(On appeal against the judgment dated 26.2.1999 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision
No. 114 of 1993).
Bila Legan-Ba-Tasawr-e-Malkeat-e-Khud--
----Suit for possession of land--Incorrect entries Bila-laghan-Ba-Tasawr-e-Malkeat-e-Khud in Revenue Record--Suit was decreed--Concurrent findings of fact--Assailed--Record of Rights contain the entries of the appellants in Column No. 3 as Ghair Dakheel Karan (Tenants at will) and in Column No. 6 the entries read as Bila laghan-Bawaje-Khidmat--Entries in Column No. 6 merely show that the appellants predecessors were not paying any rent to the landlords because of service, which means that their Service was equal to the rent of the land in their possession--It is not disclosed as to how the previous entries of Bila-laghan-Bawaje-Khidmat were changed in the last mentioned record of rights. [Pp. 871 & 872] A, B & C
Benami Mortgagees--
----Since the appellant's predecessors were benami mortgages--Suit is maintainable and respondents can be directed to file a suit for possession through redemption of mortgage before the competent forum, has also no force--Held: Appellants' predecessors were not mortgagees and the findings were whimsical and without record and they are "Tenants at Will"--Concurrent findings of fact recorded by all the Courts below do not suffer from any mis-reading or non-reading of evidence to warrant interference by Court--Appeal dismissed.
[P. 873] D
Mr. Abdul Rashid Awan, ASC and Ch. Akhtar Ali, AOR a/w Muhammad Ilyas, Advocate for Appellant No. 1.
Haji Ghulam Basit, ASC and Mr. Arshad Ali Ch. AOR a/w Muhammad Umar S/o Dost Muhammad, Special Attorney for Respondents.
Date of hearing: 16.12.2008.
Judgment
M. Javed Buttar, J.--This appeal, by leave, is directed against the judgment dated 26.2.1999, passed by an Hon'ble Judge in Chambers of the Peshawar High Court, Abbottabad Bench, whereby Civil Revision No. 114 of 1993, instituted by the appellants' predecessors was dismissed and the judgments and decrees passed by the Courts below were upheld.
On 27.6.1966, respondents' predecessors-in-interest instituted a suit against the appellants predecessors since deceased (now represented by the appellants) for the grant of a decree for possession of land measuring 11 Kanals and 8 Marlas, detailed in the plaint situated in village Khanda Khoo ( ), Tehsil Abbottabad, alleging that the defendants had forcibly taken possession of the suit land and had got entered incorrect entries of Bila-Laghan-Ba-Tasawr-e-Malkeat-e-Khud ( ) in the Revenue Record with the collusion of the Revenue Department. The suit was contested. It was claimed by the defendants that they were in possession of the suit land by virtue of purchase and their title had also matured through prescription. The Hon'ble Senior Civil Judge Hazara, after framing the issues and recording the evidence of the parties, vide judgment and decree dated 30.4.1969, decreed the respondents' predecessors-in-interest's suit. The Hon'ble Addl. District Judge Hazara, vide judgment and decree dated 26.5.1971, accepted the appeal filed by the appellants' predecessors and remanded the case to the trial Court for fresh decision in accordance with law after recording further evidence especially in regard to the Revenue Record. On remand, the Hon'ble Senior Civil Judge Hazara, vide his judgment and decree dated 12.3.1975, strangely enough, instead of finally deciding the suit one way or the other, merely disposed of the suit with the observation that the plaintiffs may approach the competent forum for possession through redemption of mortgage, as it was held that the defendants were mortgagees. The appellants, predecessors assailed the above judgment through an appeal and the respondents, predecessors-in-interest, through a Revision Petition. Hon'ble District Judge Hazara, vide his judgment dated 30.5.1975, dismissed respondents, predecessors-in-interest's Revision Petition and the Hon'ble District Judge Abbottabad, vide his judgment dated 20.1.1979, dismissed the appeal of the appellants' predecessors. Civil Revision No. 37 of 1979, instituted by the appellants predecessors against the judgment dated 20.1.1979, was allowed by the Peshawar High Court, Circuit Bench Abbottabad, on 19.10.1985, and the case was remanded to the trial Court for fresh decision. Hon'ble Senior Civil Judge Abbottabad, vide his judgment and decree dated 30.6.1988, decreed the suit. Hon'ble District Judge Abbottabad, vide his judgment and decree dated 28.10.1989, allowed the appellants' predecessors appeal and remanded the case to the trial Court for fresh decision. Hon'ble Civil Judge Abbottabad, vide his judgment and decree dated 10.12.1989, again decreed the suit in favour of the respondents' predecessor-in-interest. Hon'ble District Judge Abbottabad vide his judgment and decree dated 15.6.1993, dismissed appellants appeal. Civil Revision No. 114 of 1993, instituted by the appellants' predecessors was dismissed by the Peshawar High Court, Abbottabad Bench, vide impugned judgment dated 26.2.1999, hence this appeal.
We have heard the learned counsel for the parties at length and have also seen the available record with their able assistance. To complete the narration of the dispute between the parties it may be mentioned here, that on 4.1.1954, respondent's predecessors-in-interest Muhammad Zaman etc, instituted a suit for ejectment under the NWFP Tenancy Act 1950, before E.A.C (Revenue) Abbottabad, against the appellants predecessors. The suit was decreed on 23.2.1955, and the ejectment was ordered. The Collector, District Hazara, dismissed the appeal of the appellants' predecessors on 17.11.1955. The Addl: Commissioner (Revenue), Peshawar and D.I. Khan Divisions vide his judgment dated 22.1.1957 (Exb.D.3), accepted the Revision Petition of the appellants' predecessors by holding that they were not tenants and according to him they might have been mortgagees of the suit land. It seems that thereafter the suit land was transferred to respondents' predecessors-in-interest who, as mentioned above, instituted the present suit for possession of the suit land on 27.6.1966.
Since the above mentioned judgment dated 22.1.1957, passed by the Additional Commissioner (Revenue), Peshawar and D.I. Khan Divisions, has attained finality, learned counsel for the appellants' predecessors has made a number of submissions on the basis of said judgment, therefore, we find it convenient to reproduce the relevant paragraphs of the said judgment which are as under:
"The only point for determination in this case is whether Rehmatullah, Kala, Dossa and Hayatullah are in fact holding the land as tenants at will under the respondents Mohd Zaman and others and are liable to ejectment as such, under the Tenancy Act. The possession of these persons as recorded in the revenue papers started from the year 39-40. They are described as Ghair Dakhilkar Paying no rent on account of mortgage. These entries continue in their favour upto the present day. It is now to be ascertained whether these entries in the revenue papers give them the status of tenant at will. A tenant as defined in the Tenancy Act means a person who holds land under another person and is/or but for a special contract would be liable to pay rent for that land to that other person, but it does not include:--
(a) An inferior land owner or, (b) A mortgagee of the rights of land owners, or, (c) A person to whom a holding has been transferred under the Land Revenue Act, or, (d) A person who takes from Government a lease of unoccupied land for the purposes of subletting it.
The two essentials for a person to classify as a tenant, therefore, are (a) that he must be holding land under another person and (b) that he either pays rent or is liable to pay rent to that other person. The above two conditions cannot be separated from each other i.e. a person who is liable to pay rent for certain land is holding that land under the person to whom he pays rent and the person who is holding the land under another person is liable under the law to pay rent to the latter. In this case neither of these two conditions have been fulfilled. As the petitioner is not liable to pay the rent to the respondents he is not holding the land under them and vice versa. In the revenue papers these persons are recorded as barbers (hujams) and their possession started at that time when the provisions of the Alienation of Land Act regarding the transfer by an agriculturists in favour of a non-agriculturist were in force in the District and no mortgage for a period of more than 20 years could be effected in such cases except with the permission of the Deputy Commissioner.
There are instances in which benami transactions were effected and in such cases non-agriculturists mortgagees were not recorded as such in the revenue papers but a note in the rent column was usually given that no rent was payable on account of mortgage. The case in question is one in which such a transaction appears to have been effected. Although it is beyond the power of the revenue Court to hold whether a certain person is in possession as a mortgage or otherwise yet for purposes of determination whether that person is a tenant or not such matters can be discussed by him. As benami mortgagees the petitioner Rehmatullah and his brothers were neither holding the land under the respondents nor were liable to pay rent to the recorded landlord. A suit for ejectment in the revenue Court can be brought against a tenant only but in this case the relationship of landlord and a tenant has been disproved. It therefore follows that in such cases the revenue Courts have no jurisdiction to order the eviction of the person recorded as in possession of the land. The result is that the two Courts below exercised a jurisdiction non vested in them under the law and therefore interference on the revisional side has become necessary.
For the reasons given above I accept the revision petition, set aside the order dated 17.11.1955 of the Collector Hazara and the order dated 23.2.1955 of the Assistant Collector 1st Grade Hazara and dismiss the respondent's suit. Parties shall bear their own costs."
It is submitted by the learned counsel for the appellants that the appellants predecessors are owners in possession of the suit land since 1993, by virtue of sale in their favour but due to the then prevalent law "Punjab Alienation of Land Act, 1900." the names of appellants' predecessors could not be entered as owners in the revenue record because they were non-agriculturalists being ( ) (Barbers) by caste, that the impugned judgment is sketchy, it suffers from non-reading as well as mis-reading of record, the main documents Exb.D-1 to D-5 have not been read by the learned Judge of the High Court and the documents which have not been examined by the High Court ought to be examined by the High Court itself and for this reason the interests of justice require the remand of the case to the High Court.
It has further been argued that the above said judgment dated 22.1.1957, passed by the Addl: Commissioner (Revenue), Peshawar and D.I. Khan Divisions (Exb. D-3), was not assailed any further by the respondents or their predecessors-in-interest and the same attained finality in which it was conclusively determined that the appellants predecessors were not tenants of the respondents predecessor-in-interest and rather they were Benami Mortgagees ( ) and for this reason the suit in the present form was not maintainable and, for this reason also, the same is liable to be dismissed and the respondents, if so desired, may approach the concerned Court for redemption of mortgaged land.
The contentions have been opposed and the judgments and decrees of the Courts below have been supported by the learned counsel for the respondents.
We have given our anxious consideration to the entire facts and circumstances of the case which has a chequered history and also to the respective contentions of the learned counsel for the parties. We have seen the evidence oral as well as documentary. Exb.D-1 is alleged to be a sale receipt dated 22.4.1935, and the Hon'ble Judge of the High Court has lawfully and correctly discarded it. It stands established that the executant of this document executed the same when his father, the original owner, was still alive and it seems to be some kind of a promise for future which did not amount to sale or transfer. Exb.D-2 to D-4, (Record of Rights) for the years 1953-54, 1958-1959 and 1961-1964 contain the entries of the appellants in column No. 3 as Ghair Dakheel Karan ( ) (Tenants at Will) and in column No. 6 the entries read as Bila Laghan-Bawaje-Khidmat ( ).
Learned counsel for the appellants on the basis of above entries in column No. 6 has vehemently argued that these entries show that the appellants' predecessors were not tenants and similar interpretation was made by the Addl. Commissioner (Revenue), Peshawar and D.I. Khan Divisions, vide judgment dated 22.1.1957 (Exh.D-3). We do not agree with the interpretation. In Column No. 3 the appellants' predecessors were entered as Ghair Dakheel Karan ( ) which is "Tenants at Will" and the same was never changed or assailed and it remained intact throughout. The above entries in Column No. 6 of Bila Laghan-Bawaje-Khidmat ( ) merely show that the appellants' predecessors were not paying any rent to the landlords because of (Service), which means that their (Service) was equal to the rent of the land in their possession. Therefore, nothing turns in favour of the appellants because of the said entries. Exb.D-5 (Record of Rights) for the year 1965-66, again contains the entries in Column No. 3 in regard to the appellants as Ghair Dakheel Karan ( ) and in Column No. 6 it was entered for the first time as Bila Laghan-Ba-Tasawar-e-Malkeate Khud ( ). Learned ASC on the basis of the above entry in Column No. 6 has vehemently argued that this entry removes any doubt as to the status of the appellants' predecessors as owners.
We have carefully examined the entire record. In our opinion, this is a bogus entry. It is not disclosed as to how the previous entries of Bila-Laghan-Bawaje-Khidmat ( ) were changed in the last mentioned (Record of Rights). Appellants' predecessors did not bring any evidence either oral or documentary on record to show the acquisition of any rights after the (Record of Rights) of 1961-1964 (Exb.D-4), to justify the above entry in the (Record of Rights) of 1965-66 (Exb.D-5). Hence it was correctly agitated by the plaintiffs that the appellants or their predecessors had got entered incorrect entries in the revenue record with the collusion of the Revenue Department.
We have carefully examined the judgment dated 22.1.1957, passed by the Addl: Commissioner (Revenue), Peshawar and D.I.Khan Divisions (Exb.D-3). According to the learned ASC for the appellants the said judgment has become final between the parties and is binding upon them. It is true that it has been held in the said judgment, relevant paragraphs of which have been reproduced above, that the appellants' predecessors were not tenants of the respondents' predecessors-in-interest, because they were not paying any rent to the respondents' predecessors-in-interest and that the appellants' predecessors were Benami Mortgagees ( ).
However, after having examined the entire revenue record, relevant part of which has been discussed above, we are clear in our minds, for the reasons mentioned above, that it was wrongly and illegally held by the Addl. Commissioner (Revenue), Peshawar and D.I.Khan Divisions, that the appellants predecessors were not tenants. In our opinion, the Addl. Commissioner (Revenue), Peshawar and D.I.Khan Divisions, mis-read and mis-interpreted the entries in Columns No. 3 and 6 of Exh.D-2 to D-4. The reasons for this conclusion have already been recorded in para 9 above. Similarly, it was not explained that how the entries were changed in Column No. 6 of Exb.D-5. As regards the findings that the appellants' predecessors were Benami Mortgagees ( ), we are of the view, that this finding is just whimsical and not based on any record. The Officer merely presumed certain things which was beyond his jurisdiction.
The argument of the learned counsel for the appellants that since the appellants' predecessors were Benami Mortgagees ( ), therefore, the suit is not maintainable and respondents may be directed to file a suit for possession through redemption of mortgage before the competent forum, has also no force because we have already held that the appellants' predecessors were not mortgagees and the said findings were whimsical and without record and they are "Tenants at Will".
We are further of the view, that the concurrent findings of fact recorded by all the Courts below do not suffer from any mis-reading or non-reading of evidence to warrant interference by this Court. Therefore, we do not find any merit in this appeal.
At this stage, Muhammad Umer S/o Dost Muhammad, present in Court, who is Special Attorney of respondents and is husband of Respondent No. 1 and brother-in-law of Respondent No. 2, has stood up and stated that in the name of Allah he will make efforts for the transfer of 10 Marlas from the suit land from Khasra No. 104 towards the Southern side in which the Appellant No. 1 Muhammad Ilyas has constructed a one room house and such a transfer in his favour will be without any consideration. This offer has been readily accepted by Appellant No. 1 as well as the learned ASC for appellants.
We have not treated this offer as some kind of compromise between the parties because the above named Special Attorney of the respondents has no such authority to enter into a compromise with the appellants on behalf of the respondents, but we have recorded his offer because he is confident that he will get his offer matured. In view of the above discussion and findings, we do not find any merit in this appeal which is dismissed leaving the parties to bear their own costs.
(M.S.A.) Appeal dismissed.
PLJ 2010 SC 874 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
STATE through Director General, Anti Narcotics Force, Rawalpindi--Petitioner
versus
ABDUL GHANI--Respondent
Crl. P. No. 186 of 2008, decided on 28.4.2009.
(On appeal from the order dated 2.5.2008 of the High Court of Sindh, Karachi passed in Cr. Bail No. 478/2008).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Control of Narcotic Substances Act, 1997, S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Cancellation of bail--Leave to appeal--Bail was granted to accused by High Court--Recovery of two Kg heroin and one Kg charras--Exchange of firing took place between raiding party and supporters--Question of submitting challan and making out case for further inquiry--Held: It is not possible to release the accused notwithstanding the fact that he is involved in a heinous criminal case particularly in which a considerable numbers of the society including the children, girls, men and women feeling prey to drug trafficking is involved--Impugned order had been composed without taking into consideration the facts, therefore, the same was not sustainable--Order of bail granted was recalled. [P. 876] A
PLD 1988 SC 621, rel.
Mr. Niaz Ahmed Rathore, Special Prosecutor, ANF for Petitioner.
Qari Abdul Rashid, ASC for Respondents.
Date of hearing: 28.4.2009.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed against the order dated 2.5.2008 of the learned High Court of Sindh, Karachi passed in Criminal Bail No. 478/2008. The relevant para thereform is reproduced herein below:-
"The appellant is alleged to be in possession of about two kgs heroin and one kilo charas and out of the same only 5/5 grams have been sent to Chemical examiner. It is also case of the prosecution that heavy firing was exchanged between the accused persons but no injury was reported from any side. The alleged recovery is from the house and not from the exclusive possession of the applicant. In these circumstances, the case of the applicant requires further inquiry into his guilt. I, therefore, grant him bail in the sum of Rs. 1,00,000/ with P-R- bond in the like amount to the satisfaction of the Nazir of this Court."
"After hearing arguments advanced by the learned counsel for the parties I have given careful consideration to the material available on record. The allegation against the accused is that he was found in possession of Narcotic Contraband viz: Heroin weighing about 2.610 Kilograms and Charras weighing about 1.780 Kilograms. Applicant/accused was arrested on the spot, musheer nama of arrest and recovery was prepared on the spot, chemical report also received in positive. There was nothing on record to show that complainant party had any ill will, grudge or hostility with the accused to implicate him falsely in this case by thrusting upon huge quantity of narcotic contraband. There reasonable grounds exit to believe that the accused has committed non bailable offence which is against the society. The offence is heinous one and against the society. In such cases bail cannot be granted as a. matter of right. I, therefore, decline the request of bail. Bail application stand dismissed."
The respondent feeling dissatisfied with above said order, approached to the learned High Court for bail, which by means of the impugned order has been granted, hence; this petition.
Learned counsel for the petitioner contended that the impugned order suffers from illegalities. The learned counsel further stated that in his opinion the order is also perverse and is not sustainable in the eye of law. According to him, the learned Judge has not taken into consideration the facts of the case carefully as a result whereof the respondent has wrongly been granted bail.
On the other hand, the learned counsel for the respondent contended that he has already been taken into custody in pursuance of non-bailable warrants issued by this Court on 27.3.2009. However, on merits, he stated that the trial of the case has been commenced, therefore, he is entitled to continue on bail.
We have heard the learned counsel of both the sides and have gone through the relevant material, which was made available for our perusal.
It is to be noted that the learned High Court has fell into error in entering into the facts of the case. In this behalf, the observation of the High Court that the respondent was not found in exclusive possession of the narcotic i.e, heroin and charras is not correct because according to the prosecution case, as well as; according to the investigation officer 2.610 kilograms heroin and 1.780 kilograms charras was recovered from his possession, which he was carrying on his motor cycle. The presence of the respondent alongwith recovered narcotics suggest to hold prima facie that he is involved in the commission of the offence besides the sentence prescribed under Section 9(c) is death or imprisonment for life, or imprisonment for a term which may extend to 14 years, therefore, he was not entitled for bail. So far as the question of submitting the challan and making out the case for further inquiry is concerned, it has also no legal force in view of the law laid down in the case of Asmat Ullah Khan v. Bazi Khan and another (PLD 1988 SC 621). In addition, it is to be noted that there is possibility of further inquiry in every case, therefore, it is not possible to release the accused notwithstanding the fact that he is involved in a heinous criminal case particularly in which a considerable member of the society including the children, girls, men and women felling prey to drug trafficking is involved. The impugned order perhaps has been composed without taking into consideration the above facts, therefore, the same is not sustainable.
As a result of above discussion, the petition is converted into appeal and the same is allowed. The respondent has already been taken into custody in pursuance of order passed by this Court on 27.3.2009, therefore, he shall be kept in custody and dealt with according to the law.
No need to observe that the trial Court shall decide the case independently without being influenced in any manner from the observations made in the instant order, as well as; by the High Court and the Special Court-I (Control of Narcotic Substances) in the orders dated 2.5.2008 and 29.3.2008 respectively.
(R.A.) Appeal allowed.
PLJ 2010 SC 877 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi & Tariq Parvez, JJ.
RIAZ AHMED--Appellant
versus
STATE--Respondent
Crl. Appeal No. 342 of 2009, decided on 11.1.2010.
(Against judgment dated 3.11.2008 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 18-J of 2003 & M.R. No. 813 of 2002).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(g)--Pakistan Penal Code, (XLV of 1860), S. 302--Committing qatl-i-amd--Appreciation of evidence--One of the eye-witnesses had expired, therefore, he was not examined, whereas another eye-witness was given up by the prosecution on the ground that he was not necessary witness to be examined--Prosecution case hinges upon the solitary statement of the complainant--Co-accused was tried separately and was acquitted of the charge--Validity--Statement of complainant was in conflict with the medical evidence, as according to complainant the deceased was fired upon from a distance of 3 karams whereas the medical officer found a wad lying near the liver inside the body of deceased--Gun was fired from a very close range, probably by putting its barred on the body of deceased--Statement of complainant was neither supported nor corroborated by any piece of evidence--One of the eye-witnesses was available in the Court but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence--It is evidence was the best piece of evidence, which the prosecution could have relied upon for proving the case but for reasons best known, his evidence was withheld and he was not examined--So a presumption under Illustration (g) of Art. 129 of Order 1984, can fairly be drawn that had the eye-witness been examined in the Court his evidence would have been unfavourable to prosecution--Prosecution has failed to prove the case against the accused beyond reasonable doubt--Appeal was allowed. [Pp. 879 & 881] A, B & F
Motive--
----No quarrel between the deceased and accused--Motive alleged in the instant case which was about 25/26 years prior to the incident, appeared to be highly doubtful--Witness also admitted that place where they were standing was not visible to accused--This also creates serious doubt about their witnessing the incident from such place--Complainant was not able to see the assailants causing fire-arm shots from a very close range or keeping the gun on the body of the deceased--Ocular testimony was highly doubtful, which cannot be safely relied upon on the capital charge. [P. 880] C
Recovery of Crime Empty--
----Report of FSL--Production of--In sufficient to convict the accused in absence of substantive piece of evidence--Crime empty secured from place of incident matched the gun recovered from possession of the accused--Being a corroborative piece of evidence, which by itself was insufficient to convict the accused in absence of substantive piece of evidence. [P. 880] D
Administrative of Justice--
----Appeal was barred by 85 days--Since no case has been made out against the appellant and he is acquitted of the charge--For the safe administration of criminal justice, it appropriate to condone the delay, which was accordingly done. [P. 881] E
PLJ 1985 SC 154, PLJ 1996 SC 168, PLJ 1998 SC 510 & 1995 SCMR 1730, ref.
Sheikh Muhammad Naeem, ASC for Appellant.
Mr. M. Siddique Baloch, DPG, Punjab for State.
Date of hearing: 11.1.2010.
Judgment
Rahmat Hussain Jafferi, J.--The appellant Riaz Ahmed was charged for committing Qatl-i-Amd of deceased Muhammad Mansha within the area of dhari of the complainant Muhammad Abbas (PW.8) on 18.09.1998 at about 6:30 pm. The complainant alleged that on the aforesaid date at 6:30 pm he (the complainant) alongwith Muhammad Arshad (not examined, as he had expired) and Manzoor Hussain (not examined) was going towards his dhari. When they reached near the crop of Noor Ahmed, which was at a distance of 30 karams (165') from the said dhari, they saw that the appellant armed with .12 bore single barrel gun and Muhammad Aslam, acquitted accused, coming from his dhari and the deceased was standing outside the dhari. When the accused reached near the sugar cane crop Muhammad Aslam, acquitted accused, raised a lalkara and on his instructions, the appellant Riaz fired from his gun which hit the deceased Mansha on the left side between the stomach and chest and he fell down on the ground. The appellant fired another shot at the deceased, which also hit him on his left arm. On the hue and cry made by them the accused persons ran away.
The motive behind the incident was that about 25/26 years back Alam Sher father of the appellant had committed the murder of brother of the deceased and in retaliation thereto Alam Sher was also murdered and due to that grudge the incident of the present case took place.
At the trial, the prosecution relied upon the evidence the complainant Muhammad Abbas (PW.8) only. One of the eye-witnesses, namely Muhammad Arshad had expired; therefore, he was not examined, whereas another eye-witness Manzoor Hussain was given up by the prosecution on the ground that he was not necessary witness to be examined. Thus, the prosecution case hinges upon the solitary statement of the complainant. It is pointed out that Muhammad Aslam, co-accused, was tried separately and was acquitted of the charge.
Having heard the learned counsel for the appellant, the learned Deputy Prosecutor General, Punjab and perusing the record of the case with their assistance, we find that the statement of the complainant is in conflict with the medical evidence, as according to the complainant the deceased was fired upon from a distance of 3 karams 16« whereas the Medical Officer found a wad lying near the liver inside the body of the deceased. This aspect of the case clearly shows that the gun was fired from a very close range, probably by putting its barrel on the body of the deceased. Thus, there is conflict between the medical and oral evidence. Furthermore, the statement of the complainant is neither supported nor corroborated by any piece of evidence. One of the eye-witnesses Manzoor Hussain was available in the Court on 29.07.2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution.
Apart from the above facts, the complainant also admitted that before the occurrence, there was no quarrel between the deceased and the accused, therefore, the motive alleged in this case, which was about 25/26 years prior to the incident, appears to be highly doubtful. He also admitted that the place where they were standing was not visible to the accused. This also creates serious doubt about their witnessing the incident from such place. This can very well be proved from the fact that the complainant was not able to see the assailants causing fire-arm shots from a very close range or keeping the gun on the body of the deceased. Thus the ocular testimony is highly doubtful, which cannot be safely relied upon on the capital charge.
The prosecution also produced the positive FSL report, meaning thereby, the crime empty secured from place of incident matched with the gun recovered from the possession of the appellant. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence. Reference is invited to "Ijaz Ahmed v. State (PLJ 1998 SC 510)". It was held in the case of "Asadullah v. Muhammad Ali" (PLD 1971 SC 541)", that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of "Saifullah v. The State (PLJ 1985 SC 154)", it was held that when there is no eye-witness to be relied upon then there is nothing, which can be corroborated by the recovery. It has been held in the cases of "Riaz Masih v. State (PLJ 1996 SC 168) and Riaz Masih v. State (1995 SCMR 1730)" that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In the case of "Siraj v. Crown (PLD 1956 Federal Court 123)", it was held that recovery of the handle of blood stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. In the case of "Saifullah v. The State (PLJ 1985 SC 154)" at page 159, it has been observed as under:--
"We have therefore no option but to exclude the testimony of the afore-mentioned two witnesses from consideration, with the result that no evidence is left on the record to connect the accused with the crime in question, as the recovery of the blood stained knife, even if believed, could only be used as evidence corroborating the testimony of the eye-witnesses, if any. But since, evidence of the eye-witnesses in this case has been excluded this recovery is hardly of any use."
It is pointed out that the appeal is barred by 85 days. Since no case has been made out against the appellant and he is acquitted of the charge, therefore, for the safe administration of criminal justice, we feel it appropriate to condone the delay, which is accordingly done.
In the light of what has been discussed above, the prosecution has failed to prove the case against the appellant beyond reasonable doubt. Consequently, the appeal was allowed by our short order dated 11.01.2010. These are the reasons of the said short order, which reads as under:--
"For the reasons to be recorded later on, while accepting the appeal of the appellant, his conviction and sentences, recorded by the Courts below, are set aside. He is acquitted of the charges and be released forthwith, if not required in any other case."
(R.A.) Appeal allowed.
PLJ 2010 SC 881 [Review Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain & Muhammad Sair Ali, JJ.
NASRULLAH KHAN and 2 others--Petitioners
versus
STATE--Respondent
Crl. Rev. P. No. 54 of 2009 in Crl. Appeal No. 105/2005, decided on 30.9.2009.
(Against the order passed by this Court in Crl. A. No. 105/2005 on 25.5.2009 and on appeal from the judgment dated 17.2.2003 passed by the Lahore High Court, Lahore in Crl. A. No. 681/2002, M.R. No. 59-T/2002).
Identification Parade--
----Question of correct identification does not arise which went unnoticed causing serious prejudice against the accused--Question of identification has been deal within depth by scrutinizing the entire evidence which has come in a comprehensive manner--Review--Validity--Witnesses while identifying the accused had also described the role played by them--All prosecution witnesses identified the accused before trial Court and also specified their roles--Question whether the prosecution witnesses could have identified the culprits involves the appreciation of evidence which cannot be done at review stage. [P. 883] A & B
Review--
----Determination--
----Review cannot be granted on the ground that facts require re-appraisement by the Court--Mere desire for rehearing of the matter does not constitute a valid cause and sufficient ground for grant of review. [P. 883] C
1984 SCMR 1033, 1979 SCMR 89, 1968 SCMR 729, 1980 SCMR 271, 1979 SCMR 345, 1988 SCMR 350, 1980 SCMR 332, 1988 SCMR 1318, 1980 SCMR 907, PLD 1979 SC 741, 1968 SCMR 109, 1968 SCMR 768, 1969 SCMR 12 & 1969 SCMR 5 & 10, ref.
Mr. Sardar Ahmad Khan, ASC for Petitioners.
Nemo for State.
Date of hearing: 30.9.2009.
Judgment
Javed Iqbal, J.--The judgment impugned whereby the Criminal Appeal preferred on behalf of petitioner has been dismissed with certain modification in the conviction and sentence awarded by the learned trial Court and High Court has been assailed by means of this review petition.
Sardar Muhammad Khan, learned counsel entered appearance, on behalf of petitioners and contended with vehemence that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the entire prosecution case hinges upon the identification parade which could not be held in accordance with the relevant provisions of law and directions made time to time by the learned Lahore High Court and besides that common features narrated in the FIR make the entire exercise of identification iab initio, illegal and void. It is next argued that on the basis of momentary glimpse the question of correct identification does not arise which went unnoticed causing serious prejudice against the petitioners.
We have carefully examined the contentions as agitated on behalf of petitioners and perused the judgment impugned with the eminent assistance of learned ASC on behalf of petitioners. The question of identification has been dealt with in depth by scrutinizing the entire evidence which has come on record in a comprehensive manner and relevant portion of the judgment impugned is reproduced herein below for ready reference:--
"According to statement of the complainant, Muzaffar, Zulfiqar
Ali and Tasneem Aslam had also witnessed the occurrence and that complainant and other PWs could identify the assailants. The descriptions of the two accused who had entered into the room and resorted to firing was given in the statement. One of the accused was aged about 24-25 years, was of strong physique, was keeping beard his height was about 5 feet 7/8 inches and was wearing shalwar kameez', the other accused was of the height of about 5 feet 6/7 inches, he was of whitish complexion, had a strong physique was aged about 20-25 years and was wearingshalwar kameez'.
It was also observed in the judgment impugned that "the identification test was conducted by PW.30 Muhammad Tajamal Abbas Rana Magistrate. Perusal of his statement, on oath, reveals that the witnesses while identifying the accused had also described the role played by them. Furthermore, all the PWs identified the accused before learned trial Court and also specified, their roles. The. argument of the learned counsel that no light was available at the time of occurrence is devoid of any force as it cannot be presumed that the Daras was being given in a room which had no lights."
Basharat Khan v. The State (1984 SCMR 1033 (1), Muhammad Nazir v. The State (1979 SCMR 89), Kala Khan v. Misri Khan (1979 SCMR 347), Saghir Ali v. Mehar Din (1968 SCMR 729), Saeedur Rehman v. The State (1980 SCMR 271), Ghulam Sarwar v. The State (1979 SCMR 43), Muhammad Hassan v. The State (1979 SCMR 345), Muhammad Suleman v. Muhammad Younis (1988 SCMR 350).
Abdul Hameed Saqfi v. Service Tribunal of Pakistan (1988 SCMR 1318), Ali Khan v. Shah Zaman (1980 SCMR 332), Abdul Majeed v. Chief Settlement Commissioner (1980 SCMR 504), Maqbool Ahmed Tabassum v. The State (1980 SCMR 907), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741), Nawab Bibi v. Hamida Begum (1968 SCMR 104), Muhammad Najibullah Khan v. Govt. of Pakistan (1968 SCMR 768), Muhammad Ghaffar v. The State (1969 SCMR 12), Ghulam Fatima v. Settlement Commissioner (1969 SCMR 5), Feroze Din v. Allah Ditta (1969 SCMR 10).
(R.A.) Appeal allowed.
PLJ 2010 SC 884 [Appellate Jurisdiction]
Present: Javed Iqbal, Sarmad Jalal Osmany and Syed Zahid Hussain, JJ.
MOBASHAR AHMAD and another--Appellants
versus
STATE--Respondent
Crl. Appeals No. 110 of 2004 & 126 of 2008, decided on 23.4.2009.
(On appeal from judgment of Lahore High Court, Lahore dated 2.7.2002 passed in Criminal Appeal No. 915/1999 & and Murder Reference No. 285-T/1999).
Relationship--
----Mere relationship is no reason to disregard the evidence of any witness if otherwise his testimony inspires confidence--Held: Where an accused takes up a particular line of defence the burden is upon him to exclusively prove it. [P. ] A & B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 43--Joint trial--Where confession of an accused is proved, the same can be taken into consideration as circumstancial evidence against the co-accused--Appeal dismissed. [P. ] C
Mian Aftab Farrukh, Sr. ASC for Appellant (in Crl. A. No. 110/2004).
Mr. Muhammad Zaman Bhatti, ASC for Appellant (in Crl. Appeal No. 126 of 2008).
Mian Asif Mumtaz, Deputy Prosecutor General, Punjab for State (in both appeals).
Mr. Muhammad Ilyas Siddiqui, ASC for Complainant (in Crl. A. No. 110/2004).
Date of hearing: 14.4.2009.
Judgment
Sarmad Jalal Osmany, J.--These Appeals impugn the judgment of the Learned Lahore High Court dated 2.7.2002 where by Criminal Appeals No. 915 of 1999 filed by Appellant Mubashar Ahmad and No. 743 of 1999 filed by Appellant Muhammad Sharif were dismissed and the Murder References answered in the affirmative while confirming the death sentence awarded to both the Appellants. However, the compensation was reduced from Rs.5,00,000/- to Rs. 1,00,000/- each. The other sentences awarded to them by the Learned ATA Court i.e. life imprisonment under Section 364 PPC and R.I. for ten years under Section 392 PPC along with fine of Rs. 1,00,000/- each in default of which they were to further undergo R.I. for 2« years each were kept intact.
Briefly stated the Prosecution case is that Complainant Kaneez Bibi daughter of Mahllay Khan, who was serving in AFIC-National Institute of Cardiology, Rawalpindi received a telephonic call from her father on 6.12.1998 that her brother Deceased Muhammad Nawaz had been missing alongwith his Car bearing No. LOL-2121 since 4.12.1998. On receiving such information, she came to her father's house at Lallian on 7.12.1998 and mounted a hectic search for Muhammad Nawaz, when PWs-Sher Muhammad and Shabbir informed them that they had seen Muhammad Nawaz going in his car on 4.12.1998 at 11.00 a.m. towards Sargodha accompanied by Appellants as well as two unidentified persons. Accordingly the Complainant was convinced that the Appellants and two other unknown culprits had abducted Muhammad Nawaz with a view to murdering him and hence the FIR lodged on 7.12.1998 at 6.55 p.m. Thereafter on 8.12.1998 PW-Haji Muhammad Sher and PW-Sikandar had gone to the house of Appellant Muhammad Sharif who told them that he alongwith Appellant Mubashar Ahmad had taken away the Deceased in his car from the Taxi Stand at Lallian and after murdering him had thrown his dead body in a sugarcane field. These PWs disclosed such information to the Police officials who arrested Appellant Muhammad Sharif when he led to the recovery of Deceased's dead body. Thereafter on 27.4.1999 Appellant Mubashar Ahmad was also arrested alongwith Car No. LOL-2121 belonging to the Deceased. Both the Appellants were thereafter sent up for trial before the Learned Anti-Terrorism Court at Faisalabad who after convicting them awarded capital sentence etc. as aforesaid, which the Learned High Court only modified to the extent of fine as observed above.
In support of Criminal Appeal No. 110 of 2004 (filed by Mubashar Ahmad) Mian Aftab Farrukh, Learned Sr. ASC has submitted that the pieces of evidence available against his client is the last seen evidence, recovery of Deceased's car from his possession and the extra-judicial confession of Appellant Muhammad Sharif. According to Learned Sr. ASC last seen evidence is the weakest type of evidence and unless an unbroken chain is established starting from the discovery of the dead body, as in the present case, to the arrest of the accused, conviction is not possible. In this regard he has firstly submitted that uptill the arrest of Appellant Mubashar Ahmad none of the official documents kept by police authorities mentioned him at all. He has invited our attention to the site-plan Ex.PF, the report endorsed in the police diary of 8.12.1998 at 8.45 p.m. regarding the information of the discovery of Deceased Muhammad Nawaz's dead body etc. He further submitted that the police have failed to associate the most relevant witnesses who were the taxi drivers available at the taxi stand on the day the Deceased allegedly went away in his car with the Appellants and two others, which can only lead to one conclusion that these independent witnesses would not have deposed against the Appellants.
Learned Sr. ASC has further pointed out other discrepancies in the statements of the PWs before the Learned Anti-Terrorism Court i.e. PW Shabbir Ahmad has stated that he informed the Complainant Kaneez Bibi on 7.12.1998 regarding the last seen evidence but in his police statement he had not said so. Secondly PW Sher Muhammad the other witness introduced by the Prosecution on the theory of last seen evidence has supported PW-Shabbir. According to the Learned ASC admittedly Sher Muhammad does not reside in Lalian Town but about 8-9 miles away. Consequently, it is strange that he should know the Deceased and the Appellants, who all belong to Lalian or live in its close proximity. Next per Learned ASC PW-Sher Muhammad has stated that he had come to fetch a taxi in order to take his ailing wife to Sargodha whereas admittedly there are hospitals and clinics in Lalian. In such event, this reason does not appeal to common sense. Again Sher Muhammad has admitted under cross-examination that the administration of the taxi stand keeps a record of all taxis/cars, which are hired out but strangely enough there is no such record of the Deceased's car for going to Sargodha.
Next Learned Sr. ASC has referred to the deposition of the Investigating Officer, who admits under cross-examination that on 8.12.1998 both the Appellants had been arrested than how can Mubashar Ahmad be arrested later on 27.4.1999.
Learned Sr. ASC has also submitted that no proclamation was ever issued for the arrest of Mubashar Ahmad and neither any proceedings were taken out under Sections 87 and 88 Cr.P.C. Hence he cannot be termed as an absconder as observed by the Learned High Court. He has also vehemently urged that strangely enough on the day of his arrest, the same car having the same colour and number plate and being totally intact was being driven by Appellant Mubashar Ahmad in the vicinity of Lallian town, which certainly causes a doubt in the matter as no culprit who had robbed a car and killed its owner would in such a brazen fashion display it in the vicinity where the incident took place. Hence the recovery of Deceased's car from Appellant Mubashar Ahmed is doubtful. Finally per Learned Sr. ASC the extra-judicial confession of Appellant Muhammad Sharif being a co-accused whereby he has fully implicated Appellant Mubashar Ahmad could never be used against the latter in the absence of strong corroborative evidence, which is totally lacking in the matter. Consequently, the chain of events beginning from discovery of the dead body of the Deceased to the arrest of Appellant Mubashar Ahmad is not an unbroken one in which circumstances both the Learned forums below have wrongly convicted him.
Mr. Muhammad Zaman Bhatti, Learned ASC appearing for Appellant-Muhammad Sharif in Criminal Appeal No. 126/2008 has only prayed for reduction in his sentence on the ground that in his examination under Section 342 Cr.P.C. as well as statement under Section 340(2) Cr.P.C. before the Learned Trial Court he has nominated Appellant Mubashar Ahmad who had killed the Deceased despite the former's protest.
Mr. Muhammad Ilyas Siddiqui, Learned ASC appearing for the Complainant has fully supported the impugned judgment. He has submitted that the PWs are totally independent and have no enmity whatsoever with the Appellants. Further that it was Appellant Muhammad Sharif who had exclusive knowledge of the location of the dead body and led to its recovery and hence the same is compatible with the last seen evidence as deposed by PWs Sher Muhammad and Shabbir Ahmad, who had seen the Appellants alongwith two other unidentified person going to Sargodha on the date of incident at around 11.00 a.m. Similarly, insofar as the Appellant Mubashar Ahmad is concerned the car in question was recovered from him upon arrest which again is compatible with the last seen evidence as well extra-judicial confession of Appellant Muhammad Sharif which has been corroborated in all respects. In support of his submission he has relied upon Binyamin v. State (2007 SCMR 778) and Khurshid v. State (PLD 1996 S.C. 305).
Mian Asif Mumtaz, Learned Deputy Prosecutor General, Punjab has also supported the impugned judgment as well as the arguments of Mr. Muhammad Ilyas Siddiqui, Learned ASC. According to him, the last seen evidence has been fully corroborated by the arrest of Appellant Mubashar Ahmad and the car of the Deceased and the recovery of the dead body at the instance of Appellant Muhammad Sharif.
We have heard Learned ASCs as well as Learned Deputy Prosecutor General, Punjab and perused the record with their assistance. The case of the Prosecution consists of the last seen evidence, recovery of the Deceased's body at the pointation of Appellant Muhammad Sharif, recovery of the Deceased's car from Appellant Mubashar Ahmad when he was arrested and so also the extra-judicial confession made by Appellant Muhammad Sharif before PW Haji Muhammad Sher.
We would first deal with the case of Appellant Muhammad Sharif. Regarding the last seen evidence, it would be seen that PW Shabbir Ahmad's presence at the taxi stand has been established in cross-examination since he worked as an auto-electrician and used to repair the taxis etc. He is an independent witness bearing no relationship at all with the Complainant or the Deceased except that he knew the latter. He has given a truthful and confidence inspiring narration of the incident i.e. the boarding of the Deceased's car by the two Appellants as well as two other unknown persons and their departure towards Sargodha. Under cross-examination nothing could be extracted from him except for his denial of having informed Complainant Mst. Kaneez Bibi on 6.12.1998 regarding the last seen evidence, whereas in fact he has stated so in his police statement. In our opinion, this is a minor discrepancy and can be ignored. He has no reason whatsoever to implicate the Appellants as no enmity has even been remotely suggested by the Defence in his cross-examination. Similarly, PW Sher Muhammad has also given a forthright account of the incident and explained his presence at the taxi stand under cross-examination viz. for taking his ailing wife to Chiniot. Again there are minor improvements in his deposition before the Learned at Court regarding the purpose of his going to the taxi stand, which was to hire a taxi for taking his wife for medical treatment, which he had not disclosed in his police statement etc. So also he has admitted under cross-examination that the Deceased and the Complainant Mst. Kaneez Bibi are like his own children. However, in our opinion, this does not detract from the inherent veracity of his deposition because mere relationship is no reason to disregard the evidence of any witness if otherwise his testimony inspires confidence. The last seen evidence as reported by aforementioned witnesses has in all material particulars been corroborated by the recovery of the Deceased's body at the pointation of Appellant Muhammad Sharif as he alone had the exclusive knowledge of the location. Postmortem examination of the Deceased is also relevant whereby it has been reported by the Medical Officer that the Deceased had received one bullet injury on the right temporal area of the head, the edges of which were blackened being an entry wound whereas there was no exit wound, a lacerated wound deep on the middle of the fore-head, another wound on the left side of the forehead, a fourth lacerated wound muscle deep on the left cheek and finally a lacerated wound skin deep on the left side of the upper lip. The Medical Officer opined that Injury No. 1 was inflicted by a fire-arm whereas the others by a hard and blunt substance. As to Muhammad Sharifs extra-judicial confession before PW Haji Muhammad Sher this has also been sufficiently corroborated by the pointation of Deceased's body by this Appellant immediately thereafter. Regarding the deposition of PW Haji Muhammad Sher, he too is an independent witness and bears no animosity with the Appellants. He has stated in a truthful manner the events which preceded the recovery of the Deceased's body at the pointation of Appellant Muhammad Sharif i.e. his extra-judicial confession, arrest by the police and the departure of the police party alongwith him, the Appellant, Mahlley Khan and others for recovery of the Deceased's body. Nothing in the cross-examination could be gleaned in favour of the Defence. Hence we have no reason to disbelieve him. In view of the foregoing discussion we have no doubt in our minds that Appellant Muhammad Sharif has been correctly convicted by both the Learned Anti-Terrorism Court and the High Court.
Insofar as Mr. Bhatti's prayer for reduction in the sentence of Appellant Muhammad Sharif is concerned, it would be seen that in his statement under Section 340(2) Cr.P.C., he has admitted the factum of having hired the Deceased's car on the date of incident at the instance of Appellant Mubashar Ahmad and thereafter proceeding to Sillanwali. On the return journey both the Deceased and Appellant Mubashar Ahmad had got down for the purpose of easing themselves while he was available in the car when he heard some commotion. At this he also got down from the car and started going towards them when he saw Appellant Mubashar Ahmad firing at Muhammad Nawaz at the temporal region upon which he chided the latter as to what he had done. Appellant Mubashar Ahmad asked him to have a seat in the car and after putting the dead body of the Deceased in the diggi (trunk) he drove the car in the area of Chak Mo. 58 (S.B) and 59 (S.B) and threw it in the sugarcane field. Appellant Muhammad Sharif then managed to escape during their overnight stay at a hotel and returned to his home. Than he met the father of the Deceased Mahllay Khan who asked him about the Deceased to which he replied that he had no knowledge in this regard. However, when a neighbour of Mahllay Khan told him that he had seen him going in the car in Chak No. 58 (S.B) and also fire shot was heard, Appellant Muhammad Sharif told them everything and ultimately the dead body of the Deceased was recovered at his pointation. This version of the events is totally at odds with that disclosed by the Appellant in his statement under Section 161 Cr.P.C. before the police. Therein he fully implicated himself and stated that he had been instigated by the Deceased's brother-in-law Riaz to do away with the former due to strained relationship between the Deceased and his wife. Said Riaz had also assured him that he would take care of all legal proceedings, if any emanating from such crime and that he could sell away the Deceased's car in order to appropriate the sale price. Accordingly he had hired the Deceased's car on the fateful day and associated Appellant Mubashar Ahmad in the venture in execution of which he had caught hold of the Deceased's arms whereas the former had shot him to death. Then they had both disposed of the dead body in the sugarcane field etc. In this view of the matter, when there are so many contradictions and improvements in Appellant Muhammad Sharif's statement in Court from that under Section 161 Cr.P.C, we are of the opinion that his alleged stance of disassociation from the crime is merely an afterthought and resorted to in order to save his own life while attributing the murder of the Deceased to Appellant Mubashar Ahmad. Hence while placing the prosecution case in juxtaposition with the Defence taken by Appellant, the only conclusion is his guilt. It is settled law that where an Accused takes up a particular line of Defence the burden is upon him to exclusively prove it. Consequently, in the circumstances we cannot hold that Muhammad Sharif was not responsible for the murder of the Deceased.
Regarding Appellant Mubashar Ahmad again it would be seen that he has been nominated by both PWs Bashir Ahmad and Sher Muhammad as having accompanied Appellant Muhammad Sharif and two other unknown persons in the car of the Deceased on the day of incident. We have already held that the testimony of these two witnesses inspires confidence and hence can be relied upon. So also Appellant Muhammad Sharif has fully implicated Appellant Mubashar Ahmad in his extra-judicial confession before PW Haji Sher Muhammad which we have also approved. In this connection it would be seen that per Article 43 of the Qanoon-e-Shahadat Order, at a joint trial where confession of an accused is proved, the same may be taken into consideration as circumstantial evidence against the co-accused. Such confession against Appellant Mubashar Ahmad as well the last seen evidence is corroborated by the arrest of this Appellant alongwith the car belonging to the Deceased which has been proved by the Prosecution through the evidence of Constable Jani Shah who is the witness of recovery. Under cross-examination nothing could be gleaned from this witness as to the alleged false arrest of Appellant Mubashar Ahmad and the recovery of the car in question. For all the aforesaid reasons, we are firmly of the view that Appellant Mubashar Ahmad has also correctly been convicted by both the Learned forums below.
For the foregoing facts and circumstances these Appeals are dismissed.
(M.S.A.) Appeals dismissed.
PLJ 2010 SC 891 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Ch. Ijaz Ahmed & Rahmat Hussain Jafferi, JJ.
SAYED ABBAS TAQI MEHDI--Appellant
versus
Mst. SAYEDA SABAHAT BATOOL and others--Respondents
Civil Appeals Nos. 955 & 956 of 2006, decided on 3.11.2009.
(On appeal from the order dated 19.1.2005 passed by the Peshawar High Court, Peshawar, in W.P. Nos. 44 & 45 of 2005).
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 8--Ex-parte orders were passed on basis of strength of ex-parte evidence--Suits for possession of half portion of house, dowry articles gifts and golden ornaments & maintenance--Applications for setting aside ex-parte decrees were dismissed--Being aggrieved appeals were also dismissed for non-prosecution--Constitution petitions were also dismissed--Assailed--Concurrent findings--Validity--Family Court had dismissed the applications for setting aside ex-parte decree on merits as well being time barred as is evident from the orders--First Appellate Court had dismissed the appeals--Concurrent conclusions arrived by Courts below were upheld by High Court. [P. 898] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 17--Family Court can exercise its own powers to prevent the course of justice being deflected from the path--Applicability of Evidence Act and CPC qua the proceedings before Family Courts--Held: Family Court has to regulate its own proceedings in accordance with the provisions of Family Courts Act and in doing so it has to proceed on the premises that every procedure is permissible unless clear prohibition is found in law meaning thereby that Family Court can exercise its own powers to prevent the course of justice being deflected from the path. [P. 898] B
Civil Procedure Code, 1908 (V of 1908)--
----O. V, R. 17--Service was effected in view of remarks on registered which was sent by Family Court--Question of applicability of C.P.C. in Family Courts--Held: Civil Procedure Code is not applicable but the judge Family Court, is not debarred to follow the principle of CPC coupled with the fact. [P. 898] C
Civil Procedure Code, 1908 (V of 1908)--
----O. III, R. 4(5)--West Pakistan Family Courts Act, 1964, S. 8--No conflict between Order 3, CPC and provisions of Family Courts Act--Scope of--Purpose and object to make provision establishment of Family Courts for expeditious settleemnt and disposal of disputes relating to marriage and family affairs and for matters connected therewith as evident from preamble of West Pakistan Family Courts Act--Held: Family Courts Act, be read as a whole then it is crystal clear that what Family Courts Act, has done is that it has changed the forum, changed the method of trial and empowered the Court to grant better remedies. [P. 898] D & E
1999 CLC 81, ref.
West Pakistan Family Courts Rules, 1965--
----R. 6--Scope of--No territorial jurisdiction--Not valid attack in view of proviso of Rules 1965--Court within the local limits of which wife ordinarily resides shall also have jurisdiction--Rule 6 had been interpreted in various pronouncements by Courts that Family Court within the local limits of which the wife ordinarily resides has jurisdiction to take cognizance of the matter. [Pp. 898 & 899] F
PLJ 1976 Kar. 388, PLD 1988 Kar. 602 & PLD 2005 SC ref.
Nikahnama--
----Public document--Presumption attached to the document--Concurrent findings--Concurrent findings of all the Courts below the appellant could not advance any reason to dislodge the presumption to the document i.e. nikahnama as being public document and the execution of which was verified by Nikah Registrar who is public officer and even a certificate can be produced in proof of its content and in absence of any rebuttal the same holds the ground. [P. 899] G
1994 SCMR 1978, ref.
Ex-parte decree--
----Remarks on registered A/D--Justification--Service of the appellant had been effected in the case on some address, therefore, remarks on the registered A/D with regard to refusal of the appellant clearly showed that appellant was not mislead in view of address mention in the plaint--Trial Court was justified to pass ex-parte decree against the appellant. [P. 899] H
PLJ 1978 SC 397, ref.
Pleadings--
----Parties are bound by their pleadings as PLD 1974 SC 322--Held: Supreme Court does not allow any party to raise fresh points or pleas which were not raised before the Courts below. [P. 899] I
PLD 1976 SC 766, AIR 1940 PC 219 & 1969 SCMR 96(2) & 1980 SCMR 933, ref.
Administration of Justice--
----Each and every case is to be decided on its own peculiar circumstances and facts. [P. 899] J
1994 SCMR 2213.
Soliders (Litigation) Act, 1925--
----Ss. 10 & 37--Ex-parte decree--Notice had been pasted on outer door of residential house--Serving soldier under special conditions--Ex-parte decree was liable to be set aside u/S. 10 of Soldiers (Litigation) Act.
[P. 900] K
Constitutional Petition--
----Maintainability--Case was decided only on ground of limitation where the case had decided on merits--Constitutional petition is not maintainable qua finding of facts recorded by Courts below as law laid down by Supreme Court. [P. 900] L
1974 SCMR 279, PLD 1981 SC 246 & PLD 1981 SC 522, ref.
Constitutional Jurisdiction--
----Constitutional jurisdiction is discretionary in character--He who seeks equity must come with clean hands. [P. 900] M
Syed Zafar Abbas Zaidi, ASC for Appellant.
Mr. Muhammad Akram Sheikh, Sr. ASC for Respondent No. 1.
Nemo for Respondent Nos. 2 & 3.
Date of hearing: 3.11.2009.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide captioned appeals by one consolidated judgment having similar facts and both are depended upon each other.
"The learned counsel for the petitioner submits that service of the petitioner was not effected in terms of Section 8 of the West Pakistan Family Courts Act, 1964, therefore, the application of the petitioner for setting aside the ex-parte decree was not time barred but this fact was not considered by the Courts below in its true perspective.
We may observe that Rule 13 of the W.P. Family Court Rules, 1965 framed under the West Pakistan Family Courts Act, 1964, which has been the basis to dismiss the application of the petitioner as barred by time, has already been declared as ultra vires of Section 9 of the said Act by this Court in Maj. Matloob Ali Khan V. Additional District Judge, East Karachi and another (1988 SCMR 747).
In this view of the matter, let in the first instance, notice be issued to the respondents for a date after two weeks...."
The cases were fixed before the Court on 2-6-2006 and leave was granted in the following terms:--
"Leave is granted to consider, inter alia, the contentions noted in the order dated 10-5-2006 of this Court."
Hence the present appeals.
The learned counsel for the appellant submits as under:--
(i) The Judge, Family Court, had no jurisdiction whatsoever to take cognizance of the matter as the nikkah was solemnized between the appellant and Respondent No. 1 in Multan.
(ii) Respondent No. 1 had filed suits before Judge, Family Court, Nowshera, as her brother Asghar Hussain Shah Bukhari, who is serving in Pak Army, is posted at Nowshera.
(iii) Respondent No. 1 had secured ex-parte decree by playing fraud with the Court by mentioning wrong address of the appellant/defendant as Respondent No. 1 has mentioned the address of the appellant/defendant i.e. resident of Mohallah Hayat Nagar, Tehsil and District Muzaffargarh whereas the appellant/defendant is permanent resident of Lia. This fact was known to her.
(iv) The Service of the appellant/defendant was not effected. Appellant/defendant had not engaged Wali Muhammad Khan, Advocate, who appeared before the Court without any power of attorney and without his instructions and this fact was also not considered by the Courts below in its true prospective.
(v) The appellant/defendant has been condemned unheard throughout the proceedings. All the Courts have acted on presumptions and surmised qua the appearance of said Haji Wali Muhammad Khan, Advocate as well as qua service of the appellant/defendant.
(vi) The first appellate Court had also erred in law to dismiss the appeal of the appellant on technical ground in violation of the law laid down by this Court.
(vii) All the Courts below had decided the case against the appellant/defendant in violation of mandatory provisions of Sections 6 to 9 of West Pakistan Family Courts Act, 1964.
The learned Counsel for the respondent has supported the impugned judgment. The address of the appellant in Column No. 10 in nikkah nama is exactly the same which was mentioned by Respondent No. 1 in her suits. Appellant/defendant has also mentioned the same address in his Constitutional Petitions before the High Court and Civil Petitions/Appeals before this Court. Appellant/defendant was also served with notice/summons alongwith copy of plaint through registered A/D and the same was returned with the remarks that the appellant/defendant refused to accept the same. The learned counsel for the appellant has failed to point out any infirmity or illegality in the impugned judgment.
We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is better and appropriate to reproduce the operative parts of the applications filed by the appellant/defendant for setting aside the decree before the Judge, Family Court and relevant facts in chronological order to resolve the controversy between the parties:--
(a) Respondent No. 1 filed two suits. First for possession of house, dowry and gift articles and golden ornaments and the second for maintenance etc.
(b) Judge, Family Court, sent notices/summons to the appellant/defendant on 17-11-2001 alongwith copies of plaint through registered A/D for 11-12-2001.
(c) Registered A/Ds received back with the following remarks:
(d) On 11-12-2001 Haji Wali Muhammad Khan, Advocate, entered appearance on behalf of appellant/defendant and got adjournment for filing written statement. The case was adjourned for 14-12-2001.
(e) The said Advocate again appeared and sought adjournment for filing proper wakalatnama. The case was adjourned for 23-1-2002.
(f) On 23-1-2002 neither the said Advocate had entered appearance nor anybody else appeared on behalf of the appellant/defendant. Exparte order was passed against appellant/defendant.
(g) The Judge, Family Court, recorded the exparte evidence of the respondent/plaintiff.
(h) The Judge, Family Court, passed exparte decree on 11.4.2002 in favour of Respondent No. 1/plaintiff.
(i) Appellant/defendant filed application for setting aside ex-parte decree mainly on the following grounds which are reproduced hereunder:--
(j) The said applications were dismissed by the Judge, Family Court, vide orders dated 10-5-2004.
(k) The appellant/defendant filed appeals before the learned Additional District Judge who dismissed the same vide orders dated 11.11.2004.
(l) The appellant/defendant filed Constitutional Petitions Nos. 44 & 45 of 2005 which were dismissed by the High Court vide impugned judgment dated 19-1-2005.
(i) Mahboob Ahmad's case (PLJ 1976 Kar. 388)
(ii) Bibi Anwar Khatoon's case (PLD 1988 Kar. 602)
(iii) Muhammad Iqbal's case (PLD 2005 SC 22).
Apart from the concurrent findings of all the Courts below the appellant could not advance any reason to dislodge the presumption attached to the document i.e. nikahnama as being public document and the execution of which was verified by Nikah Registrar who is public officer and even a certificate may be produced in proof of its content and in the absence of any rebuttal the same holds the ground. See Mst. Zubdida Bibi's case (1994 SCMR 1978). As mentioned in the narration of facts the address of the appellant/defendant is mentioned by the respondent/plaintiff in her plaints which is consonance qua the address of the appellant/defendant mentioned in Column No. 10 of nikahnama, The same address was also mentioned by the appellant himself before High Court as well as before this Court. Even otherwise Respondent No. 1 alongwith her son filed a suit against appellant/defendant before the Judge, Family Court, Multan, with the same address i.e. Mohallah Haydt Nagar, Tehsil and District Muzaffargarh. The service of the appellant/defendant had been effected in the said case on the same address, therefore, remarks on the registered A/D with regard to refusal of the appellant/defendant clearly showed that appellant was not mislead in view of the address mentioned by respondent/plaintiff in her plaints, therefore, trial Court was justified to pass ex-parte decree against the appellant/defendant. See Mst. Ismat Khanum Toor's case (PLJ 1978 SC 397). It is an admitted fact that twice the said Advocate appeared before the Judge, Family Court, and secured adjournment coupled with the fact that the appellant/defendant had not raised objection to jurisdiction in his application filed by him for setting aside ex-parte decree as is evident from the contents of the application which have reproduced herein above. It is settled principle of law that parties are bound by their pleadings as law laid down by this Court in Murad Begum's case (PLD 1974 SC 322). This Court generally does not allow any party to raise fresh points or pleas which were not raised before the Courts below. There are various pronouncements of this Court. See:--
(a) Ashfaqur Rehman Khan's case (PLD 1971 SC 766)
(b) John E. Brownlee's case (AIR 1940 P.C. 219)
(c) Sardar Muhammad Ayub's case (1969 SCMR 96(2); and
(d) Ghulam Muhammad's case (1980 SCMR 933).
It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Trustees of the Port of Karachi's case (1994 SCMR 2213 and Gulzar Khan's case (NLR 1982 SCJ 197). The facts of the case, i.e. Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another (1988 SCMR 747) relied upon by the learned counsel for the appellant, are not relevant to decide the controversy in the case in hand in view of its own facts where Major Matloob is in the service of Pakistan Army. Notice had been pasted on the outer door of residential house in which his family members resided at Karachi who had relied on Section 37 of the Soldiers (Litigation) Act, 1925 and had contended that as he was a serving soldier, under special conditions, the ex-parte decree was liable to be set aside under Section 10 of the said Act. The said case was decided only on ground of limitation where the case in hand had decided on merits as mentioned hereinabove. It is also settled principle of law that constitutional petition is not maintainable qua finding of facts recorded by the Courts below as law laid down by this Court in Khuda Bukhsh's case (1974 SCMR 279), Muhammad Sharif's case (PLD 1981 SC 246) and Sultan's case (PLD 1981 SC 522). It is settled principle of law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. In view of the conduct of the appellant/defendant we are not inclined to exercise our discretion in favour of the appellant/defendant as law laid down by this Court in various pronouncements. See:--
(a) Wali Muhammad's case (PLD 1974 SC 106)
(b) Nawab Syed Raunaq Ali's case (PLD 1973 SC 236)
(c) Rana Muhammad Arshad's case (1998 SCMR 1462) and
(d) G.M. Malik's case (1990 CLC 1783)
(R.A.) Appeals dismissed.
PLJ 2010 SC 901 [Review Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Ch. Ijaz Ahmed & Ghulam Rabbani, JJ.
TOWN COMMITTEE, ALIPUR--Petitioner
versus
ALLAUDDIN and others--Respondents
C.R.P. No. 152/2008 in Civil Appeal No. 1758/2003, decided on 10.2.2010.
(Against the judgment dated 26.6.2008 passed by this Court in C.A. No. 1758 of 2003).
Limitation Act, 1908 (IX of 1908)--
----S. 13--Constitution of Pakistan, 1973, Art. 188--Review of judgment of Supreme Court--Benefit of Section 13 of Limitation Act, 1908--Held: Judgment under review needs to be reversed as benefit of Section 13 of limitation Act is only available to defendant not the plaintiff as per the language employed therein--High Court had non-suited respondent on the point of limitation but such fact was not properly attended to in the impugned judgment--Review allowed. [P. 902] A
Mr. Altaf Ibrahim Qureshi, ASC with Mr. Muhammad Saleem Amir, TMO, Town Committee, Alipur, Mr. Muhammad Kalim Akhtar, Accounts Officer, TMA, Alipur for Petitioner(s).
Respondent No. 1 in person.
Mr. Mehmood Ashraf, ASC for Respondent Nos. 2 & 3.
Nemo for Respondent Nos. 4, 5, & 6.
Date of hearing: 10.2.2010.
Order
Iftikhar Muhammad Chaudhry, CJ.--Having heard the learned counsel for parties as well as respondent Allauddin, we are of the opinion that the judgment under review needs to be reversed as benefit of Section 13 of Limitation Act is only available to defendant not the plaintiff as per the language employed therein. Learned High Court had non-suited respondent Allauddin on the point of limitation but this fact was not properly attended to in the impugned judgment. Prima facie, Town Committee Alipur as well; cannot be allowed to take over the disputed property without valid entitlement in respect thereto as per the law; notwithstanding the fact whether there was a dispute between the private parties in respect of the validity or otherwise of the agreement dated 15th October, 1967 (Ex.P-I). Therefore, review petition is allowed as a result, order dated 26.6.2008 is recalled and civil appeal arising out of the judgment of the High Court is restored to its original number. It is ordered to be fixed after three weeks.
(M.S.A.) Petition allowed.
PLJ 2010 SC 903 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Mian Shakirullah Jan & Ghulam Rabbani, JJ.
Sheikh RASHID AHMED--Appellant
versus
GOVERNMENT OF PUNJAB & others--Respondents
Civil Appeal No. 1410 of 2009, decided on 30.12.2009.
(On appeal against the judgment dated 25.11.2009 passed by Lahore High Court, Lahore, in ICA No. 852 of 2009).
Constitution of Pakistan, 1973--
----Part VIII, Arts. 219(b), 220 & 224--Constitution places upon the Cheif Election Commissioner on obligation to organize the election--Art. 220 conceptually placing the position of Commissioner and Election Commission upper most while discharging their functions requiring the executive authority to assist, in other words "to aid" the commissioner and the election commission. [P. 907] A & B
Constitution of Pakistan, 1973--
----Arts. 219, 220 & 224--Chief Election Commissioner and the Election Commission are absolutely independent with exclusive jurisdiction while performing duties with in terms of Part VIII of the Constitution in which no interference is allowable by any of the parties interested by resorting to any manner and mode, as was done in the present case--All Federal and Provincial Governemnts the law enforcing agencies as well, are under an obligation to ensure that Chief Election Commissioner/Election commission function independently, and see that they are properly strengthened enabling them to discharge their constitutional commitments fairly, freely and without any hindrance and pressure of whatsoever nature. [P. 907] C
Constitution of Pakistan, 1973--
----Art. 224(4)--On account of availability of a seat of Assembly, Art. 224(4) of the Constitution casts a duty upon the Chief Election Commissioners to hold the election within 60 days--Chief Election Commissioner is an independent constitutional authority without trace of subservience and the executive authorities are bound to assist the commissioner in organizing or holding of the election--Appeal allowed. [P. 909] D & E
PLD 1997 SC 84 & PLD 1989 SC 396, ref.
Mr. Waseem Sajjad, Sr. ASC with Mr. Mehr Khan Malik, AOR for Appellant.
Mr. Anwar Mansoor Khan, Attorney-General for Pakistan and Mr. Shah Khawar, DAG for Federation.
Mr. Khadim Hussain Qaiser, Additional Advocate-General for Govt. of Punjab.
Mr. Dil Muhammad Alizai, DAG, Mr. M.S. Khattak, AOR and Mr. Sher Afgan, Dy. Secretary, ECP for Election Commissioner.
Date of hearing: 30.12.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Civil Appeal No. 1410 of 2009 by leave of the Court has been filed against the judgment dated 25.11.2009 of a learned Division Bench of Lahore High Court, whereby an Intra Court Appeal No. 852/2009 preferred by the appellant was disposed of in the terms of and "for the reasons recorded in an other ICA No. 843/2009."
Precisely, it is the case of the appellant that a sitting member of NA 55 resigned on 9.5.2009, which was accepted on 20.5.2009, and the election in this constituency was required to be held within 60 days from the date of occurrence of vacancy in terms of Article 224 (4) of the Constitution of Islamic Republic of Pakistan [hereinafter referred to "the Constitution"]. Consequently the schedule of election was issued by learned Chief Election Commissioner calling upon the electors of the constituency to elect a member to fill the vacancy. However, the respondent (Provincial Government) approached Lahore High Court by way of writ petition with a prayer to, inter-alia, set aside the order dated 15.9.2009 of Chief Election Commissioner, whereby, notification of schedule for bye-election from constituency NA-55 was issued.
The above writ petition was allowed by a Single Judge of Lahore High Court vide judgment dated 9.10.2009, therefore, appellant approached the Lahore High Court by filing ICA but without any relief hence instant appeal by leave of the Court.
Mr. Waseem Sajjad, learned Sr. ASC for appellant contends that the Chief Election Commissioner, who is an independent authority, is required to function under the command of the Constitution and there should be no interference in any manner from any quarter to hamper his functions in discharge of his duties. In support he has relied upon the provisions of Articles 219, 220 and 224(4) of the Constitution and has stated that these provisions are, explicitly, reflective of independence of Election Commission/Chief Election Commissioner which need to be followed strictly without placing any interpretation going against their true meaning and spirit to avoid any violation thereof. Learned counsel has stated that in this case the Provincial Government ought to have followed the Constitution and true spirit of its relevant provision and in case they had any reservation about holding elections, instead of approaching the High Court in its Writ Jurisdiction, they should have made request to the Chief Election Commissioner.
Learned counsel has stated that when the appellant and other candidates requested the Chief Election Commissioner to hold the election, a meeting was convened on 15th September 2009, but, unfortunately, there was no proper representation on behalf of the Punjab Government; obviously, for the reason that they had already filed a writ petition.
Learned counsel appearing for the respondent/Government has placed on record statement; palpably, in an attempt to explain their side of case by mentioning therein that on account of serious law & order situation and threats to lives of certain important personalities i.e. political and religious leaders etc., they were constrained to file writ petition before the Lahore High Court to have the elections postponed. Relevant portions of the statement are reproduced herein below:--
"That on account of serious threats to the lives of certain important personalities i.e. political and religious leaders, which threats and reports were received from Federal and Provincial Intelligence Agencies, some of which even proved real...."
"That the answering respondents were constrained to file a writ petition in the Lahore High Court, Lahore because due to the knowledge, information and understanding of the respondents, law and order situation prevailing in the Province was not conducive for the holding of elections safely and peacefully......"
"That the situation at present is the same and the respondents still apprehend serious threats of life and security to human being, but at the same time Government of the Punjab is never hesitant to hold elections and in spite of all these apprehensions and threats if this august Court deems it proper to order the worthy Chief Election Commissioner for fixing the date of by-elections, the respondents will never hesitate to comply with the orders of this august Court and will whole heartedly try their level best to make the best possible arrangements for holding the elections in peaceful environment. However, if this august Court passes such order, it would be in the interest of justice that a direction is made to the Chief Election Commissioner to fix the date of by-elections by taking the respondents into confidence and with mutual consultation. ....."
On behalf of the Chief Election Commissioner/Election Commission of Pakistan (Respondents Nos. 3 & 4 herein) cross objections have been filed challenging the judgment of learned Single Judge of High Court and the impugned judgment passed on ICA. Serious objections have been raised by saying that any encumbrance on the powers of the Election Commission of Pakistan/Chief Election Commissioner with regard to issuance of schedule or conduct of election or any other power, which has been conferred upon the Election Commission of Pakistan/Chief Election Commissioner under the Constitution or the law, will adversely affect their independence in the discharge of its or his functions and if practice of consulting or extending an opportunity of hearing to any executive authority or stake-holder before issuance of schedule for holding elections or Bye-elections is allowed to prevail, this would be tantamount to abridging the power of Election Commission/Chief Election Commissioner of Pakistan defeating the very purpose and spirit of Chapter VIII of the Constitution. It is averred that the impugned judgment directly affects their independence as regards their constitutional obligations and the powers conferred upon them under the Constitution and have made a prayer to reverse and set-aside the impugned judgment.
Learned Attorney General who appeared on Court notice, however, has stated that:--
(i) Election Commission in Pakistan should exercise its powers independently as the judiciary is required to do so.
(ii) As far as the process of the election is concerned, it cannot be postponed, however, precautionary measures can be adopted by the Chief Election Commissioner.
(iii) As far as the Chief Election Commissioner is concerned, he enjoys his Constitutional supreme status, therefore, the Chief Election Commissioner should not be made subordinate to the Provincial Government for the purpose of seeking instructions as to whether the election should be held or not.
In this behalf he has quoted many examples from the neighbouring country and has stated that the provisions of the Constitution in our country are more effective, therefore, on principles no compromise is possible. He has made reliance upon the judgment in the case of Muhammad Shafiq Chaudhry vs. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and two others (1998 SCMR 1957). Relevant para therefrom is reproduced herein below:
"7. We are of the view that the learned Judge in Chamber was not justified in suspending the election after the above order of the learned Chief Election Commissioner dated 18-5-1998 wherein he has dealt with the question of law and order problem also. All the candidates have shown interest and stated that they would like to have the election held on the due date. They also pointed out that there was no law and order situation when the local bodies elections were held in the same constituency and there were 100 candidates and not one."
We have considered the above submissions and have also gone through the material placed before us and the relevant constitutional provisions. Part VIII of the Constitution comprising Articles 213 to 226 relates to "Elections." Article 213 reflects that Chief Election Commissioner in this part shall be referred to as the Commissioner; whereas, Article 219(b) provides that "the Commissioner shall be charged with the duty of organizing and conducting election to the senate or to fill casual vacancies in a House or a Provincial Assembly." Thus it is quite evident that the Constitution places upon the Chief Election Commissioner an obligation to organize the election. Article 220 of the Constitution provides that "it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions", conceptually placing the position of Commissioner and Election Commission upper most while discharging their functions requiring the executive authority to assist; in other words "to aid" the Commissioner and the Election Commission. In that course, the executive authority shall have no option but, to offer, unhesitatingly, its assistance to make the way for the Commissioner or the Election Commission smoother rather than to make it difficult; either to stop, postpone or slow down their pace in the discharge of duties, in this case holding election for seat in question. The provision of Article 220 of the Constitution also reflects to be in pari materia with the provision of Article 190 of the Constitution according to which "all executive and judicial authorities throughout Pakistan shall act in aid of Supreme Court"; which hold the Supreme Court upper most in the hierarchy of the judiciary for which the Constitution envisages that its independence shall be fully secured. Thus, to sum up, testing on the touchstone of afore-referred provisions of Constitution, the net result that comes out is that the Chief Election Commissioner and the Election Commission are absolutely independent with exclusive jurisdiction while performing duties within terms of Part VIII of the Constitution in which no interference is allowable by any of the parties interested by resorting to any manner and mode, as was done in the present case. All the concerned quarters, namely Federal and Provincial Governments, the Law Enforcing Agencies as well, are under an obligation to ensure that Chief Election Commissioner/Election Commission function independently; and see that they are properly strengthened enabling them to discharge their constitutional commitments fairly, freely and without any hindrance and pressure of whatsoever nature.
Having highlighted the constitutional status of the Chief Election Commissioner and the Election Commission in the foregoing para we revert back to the facts of this case. The Chief Election Commissioner by invoking the provisions of Article 224(4), as a matter of discharging his duties to hold the Election within 60 days, passed orders on 15.9.2009 and in pursuance thereof issued notification giving out the schedule for holding election in constituency NA 55. The Government of Punjab, instead of rendering assistance as a mandate of the Constitution, filed Constitutional Petition No. 18515 of 2009 seeking a declaration, precisely, in the following terms:
"Wherefor, it is respectfully prayed that the impugned order of Respondent No. 1 dated 15.9.2009 and the impugned resultant Notifications dated 16.09.2009, may graciously be set aside. The Petitioners may also be graciously allowed any other or better relief."
A learned Single Judge of Lahore High Court allowed the above petition vide judgment dated 9.10.2009. The operative portion of the same is as follows:
"In the light of above, by allowing this writ petition, the impugned order dated 15.09.2009 and the Notification dated 16.09.2009 based thereupon, are set aside. The CECP thus, shall obviously fix a date for hearing the parties and it is expected that the worthy Chief Election Commissioner of Pakistan shall, after seeking the material provided by the Petitioner about the law and order situation and other aspects, and applying his mind, set out a fresh schedule of the election."
Petitioner herein, challenged the above decision by preferring Intra Court Appeal No. 852 of 2009 which was disposed of in the terms of and for the reasons recorded in a judgment in another ICA No. 843/2009, the operative portion whereof is reproduced as below:
"OUR FINDINGS:
It is held that the writ petition filed by the Provincial Government is maintainable; the discretionary orders passed by the Hon'ble CEC are justiciable on the judicial criteria reserved for orders passed by constitutional functionaries; the order dated 15.09.2009 by the Hon'ble CEC applied the rules of natural justice to the Section 103 ROPA proceedings regarding NA-55 bye-election which were not followed; for the remaining three bye-elections ordered by the Hon'ble CEC on 15.09.2009 the materials and view of the Provincial Government asked for by the Hon'ble CEC remain to be considered by him before announcing a fresh schedule of bye-election in the four constituencies in the province. Consequently, these appeals fail on the challenges to maintainability of the petition and the jurisdiction of the Court, they succeed on the substantive findings assailed. Appeal partly allowed with the consequential directions mentioned above."
As it has been pointed out hereinabove that on account of availability of a seat of Assembly, Article 224(4) of the Constitution casts a duty upon the Chief Election Commissioner to hold the election within 60 days, by placing all the above-noted three provisions of the Constitution in juxta-position, no other inference can be drawn except that the Chief Election Commissioner is an independent Constitutional authority without trace of subservience and the executive authorities are bound to assist the Commissioner in organizing or holding of the election. In this, we are also fortified by a pertinent observation made by our brother Raja Afrasiab Khan, J. (as he then was) in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). In that adding a note to the main judgment drawn by Ajmal Mian, J. (as he then was) while speaking about the elections, in his wisdom, he expressed that "the elections have to be held strictly in accordance with law, justly, fairly and honestly" and that "this is, indeed, a herculean job to be done by the "Chief Election Commissioner." It cannot be said that he is subordinate to any Authority while doing his duties in holding' free, fair and transparent elections which would, in turn, give birth to a body/institution of the nation called "Parliament (Majlis-e-Shoorah)." Also, in case of Election Commission of Pakistan v. Javaid Hashmi (PLD 1989 SC 396), Muhammad Haleem, Chief Justice of Pakistan (as then he was) expressed that "it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage." Considering the foregoing, in our view, the impugned judgment of the High Court is not sustainable as far as the question of the election holding for the seat NA 55 is concerned.
We, therefore, allow the appeal, set aside the impugned judgment of the High Court to the extent of its setting aside the order dated 15-9-2009 of the Chief Election Commissioner whereby the date for Bye-election was announced for holding election for the seat NA 55. Case is sent back to the Election Commission of Pakistan to proceed with the same from the stage where it was left when the stay order was passed by the Lahore High Court. Appeal stands disposed of accordingly.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 910 [Appellate Jurisdiction]
Present: Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
AHMAD ALI alias ALI AHMAD--Appellant
versus
NASAR-UD-DIN and another--Respondents
Civil Appeal No. 917 of 2005 out of CP 117-Q of 2004, decided on 16.4.2009.
(On appeal from the judgment of the High Court of Balochistan, Quetta dated 11.8.2004 passed in FAO No. 134/2002).
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment application--Rent controller allowed the ejectment petition--High Court on appeal dismissed the ejectment petition--Appeal to Supreme Court by leave of the Court--Relationship of landlord and tenant--Held: Though the Rent Controller is not competent to determine the question of title of the property assuming the role of a Civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute the Rent Controller can determine the relationship of landlord and tenant between the parties--In case the tenant could not establish his possession over the property in dispute under the sale, he is not entitled to protect the same and the relationship of landlord and tenant would continue to exit. [P. 914] A
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment application--Relationship of landlord and tenant existed between the parties--Application of landlord for ejectment of tenant having been based on default, and the required relationship of landlord and tenant having been denied by the tenant, he was liable to be ejected straightaway when the required relationship has been proved in affirmative. [Pp. 914 & 915] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment application--In absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law--Appeal allowed. [P. 915] C
PLD 1990 SC 382, ref.
Mr. Kamran Murtaza, ASC for Appellant.
Mr. H. Shakil Ahmad, ASC and Mr. Muhammad Ayaz Khan Swati, ASC for Respondent No. 1.
Respondent No. 2 Ex-parte.
Date of hearing: 16.4.2009.
Order
Muhammad Akhtar Shabbir, J.--This appeal by leave of the Court is directed against the judgment of the High Court of Balochistan, Quetta dated 11.8.2004 passed in FAO No. 134/2002.
"Whether any relationship of landlord and tenant between the parties exists?"
The Rent Controller, after recording, appreciating the evidence of the parties, pro and contra, allowed the ejectment petition, vide his order dated 4.12.2002. The said order had been assailed by Respondent No. 1 before the High Court of Balochistan, Quetta through FAO No. 134/2002, which was accepted, vide the impugned judgment, as a result whereof the ejectment petition filed by the appellant has been dismissed. Hence this appeal by leave of the Court.
Learned counsel for the appellant contended that the shop in dispute had been allotted/transferred in his favour by the Quetta Development Authority, vide allotment letter issued in February, 1982; that the cost of the property/shop valuing Rs.64,792.55 had been deposited by the appellant through Respondent No. 1, vide deposit receipt dated 16.5.1982; that the Respondent No. 1 had not controverted the document of title in favour of the appellant; that the appellant had produced three witnesses i.e. Abdul Fateh AW-1, Haji Muhammad Rahim AW-2 and Riaz Mansoor Shah, Advocate AW-4, in support of his assertions raised in the ejectment petition.
While, on the other hand, the learned counsel for Respondent No. 1 vehemently opposed the arguments of the learned counsel for the appellant, contending that there was no relationship of landlord and tenant between the parties; that the respondent has purchased the shop from the appellant and has deposited the cost thereof with the Quetta Development Authority, who in that regard referred to the deposit slip, claiming that the amount was deposited by him and the receipt thereof has also been produced by him before the Rent Controller; that there is no written lease/tenancy agreement between the parties and that the appellant has failed to establish on record the relationship of landlord and tenant; that the respondent has deposited the excise tax of the property in dispute from his own pocket; that the appellant has made no effort to receive the rent of the property in dispute for five year; that when there is a dispute with regard to the title of the property, the Rent Controller cannot adjudicate upon the same who can only make a tentative assessment of the documents on the basis of the evidence and that the party claiming title/ownership of the property, has to approach the Civil Court. In support of the proposition, he placed reliance on the case of Rehmatullah Vs. Ali Muhammad and another (1983 SCMR 1064).
We have heard the arguments of the learned counsel for the parties, examined the record with their assistance. The appellant has placed on record a letter issued by Quetta Development Authority, according sanction for the sale of the shop in favour of the appellant for a cost of Rs.64,792.55 and the said amount has been deposited by him on 16.5.1982. In the record of the Quetta Development Authority, the said shop is entered in the name of the appellant. The Respondent No. 1 has not made any effort to get it transferred in his favour from the Quetta Development Authority. The respondent claimed that he has purchased the shop from the appellant at the time when the business partnership between them had been terminated. In this regard, the respondent had not filed any civil suit against the appellant before any Court of competent jurisdiction for transfer of the shop in his favour. The respondent has placed reliance of two deposit slips of the Property Tax i.e. Ex. R-2 and R-3 which are not a conclusive proof of the ownership or title of the property and only relate to the payment of tax, which no doubt can be deposited by the occupant of the shop. The respondent has further placed reliance on a document Exh R-4, vide which the partnership business between the parties has been terminated but this document also gives no title to the respondent. This stand of the tenant had been denied by the landlord, so much so, this document was not confronted to the appellant while he appeared in the witness box before the Rent Controller as his own witness. This original document Exh.R/4 has neither been placed on record nor got exhibited in the evidence and it was returned to the respondent by the Rent Controller, as such, it has not been proved according to law. The respondent himself admitted that there was no writing regarding termination of business between the parties. The evidence/documents, not made part of the record, cannot be considered by the Courts. The respondent has also produced oral evidence but failed to controvert the document of title produced by the appellant with regard to his ownership of the premises in dispute.
Muhammad Saleem, a Superintendent of the Quetta Development Authority while appearing as AW-3, brought the record regarding the property in dispute and verified Exh.A/1, the approval of the sale of the property in favour of the appellant. The said witness had also appeared as RW3 and admitted the entry of the shop in dispute in the record of the Quetta Development Authority in favour of the appellant.
The appellant produced Abdul Fateh AW-1 and Haji Muhammad Raheem AW2, who categorically deposed in line with each other and stated that the Respondent No. 1 was a tenant of the shop in dispute under the appellant and due to paralysis attack on the appellant, they have been receiving the rent from Respondent No. 1. Affidavits of both the AW-s were also placed on the record and thereafter they were cross-examined by the respondent's side but their veracity could not be shattered.
Riaz Mansoor Shah, Advocate also appeared as AW-4, who had issued legal notice to the tenant for eviction of the premises in dispute. The Respondent No. 1 denied the tenancy under the appellant, claiming to be the owner of the property as a purchaser from the appellant but failed to prove the same. Admittedly, the record shows that the title/ownership over the premises in dispute vested with the appellant, which had not been rebutted by the respondent and it is well-settled that once a tenant is always a tenant. The respondent has neither made any effort before the Quetta Development Authority for transfer of the shop in his favour nor resorted to any remedy before the Court of competent jurisdiction against the appellant and this fact of the case cannot easily be ignored. Though the Rent Controller is not competent to determine the question of title of the property assuming the role of a Civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute the Rent Controller can determine the relationship of landlord and tenant between the parties. In case the tenant could not establish his possession over the property in dispute under the sale, he is not entitled to protect the same and the relationship of landlord and tenant would continue to exist as laid down in Mst. Azeemun Nisa Begum Vs. Ali Muhammad (PLD 1990 SC 382).
AW-1 Abdul Fateh and AW-2 Haji Muhammad Saleem deposed before the Rent Controller to the effect that the respondent was tenant under the landlord/appellant and they have been approaching him for collection of monthly rent when the landlord was sick and could not walk. Riaz Mansoor Shah, Advocate, AW-4 also appeared and proved the Legal Notice Ex. A/2, issued to the tenant under the instructions of the landlord. The respondent had not claimed any animosity against these witnesses. The landlord has clearly refuted the assertion of the respondent with regard to the joint business with him and also sale of the shop in his favour. The possession of the shop in question since the year 1982 is admitted by the respondent. He has not been able to prove his ownership and title of the shop by producing some convincing evidence to bring the ownership of the ejectment petitioner under shadow of doubt. In such circumstances, the tenant can not legitimately resist maintainability of ejectment petition. Reliance in this context can be placed on the case of Haji Juma Khan Vs. Haji Zarin Khan (PLD 1999 SC 1101). The tenant/respondent denied ownership of property on the basis of his share in business and purchase of the shop. For about three (3) decades having been able to keep possession on a claim which had been denied by the landlord/appellant, the respondent was at liberty to file litigation for transfer of the shop in his favour, but he had not filed any such lis against the landlord to establish his claim. So on the basis of his un-established claim he is not entitled to protect his possession at the cost of the appellant as laid down in case of Iqbal & 6 others Vs. Mst. Rabia Bibi and another (PLD 1991 SC 242).
In the case in hand, we from perusal of record, keeping in view all facts and statements of the witnesses, find that relationship of landlord and tenant existed between the parties. Application of landlord for ejectment of tenant having been based on default, and the required relationship of landlord and tenant having been denied by the tenant, he was liable to be ejected straightaway when the required relationship has been proved in affirmative. Reliance in this respect can be placed on Rab Nawaz Vs. Haji Muhammad Iqbal (2003 SCMR 1476), Abdul Hamid and 3 others vs. Syed Abdul Qadir & others (PLD 2001 SC 49).
In the impugned judgment the High Court has observed that the tenancy had not been created by the written instrument. This Court in case of Shajar Islam Vs. Muhammad Siddique and 2 others (PLD 2007 SC 45) has laid down that tenancy would not be necessarily created by written instrument in express terms, rather might also be oral and implied. In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law. The evidence produced by the appellant/landlord had not been disproved by the respondent. The facts of the case of Rehmatullah Vs. Ali Muhammad and another (1983 SCMR 1064), are not attracted to the present case because in that case the ejectment application of the respondent therein was dismissed by the Rent Controller as he failed to establish his title and ownership over the property, while in the instant case the ejectment petition filed by the appellant/landlord had been allowed vide order dated 4.12.2002 and the title of the respondent/tenant in respect of the property in dispute is under doubt.
Non-payment of the rent of the property in dispute by the tenant is admitted, as such, he would be inferred as defaulter, so liable to be ejected.
For the foregoing reasons, we allow this appeal. Resultantly, the impugned judgment of the High Court being not sustainable is set aside, order of ejectment of the respondent/tenant passed by the Rent Controller dated 04.12.2002 is restored. The respondents are directed to hand over the vacant possession of the premises to the appellant within sixty days after passing of this Judgment. No order as to cost. The observation of this Court/determination of the title/ownership of the landlord, is tentative in nature and it would not prejudice the merits of the case, if the tenant approaches the civil Court of competent jurisdiction for determination of his title over the property.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 916 [Review Jurisdiction]
Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Ghulam Rabbani, JJ.
FEDERATION OF PAKISTAN and others--Petitioners
versus
MIAN MUHAMMAD NAWAZ SHARIF and others--Respondents
Civil Review Petitions No. 45, 46, 47, 48, 50, 51, 52, 59, 60, 61, 62 of 2009 in C.Ps. No. 778, 779, 878, CA No. 166/09 & C.Ps. 803, CMA Nos. 63 & 64/08 in CMA No. 1674-75/08 in CP No. NIL of 2008, Crl. R.P. No. 22/09 in Crl. O. P. 41 of 2008.
(On review from the judgments of this Court dated 25.2.2009 passed in the above captioned petitions).
Powers of Judicial Review--
----Ex-parte judgment--The judgments under review are ex-parte on account of which certain factual aspect and legal provisions having bearing on the issue raised, were not brought to the notice of the Court and therefore were not considered leading to miscarriage of justice which has been found by Supreme Court to be errors apparent on the face of record warranting review. [P. 922] A
Exceptional and Extraordinary events--
----Unconstitutional removal of Judges of superior Courts--Triggering an unprecedented nationwide movement, culminating in the restoration of those judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence. [P. 922] B
Constitution of Pakistan, 1973--
----Arts. 199 & 225--Art. 225 places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of Peoples Act, 1976--In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Art. 199 of the Constitution provided the order passed during the election process is patently illegal--Issues of unpaid loans, of Court contempt and of filing false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Art. 199 of the Constitution. [P. 923] C
Presidential Pardon--
----It was conditional or qualified pardon required deeper probe which exercise entailed factual enquiry--Questions--Whether petitioners were hit by Arts. 63(h) and (1) of the Constitution or by S. 99 of Representation of people Act could also not have been decided by the High Court or by Supreme Court in writ jurisdiction.
[Pp. 923 & 924] E
PLD 1989 SC 396, 1994 SCMR 1299 & PLD 2008 SC 735, ref.
Constitution of Pakistan, 1973--
----Art. 4--Restraint on the legislative, executive and judicial organs of the state to abide by the rule of law--Abdiction of this owesome responsibility by any organ leads to arbitrariness and injustice--Estimation are canons of substantive democracy embodied in Constitution which, inter alia, Supreme Court have kept in view while exercising the power of Judicial Review. [P. 924] F
Agha Tariq Mehmood Khan, DAG for the Petitioner (in C.R.P. Nos. 45 & 46 of 2009 in C.P. Nos. 778 & 779 of 2008).
Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR (in CRP 45/09)
Nemo for Respondents No. 2-5 (in C.R.P. Nos. 45 & 46 of 2009 in C.P. Nos. 778 & 779 of 2008).
Dr. Mohyuddin Qazi, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent No. 6 (in C.R.P. Nos. 45 & 46 of 2009 in C.P. Nos. 778 & 779 of 2008).
Agha Tariq Mehmood, DAG with Mr. Arshad Ali Ch., AOR for Petitioner (in CRP Nos. 47 & 48 of 2009 in C.P. Nos. 905 & 878 of 2008).
Mr. Ahmed Raza Qasuri, Sr. ASC and Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1 (in CRP Nos. 47 & 48 of 2009 in C.P. Nos. 905 & 878 of 2008).
Khawaja Haris Ahmed, ASC with Mr. Mehr Khan Malik, AOR for Respondent No. 2 (in CRP Nos. 47 & 48 of 2009 in C.P. Nos. 905 & 878 of 2008).
Nemo for Respondents No. 3-5 (in CRP Nos. 47 & 48 of 2009 in C.P. Nos. 905 & 878 of 2008).
Mr. Muhammad Raza Farooq, ASC and Mr. Ashtar Ausaf Ali, ASC with Mr. Arshad Ali Ch., AOR for Petitioner (in CRP No. 50 of 2009 in C.P. No. 803 of 2008).
Mr. Ahmed Raza Qasuri, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1 (in CRP No. 50 of 2009 in C.P. No. 803 of 2008).
Khawaja Haris Ahmed with Mr. Mehr Khan Malik, AOR for Respondent No. 2 (in CRP No. 50 of 2009 in C.P. No. 803 of 2008).
Nemo for Respondents No. 3-5 (in CRP No. 50 of 2009 in C.P. No. 803 of 2008).
Agha Tariq Mehmood, DAG for Respondent No. 6 (in CRP No. 50 of 2009 in C.P. No. 803 of 2008).
Mr. A.K. Dogar, ASC with Mr. Arshad Ali Ch. AOR for Petitioner (in CRP No. 51 of 2009 in CMA No. 64/08 in CMA No. 1674/08 in CP No. Nil of 2008).
Dr. Mohyuddin Qazi, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1 (in CRP No. 51 of 2009 in CMA No. 64/08 in CMA No. 1674/08 in CP No. Nil of 2008).
Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR for Respondent No. 2 (in CRP No. 51 of 2009 in CMA No. 64/08 in CMA No. 1674/08 in CP No. Nil of 2008).
Nemo for Respondents No. 3-5 (in CRP No. 51 of 2009 in CMA No. 64/08 in CMA No. 1674/08 in CP No. Nil of 2008).
Agha Tariq Mehmood, DAG for Respondent No. 6 (in CRP No. 51 of 2009 in CMA No. 64/08 in CMA No. 1674/08 in CP No. Nil of 2008).
Mr. Muhammad Akram Sheikh, Sr. ASC with Mr. Arshad Ali Ch. AOR for Petitioner (in CRP No. 52/09 in CMA No. 63/09 in CMA No. 1675/08).
Dr. Mohyud Din Qazi, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1 (in CRP No. 52/09 in CMA No. 63/09 in CMA No. 1675/08).
Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR for Respondent No. 2 (in CRP No. 52/09 in CMA No. 63/09 in CMA No. 1675/08).
Nemo for Respondents No. 3-5 (in CRP No. 52/09 in CMA No. 63/09 in CMA No. 1675/08).
Agha Tariq Mehmood, DAG for Respondent No. 6 (in CRP No. 52/09 in CMA No. 63/09 in CMA No. 1675/08).
Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR for Petitioner (in CRP Nos. 59 & 60 of 2009 in C.P. Nos. 778 & 779 of 2008 a/w CMA No. 1130 & 1551 of 2000).
Agha Tariq Mehmood, DAG for Respondent No. 1 (in CRP Nos. 59 & 60 of 2009 in C.P. Nos. 778 & 779 of 2008 a/w CMA No. 1130 & 1551 of 2000).
Nemo for Respondents No. 2-5 (in CRP Nos. 59 & 60 of 2009 in C.P. Nos. 778 & 779 of 2008 a/w CMA No. 1130 & 1551 of 2000).
Dr. Mohyud Din Qazi, Sr. ASC with Mr. Ejaz M. Khan, AOR for Respondent No. 6 (in CRP Nos. 59 & 60 of 2009 in C.P. Nos. 778 & 779 of 2008 a/w CMA No. 1130 & 1551 of 2000).
Mr. Shahid Orakzai for Applicant (in person in CMAs).
Khawaja Haris Ahmed, ASC with Mr. Mehr Khan Malik, AOR for Petitioner (in CRP Nos. 61 & 62 of 2009 in C.P. Nos. 878 & C.P. No. 905/08 (CA No. 166/09) a/w CMA No. 1525 of 2009).
Agha Tariq Mehmood, DAG for Respondent No. 1 (in Cr.P No. 61 & 6 in CRP No. 62/09).
Nemo for Respondents No. 2-4 (in CRP Nos. 61 & 62 of 2009 in C.P. Nos. 878 & C.P. No. 905/08 (CA No. 166/09) a/w CMA No. 1525 of 2009).
Dr. Mohyud Din Qazi, Sr. ASC with Mr. Ejaz M. Khan, AOR for Respondent No. 5 (in CRP 61 & 1 in CRP 62/09).
Mr. Sahhid Orakzai for Applicant (in person in CMA)
Mr. Muhammad Raza Farooq, ASC with Mr. Mehr Khan Malik, AOR for Petitioner (in Crl. R.P. No. 22 of 2009 in Crl. O.P. No. 41/09 in CP No. 657-L of 2008).
Mr. Ahmed Raza Qasuri, Sr. ASC for Respondent No. 1 (in Crl. R.P. No. 22 of 2009 in Crl. O.P. No. 41/09 in CP No. 657-L of 2008).
Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan (on Court's Call).
Dates of hearing: 11.5.2009 to 26.5.2009.
Order
Tassaduq Hussain Jillani, J.--For reasons to be recorded in the detailed judgment later, Civil Review Petitions No. 59 & 60 of 2009 filed by Mian Muhammad Nawaz Sharif, Civil Review Petitions No. 61 and 62 of 2009 filed by Mian Muhammad Shahbaz Sharif, Civil Review Petitions No. 45, 46, 47 and 48 of 2009 filed by the Federation of Pakistan and Criminal Review Petition No. 22 of 2009 filed by Javed Mehmood, Civil Review Petition No. 50 of 2009, Civil Review Petitions No. 51 and 52 of 2009 filed by Shakeel Baig and Mehar Zafar Iqbal and Civil Misc. Application Nos. 1130, 1551 and 1525 of 2009 filed by Shahid Orakzai are being disposed of by this short order.
Petitioner Mian Muhammad Nawaz Sharif (in Civil Review Petition Nos. 59 & 60 of 2009) filed his nomination papers for N.A. 123 Lahore. The only objection petition filed by Mian Akhlaq Ahmad @ Guddu was dismissed vide order dated 5.5.2008, inter alia, on the ground that the objection petition had not been supported by any documentary evidence despite the opportunities given to the objector. This order was challenged in appeal before the Appellate Tribunal comprising of two learned Judges of the High Court. However, on 27.05.2008 the said objector withdrew his appeal but on the same day the other candidate Noor Elahi filed an application under Order 1 Rule 10 CPC with the prayer that he might be allowed to be transposed as appellant. This application was dismissed with the observation that he might file a separate appeal, if so advised. Later on, he filed a time barred appeal on 28.05.2008 (last date for filing appeal was 24.05.2008). Iia the meanwhile, one Syed Khuram Shah had also laid information under Section 14(5-A) of the Representation of Peoples Act, 1976 [hereinafter referred to as `the Act'] through an application dated 26.05.2008 alleging that Mian Muhammad Nawaz Sharif was disqualified in the light of the said information.
Petitioner Mian Muhammad Shahbaz Sharif (in Civil Review Petition Nos. 61 & 62 of 2009) filed his nomination papers to contest the elections for the seat of Provincial Assembly Punjab for the Constituency of PP 48 Bhakkar-II. Only one person namely Malik Nazar Abbas filed an objection petition on the grounds that the candidate had defamed the judiciary by criticizing the then District & Sessions Judge; that his nomination papers were rejected in the General Elections on 01.12.2007; that he alongwith his nomination papers had filed a false declaration; that he was not qualified to contest the elections in view of Article 63 (1) (g) of the Constitution read with Section 99 of the Act. This objection was dismissed and nomination papers were accepted on 16.05.2008. The said objector did not challenge this order but on 27.05.2008 Syed Khurum Shah filed a petition under Section 14(5-A) of the Act purporting to lay information against Mian Muhammad Shahbaz Sharif to the effect that he was disqualified to be elected as member of the Assembly on the ground that he was guilty of defaming the judiciary; that he was propagating against the sitting Chief Justice and the Judges who had taken oath under the Provisional Constitutional Order, 2007; was attempting to divide the judiciary and was willful defaulter of, "several loans running into billions."
The learned Appellate Tribunal (comprising of two learned Judges of the High Court) consolidated both the cases and gave split opinions. While one learned Judge dismissed the appeals and declared both the petitioners to be qualified to contest the elections, the other learned Judge declared both of them to be disqualified and rejected the nomination papers. On account of this split opinion, the appeals remained undecided (though as per the Election Schedule, the same had to be decided by 31.05.2008). The Chief Election Commissioner of Pakistan declared that since the appeals/petitions filed by respondents against acceptance of nomination papers had not been decided by the aforementioned cut-off date, the same shall be deemed to have been rejected. Respondent Syed Khuram Shah challenged this order by way of two separate writ petitions (Writ Petitions No. 6469 & 6470 of 2008), while Noor Elahi, the rival candidate, also filed Writ Petition No. 6468 of 2008 against acceptance of nomination appers of Mian Muhammad Nawaz Sharif. These writ petitions were allowed by separate judgments of even date by the learned High Court, in the case of Mian Muhammad Nawaz Sharif, the Court held that he was disqualified to contest the elections as he was--
(i) a convict in terms of the judgment of Accountability Court in Reference No. 2 of 2000 dated 22.7.2000 under Section 9-A(v) of the National Accountability Bureau Ordinance;
(ii) had scandalized, abused and ridiculed the judiciary; and
(iii) had sworn a false affidavit attached with his nomination papers to the effect that he was qualified to contest the elections."
However, the same learned Bench though accepted the petition against Mian Muhammad Shahbaz Sharif but held that the information laid under Section (5-A) of the Act could not be treated as appeal and the Chief Election Commissioner was directed to constitute another Appellate Tribunal (comprising of three Judges of the High Court) to decide the said application. The afore-mentioned judgments of the learned High Court were challenged in Civil Petitions No. 778 and 779 of 2008 and Civil Petition No. 878 of 2008, filed by the Federation of Pakistan, Civil Petition No. 905 of 2008 (converted into C.A. No. 166 of 2009) filed by Syed Khurrum Shah, Civil Petition No. 803 of' 2008 filed by Speaker Provincial Assembly Punjab, Civil Petition No, 657-L of 2008 and C.M.A. No. 471-L of 2008 in Civil Petition No. NIL of 2008 filed by the Chief Secretary Punjab and C.M.A. No. 95 of 2009 filed by Shahid Orakzai against the petitioners. Although the writ petition filed by Syed Khurrum Shah had been accepted yet the latter filed the civil petition praying that since the order of the Chief Election Commissioner dated 1.6.2008 was set aside, the Court should have de-notified the membership of Mian Muhammad Shahbaz Sharif which had emanated on account of the order of Chief Election Commissioner dated 1.6.2008. This Court vide the judgment under review while accepting the Civil Petition No. 905 of 2008 filed by Syed Khuram Shah dismissed all the connected petitions. Reversing the judgment of the High Court in the case of Mian Muhammad Shahbaz Sharif, he was disqualified to contest the elections.
We have heard learned counsel for the petitioners and for the respondents, the learned Attorney General and Deputy Attorney General for Pakistan and have given anxious consideration to the submissions made.
Having heard the learned counsel for the parties, we hold as under:--
(i) That the judgments under review i.e. of the Lahore High Court dated 23.06.2008 and of this Court dated 25.02.2009 are ex-parte on account of which certain factual aspect and legal provisions having bearing on the issues raised, were not brought to the notice of the Court and therefore were not considered leading to miscarriage of justice which has been found by us to be errors apparent on the face of record warranting review.
(ii) Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which in the judgment under review has been described as, ""enforced by a brutal force, by deviating from constitutional provisions," triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merit to be interfered with in the review jurisdiction.
(iii) That both the appeals filed under Section 14(5) of the Act and the information laid or directed against the acceptance of nomination papers (under Section 14(5A) of the said Act) were mandated to be decided by or before 31st of May 2008, the period fixed for deciding the appeals in the Schedule issued by the Chief Election Commissioner under Section 11 read with Section 14(5) of the said Act. Since the appeals were not decided by then, the order of the Chief Election Commissioner holding that the appeal stood dismissed was in accord with Section 14(6) of the Act which stipulated that, "an appeal not disposed of within the period specified in sub-section (5) shall be deemed to have been dismissed." The finding that information laid under Section 14(5A) of the said Act could remain pending and decided beyond the said date fixed for disposal of appeals was not in consonance with the legislative intent.
(iv) The last date for disposal of appeal against the acceptance of nomination papers was 31.05.2008 and thereafter the Appellate Tribunal had become functus officio. The order of the Chief Election Commissioner dated 01.06.2008 to the effect that since the appeals had not been decided within the afore-referred cut-off date, the same were deemed to have been rejected (in terms of sub-section (6) of Section 14 of the said Act) was passed with jurisdiction. The learned High Court not only allowed respondents' writ petitions against this order but while doing so, passed two inconsistent judgments of even date i.e. while in the case of Mian Muhammad Shahbaz Sharif, it held that the source information/petition (under sub-section (5A) of Section 14 of the Act) shall be deemed to be pending before the Appellate Tribunal comprising of three Judges of the High Court to be constituted by the Chief Election Commissioner, whereas in the case of Mian Muhammad Nawaz Sharif declared him disqualified to contest the elections.
(v) The mandate of Article 225 of the Constitution has not been appreciated in the context of the instant cases. This Article places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of Peoples Act, 1976. In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Article 199 of the Constitution provided the order passed during the election process is patently illegal, the law has not provided any remedy either before or after the election; and the alleged disqualification is floating on record requiring no probe and enquiry. In the cases in hand, the issues of unpaid loans, of Court contempt and of filing false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Article 199 of the Constitution and even the material placed before the Court was not sufficient to render the impugned findings. Constitution or by Section 99 of the Act could also not have been decided by the High Court or by this Court in writ jurisdiction. The judgments under review therefore are not in accord with the law laid down by this Court in the cases reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), Ghulam Mustafa Jatoi v. Addl. District & Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others (1994 SCMR 1299) and Let. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 SC 735 at 763).
(vii) That one of the onerous functions of the Supreme Court is to protect the Constitution and to sustain democracy. Democracy is not merely holding of periodical elections or of governance by legislative majority. It is a multidimensional politico-moral concept epitomizing the abiding values of equality, human dignity, tolerance, enjoyment of fundamental rights and due process of law. Whether it is the issue of denial of a substantive right or of construing a statutory provision, these principles should weigh with the Court. Article 4 of the Constitution is a restraint on the legislative, executive and judicial organs of the State to abide by the rule of law. Abdication of this awesome responsibility by any organ leads to arbitrariness and injustice. These in our estimation are canons of substantive democracy `embodied in our Constitution which, inter alia, we have kept in view while exercising the power of judicial review.
(M.S.A.) Order accordingly.
PLJ 2010 SC 925 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Zia Pervez, JJ.
Mst. FAREEDA KHATOON--Appellant
versus
Dr. MASOOD AHMAD BUTT and others--Respondents
Civil Appeals No. 1112 & 1946 of 2002, decided on 17.3.2008.
(On appeal from the judgment dated 29.5.2002 of the Lahore High Court, Lahore passed in RFA No. 499 of 2000).
Punjab Muslim Personal Law (Shariat) Act, 1962--
----S. 2-A--Question of validity of "Wasiyatnama" in favour of wife, whereby she was entitled to the usufruct of 50% of the suit property during her life time--Died issueless--Custom--Enactment of Section 2-A in Muslim Personal Law (Shariat) Act, 1962 (Punjab Amendment) Ordinance, 1983--Held: Enactments, settlement of inheritance and distribution of shares according to Shariat were enforced thereby overriding any custom or usage--Conseqeuntly, the creation of life interests for enjoyments of usufruct of properties upon the death of a male holder were done away with and were subjected to Muslim Personal Laws (Shariat). [P. 928] A
West Muslim Personal Law (Shariat Application) Act, 1948--
----Scope--Fifty percent of property, life interest of the usufruct in favour of appellant--It is not sustainable in view of the provisions of the West Punjab Muslim Personal law (Shariat) Application Act, 1948, Punjab Muslim Personal law (Shariat) Application Act, 1962 and the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972--Right of inheritance according to Shariat cannot be deferred or superseded by custom or usage--Appeals dismissed.
[P. 929] B
Mirza Hafeez-ur-Rehman, ASC (in C.A. No. 1112/2002) and Mr. S.A. Naseem, ASC (in C.A. No. 1946/2002) for Appellant.
Mr. S.M. Naeem, ASC (in C.A. No. 1112/2002) and Mirza Hafeez-ur-Rehman, ASC (in C.A. No. 1946/2002) for Respondents.
Date of hearing: 17.3.2008.
Judgment
Zia Perwez, J.--These two Civil Appeals are directed against the impugned judgment dated 29.5.2002 passed in RFA No. 499 of 2000 by a learned Division Bench of the Lahore High Court, Lahore, whereby the appeal of the appellant Mst. Fareeda Khatoon was partly allowed.
The facts of the case are that Property No. 27-B, New Muslim Town, Lahore comprising of land measuring 2 kanals 9 marlas and 76 Sq.ft. together with a residential house constructed thereon (hereinafter referred to as the "suit property") was owned by one Mahmood Ahmed Butt. He gifted the said property to the extent of 50 % to his wife the appellant Mst. Fareeda Khatoon during his life time under a registered Hibanama dated 7.3.1989 (Exh.D.2) executed in her favour. He also executed a second document titled "Wasiyatnama" in her favour, whereby she was entitled to the usufruct of the remaining 50 % of the suit property during her life time. He died issueless.
The respondents in C.A. No. 1112 of 2002 (also the appellant in C.A. No. 1946 of 2002) filed a suit for administration of estate of late Mahmood Ahmed Butt and rendition of accounts. It was alleged in the plaint that the appellant, widow of Mahmood Ahmed Butt had taken over exclusive possession of the properties owned by her husband and was enjoying the usufruct of the same to the exclusion of the plaintiffs/respondents. The said suit was contested by the appellant Mst. Fareeda Khatoon. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:--
"1. Whether Mahmood Ahmed Butt deceased was owner of the suit properties mentioned in Para No. 2 of the plaint at time of his death.
Whether Mahmood Ahmed Butt was Sunni or Shia by faith? OPD Parties.
Whether the plaintiffs have got no locus standi to bring this suit? OPD.
Whether the plaintiffs are entitled to get any share in the suit properties, if so, what are their legal shares? OPD.
Whether the plaintiffs are entitled to get decree for mesne profit, if so, to what extent? OPD
Relief."
After recording evidence, the learned trial Court passed a preliminary decree on 10.10.2000 in favour of plaintiffs/respondents. The appellant preferred Regular First Appeal No. 499 of 2000 before the Lahore High Court which was partly accepted vide impugned judgment dated 29.05.2002. Both the parties have filed present civil appeals.
Mirza Hafeez-ur-Rehman, the learned ASC for the appellant in (C.A. No. 1112/2002) while admitting the transfer of 50% of property in favour of appellant Mst. Farida Khatoon through a registered gift-deed contended that the Lahore High Court did not properly appreciate the relevant facts of the case, regarding the life time interest of the appellant in the remaining 50% of the said property. It is further contended by the learned counsel that the respondents/plaintiffs failed to discharge their onus of proof on Issue No. 5. Under these circumstances, a preliminary decree could not be passed in their favour. In view of Naziruddin and others v. Khairat Ali (1938 ILR Lucknow 713), Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan (PLD 1948 P.C. 23), Mst. Khan Bibi v. Mst. Safia Begum and others (PLD 1969 Lahore 338), Murid Hussain and two others v. Mst. Bakhsh Ilahi, and four others (PLD 1975 Lahore 1484) and Mst. Samia Naz v. Sheikh Pervaiz Afzal and others (2001 SCJ 670).
On the other hand, Mr. S.M. Naeem, the learned ASC for the respondents/defendants (appellants in C.A. 1946/2002) contended that the learned Division Bench of the High Court had not appreciated the evidence in its true perspective and reversed the findings of the learned trial Court on Issue No. 5. He further stated that the findings of the learned High Court were required to be set aside so that the judgment of the learned trial Court was upheld by allowing the appeal with costs. In support of his submissions, he placed reliance on the cases of Amina Khatoon and another v. Siddiqur Rehman Dihidar and another (PLD 1960 Dacca 647), Chief Administrator of Auqaf, West Pakistan v. Khan Muhammad Sher Nawab Khan (PLD 1967 Lahore 672), and Fazal Muhammad v. Mst. Chohara (Widow) of Ghulam Sarwar (since dead) represented by her L.Rs. (1992 PSC 1555).
We have heard the learned counsel for the parties at length and have perused the record, carefully with their able assistance.
At the outset, we may refer to the legal developments by way of the relevant enactments that took place on the subject over the period. The Personal Laws, and Customs prevailing in the Punjab were recognized by Section 5 of the Punjab Laws Act of 1872 which read as follows:--
"5 Decisions in certain cases to be according to Native Law. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usages or institutions, the rule of the decision shall be--
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority; and
(b) the Muhammadan Law, in case where the parties are Muslims, and the Hindu Law, in case where the parties are Hindus, except insofar as such law has been attended or abolished by legislative enactment, or has been modified by any such custom as is above-referred to."
Subsequent changes were brought about gradually by various enactments. The West Punjab Muslim Personal Law (Shariat) Application Act, 1948 recognized an overriding effect of Shariat over Custom. By Section 2 of Punjab Muslim Personal Law (Shariat) Application Act, 1962 it was provided as under:
"2 Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages, or institutions including waqfs, trusts and property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslim."
"3-A. Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee-in-enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at he time of the death of the said legatee."
The above position continued in force upto 1983, when the Muslim Personal Law (Shariat) Act (Punjab Amendment) Ordinance, 1983, was promulgated and Section 2-A was inserted in the Punjab Muslim Personal Law (Shariat) Act, 1962 to the following effect:-
"2-A. Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in Section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith:
Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
9-A.
Before the above enactments, life interests allowing for usufruct of a property of its deceased owner were prevalent under Customary Law in Punjab some other parts of Subcontinent. As a consequence of the above enactments, settlement of inheritance and distribution of shares according to Shariat were enforced thereby overriding any custom or usage.
Consequently, the creation of life interests for enjoyments of usufruct of properties upon the death of a male holder were done away with and were subjected to Muslim Personal Laws (Shariat). The cases of Naziruddin and others (supra), Sardar Nawazish Ali Khan (supra), Mst. Khan Bibi (supra), Murid Hussain and two others (supra), and Mst. Samia Naz (supra) are distinguishable. These cases related to the application of the principle of Ariya' (also known asAreeat') of Muslim Personal Law which is in the nature of a licence to enjoy the use or profits without any return for a limited period and property does not pass on and is revocable at will by the doner. The learned counsel could not satisfy us whether or not the operation of a gift by way of `ariya' could be postponed and could take place from the death of the donor. We need not dilate upon this aspect further as this point was never agitated at any stage of the proceedings before the Courts below.
Moreover, in the instant case, the surviving legal heirs of the deceased
Mahmood Ahmed Butt never concurred or accepted the creation of life interests in favour of Mst. Fareeda Khatoon so as to take effect from the date of death of donor.
The case of Amina Khatoon and another (supra) is distinguishable as it involved a question whether the gift was limited to the usufruct of the house or the corpus of the property.
The case of Chief Administrator of Auqaf, West Pakistan (supra) involved the creation of waqaf in addition to life estate for benefit of the wife while the remaining life interest was declared invalid.
The cases of Ihsan Illahi v. Hukam Jan (PLD 1967 SC 200) and Muhammad Tufail v. Atta Shabir (PLD 1977 SC 220) involved concurrence/acceptance of a transaction during life time of a deceased owner. Therefore, both the cases had no application to the merits of the present appeals.
In the case of Fazal Muhammad (supra) this Court had held that under the Muhammadan Law, a Will in favour of legal heir, in the absence of consent of the other legal heirs was invalid.
Moreover, Civil Appeals No. 1112 and 1946 of 2002 are barred by limitation. No ground for interference in the impugned judgment is made out.
Both these Civil Appeals Nos.1112 of 2002 and 1946 of 2002 are dismissed with no order as to costs.
(M.S.A.) Appeals dismissed.
PLJ 2010 SC 931 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ., Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUMTAZ-UD-DIN FEROZE--Petitioner
versus
SHEIKH IFTIKHAR ADIL and others--Respondents
Civil Petition for Leave to Appeal No. 782 of 2008, decided on 15.12.2008.
(On appeal from the judgment dated 4.6.2008 in RFA No. 142 of 2004 passed by the Islamabad High Court, Islamabad).
Banking Companies (Recovery of Loan, Advances, Credits & Finances), Act, 1997--
----S. 18(2)--Decree of Banking Court--Execution petition--Mode of execution--Objection--Whether, Banking Court in execution of the decree once adhering to the procedure prescribed by C.P.C. could have switched over to any other mode--Held: By virtue of Section 18(2) of the Banking Companies (Recoveries of Loans, Advances, Credits & Finances) Act, 1997, the Banking Court is at liberty to recover the amount covered by a decree, on the application of the decree holder, in accordance with the provisions of or any other law or in such other manner as it may deem fit. [P. 938] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 92--Scope of--Non-compliance with the provisions of CPC with regard to the proclamation of sale, its publication and the conduct of sale in execution, are only material irregularities and cannot be termed or regarded as illegalities thereby rendering the sale a nullity--Objection after completion of sale shall not, therefore, ordinarily be allowed except on very limited grounds like fraud, otherwise no auction sale will ever be completed. [P. 940] B
PLD 2005 SC 819, PLD 1987 SC 512, PLD 1972 SC 337, AIR 1967 SC 608, PLD 1953 Lah. 147 and AIR 1931 PC 33, ref.
Bonafide Auction--
----A distinction has to be drawn between the decree holder who came into purchase under his own decree and a bonafide purchaser who came in and got the sale in execution of a decree to which he was not a party--Where third party is a bonafide auction purchaser, his interest in sale of auction has to be protected--Petition converted into appeal, and allowed. [P. 940] C
Agha Tariq Mehmood, ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Syed Ali Zafar, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondent Nos. 1-6.
Raja Muhammad Akram, Sr. ASC and Mr. Salman Akram Raja, ASC for Respondent No. 7.
Date of hearing: 8.10.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 4.6.2008 passed by a learned Division Bench of the Islamabad High Court, Islamabad, whereby, RFA No. 142 of 2004 filed by the Respondents No. 1 to 6 was allowed and the order dated 17.5.2004 of the Banking Court was set-aside.
(i) Property No. 27-B, known as "Asas Plaza" situated at Rehmanabad, Main Murree Road, Rawalpindi. (Property No. 1).
(ii) Plot No. 1, Asghar Mall Scheme, Rawalpindi (Property No. 2).
(iii) Project bearing Plots No. 149 to 154 and 169 to 174, situated at industrial Area, Sector 1-9, Islamabad, alongwith Machinery, etc (Property No. 3).
The notices were issued to the respondents/judgment debtors under Order XXI, Rule 66 CPC but the same could not be served. The properties were auctioned thrice but it could not be confirmed for lack of reasonable price.
The Court on 20.8.2002 ordered for auction of the Property No. 3 and also allowed the Respondent No. 1 (judgment debtor) to sell the Properties No. 1 & 2, privately, and to deposit the sale proceed with the decree holder Bank for adjustment against the outstanding amount. Since the Respondent No. 1 failed to sell the said properties within time, therefore, Respondent No. 7, Bank, on 18.2.2004, moved an application (C.M. No. 12 of 2004) seeking permission to sell the Property No. 1 to Raja Zulfiqar Hussain for Rs.26,500,000/- and the Property No. 2 to one Khalid Mehmood for Rs. 6,000,000/-. Respondents No. 1-6 contested the application and the Court directed the respondents to deposit a sum of Rs.6,000,000/- in Court till 15.3.2004 in respect of Property No. 2 and a sum of Rs.25,500,000/- till 17.5.2004 in respect of the Property No. 1. Since an amount of Rs.6,000,000/- was paid by the judgment debtor, therefore, the Property No. 2 was released to them, however, their failure to deposit the amount for Property No. 2 within the prescribed time, culminated in issuance of sale certificate in favour of Zulfiqar Hussain, on 14.7.2004 by order of the Court. The order dated 14.7.2004 was challenged but the same was upheld upto this Court in C.A. No. 474/2006 vide order dated 26.2.2007.
Meanwhile on 12.4.2002 Respondent No. 7, Bank, moved an application" for consideration and approval of two bids; one of Rs. 172,500,000/- made by the present petitioner with part payment of Rs.2,500,000/- to the Bank through cheque dated 2.4.2004, and the other of Rs. 164,500,000/- made by M/s. Mumtaz-ud-Din Feroze and Associates, regarding the purchase of Property No. 3. The Court vide order dated 13.4.2004 issued notices to Respondents No. 1 to 6 and also directed for publication of the offers in three newspapers, namely, "the Dawn", "the News" and "the Business Recorder" to invite any possible objections from the public. In compliance with the said order publications were made by Respondent No. 7 in the above said newspapers as well as in daily "Jang" on 30.4.2004. In addition, the Respondents No. 1 to 6 also got published a separate notice in daily "Jang" dated 21.4.2004, calling upon the general public to make a better offer than the above said offers. After publication of the offers, the Court accepted and approved the offer made by the present petitioner vide order dated 17.5.2004 with the direction to pay 50% of the remaining price through pay order within three months and to furnish a bank guarantee for the payment of balance amount within next three months. The respondents/judgment debtors challenged the said order in RFA No. 142 of 2004 which was allowed vide the impugned judgment and while setting aside order dated 17.5.2004, the Court directed for re-auction of the said Property No. 3 through invitation of offers in sealed covers, hence this petition.
Agha Tariq Mehmood, learned counsel for the petitioner has contended that in execution of the decree property in dispute was put to auction thrice under order of the Banking Court but it could not fetch offer beyond Rs.8 Crore 30 Lac. As the forced sale value of the project was fixed at Rs. 164,000,000/- by the approved Evaluator of the Pakistan Banking Association (State Bank of Pakistan), therefore as a result of efforts made by the Bank two offers were received and the offer made by the petitioner being the highest i.e. in the sum of Rs.172,500,000/- was, after inviting objections through publication, accepted. He added that the Respondents No. 1 to 6 had appeared before the Court and moved an application i.e. CM. No. 27-B/2004 in C.M. No. 336/2004 in Execution Application No. 5/2002 in C.O.S. No. 3/1999 thereby praying for extension of time for deposit of amount regarding Property No. 1 (Asas Plaza), mainly on the ground that the respondent/Bank had filed CM. No. 336/C/2004. He stated that though the respondents/Judgment Debtors had full knowledge regarding the above proceedings, yet, they in order to frustrate the execution proceedings, as per plan did not challenge the same at the relevant time because they were cognizant of the fact that the property could not fetch a better price but as the proceedings attained finality they came out with the plea that the proceedings were carried out at their back. He maintained that the auction proceedings having attained finality, the respondents, by their conduct, were estopped to challenge the same. He added that order dated 17.5.2004 has been set-aside by the learned Division Bench of the Islamabad High Court, primarily for the reason that since the proceedings were taken at the back of the Respondents No. 1-6 and they were not afforded opportunity of showing cause, therefore, it was liable to be set-aside, which observation, is factually incorrect. Learned counsel further stated that the judgment debtors had had full knowledge regarding proceedings in the execution application and finalization of sale in favour of the petitioner because earlier in CPLA No. 474 of 2006, the judgment debtor had taken the stand that "since the main project was sold and the subject decree, under execution, was satisfied therefore the proceedings pertaining to the other properties i.e. "Asas Plaza" were liable to be declared redundant and of no consequence.
Syed Zafar Ali Shah, learned counsel for the Respondents No. 1 to 6/J.Ds, on the other hand has urged that although the Banking Court was competent to execute the decree in the manner it considered appropriate, but once the Court had decided to execute the decree under the provisions of the C.P.C. it could not have switched on to another mode. He maintained that earlier the learned Single Judge vide order dated 9.9.2003 had directed re-auction of the property and that order was still holding the field when without any conscious application of mind orders dated 13.4.2004 and 17.5.2004, in absence of the respondents, were passed in C.M. No. 336/2004 and the Bank at first was allowed to dispose of the property through negotiation and thereafter sale in favour of the petitioner was affirmed.
Raja Muhammad Akram, learned Sr. ASC, appearing on behalf of Respondent No. 7 Allied Bank of Pakistan, has submitted that numerous efforts were made by the executing Court to sell the property in question but all remained unfruitful. Since all the bids made earlier were below the reserved price, therefore, the Bank through constant efforts and with great difficulty was able to procure two offers over and above the reserved price and the petitioner's offer being the highest was accepted. He maintained that since the Respondents No. 1 to 6/judgment debtors were fully aware of the proceedings as they too, were making efforts to procure a better offer and they were also at liberty to get the property redeemed by making a better offer and one of the properties in fact was released to them therefore, the plea that they had no knowledge of the proceedings was an after thought. He maintained that the judgment debtor had had otherwise, option to challenge the sale by having a recourse to Order XX, Rule 90 CPC to get the same set-aside but it was deliberately and purposely not availed.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, minutely, with their assistance.
Perusal of the impugned judgment reveals that sale in favour of the petitioner has been set-aside by the learned Court below primarily for the reasons, firstly, that in pursuance of the publication made in the newspapers since sufficient details regarding offers made by M/s. Javed Iqbal and Associates and the petitioner were not given and the mode/schedule of payment proposed by them was not described so as to let know the public regarding the transaction, therefore it was bad; and secondly, that three extensions were granted to the auction purchase without any notice to the Respondents No. 1 to 6 and without any opportunity of showing cause to them; and that the transaction publication was not made with the consent of the judgment Debtors/Respondents No. 1 to 6, therefore the sale in favour of the petitioner was not sustainable.
It would be pertinent to mention there that as per available record the subject property was put to auction thrice; firstly, on 1.10.2002 when the bid received was for Rs.3 crore only; secondly, on 19.12.2002 and the bid received was Rs.2 crore 50 lac; and thirdly on 31.7.2003 and the highest bid received was Rs.8 crore 30 lac. Since all the bids were well below the reserved sale price, i.e. Rs.16 crore 40 lac fixed by the approved Evaluator of the Pakistan Banking Associate (State Bank of Pakistan), therefore, the decree holder Bank made efforts to obtain better offer and it bore fruit when two offers, one made by M/s. Javed Iqbal and Associates in the sum of Rs.16 crore 25 lac; and the other by M/s. Mumtaz-ud-Din Feroze, the present petitioner, in the sum of Rs.17 crore 25 lac, were received. In the circumstances C.M. No. 336/C/2004 in execution Petition No. 5/2002 was moved before the Court praying therein, inter-alia, that since the petitioner's offer was the highest, therefore, it may be accepted. Despite that the Banking Court, vide its order dated 13.4.2004, apparently in search of better offer, ordered the Respondent No. 7 to cause publication of these offers, in sufficient details, in daily the Dawn, the News and the Business Recorder for a date to be fixed in the second week of May, 2004. The publication was accordingly made in the aforesaid newspapers and also in daily Jang dated 30.4.2004 whereby the public-at-large was called upon to make a better offer. It would be advantageous to have a glance at the said publication which reads as follows:
"INTERNATIONAL
THE NEWS
Friday, April 30, 2004
ALLIED BANK OF PAKISTAN
PUBLIC NOTICE
Execution Application
No. 5/2002 In the matter of
Allied Bank of Pakistan Limited, 1-9, Islamabad
versus
Fazal Vegetable Ghee Mills Limited & others
Pending in the Lahore High Court, Rawalpindi Bench, Rawalpindi
It is notified for information of all concerned that for the sale of Assets of Fazal Vegetable Ghee Mills Limited, 1-9, Islamabad, the following two offers have been received.
(i) For Rs. 17,25,00,000/-
(ii) For Rs. 16,45,00,000/-
The above two offers made have been filed in the Lahore High Court, Rawalpindi Bench, Rawalpindi. The Hon'ble High Court has issued notices to all concerned. Any person, who is interested in giving a better offer, may do so by putting the same in the Lahore High Court, Rawalpindi Bench, Rawalpindi. If any party wants to inspect the Mills of Assets, or needs any other information in this behalf, it should contact the undersigned for the purpose.
The case is now fixed before the Lahore High Court, Rawalpindi Bench, Rawalpindi for 17.05.2004 and this Advertisement is being given with the permission /direction of the High Court.
SHAH HASSAN SAEED
A.V.P./Chief Manager
Allied Bank of Pakistan, Limited
1-9, Islamabad. Tel#051-4438363 & 4432039"
underlining is ours.
It appears that since no body came forwarded to make a better offer for the project property, which was ordered to be sold thrice earlier and the respondent bank was also satisfied that the property in question cannot fetch a better price than offered by the petitioner, therefore, the Court vide order dated 17.5.2004 confirmed the sale. Record does not indicate that any better offer over and above the offer made by the petitioner in the sum of Rs. 172,500,000/- was made by any body at that point of time.
It would also be not out of place to mention here that on 13.5.2004, just four days prior to confirmation of sale of the property in question i.e. on 17.5.2004 in favour of the petitioner, the judgment debtors moved an application i.e. C.M. 27-B/2004 in C.M. No. 336/2004 in Execution Application No. 5/2002 in C.M. No. 3/1999 thereby praying for extension of time for deposit of amount regarding Property No. 1 (Asas Plaza), mainly on the ground that the respondent/Bank had filed CM. No. 336/C/2004 whereby the sale of property in question for Rs.172,500,000/- was confirmed, therefore, it could have by no stretch of imagination been concluded that the judgment debtors were unaware of the proceedings. Order passed by the High Court on 14.3.2006 copy whereof is available at Page 69 of the Paper Book is explicit in this regard.
It has also come on record that the Respondents No. 1 to 6/Judgment Debtors had themselves got published a separate notice in daily "Jang" dated 21.4.2004, calling upon the general public to make a better offer than the above said offers. The said publication is reproduced herein below:--
Perusal of the above indicates that the publication in quetion did not contain formal information regarding the offers received for the sale of the property in question but by means thereof public-at-large was invited to make a better offer over and above the bid made by the petitioner which shows that the judgment debtors were definitely in knowledge of the proceedings and had they any intention to match the bid or challenge the same, it could have been conveniently done.
It would be pertinent to mention here that when C.M. No. 336/2004 filed by the petitioner was taken up by the Court on 13.4.2004, it i.e. the Court not only ordered for causing of the publication in the newspapers but also directed for issuance of notice to the Respondents No. 1 to 6, judgment debtors for a date to be fixed in 2nd week of May 2004. It is not apparent on record as to whether the judgment debtors in pursuance of above notice appeared before the Court or not, but the fact remains that after publication of notice was there any occasion for them to stay away?
As to the contention that the banking Court in execution of the decree once adhering to the procedure prescribed by Civil Procedure Code could not have switched over to any other mode, it may be pointed out here that since by virtue of Section 18(2) of the Banking Companies (Recoveries of Loans, Advances, Credits & Finances), Act (XV of 1997) (hereinafter referred to as the Act XV of 1997), the banking Court is at liberty to recover the amount covered by a decree, on the application of the decree holder, in accordance with the provisions of the Code of Civil Procedure, 1908 or any other law or in such other manner as it may deem fit, therefore, consideration and approval of offer made by the petitioner, by the Court, in our view, was neither illegal nor unjustfied particularly when all efforts made previously, including those made by the decree holder and even by the judgment debtors, had failed to procure a better offer than Rs.85,000,000/-, hence approval of the offer made by the petitioner, which was more than eight crore over and above the highest offer received was just and proper. In the case of Mst. Asma Zafar-ul-Hassan v. Messrs United Bank Ltd. & another (1981 SCMR 108) twice the publication was made for auction of property but no one appeared each time. Finding that the mode of sale had become impracticable Nazir submitted a reference stating that through his personal efforts he had obtained an offer of Rs.3,25000/-. Notice was served on the counsel for parties. On such date counsel for petitioner remained absent while counsel for decree holder appeared and gave his consent to the acceptance of the offer. The Court accepted the offer. The judgment debtor challenged the auction. It was held that since no substantial loss was proved to have occurred to the judgment debtor by failure to publicise proclamation by beat of drum and on account of other alleged irregularities, therefore, the sale cannot be set aside. It was further held that since the provisions of law do not prohibit any other mode by the public auction, therefore, the Court can under its inherent power adopt a different mode to advance cause of justice. In the case of Muhammad Ikhlaq Memon v. Zakria Ghani & others (PLD 2005 SC 819), it was laid down by this Court that a banking Court, in an appropriate case, may make a departure from the provisions of CPC for executing the decree and sub-section (2) of Section 18 of the Act XV of 1997, permits the Court to do so. Further, in the case of Hudaybia Textile Mills Ltd. & others v. Allied Bank of Pakistan Ltd. & others (PLD 1987 SC 512), it was laid down that wherever the provisions of the Ordinance are repugnant to the provisions of the C.P.C., the former will override the latter. It was also held in the above cited case that once a sale has been effected a third party interest intervenes which cannot be disregarded. In the case of Ghulam Abbas v. Zohra Bibi & another (PLD 1972 SC 337) while observing that departure from the provisions of CPC was mere irregularity it was held that a sale cannot be set aside unless direct evidence of substantial injury from such irregularity is given. It was further laid down therein that if there was any doubt as to the correctness of the above view then it is laid at rest by the proviso to Rule 90 of Order XXI of the Code of Civil Procedure which clearly prescribes that no sale shall be set-aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the appellant has sustained substantial injury by reason of such irregularity or fraud. In the absence of proof of any such substantial injury no sale, therefore, can be set-aside. In the case of Janak Rai v. Gurdial Singh (AIR 1967 SC 608) sale was confirmed in favour of the appellant who was stranger to the suit being the auction purchaser of the judgment-debtors' immovable property in execution of an ex-parte money decree in terms of Order XXI, Rule 92 of CPC. Despite the fact that a sale could have been set aside in terms of Rules 89,90 and 91 of Order XXI CPC, it was opined that Court was bound to confirm the sale when no application in terms of Rule 92 was made or when such application was made and disallowed.
It would be pertinent to mention here that in the instant case too, no application in terms of Rule 92 of Order XXI CPC was filed.
In the wake of above, it thus follows that non-compliance with the provisions of CPC with regard to the proclamation of sale, its publication and the conduct of sale in execution, are only material irregularities and cannot be termed or regarded as illegalities thereby rendering the sale a nullity. Objection after completion of sale shall not, therefore, ordinarily be allowed except on very limited grounds like fraud, etc. otherwise no auction sale will ever be completed. In this view, we, in addition to the cases cited above, are fortified by the judgments in the cases reported as (i) Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others (PLD 1953 Lah. 147) and (ii) Nanhelal & another v. Umrao Singh (AIR 1931 PC 33). Further, a distinction has to be drawn between the decree holder who came into purchase under his own decree and a bona fide purchaser who came in and got the sale in execution of a decree to which he was not a party. In a case where third party is a bona fide auction purchaser, his interest in sale of auction has to be protected.
Another fact which cannot be lost sight of is that as per statement made by the learned counsel for the petitioner after taking possession of the project property, the entire machinery alongwith the super structure have been removed and land beneath, which is on lease from CDA, is left only, therefore question arises as to whether the property in question as it now stands can be re-auctioned? What could be the answer? is obvious.
Upshot of the above discussion is that this petition is converted into appeal and allowed, the impugned judgment dated 4.6.2008 passed by the Islamabad High Court in RFA No. 142 of 2004 is set-aside and the order dated 17.5.2004 passed by the Banking Court in Execution Application No. 5 of 2002 is restored. No order as to costs.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 940 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD YAQOOB & others--Appellants
versus
STATE and others--Respondents
Crl. Appeals No. 103-104 of 2003, decided on 6.1.2009.
(On appeal from the judgment dated 10.12.2001 in Cr. A. No. 355-T/2000 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi)
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 25(4-A)--Right of appeal--Conviction and sentence recorded against accused by trial Court--Challenge to--Question of--Maintainability of appeal against acquittal--Held: Right of appeal to a victim or legal heir of a victim aggrieved from the order of acquittal passed by the Anti-terrorism Court was provided through S. 25(4-A) of the Anti-Terrorism Act--No radical change was, therefore, introduced in the Anti-terrorism Act, 1997, as by Act X of 2004 right of appeal, already available earlier, though to the state only, was simply extended to the victim or legal heirs of deceased--Under the Islamic law the right to prosecute or otherwise the offenders primarily vests in the legal heirs of the deceased or the victim himself, as the case may be--Amendment so brought in Anti-Terrorism Act--Being purely procedural in nature, thus had to govern the pending cases/proceedings as well, because it had not taken away any right vesting in the accused. [P. 945] A & B
PLD 2001 SC 482, ref.
Anti Terrorism Act 1997 (XXVII of 1997)--
----S. 7--Whether the Anti-Terrorism Act, had created sense of fear or insecurity in public or in any Section of public or community or any Sect, or the occurrence was simply the result of previous enmity or personal vendetta--Motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect thereof, therefore, Section 7 of ATA was not attracted. [P. 947] C
Quantum of Sentence--
----Relationship interse of the accused persons can hardly be a consideration for imposition of lesser penalty and it can also not be regarded as a mitigating circumstance by any stretch of imagination--Supreme Court were not inclined to enhance the sentence inflicted on the appellants because as per record, in the instant case, firing was attributed to all the accused persons and it too, has come on record that the injuries caused by the accused persons collectively culminated in death of the accused persons--Ends of Justice would be met with if sentences inflicted on the appellants are maintained as awarded by the trial Court particularly in view of the fact that the occurrence took place way back in 1999 and the accused persons have already undergone the agony of a protracted trial--Order accordingly. [P. 948] D
2008 SCMR 1544, ref.
Kh. Sultan Ahmad, Sr. ASC and Raja Abdul Ghafoor, AOR for Appellants (in Crl. Appeal No. 103/2003).
Mr. M. Siddique Khan Baloch, DPG Punjab for State (in Crl. Appeal No. 103/2003).
Sardar Muhammad Latif Khan Khosa, Sr. ASC and Ch. Muhammad Akram, AOR for Appellant (in Crl. Appeal No. 104/2003).
Kh. Sultan Ahmad, Sr. ASC and Raja Abdul Ghafoor, AOR for Respondent Nos. 1-4 (in Crl. Appeal No. 104/2003).
Mr. M. Siddique Khan Baloch, DPG Punjab for State (in Crl. Appeal No. 104/2003).
Date of hearing: 26.3.2008.
Judgment
Ch. Ejaz Yousaf, J.--These appeals by way of leave are directed against the judgment dated 10.12.2001 passed by a Division Bench of the Lahore High Court, Rawalpindi Bench. Criminal Appeal No. 103 of 2003 has been filed by convicts Muhammad Yaqoob and Abdul Qayyum against their convictions/sentences whereas Criminal Appeal No. 104/2003 has been preferred by Jamil Ahmed, complainant, for enhancement of the sentences of the aforenamed convicts and also against acquittal of respondents, namely, Haji Ghulam Rasool and Ahmed Hassan @ Nasir Mehmood. As common questions of law and facts are involved in these appeals, therefore, we propose to dispose of the same through this common judgment.
Facts of the case, in brief are that on 27.3.1999 report was lodged by one Jamil Ahmed s/o Ch. Muhammad Akram with Police Station Kalar Syedan, District Rawalpindi, wherein it was alleged that sometime ago Muhammad Yaqoob son of Manga had made an attempt to abduct Khalil Ahmed, brother of the complainant, on account of a dispute over a passage. However, he was got released from the clutches of Muhammad Yaqoob by the persons present at the place of occurrence. Resultantly a case, under Sections 365/511 PPC, was registered against Muhammad Yaqoob at Police Station Kalar Syedan, in pursuance whereof investigation was carried out by a DSP who visited the place of occurrence himself. Parties appeared before the said DSP and made statements. However, after his departure, when the complainant, in the company of Muhammad Ishaq, Muhammad Jamil, Javed Akhtar, Zia-ul-Haq and Muhammad Ishtiaq son of Muhammad Akhtar, was proceeding towards Samoote Bazaar, suddenly Muhammad Yaqoob, Abdul Qayyum and Ghulam Rasool sons of Manga Khan armed with Kalashnikov appeared in a red colour Pajero and started firing indiscriminately after raising `Lalkara' that they would teach a lesson to the complainant party for making statements against Muhammad Yaqoob before the DSP. As a result of firing Muhammad Ashfaq, Jamil and Muhammad Sharif died instantly whereas, Javed Akhtar sustained injuries. On the stated Allegation, FIR Bearing No. 65/99 under Sections 302/324/109 read with Section 34 PPC was registered at the said Police Station and investigation was carried out in pursuance thereof. On completion of investigation, the accused persons were challaned to the Court for trial under Sections 324, 302, 34 read with Section 120(b) PPC and Section 7 of the ATA, 1997. Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused persons produced sixteen witnesses in all whereafter, the accused persons were examined under Section 342 Cr.PC. In their above statements all the accused persons took the stand that they were involved in the case falsely on account of enmity and political rivalry. Abdul Qayyum and Ahmad Hassan also appeared as their own witnesses in terms of Section 340(2) Cr.P.C.
After hearing arguments of learned counsel for the parties, the learned trial Court convicted the appellants vide judgment dated 12.8.2000 and sentenced them to the punishments as under:--
U/S. 302(b)/34 PPC Imprisonment for life each on three counts with fine of Rs.200.000/- each on three counts. Fine if recovered was ordered to be paid to legal heirs of deceased in equal shares under Section 544-A Cr.P.C. In case of default in payment of fine to further undergo 1 years R.I. each on three counts
U/S. 324/34 PPC 10 years R.I. with fine of Rs.50,000/- each payable to Javed Akhtar injured PW as compensation and in case of default in payment of fine to further undergo R.I. for 6 months, each.
U/S. 337-(i) PPC 2 years R.I. each for causing injuries to Javed Akhtar, PW.
U/S. 7 of A.T.A. 1997 Imprisonment for life each with fine of Rs. 100,000/- each and in case of default in the payment of fine to further undergo R.I. for 1 year each.
Sentences under Sections 302/34 PPC read with Section 7 of A.T.A. 1997 were directed to run concurrently.
Sentences under Sections 324/34 PPC and 337-A (i) PPC were ordered to run consecutively.
Benefit of Section 382-B Cr.P.C. was refused.
The above judgment was assailed by the accused persons before the High Court by way of an appeal which was partially allowed. Sentences recorded against appellants Muhammad Yaqoob and Abdul Qayyum were maintained, however, accused persons, namely, Haji Rasool and Ahmed Hassan @ Nasir Mehmood were acquitted of the charges, hence these appeals by leave of this Court.
Khawaja Sultan Ahmad, learned counsel for the appellants, has contended; that since, at the time of occurrence i.e. in the year 1999 right of appeal was not available to the complainant, therefore, Criminal Appeal No. 104 of 2003 filed for enhancement of sentences of the appellants and also against acquittal of the accused persons, namely, Ahmad Hassan and Ghulam Rasool is not maintainable; that both Muhammad Yaqoob and Abdul Qayyum have been wrongly convicted for the offence; that since firing was attributed to all the accused persons and it was not established on record as to who was responsible for causing fatal injuries to the deceased persons therefore, it was not a standard case of capital punishment; that Ghulam Rasool and Ahmad Hassan @ Nasir Mehmood were rightly acquitted of the charge by both the Courts below as prosecution had miserably failed to prove the charges against them. Further benefit of Section 382-B Cr.P.C. was unjustifiably withheld in their cases.
Sardar Muhammad Latif Khan Khosa, learned counsel for the complainant, on the other hand, while controverting the contentions raised by the learned counsel for the appellants, has submitted that since at the time of occurrence only sentence prescribed for the offence under Section 7 ATA 1997 was the sentence of death, therefore, both the Courts below have gone wrong in law by not inflicting the same. He maintained that since sufficient ocular as well as corroboratory evidence was available on record to connect the accused persons with commission of the offence, therefore, acquittal of the respondents in Criminal Appeal No. 104/2003 was not justified.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
As to the first contention raised by the learned counsel for the appellants that since at the time of occurrence right of appeal was not available to the complainant, and therefore, Criminal Appeal No. 104 of 2003 filed for enhancement of the sentences of the appellants and also against acquittal of co-accused persons, namely, Ghulam Rasool and Ahmad Hassan @ Nasir Mehmood, was not maintainable, it may be mentioned here that occurrence, in the instant case, took place on 27.3.1999, whereas right of appeal to a victim or legal heir of a victim aggrieved from the order of acquittal passed by the Anti-Terrorism Court was provided through sub-section (4-A) of Section 25 of the Anti-Terrorism Act, 1997, inserted by Act X of 2004, dated 30.11.2004. It is an admitted position that prior thereto right of appeal against acquittal was not available to a victim or his legal heirs as at that point of time it could have only been challenged by the persons specified in sub-section (4) of Section 25 of the ATA, 1997. No radical change was, therefore, introduced in the Anti-Terrorism Act, 1997, as by Act X of 2004 right of appeal, already available earlier, though to the state only, was simply extended to the victim or legal heirs of deceased and rightly so because pursuant to promulgation of Qisas & Diyat Ordinance, 1991, (Later on substituted by Act II of 1997) whereby drastic changes were brought in Chapter XVI of the Pakistan Penal Code and right of appeal was extended to the legal heirs of the victim, as well as the injured persons, vide Section 417(2-A) of the Criminal Procedure Code, because under the Islamic law the right to prosecute or otherwise the offenders primarily vests in the legal heir of the deceased or the victim himself, as the case may be. The amendment so brought in the AT Act vide sub-section (4-A), being purely procedural in nature, thus had to govern the pending cases/proceedings as well, because it had not taken away any right vesting in the accused.
It would be worthwhile to mention here that almost identical proposition came up for consideration before this Court in the case of Aftabuddin Qureshi & another v. Mst. Rachel Joseph & another (PLD 2001 SC 482). In that case, the petitioners were prosecuted for an offence committed on 6.1.1992. After the trial, they were convicted by Judicial Magistrate and sentenced to undergo different sentences. Judgment of conviction was assailed in appeal before the Court of Sessions and by judgment dated 9.5.1998 they were acquitted by the learned Sessions Judge. Respondent impugned the judgment of acquittal by way of appeal under Section 417(2-A) Cr.P.C. before the Sindh High Court in which a preliminary objection was taken to the extent that since incident had taken place on 5.1.1992, the accused persons were sent up for trial on 10.5.1992 and right of appeal to a person aggrieved by an order of acquittal was provided in 1994 by way of 2nd Amendment Act (Act No. XX) of 1994, whereby Section 2-A was inserted in Section 417 Cr.P.C., therefore, the appeal was not maintainable. It was contended on behalf of the accused persons that right of appeal provided to a person aggrieved from an order of acquittal, by virtue of the above amendment, would not operate retrospectively and thus, pending proceedings stood saved from the operation of the newly inserted sub-section. After thorough consideration the contention was repelled and it was held that the amendment in question being essentially of procedural character would operate retrospectively and affect all pending cases as neither any right of accused person was taken away, nor the ends of justice were defeated by retrospective application of the provision. It was further held that even if the amended provision was applied prospectively, case of the accused was fully covered by it because acquittal of accused by Sessions Judge had taken place long after the right accrued to the aggrieved person and since there was no substantive right vesting in the petitioners which would have been adversely affected by the amendment in law making a provision for a right of appeal at the instance of an aggrieved person, therefore, the contention was devoid of force. In the above judgment while relying on the case of Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92), it was further held that matters relating to remedy, mode of trial, manner of taking evidence, being all matters pertaining to procedure, would be effective retrospectively.
Further in the case of Adnan Afzal v. Sher Afzal (PLD 1969 SC 187), it was laid down by a full Bench of this Court that the general principle with regard to interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1905 AC 369) that if the matter in question be a matter of procedure only, the provisions would apply retrospectively. The contention, therefore, is devoid of force.
As to the next contention that both the appellants, namely, Muhammad Yaqoob and Abdul Qayyum were wrongly convicted for the offence, it may be mentioned here that in the instant case prosecution evidence rests on the ocular evidence, account whereof at the trial was furnished by PW-10 Muhammad Jamil, complainant, PW-11 Javed Akhtar, the injured eye-witness and PW-12 Zia-ul-Haq (not believed by the trial Court), the evidence of recoveries, including the Kalashnikov at the instance of accused persons Muhammad Yaqoob and Abdul Qayyum, the empties recovered from the place of occurrence, the medical evidence and other circumstantial evidence. Though as per ballistic expert's report, empties secured from the place of occurrence were proved to be fired from the Kalashnikovs recovered from the possession of both the aforenamed accused persons yet, the learned Judges in the High Court having found that transmission of empties to the laboratory having not been proved in accordance with law, as the person who had allegedly taken the same to the laboratory was not produced, disbelieved the same. However, learned Judges in the High Court were of the opinion that since statement of eye-witnesses were consistent and corroborative interse on all material points therefore, it could not have been discarded notwithstanding the fact that there was some doubt about the distance regarding the place of occurrence and the positions of the deceased persons as blackening was found around the injuries sustained by the deceased persons. Since in the case in hand neither the occurrence was denied nor presence of both the eye-witnesses at the place of occurrence was challenged, nor the manner in which the occurrence took place, was, at the trial, disputed rather it was impliedly admitted, for instance it was suggested to PW-10 Jamil Ahmed that Tahir and Khalil had fired on him as well as the deceased, meaning thereby that the presence of said eye-witness was admitted, lead to the conclusion that occurrence in the instant case has taken place in the manner as suggested by the prosecution.
Though learned counsel for the appellants has not specifically challenged convictions of the appellants under Section 7 of the Anti Terrorism Act, 1997 and occurrence in the case allegedly took place in Samoote Bazaar, opposite UBL Branch, wherein three persons were done to death and another sustained grievous injuries yet, in the absence of any stipulation in the FIR to the effect that the incident had struck terror or panic in the public and in the absence of any evidence to the effect that the incident had created sense of fear or insecurity in the public or any section of public or community or any sect, it could not have been contended that Section 7 of the Anti-Terrorism Act, 1997 was attracted in the instant case. It would be pertinent to mention here that in order to bring a particular act within the ambit of Section 7, it is to be seen as to whether the said act had created sense of fear or insecurity in public or in any section of public or community or any sect, or the occurrence was simply the result of previous enmity or personal vendetta.
Since in the instant case it has been established that motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect thereof, therefore, in our view Section 7 of the Anti-Terrorism Act was not attracted. In the case of Tariq Mahmood v. The State (2008 SCMR 1631), the occurrence had allegedly taken place in a bazaar which was heavily populated and it was claimed that due to firing there was stampede in the traversers yet, since it was found that there was no evidence that the act of respondents/accused struck terror amongst the masses and the place of occurrence was not a busy populated area rather it took place on a service road, therefore, the provisions of Anti-Terrorism Act were not attracted. In the case of Muhammad Idrees & others v. The State (2008 SCMR 1544), occurrence took place on the bank of canal. It was not established on record that the act done by the accused persons had created sense of fear or insecurity in public, therefore, it was held that Section 7 of the Anti-Terrorism Act was not attracted. In the case of Mohabbat Ali v. The State (2007 SCMR 142), the alleged incident took place because of previous enmity and private vendetta inside the fields of sugarcane and Banana, about 14/15 miles away from main road, it was held that intention of the accused was not at all to create sense of fear or insecurity or to destabilize public at large or to advance any sectarian cause and design or purpose of offence as contemplated by provisions of Section 6 of Anti-Terrorism Act, 1997 was not attracted. In the case of Fazal Dad v. Col. (Retd.) Ghulam Muhammad Malik (PLD 2007 SC 571), since nothing was brought on record to show that the occurrence created terror, panic or sense of insecurity among people by securing possession of land in question by the accused persons, therefore, the case did not qualify to be a terrorist act within the contemplation of Section 6 of the Anti-Terrorism Act or its schedule. Convictions and sentences recorded against the appellants under Section 7 of the Anti-Terrorism Act, are, therefore, set-aside.
As regards the quantum of sentence though the learned trial Judge has not inflicted normal penalty for murder on the appellants on the ground that since all the three appellants were real brothers, therefore, he did not want to inflict capital punishment on them, yet, we are afraid the reason being absurd simply and extraneous to the established principles governing the administration of criminal justice, can neither be recognized nor approved. Relationship interse of the accused persons can hardly be a consideration for imposition of lesser penalty and it can also not be regarded as a mitigating circumstance by any stretch of imagination. However, despite that, we are not inclined to enhance the sentence inflicted on the appellants because as per record, in the instant case, firing was attributed to all the accused persons and it too, has come on record that the injuries caused by the accused persons collectively culminated in death of the accused persons, therefore, we feel that ends of justice would be met with if sentences inflicted on the appellants are maintained as awarded by the trial Court particularly in view of the fact that the occurrence took place way back in 1999 and the accused persons have already undergone the agony of a protracted trial. In this view we are fortified by the observations made in the case of Muhammad Idrees and others vs. The State (2008 SCMR 1544).
Upshot of the above discussion is that Criminal Appeal No. 103 of 2003 is partly allowed. Convictions and sentences recorded against appellants Muhammad Yaqoob and Abdul Qayyum under Section 7 of the Anti-Terrorism Act, 1997 are set-aside and they are acquitted of the charges thereunder. However, rest of the convictions and sentences recorded against them under Sections 302(b)/34, 324/34 & 337-A(i) PPC by the learned trial Court are maintained and the sentences recorded thereunder shall run consecutively as ordered by the learned trial Court. Benefit of Section 382-B Cr.P.C. is, however, extended to the appellants. Sequel to above, Criminal Appeal No. 104 of 2003 filed by the complainant for enhancement of sentences and against acquittal is dismissed.
(M.S.A.) Order accordingly.
PLJ 2010 SC 949 [Appellate Jurisdiction]
Present: Anwar Zaheer Jamali, Khilji Arif Hussain & Rahmat Hussain Jafferi, JJ.
MUHAMMAD BUX--Appellant
versus
ABDUL AZIZ & others--Respondents
Crl. Appeal No. 671 of 2006, decided on 29.12.2009.
(Against judgment dated 30.5.2006 of the High Court of Sindh, Circuit Court, Hyderabad, passed in Criminal Appeal No. 83 of 2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence--Challenge to--Appreciation of evidence--Statement of complainant was unreliable for the reason that he disclosed the motive but the same has not been proved in accordance with law--Motive was an important fact, which has not only been alleged in the FIR but the evidence has been led--Motive has not been relied opon by Courts below--In such situation, Court would be very careful in accepting prosecution story and the evidence of such witnesses who not only gave evidence on motive and incident would be accepted with great caution--Held: Court have examined the evidence of the complainant and found that his presence at the scene of incident has not been established from the other evidence available on record except his own version which in the present circumstances of the case was not enough to be relied upon--High Court has examined the entire evidence and rightly concluded that the witnesses were not present and the case was not free from doubt--Appeal dismissed. [P. 952] A & B
1979 SCMR 214, 1971 SCMR 432 & PLJ 1976 SC 283, ref.
Mr. Mehmood A. Qureshi, ASC for Appellant.
Mr. Izhar Alam Faruqi, AOR for Respondents No. 1 to 3.
Mr. Zafar Ahmed Khan, Addl. PG, Sindh for State.
Date of hearing: 29.12.2009.
Judgment
Rahmat Hussain Jafferi, J.--The appellant has filed the present appeal with leave of the Court to challenge the judgment dated 30.05.2006, passed by the learned High Court of Sindh, Circuit Court, Hyderabad, by which the learned High Court acquitted Respondents Nos. 1 to 3 (hereinafter referred to as `the respondents'), who were convicted by the learned Additional Sessions Judge, Shahdadpur for offence punishable under Section 302 read with 34, PPC and sentenced each of them to suffer imprisonment for life with benefit of Section 382-B, Cr.P.C.
The allegation of the prosecution is that on 09.12.1999, the complainant Muhammad Bux (PW.1) alongwith his brother Ali Gul (PW.2) and uncle Muharram Ali (PW.3) was sitting on a Bench outside the shop of his brother Mir Muhammad, deceased. At about 1230 noon, the respondents armed with guns came there. After issuing challenge the respondent Abdul Aziz fired from this gun, which hit the deceased on his right side of chest, thereafter the other two respondents viz. Ghulam Mustafa and Muhammad Rafique fired, from their respective guns which also hit the deceased on his back. The respondent Abdul Aziz disclosed that they took the revenge of the murder of grandfather of Respondent No. 3 committed by the father of the deceased Mir Muhammad.
The police collected three pieces of evidence viz. ocular testimony, motive and recovery of guns from the possession of the respondents and crime empty from the place of incident but the FSL report was in negative. At the trial, the prosecution examined 9 witnesses, including the complainant and both the eye-witnesses. The learned Additional Sessions Judge relying upon the ocular testimony convicted and sentenced the respondents, as mentioned above, vide judgment dated 10.05.2004, which was set aside by the learned High Court through its judgment dated 30.05.2006, which is impugned in this appeal.
We have heard the learned counsel for the appellant, the respondents, the State and have perused the record of the case with their assistance. Learned counsel for the appellant has stated that the ocular testimony of three witnesses is sufficient to convict the respondents but the learned High Court has misread the said evidence; that the motive has been proved coupled with medical evidence which gives sufficient corroboration to the ocular testimony. Conversely, learned counsel for the respondents has stated that PWs were not present at the scene of incident, which fact has been proved from the statement of Investigation Officer and Mashir of the place of incident; that the witnesses improved their statements from their statements record under Section 164, Cr.P.C. on material aspects of the case, therefore, their evidence is unreliable and the learned High Court has rightly appreciated the evidence. He has argued that the motive has not been proved as grandfather of Respondent No. 3 was murdered about 40 years back; that during the said period no untoward incident took place between the parties but on the contrary their relations were cordial so much so that the complainant got insurance policy from the respondent Abdul Aziz. The learned State counsel has supported the impugned judgment and has adopted the arguments of learned counsel for the respondents.
Having heard learned counsel for the parties and gone through the material made available before us, we find that the incident was alleged to have witnessed by the complainant and two eye-witnesses. Admittedly, the statements of both the eye-witnesses were recorded after 3/4 days of the incident. The case of the prosecution is that both the eye-witnesses were present with the dead body when the complainant went to lodge the report and brought the police. The SHO, in the cross-examination, has admitted that when he reached the place of incident, the witnesses were not available, therefore, their statements were not recorded. Even the Mashir of the place of incident viz. Abdul Rashid, who is cousin of the complainant, has also deposed that the witnesses did not reach the place of incident. It appears therefrom that both the eye-witnesses were not present at the scene of incident. Furthermore, they have made improvements in their statements recorded in the Court from their statements recorded by the learned Magistrate under Section 164, Cr.PC. The improvements are in respect of their sitting on the Bench at the time of incident, their sitting with the dead body when the complainant went to police station to lodge the report and the first fire made by Abdul Aziz on the deceased. It is the case of the prosecution that the complainant and both the eye-witnesses came together from their village but PW.2 Ali Gul stated that he and his brother Muhammad Bux (PW.1) came together but their uncle Muharram Ali (PW.3) came separately.
As regards the statement of the complainant, the same is unreliable for the reason that he disclosed the motive but the same has not been proved in accordance with law as he himself admitted that grandfather of Respondent No. 3 was murdered 40 years back and thereafter the respondent Abdul Aziz got him insured about 6/7 years back from the recording of his statement. In this case motive is an important fact, which has not only been alleged in the FIR but the evidence has been led. The said motive has not been relied upon by the trial Court and the High Court as the prosecution failed to prove the same. In such a situation, the Court should be very careful in accepting prosecution story and the evidence of such witnesses who not only gave evidence on motive and incident should be accepted with great caution. It has been held in the case of "Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214)" that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of "Hakim Ali v. The State (1971 SCMR 432)" it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of "Ameenullah v. State (PLJ 1976 SC 283)" it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story.
Keeping in view the above principle, we have examined the evidence of the complainant and found that his presence at the scene of incident has not been established from the other evidence available on record except his own version which in the present circumstances of the case is not enough to be relied upon. The learned High Court has examined the entire evidence and rightly concluded that the witnesses were not present and the case was not free from doubt. We do not find any reason to disagree with the learned High Court.
Consequently, the appeal has no merits and the same is dismissed.
(A.S.) Appeal dismissed.
PLJ 2010 SC 953 [Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Rahmat Hussain Jafferi, JJ.
MUHAMMAD SALEEM--Appellant
versus
STATE--Respondent
Crl. Appeal No. 593 of 2006, decided on 14.10.2009.
(Against judgment dated 16.4.2003 of the High Court of Balochistan, Quetta, passed in Crl. Jail Appeal No. 56 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence to suffer imprisonment for life with benefit of S. 382-B, Cr.P.C.--Co-accused was acquitted from the charge of murder--Maintained by High Court--Jail Petition was filed before Supreme Court in which leave was granted to re-appraise the evidence--Lacuna of absence of light--Incident was un-witnessed as ocular testimony was in conflict with medical evidence--Incident took place during night time and there was no source of light at that time--None of prosecution witnesses alleged that any lantern was burning or there was electricity in the village--Held: Complainant in FIR involved co-accused since acquitted, but during trial he was exonerated as no evidence was produced despite the fact that specific allegations of catching hold of deceased were leveled against him--Prosecution, in order to overcome the lacuna of absence of light, tried to establish that the witnesses had a very close look of the appellant by stating that there was knock at the door of the house which was responded by female prosecution witness where she found the accused alone present with a stone in his hand--Further held: Prosecution had failed to prove its case against the accused beyond any reasonable doubt--Appellant was entitled to benefit of doubt--Appeal accordingly allowed. [Pp. 956 & 957] A & J
Identity of Culprits--
----Prosecution witnesses were not mentioned in FIR--Question of identity of culprits and fitting in the circumstances--Presence of prosecution witnesses was not shown at the time of incident--No doubt prosecution witness was wife of deceased, whose presence cannot be doubted regarding presence of other witnesses it has not been mentioned in FIR that she was residing in the house. [P. 956] B
Conflict between Medical and Oral Evidence--
----Accused caused 6/7 blows on the head of deceased--Such fact has neither been supported nor corroborated by medical evidence as according to the medical report the deceased had only one injury on his head which was caused with blunt weapon--Held: There is a conflict between the medical and oral evidence. [P. 956] C
Relationship--
----Question of--Appreciation of evidence--No reason to falsely implicate the accused does not carry much substance--Question of relationship but veracity of witness is to be seen so as to arrive at a conclusion whether the witness is truthful or otherwise--Validity--Statement of a witness must be in consonance with probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person--Held: If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. [Pp. 956 & 957] D & E
1995 SCMR 1627, ref.
Independent witness--
----Test of veracity of a witness--Inherent merit of his own statement--Validity--An impartial and independent witness who was neither related to complainant nor inimical toward, the accused would stamp his testimony necessarily to be true--Statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. [P. 957] F
Disinterest witness--
----A disinterest witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous. [P. 957] G
1977 SCMR 457 & 1995 SCMR 1627, ref.
Rule of Acceptance of Evidence--
----Test to the prosecution witnesses--Applicability--Applying the test to the prosecution witnesses--Held: Their statements do not come within the ambit of the rule of acceptance of evidence, therefore, no implict reliance can be placed on such type of evidence without any corroboration which is lacking in the present case. [P. 957] H
Limitation--
----Delay of 287 day--Question of limitation in jail petition--Since the appeal arose out of jail petition and accused was a convict on the charge of murder--Supreme Court in the interest of justice were inclined to condone delay of 287 days caused in filing the jail petition. [P. 957] I
Malik Muhammad Kabir, ASC for Appellant.
Raja Abdul Ghafoor, ASC (on behalf of Government of Baluchistan) for State.
Date of hearing: 14.10.2009.
Judgment
Rahmat Hussain Jafferi, J.--On 16.5.2000, the appellant Muhammad Saleem was convicted for an offence punishable under Section 302(b), PPC and sentenced to suffer imprisonment for life with benefit of Section 382-B, Cr.PC whereas co-accused Muhammad Akram was acquitted from the charge of murder by the learned Sessions Judge, Khuzdar on the ground that the PWs did not involve him in the commission of the crime. On appeal, a learned Division Bench of the High Court of Balochistan, Quetta maintained the conviction and sentence passed by the trial Court under the impugned judgment dated 16.04.2003. The appellant preferred Jail Petition bearing No. 103 of 2004 before this Court in which leave was granted to re-appraise the evidence, vide order dated 17.04.2006. Hence this appeal.
Brief facts giving rise to the present appeal as disclosed in FIR are that the complainant Muhammad Aslam alongwith his parents was residing in the house. On 19.03.1998 they were sleeping in a room when at 11.55 p.m. he woke up and saw the appellant Muhammad Saleem and acquitted-accused Muhammad Akram present in the house. They entered the house after breaking its door. The acquitted accused Muhammad Akram caught hold of Rais Maula Bakhsh, deceased whereas the appellant Muhammad Saleem was causing injuries with some hard substance on his head. He further disclosed that the accused demanded Rs.50,000/- from his deceased father and thereafter ran away. The complainant took the injured to the Hospital but he died on the way. The police investigated the case, collected the ocular evidence of complainant Muhammad Aslam (PW.1), PW.2 Mst. Dur Khatoon, wife of the deceased, and PW.3 Mst. Zar Bibi, mother of the deceased. After arresting the accused, they were challaned in the Court, where they were tried.
Learned counsel for the appellant has argued that the incident took place at the odd hours of the night; that there was no source of light and that the incident was un-witnessed as the ocular testimony is in conflict with the medical evidence. Conversely, learned counsel for the State, has supported the impugned judgment by submitting that the appellant was grandson of Mst. Zar Bibi (mother of the deceased); that the parties were closely related to each other, therefore, there is no question of mistaken identity. He has further argued that the PWs have no reason to falsely implicate their kith and kin.
Having heard the arguments of learned counsel for the appellant as also for the State and having gone through the record, with their assistance, we find that the incident took place during night time at 11.35 p.m. and there was no source of light at that time. None of the PWs alleged that any lantern was burning or there was electricity in the village in the year 1998. This fact has put us on guard to examine the oral testimony very carefully. We find that the complainant in the FIR involved co-accused Muhammad Akram, since acquitted, but during trial he was exonerated as no evidence was produced despite the fact that specific allegations of catching hold of the deceased were leveled against him. The prosecution, in order to overcome the lacuna of absence of light, tried to establish that the witnesses had a very close look of the appellant by stating that there was knock at the door of the house, which was responded by PW.3 Mst. Zar Bibi where she found the appellant alone present with a stone in his hand. This fact was never alleged in the FIR. On the contrary the case build up at the initial stage was that the appellant and acquitted co-accused had entered the house by breaking its door. This improvement made by the prosecution witnesses in the case was to strengthen the question of identity of culprits and fitting in the circumstances of the case. The learned trial Court examined this aspect of the case and rightly discarded the said portion of the statement. It is also of worth to note that in the FIR the presence of PWs.2 and 3 Mst. Dur Khatoon and Mst. Zar Bibi was not shown at the time of incident. No doubt PW.2 was wife of the deceased, whose presence cannot be doubted whereas, regarding presence of PW.3 Mst. Dur Khatoon, it has not been mentioned in the FIR that she was residing in the house. Be that as it may, the fact remains that both the PWs. 2 and 3 specifically alleged that the appellant caused 6/7 blows on the head of the deceased. This fact has neither been supported nor corroborated by the medical evidence as according to the medical report the deceased had only one injury on his head which was caused with blunt weapon. Thus, there is a conflict between the medical and oral evidence.
The argument of the learned State counsel that PW.3 Mst. Zar Bibi, grandmother of the appellant, had no reason to falsely implicate the accused does not carry much substance, as it is not the question of relationship but veracity of witness is to be seen so as to arrive at a conclusion whether the witness is truthful or otherwise. General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to "Haroon v. State (1995 SCMR 1627)." The avoid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterest witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to "Muhammad Rafique v. State (1977 SCMR 457) and Haroon v. State (1995 SCMR 1627)."
Applying the test to the prosecution witnesses, we find that their statements do not come within the ambit of above rule, of acceptance of evidence, therefore, no implicit reliance can be placed on such type of evidence without any corroboration which is lacking in the present case.
So far as the question of limitation is concerned. Since the appeal arose out of a jail petition and the appellant is a convict on the charge of murder, we therefore in the interest of justice are inclined to condone delay of 287 days caused in filing the petition.
In the light of what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Therefore, the appellant is entitled to the benefit of doubt which is accordingly given to him. Consequently, the conviction and sentence awarded to the, appellant are set aside. He shall be released forthwith if not required in any other custody case. The appeal is accordingly allowed.
(R.A.) Appeal allowed.
PLJ 2010 SC 958 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmed, JJ.
SECRETARY MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD and another--Appellants
versus
Dr. REHANA HAMEED and others--Respondents
Civil Appeal No. 969 of 2009, decided on 29.9.2009.
(On appeal against the judgment dated 19.3.2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 815(R)CS/2008).
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil servant--Respondent was appointed as medical officer BS-17 through Federal Public Service Commission--Civil servant was promoted to posts of associate surgeon and consultant surgeon--Central Selection Board failed to recommend her name against available vacancies--Service Tribunal accepted her appeal--Challenge to--Leave was granted to consider whether policy of Government was in conflict with fundamental rights or ultra vires or mala fides--Whether grant of higher pay scale on basis of meritorious service is part of terms and conditions of service of civil servant--Whether it is not for competent authority to determine the eligibility of a civil servant for grant of higher grade and whether PST was competent to set aside the policy framed by the Government--Held: Supreme Court while exercising power u/Art. 212(3) of Constitution cannot substitute its own finding in place of finding of service tribunal--Further held: No employee has a vested right in promotion but where rules, regulations and policy have been framed for appointment or promotion for mala fide reasons or due to arbitrary act of the competent authority, aggrieved person would be entitled to challenge it--Appeal was dismissed. [Pp. 959, 960 & 963] A & B
1991 SCMR 1041, 1998 SCMR 2268, PLD 1988 SC 155 & 2003 PLC (CS) 503, ref.
Shah Khawar, Deputy Attorney General and Mr. M.S. Khattak, AOR for Appellants.
Mr. Afnan Karim Kundi, ASC for Respondent No. 1.
Date of hearing: 29.9.2009.
Judgment
Ch. Ijaz Ahmed, J.--The appellants filed appeal against the impugned judgment of the Service Tribunal dated 19-3-2009 wherein the appeal of Respondent No. 1 was accepted by the Service Tribunal.
"In view of the above, the Appellant humbly prays that any recommendation for change or relaxation of criterion/policy of the Federal Government contained in O.M. dated 29.12.2001 of the Establishment Division may kindly be set aside and the Respondents may be ordered to grant BS-21 to the Appellant on meritorious grounds being fully qualified therefore in terms of O.M. dated 29.12.2001 w.e.f. 10.3.2008."
The learned Service Tribunal accepted her appeal vide impugned judgment dated 19-3-2009. Appellants being aggrieved filed C.P. No. 898/2009 before this Court which was fixed on 21-7-2009 for hearing and leave was granted in the following terms:--
"We have heard the learned counsel for the petitioners, learned counsel for the Caveator and have also seen the available record. Leave is granted, inter alia, to consider:--
(i) Whether the policy of the Government was in conflict with the fundamental rights or ultra vires or mala fides;
(ii) Whether the grant of higher pay scale on the basis of meritorious service is part of terms and conditions of service of a civil servant;
(iii) Whether it is not for the competent authority to determine the eligibility of a civil servant for grant of a higher grade; and
(iv) Whether the Federal Service Tribunal was competent to set aside the policy framed by the Government."
(i) That learned Service Tribunal had no authority whatsoever to set aside the policy framed by the Government or amendments made therein.
(ii) That policy of the appellants is not in conflict with the fundamental rights or ultra vires or mala fides.
(iii) That grant of higher pay scale on especially meritorious service is not included in terms and conditions of the Civil Servant. It is the prerogative of the competent authority to determine the eligibility of a civil servant for grant of higher grade.
Learned counsel for the respondent has supported the impugned judgment.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. The learned service Tribunal had considered all the pleas which are raised before us and were rejected with cogent reasons as is evident from paras 8 to 18 of the impugned judgment. The learned Service Tribunal after perusal of the available record had given finding of fact against the appellants whereas the learned counsel for the appellants has failed to point out any piece of evidence or any document which was misread or non-read by the learned Service Tribunal in the impugned judgment. The learned Service Tribunal, as mentioned above, after proper appreciation of the record, had accepted the appeal of the respondent by summarizing the facts in Paras 17 and 18 which are reproduced hereunder:--
"17. Perusal of record leads to the following conclusions:--
(i) Establishment Division O.M. dated 29.12.2001 laid down four conditions which were to be fulfilled for grant of BS-21 to the technical and professional officers on account of meritorious services. All the four conditions were required to be fulfilled.
(ii) The said O.M. did not confer any authority on the Selection Committee to relax any criteria prescribed therein.
(iii) Working papers for the meetings of the Special Selection Committee and Minutes of the Committee were not prepared on the basis of criteria for grant of BS-21 as prescribed in Establishment Division O.M. dated 29.12.2001. Resultantly there is no conclusive evidence that all the prescribed four conditions were fulfilled by the doctors who were recommended grant of BS-21 by the Special Selection Committee.
(iv) The respondents prepared and circulated final combined seniority list of BS-20 officers of Ministry of Health and its attached/subordinate offices dated 7.8.2006. Respondents have not denied this combined seniority list.
(v) In the Seniority List dated 7.8.2006 name of the appellant appears at Serial No. 13, whereas BS-21 was allowed to doctors at Serial No. 15 and Physiotherapist at Serial No. 16 of the list. Grant of BS-21 to two officers shown junior to the appellant in the final combined seniority list confirms violation of the principles of seniority.
(vi) Recommendation was made for grant of BS-21 to Dr. Mashoor Alam Shah whose name was not even included in the penal of 10 doctors for consideration and recommendation for grant of BS-21.
(vii) The prescribed criteria of 80% of ACRs in BS-20 and above was fulfilled by the appellant. The appellant percentage of very good ACR was reflected as 85.5% in Para 2 of the minutes of Selection Committee held on 31.12.2003. In the minutes of the meeting of Selection Committee held on 18.7.2007, the percentage of very good ACRs in BS-20 and above of the appellant was shown at 87.5%. Finally, in the working paper dated 5.3.2008 for the Special Selection committee, the name of the appellant was placed at Serial No. 4 of the panel. Her ACRs percentage was shown as 90.09% as very good in BS-20. In the remarks column it was also stated that she fulfilled eligibility criteria. Only one more doctor at Serial No. 13 was shown to fulfill the eligibility criteria. However, the meeting of the said Selection Committee does not appear to have been held till the date of hearing of this appeal.
(viii) Grant of BS-21 to doctors who did not meet the prescribed criteria is a clear violation of the criteria prescribed by the Government. The appellant was informed on 2.1.2007 by Respondent No. 2 that the Special Selection committee did not recommend the name of the appellant "due to non-availability of vacancy." This reply is not tenable because the vacancies were filled by doctors who had only 36% and 45% of very good ACRs in BS-20 as against the score of 87.5% of the appellant.
(ix) Record has established that four doctors were recommended for grant of BS-21 by the Special Selection Committee in its meeting held on 31.12.2003 when their percentage of very good ACRs was graded as low as 25%, 41.6% and 75%, whereas, the appellant was ignored. Two doctors with percentage of very good ACRs of only 36% and 45% were recommended for grant of BS-21 in the meeting held of the Selection Committee held on 18.7.2007. The reporting officers of these five doctors did not assess them as very good while assessing their performance on yearly basis, but the Special Selection Committee in its un-disclosed wisdom and in exercise of authority not conferred on it, i.e., to relax the prescribed criteria for grant of BS-21 on meritorious services, recommended grant of BS-21.
On the basis of the above conclusions, the appellant has wrongly been denied grant of BS-21. She fulfilled the criteria for grant of BS-21 on the basis of meritorious service while he was in service. Had the five doctors who did not fulfill the condition of 80% very good ACRs in BS-20, not been given BS-21, in violation of policy, the appellant would have made it to BS-21. We, therefore, direct that her case be placed before the Special Selection Committee for grant of BS-21 from the date it was due to her by reckoning posts that were filled by others who did not fulfill the prescribed criteria. We place reliance on the Judgment of the Hon'ble Supreme Court cited as 2008 SCMR 1138 and 1995 SCMR 650. In these Judgments the Apex Court granted benefit of promotion from the date it was due despite retirement of the appellant."
We have re-examined the evidence on record in the interest of justice and fairplay. We do not find any infirmity or illegality in the conclusion arrived at by the learned Service Tribunal. The learned Service Tribunal had decided the case in accordance with law, rules and regulations on the subject as is evident from the conclusions arrived at by the Service Tribunal as mentioned herein above. The impugned judgment is in accordance with the dictum laid down by this Court in various pronouncements including I.A. Sherwani's case (1991 SCMR 1041). The action of the appellant is not in consonance with Article 25 of the Constitution as is revealed from the contents of Paras 8 to 18 of the impugned judgment. After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to redress the grievances of the citizens/their sub-ordinates with reasons as law laid down by this Court in M/s. Airport Services' case (1998 SCMR 2268). We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fairplay and social justice. Therefore public functionaries are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. A Division Bench of the Lahore High Court has laid down the following principle in Muhammad Zafar Abbasi's case [2003 PLC(CS) 503]:
"The Central Selection Board while formulating their recommendation for consideration of the competent authority is to be guided primarily by the Promotion Policy, the CRs., the relevant instructions issued from time to time by the Establishment Division and of course can take into consideration any material which may have bearing on the fitness and suitability of an officer for promotion. However, if he has to be superseded not only the reason should be recorded but it should be supported by tangible material."
It is settled principle of law that this Court while exercising power under Article 212(3) of the Constitution cannot substitute its own finding in place of finding of the Service Tribunal. It is also settled proposition of law that no employee has a vested right in promotion but where rules, regulations and policy have been framed for appointment or promotion for mala fide reasons or due to arbitrary act of the competent authority, aggrieved person would be entitled to challenge it, See Muhammad Inshaullah's case (PLD 1988 SC 155). Even otherwise no question of public importance has been raised in terms of Article 212(3) of the Constitution.
In view of what has been discussed above this appeal has no merit and the same is dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 964 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmed, JJ.
STANDARD CONSTRUCTION COMPANY (PVT.) LIMITED--Petitioner
versus
PAKISTAN through Secretary, M/o Communications and others--Respondents
Civil Petition No. 1668 of 2009, decided on 22.10.2009.
(On appeal against the order dated 1.9.2009 passed by High Court of Sindh, Karachi, in Suit No. 857 of 2007).
Arbitration Act, 1940 (X of 1940)--
----Ss. 20 & 41 read with clause (4) of the Second Schedule--Bank guarantee--Interim injunction against encashment--High Court, while exercising its original jurisdiction, dismissed the application u/S. 20 of the Arbitration Act, for restraining the respondents from encashing bank guarantees--Encashment of bank guarantee--Non-achievement of financial close which is one of the conditions in concession agreement--Agreement was to lapse--Validity--Three bank guarantees were given: (i) the pre-bid bank guarantee (ii) the toll collection bank guarantee and (iii) the second toll collection bank guarantee--Bank guarantees, generally, contain in their contents whereby the guarantor undertakes to agree irrevokably and unconditionally to the payment to the beneficiary/employer the amount--Demand of the beneficiary is deemed to be a conclusive evidence and who is considered as the sole judge to do so regarding the failure of the principal to have not complied with or fulfilled the requirements of the brief/agreement--Contents without mentioning the demand as the conclusive evidence or the beneficiary to be the sole judge, prescribe certain eventualities on the happening whereof the beneficiary is entitled to the demand of the encashment of the guarantee--Held: Demand for the encashment of the first bank guarantee was entitled to its encashment, however, the latter two bank guarantees regarding toll collection the respondent was not entitled to the encashment of the same unless the condition precedent had been provided--Further held: Respondents were entitled to the encashment of pre-bid guarantee and restrained from encashing the other two bank guarantees till the finding given by the Arbitrator in that respect. [Pp. 969, 970 & 971] A, B & C
Mr. Bilal A. Khawaja, ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Hafiz S.A. Rehman, Sr. ASC Barrister Ahmed Ata-ur-Rehman, ASC a/w Col. Muhammad Azeem, Departmental Representative, N.H.A. for Respondents No. 2 & 3.
Date of hearing: 1.10.2009.
Judgment
Mian Shakirullah Jan, J.--This petition, for leave to appeal, has been filed by the petitioner, Standard Construction Company (Pvt.) Limited, against an order passed by the High Court of Sindh, while exercising its original jurisdiction, and dealing with the application submitted by the petitioner under Section 20 of the Arbitration Act, 1940 (hereinafter to be referred as "the Act") and referring the matter to the Arbitrator, "to arbitrate all the disputes between the parties", application of the petitioner under Section 41 read with clause (4) of the Second Schedule of the Act for restraining the respondents from encashing bank guarantees was dismissed.
The brief facts of the case are that the petitioner as a Private Limited Company is engaged in civil works of construction etc. while Respondent No. 2 is a statutory authority is looking after roads' and bridges' construction in Pakistan. The latter wanted to construct six-lane Motorway between Karachi and Hyderabad, the M-9 (Motorway) Project, and initiated the process as required under the law/rules/practice of the respondent starting from publication in the newspapers inviting Expression of Interest under the scheme of BOT (Build, Operate and Transfer) and taking further necessary steps as required, ultimately after holding the petitioner as the best bidder awarded its Letter of Intent and subsequently allocating him the carrying out of the construction work. In this respect the petitioner has also furnished pre-bid bank guarantee in the sum of Rs. 18,000,000/-. After signing of the Concession Agreement between the parties the petitioner was required to achieve the financial close, which expression has been defined in the Concession Agreement as "Financial Close -- Means the time not accruing after the date stated in the Sub-clause 21.2.1 by which the Financial Agreements entered into with the Lenders have been executed and become effective." In other words arranging the availability of funds required as a total project cost of Rs.6,318,000,000/- with the equity portion of the petitioner as Rs. 1,895,000,000/- and Rs. 4,423,000,000/- is to be arranged from the financial institution under firm commitment, within a period initially of six months but which period was extended till 13.06.2007 from the effective date i.e., the execution of the Concession Agreement on 26.09.2006. After the Concession Agreement the petitioner has also submitted bank guarantee for the collection of the Toll which process he started since 25.12.2006, one bank guarantee for Rs. 18 million and the other of Rs. 35 million. In the process of achieving financial close/arranging the availability of the funds (before the target date) from the financial institutions, the petitioner addressed a letter to Defendant No. 2 (N.H.A.) on 11.06.2007 with a format of agreements between the petitioner and the financer banks for approval of the N.H.A. and on 13.06.2007 the petitioner signed financial agreements with the consortium of banks and forwarded the executed agreements to N.H.A. confirming financial close with firm commitments of arranging Rs. 4,423,000,000/-. The petitioner also submitted to N.H.A. a performance bond equivalent to 5% of the project cost as required under Clause 30 of the Concession Agreement. The petitioner was informed by the bank that the N.H.A. has made a call on 21.06.2007 for encashment of the bank guarantees and on inquiry from the N.H.A., the N.H.A. confirmed encashment of the bank guarantees on the ground that since the bank guarantees were to be expired on 22.06.2007 so before expiration their encashment was asked for and to the renewal of which the petitioner expressed its readiness. However, later on in a meeting with the officers of the N.H.A. on 26.06.2007 the petitioner was informed the reason of encashment of the bank guarantees which was that the petitioner had failed to achieve financial close and the petitioner was further informed to hand over the Toll Plaza to the N.H.A. and the demand for the encashment of the bank guarantees kept continue. It is alleged by the N.H.A. that since 25.12.2006, the date of handing over the Toll Plaza for collection of Toll till 08.07.2007 and the possession of the Toll Plaza was taken over by the petitioner, the petitioner has already collected as Toll an amount of Rs. 135,000,000/- while on the other side the petitioner alleged that it has spent Rs. 234,900,000/- on the project which fact, however, was disputed by the N.H.A. These controversies i.e., whether the financial close has been achieved by the petitioner or not, and whether financial close as submitted by the petitioner to the respondent has been approved or not, and whether the respondents are entitled to encashment of the bank guarantees on the aforesaid plea of the respondent of not achieving the financial close by the petitioner and its (respondent's) non-approval of the financial close and the apprehension of the petitioner of cancellation of the award of contract and its awarding to some one else lead to the filing of the application by the petitioner under Section 20 of the Act with an application for interim relief for restraining the respondents from encashment of the bank guarantees and from other acts which may result in the cancellation of the contract. The learned Judge in the High Court, with the consent of the parties, referred the matter to the sole Arbitrator and while doing so took up the application for interim relief and after hearing the learned counsel for the parties the application of the petitioner was dismissed which order is under challenge before us through the instant petition.
The main concern of the learned counsel for the petitioner, as agitated before us, is to restrain the respondents from encashment of three bank guarantees which concern of the petitioner was contested by the respondents and thus on the point of contest between them we have heard their learned counsel and perused the record available before us.
Since the basic controversy is with regard to the encashment of bank guarantees so for the sake of convenience it would be appropriate to reproduce the relevant parts of the three bank guarantees which have also been referred to in the impugned judgment of the High Court, (i) the pre-bid bank guarantee of Rs. 18 million with the following, contents:--
"At the request of the Bidder we hereby open and establish the irrevocable and unconditional Guarantee for an amount up to Pak. Rs. 18,000,000/= (Pakistani Rupees Eighteen Million only) payable by us to you forthwith upon the happening of any of the following events:
If the Bidder partially or wholly withdraws or suspense the Bid or amends or modifies the same without the prior approval in writing of the NHA: or
If the Bidder fails or refuses to execute the concession agreement with the NHA in terms acceptable to the NHA on or before 25.10.2005; or
If the Bidder, having executed/signed the concession agreements fails or refuses to provide a construction phase bond in accordance with the requirement of such an agreement within--days of such execution/signature.
We, Askari Commercial Bank Limited, M. A. Jinnah Road, Quetta having its Registered Head Office at AW-T Plaza, The Mall, Rawalpindi do hereby guarantee irrevocably and unconditionally to pay to you forthwith, without prior course to the Bidder to the extent of Pak. Rs. 18,000,000/- (Pakistani Rupees Eighteen Million only) immediately upon receipt by us of your first written demand, which shall only state that the supplier has failed to comply with the requirements of the Brief. It is agreed that any such demand made hereunder by you shall be conclusive evidence of the Bidder's failure to comply with or fulfill the requirements of the Brief as set out above. We shall at all times be bound on the first written demand of the NHA to pay the NHA forthwith the amount hereby guaranteed until we are expressly released and discharged in writing by the NHA from the liabilities/obligations hereby guaranteed."
(ii) The Toll collection bank guarantee of Rs. 80 million contains the following conditions:--
"We, the M/s. Askari Commercial Bank Ltd., M. A. Jinnah Road, Quetta having its Registered Head Office at AW-T Plaza, the Mall, Rawalpindi, Cantt. Incorporated under Banking Companies Act 1962 as instructed by the company, agree unconditionally and irrevocably without recourse to guarantee as primary obligator and not as surety merely, the payment to the National Highway Authority (`NHA') on his first demand without whatsoever right or obligation on our part and without his first claim to the Company, in an amount not exceeding Rs. 80,000,000/- (Rupees Eighty Million only) in the event that obligations expressed in the said Clause of the above mentioned Agreement have not been fulfilled by the company giving the right of claim to the NHA for recovery of the whole or part of the Toll Money from the Company under the Agreement.
We further agree that no change or addition to or other modification of the terms of the Agreement or of Works to be performed there under or of any of the Contract documents which may be made between the NHA and Company, shall in any way release us from any liability under this guarantee, and we hereby waive notice of any such change, addition or modification."
(iii) The second Toll collection bank guarantee of Rs. 35 million contains the following stipulations:--
"We, Faysal Bank Ltd., Head Office & Main Branch, Shahrah-e-Faisal, Karachi as instructed by the company, agree unconditionally and irrevocably without recourse to guarantee as primary obligator and not as, surety merely, the payment to "the National Highway Authority" on its first demand without whatsoever right of objection on our part and without his first claim to the Company in an amount not exceeding Rs. 35,000,000/- (Pak Rupees Thirty Five Million only) in the event that obligations expressed in clause 24.4 of the above mentioned Agreement have not been fulfilled by the company giving the right of claim to the NHA for recovery of the whole or part of the Toll money from the Company under the Agreement.
We further agree that no change or addition to or other modification of the terms of the Agreement/contract or of Works to be performed there under or of any of the Contract documents which may be made between the NHA and the Company, shall in any way release us from any liability under this guarantee, and we hereby waive notice of such change, addition or modification.
The liability under this guarantee is restricted to Pak Rs. 35,000,000/- (rupees Thirty Five million only) and is valid upto 22.6.2007. Any claim under this guarantee should be presented to us on or before 22.6.2007 after which the bank shall be released from all its liabilities and the guarantee shall automatically become null and void whether or nor the original guarantee is returned to us."
"24.4 COMMERCIAL OPERATION
The Company shall not be allowed to commence the commercial operation of the Project before Financial close except for the current toll collection that the Company would be entitled to commence within three (3) months of the Effective Date.
The Company shall furnish a bank guarantee to NHA against the toll collected prior to financial close, which will be forfeited if the financial close is not achieved. On the contrary, on successful financial close, the bank guarantee will be returned to the Company."
In its second part above it has been specifically prescribed that the company shall furnish a bank guarantee to N.H.A. against Toll collected prior to financial close, which will be forfeited if the financial close is not achieved. Here again there is no mention that the demand of the beneficiary/N.H.A. would be a conclusive proof of non-compliance of the conditions mentioned in Clause 24.4 of the Concession Agreement and it would be the sole judge, rather the encashment was made conditional on the non-achievement of the financial close.
Viewing from this perspective the respondent on its demand for the encashment of the first bank guarantee of Rs. 18 million, is entitled to its encashment, however, the latter two bank guarantees regarding the Toll collection of Rs. 80 million and Rs. 35 million the respondent is not entitled to the encashment of the same unless the conditions precedent have been proved. The learned judge of the High Court though referring the matter to the Arbitrator for adjudication of the main controversy which include the fulfillment or non-fulfillment of the conditions precedent even for the encashment of the bank guarantees, has gone deep and discussed minutely the various clauses, terms and conditions of the agreement and other relevant documents and their effect for arriving at his conclusion which, in the circumstances of the case, after referring the dispute to the Arbitrator would not be appropriate and uncalled for as such findings of the High Court would influence the proceedings before the Arbitrator and while disproving such observations of the High Court we feel hesitation either to affirm or not affirm the findings of the High Court with comments on the merits of the case and without which a definite conclusion would not be possible as to whether the conditions as required for the encashment of the bank guarantees have been fulfilled or not and by not doing so we would leave it to the Arbitrator to deal with the question of encashment of these two guarantees relating to the Toll collection according to law while making an award.
The consequence of the above discussion is that while converting this petition into appeal, the same is partially allowed by holding that the respondents are entitled to the encashment of pre-bid bank guarantee amounting to Rs. 18 million and restrain the respondents from encashment of the other two bank guarantees till the finding given by the Arbitrator in that respect.
During the course of hearing of the petition we were told by the learned counsel for the parties that the bank guarantees, though the period has expired, yet have still been kept intact by the banks on account of proceedings before the Courts and which would follow the orders of the Courts. The appellant/company is directed to renew the same with subsequent renewal, if need be till the conclusion of the proceedings and if the same (the bank guarantees) are to lapse on account of non-renewal then the banks are directed to allow its encashment by the respondent/N.H.A. before the dates of their expiry.
(R.A.) Petition allowed.
PLJ 2010 SC 971 [Appellate Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain & Muhammad Sair Ali, JJ.
PAKISTAN OILFIELDS LIMITED, POL HOUSE, MORGAH, RAWALPINDI--Appellant
versus
PROVINCE OF PUNJAB through Secretary Finance Department, Lahore and others--Respondents
C.A. No. 416 of 2004, decided on 1.10.2009.
(On appeal from the judgment dated 11.2.2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in ICA No. 261/2003).
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3(2) & Scope--Constitution of Pakistan, 1973, Art. 199 & Punjab Finance Act, 1997, S. 7(5)--Maintainability of--Intra-Court Appeal--Where law applicable provided for at least one appeal--Validity--If at the time of bringing/filing of the petition before High Court there was a law providing the remedy of appeal--Appeal before the Bench of two or more Judges of the High Court from the order of single Judge of that Court would not lie--When the petition was brought before High Court, there was no law providing remedy of appeal to the petitioner. [P. 974] A
"Jurisdiction and Judicial Review", page 63, by Justice (R) Fazal Karim, ref.
PLD 1981 SC 553 & PLD 1992 SC 637, ref.
Mr. Ali Sibtain Fazli, ASC for Appellant.
Mr. Saeed Yousaf Khan, Addl. A.G., Punjab for Respondents No. 1-3.
Date of hearing: 1.10.2009.
Judgment
Sayed Zahid Hussain, J.--Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, qua the validity of Section 7 of the Punjab Finance Act, 1997, whereby tax on luxury vehicles was levied, was filed by the petitioner, which was dismissed by a learned Judge of the Lahore High Court, Rawalpindi Bench on 11.11.2003. An appeal was filed under Section 3 of the Law Reforms Ordinance, 1972 there-against (ICA No. 261/2003) which was dismissed on 11.02.2004 by a learned Division Bench of the said Court by invoking the proviso to Section 3(2) of the Law Reforms Ordinance, 1972, as Rule 9 of the Tax on Luxury Vehicles Rule, 1997 provided an appeal to the Director, Excise & Taxation. On a petition filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, there-against leave to appeal was granted on 26.04.2004, which order reads as follows:-
"This petition for leave to appeal is directed against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 11.2.2004 whereby ICA No. 261/2003 of the petitioners was dismissed being incompetent in view of proviso to Section 3(2) of the Law Reforms Ordinance, 1972.
Learned counsel for the petitioner contended that the impugned judgment is not sustainable as the Tax on Luxury Vehicles Rules, 1997 (hereinafter to be called as the Rules) on which reliance was placed by the High Court were mere draft Rules and were notified for the first time vide Notification No. S.O. Tax (E&T)/3/7(97) dated 23.04.1998 which were declared to be ultra vires as observed in Messers Raja Industries Ltd. v. Government of Punjab & others (1999 MLD 3141), whereafter new Rules were published through S.O. Tax (E&T)/17(97)LV dated 06.10.1999. He submitted that aforesaid Rules were not applicable to the petitioner's case as, when the petitioner filed the writ petition in 1997, there were no Rules in field and right of ICA was available. He further submitted that a right which was available at the time of filing of the writ petition would not cease on the publication of the Rules or on the dismissal of the writ petition. He urged that right of appeal did not accrue on the dismissal of the writ petition but it persisted from the date of the institution of the writ petition. He also submitted that imported vehicles were exempted from payment of all duties/tax etc. under clause 13.5 of the Petroleum Concession Agreement.
The above contentions need consideration as such we grant leave to appeal to consider inter alia the above contentions.
Learned counsel stated that the petitioner is ready to deposit the payable duties/taxes etc. and shall deposit the same within a month.
The petitioner may deposit the payable duties/taxes etc. which shall, of course, be subject to the decision of the appeals. The Bank guarantee be released after payment of all dues by the petitioner."
Mr. Ali Sibtain Fazli ASC, the learned counsel for the appellant contends that at the time when the writ petition was filed before the High Court, there was no law/rule providing departmental appeal. It is contended that Proviso to Section 3(2) of the Law Reforms Ordinance, 1972 was neither attracted nor could be invoked and the appeal was maintainable before the High Court under Section 3 of the Law Reforms Ordinance. He cites Federation of Pakistan v. Muhammad Siddiq (1980 SCMR 443); Governor NWFP & another v. Gul Naras Khan (1987 SCMR 1709) and Muhammad Bashir & 2 others v. Muhammad Firdaus & another (PLD 1988 SC 232), to contend that right of appeal, if was available at the commencement of the lis, later change in law could not destroy or take away the same. It is contended that Rule 9 of the Tax on Luxury Vehicles Rules, 1997 has wrongly been invoked by the learned Division Bench of the High Court inasmuch as the said rules which were notified on 23.04.1998 had been declared ultra vires by same Court as is evident from Messers Raja Industries Ltd. v. Government of Punjab and others (1999 MLD 3141) supra.
The learned Additional Advocate General, Punjab, has made his earnest endeavour to support the judgment of the learned Division Bench. It is contended that even an alternate remedy in the form of appeal was available to the petitioner under the latter rules i.e. Rule 9 of the Tax on Luxury Vehicles Rules, 1999, notified on 06.10.1999, which could be availed by the appellant.
In order to consider the respective contentions in the context of the controversy i.e. the maintainability of Intra Court Appeal in the High Court, it may be noted that by means of Section 7 of the Punjab Finance Act, 1997, tax on luxury vehicles was levied, of which the petitioner felt aggrieved and filed petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Assailing its validity it was prayed that "Section 7 of the Punjab Finance Act, 1997 may kindly be declared to be ultra vires of the Constitution, without lawful authority and of no legal effect. It is further prayed that the Respondents may kindly be directed to issue the registration books of the petitioner's vehicles in connection therewith without payment of "Luxury Vehicle Tax." As is noticeable from the prayer made and relief claimed by the appellant, the very vires and validity of law i.e. Section 7 of the Punjab Finance Act, 1997 was assailed and such a declaration was sought from the High Court in its constitutional jurisdiction as a declaration of the nature could not be granted by any other subordinate authority. The first draft rules, which were notified on 23.04.1998 were declared ultra vires by the High Court whereafter the Rules of 1999 i.e. Tax on Luxury Vehicles Rules, 1999, were notified on 06.10.1999. Before that the petition (W.P. No. 2689/1997) was pending before the High Court. It may be observed that under sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972 the remedy in the form of appeal was provided, which reads as follows:--
S.3(2) "An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause(1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph(i) of paragraph (b) of that clause:
Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order."
From the plain reading of the proviso it is evident that the word "brought" used in the proviso has reference to institution of the petition and can be equated with the "filing" of the petition before the High Court. Meaning thereby that if at the time of bringing/filing of the petition before the High Court there was a law providing the remedy of appeal etc., appeal before the Bench of two or more Judges of the High Court from the order of single Judge of that Court would not lie. The position in the instant case however is that the petition was filed by the appellant under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the High Court in November, 1997 whereas Rules framed under sub-section (5) of Section 7 of the Punjab Finance Act, 1997, which provided the remedy of appeal were notified on 06.10.1999. Thus, when the petition was brought before the High Court, there was no law providing remedy of appeal to the petitioner. Another reason which makes the proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance, inapplicable to the instant matter, is that there had not yet been passed any "original order" which could be made basis for filing of departmental appeal. The relevance and significance of the prayer clause of the petition could also not be lost sight of.
It may be mentioned that right of appeal is "the right of entering superior Court and invoking its aid and interposition to redress the error of the Court below, any application by a party to an appellate Court asking it to set-aside or revise a decision of a subordinate Court is an appeal within the ordinary acceptation of the term". It is so stated by justice (R) Fazal Karim in "Jurisdiction and Judicial Review" at page 63. The concept that right to avail remedy of appeal if so provided by the law, inheres in the party at the commencement of the proceedings which cannot be destroyed or annihilated except through legislation or abolition of the forum, is well established. In Pakistan International Airlines Corporation v. M/s. Pak Saaf Dry Cleaners (PLD 1981 SC 553) the position in law was stated as well settled "that the right of appeal is not a mere matter of procedure, but it is a substantive right; and that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit, and that these rights can be taken away only by subsequent enactment, provided it so provides expressly or by necessary intendment, and not otherwise." The same legal position was reiterated in "Haji Muhammad Ibrahim and 3 others v. Mst. Surrayia-un-Nisa and 9 others (PLD 1992 SC 637) that "the proposition that institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit and that these rights can be taken away only by a subsequent enactment provided it so provides expressly or by necessary intendment and not otherwise." Thus, in the circumstances, the rigours of proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972 were not at all attracted to the instant case which could denude the appellant of remedy of appeal or render the appeal as non-maintainable.
For the above reasons the view taken by the learned Division Bench of the Lahore High Court, as to the maintainability of the appeal is not sustainable in law. The judgment impugned is set-aside. As a result thereof, ICA No. 261/2003, will be deemed pending for its decision in accordance with law. The appeal is accepted to this extent. The deposit of duties and taxes was ordered to be made subject to decision of the appeal. Since the appeal has been decided on the point of maintainability of Intra Court Appeal before the High Court, which appeal is to be decided now by the High Court on its merits, the deposit so made will be subject to the ultimate decision of the said appeal. No order as to costs.
(S.K.A.) Appeal partially Accepted.
PLJ 2010 SC 976 [Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramady, Nasir-ul-Mulk & Ch. Ijaz Ahmed, JJ.
MUHAMMAD SHEHZAD MALIK--Petitioner
versus
MUHAMMAD SUHAIL and another--Respondents
Crl. Petition No. 1137-L of 2009, decided on 19.10.2009.
(Against the order dated 27.7.2009 passed by Lahore High Court, Lahore, in Cr. Original No. 409-W/2009).
Administration of Justice--
----All the laws of the land must wear in the sleeves of the judge--High Court had to decide the controversy between the parties after judicial application of mind. [P. 985] A & B
Jurisdiction
----Jurisdiction--To examine subsequent events--Superior Courts had ample jurisdiction to look into subsequent events at the time of deciding the case. [P. 985] C
Contempt of Court--
----It is also settled principle of law that contempt is always between the contemnors and the Court. [P. 985] D
Ch. Ali Muhammad, ASC for Petitioner.
Mian Abdul Qadus, ASC for Respondents.
Mr. Saeed Iqbal Wahla, DCO, Mr. Mubashir Ali Shah, DOR, Mr. Saeed Anwar, TMO and Mr. Muhammad Arshad, Litigation Officer on Court Notice.
Date of hearing: 19.10.2009.
Judgment
Ch. Ijaz Ahmed, J.--Petitioner has sought leave to appeal against the order of the Lahore High Court, Lahore, dated 27-7-2007 wherein Criminal Org. No. 409-W/2009 filed by Respondent No. 1 was accepted with certain directions to the petitioner to acquire the land of the original owner predecessor-in-interest of Respondent No. 1.
"The judgment and decree passed in favour of the petitioner on 8.6.1 983 but the petitioner, who is entitled to enjoy the benefits of the decree, is hanging in the air from the last many years, therefore, executing Court seized of the matter is directed to execute the decree in the light of the direction given by the appellate Court in its order dated 3.11.2007 positively within a period of two months under intimation to the Deputy Registrar (J) of this Court."
"The TMA will initiate the acquisition proceedings pertaining to the land in question within one month from today and the DCO shall also facilitate the respondent-TMA as well as the petitioner for early completion of the acquisition, with intimidation to the Deputy Registrar (J) of this Court."
Hence the present petition.
The petition was fixed before this Court on 25-9-2009 and 5.10.2009 and the following orders were passed respectively:--
Order dated 25.9.2009
"What had been settled upto the level of this Court was that at least 16 marlas of land belonging to Respondent No. 1 and others had been illegally and forcibly taken over by the Governmental authorities without taking up any proceedings in accordance with law and where a road now reportedly stand constructed. The decree passed in favour of the said land owners is now awaiting its execution. The Governmental authorities are attempting to complicate the issues and to frustrate the said decree by pushing the burden from one department/agency to the other with the decree holders standing as victim spectators of this game. Let the Secretary, Local Government of Punjab, the Secretary of the Communication and Works Department of the Government of Punjab, the District Co-ordination Officer of Faisalabad as also the petitioner who is NAZIM of the relevant town appear before this Court on the next date of hearing. The Office shall telephonically convey this order to the said officials for compliance."
Order dated 5.10.2009
Secretary Communication and Works Department, Punjab, Secretary Local Government, Punjab and D.C.O., Faisalabad are present in person. They need some time to workout the compensation which could be offered to the legal heirs of the decree holder i.e the late Noor Muhammad. Ch. Ali Muhammad, learned ASC for the petitioner shall supply a list of all the said heirs to the D.C.O., Faisalabad to whom notice is hereby issued for appearance before this Court on the next date of hearing. The D.C.O., Faisalabad shall convey this notice to all the said legal heirs.
The representative of the Government present in Court under instructions has given offer to pay Rs. 4,50,000/- per marla to satisfy the decree in question which has not been accepted by Respondent No. 1. Hence the petition is being decided on merits.
The learned counsel for the petitioner submits as under:--
(1) The city Government has only power to pay any compensation to the owner whose land is included in road and Town Municipal Administration is not responsible to pay compensation to the decree holders in terms of the provisions of Punjab Local Government Ordinance, 2001 including Section 180 of the Ordinance.
(2) The learned High Court erred in law to direct the petitioner to initiate acquisition proceedings to acquire the land in question.
(3) The learned High Court had not either found the petitioner as guilty or discharge him, therefore, erred in law to direct the petitioner to initiate proceedings under Land Acquisition Act qua the land in Question. He relied upon Mehdi Hassan's case (PLD 1960 Lah. 751).
(4) The learned High Court had also erred in law to issue notice to the Civil Judge concerned.
(5) The petitioner was not party in the suit as is evident from the title of the suit filed by the predecessor-in-interest of the Respondent No. 1 "Noor Muhammad s/o Umar Bux R/o House No. P. 191, Street No. 2, Muhammadpura, Faisalabad versus Chairman, Municipal Corporation, Faisalabad."
(6) The petitioner is not successor in any capacity of the Municipal Corporation, Faisalabad under the provisions of Local Government Ordinance, 2001 but this, fact was not considered by the Lahore High Court in the impugned order in its true prospective.
(7) Legal heirs of original owner have already filed suit with the prayer that the legal heirs of the original owner are entitled compensation of the land in question. The said suit is still pending adjudication.
(a) that Respondent No. 1 and other legal heirs of Respondent No. 1 had become decree holders by operation of law after the death of the father of original owner Noor Muhammad.
(b) The learned High Court was justified to direct the petitioner to initiate proceedings under the Land Acquisition Act to acquire the land in question in view of the mettled road constructed over the land of the original owner without his consent.
(c) Legal heirs of the original owners are decree holders which was secured by the original owner on 8-6-1983 and which was upheld up to the apex Court, therefore, learned High Court was justified to pass the impugned order in accordance with law.
Title of the Suit
"Noor Muhammad s/o Umar Bux R/o House No. P. 191, Street No. 2, Muhammadpura, Faisalabad versus Chairman, Municipal Corporation, Faisalabad."
Punjab Local Government Ordinance, 1979 Section 3(iv).-- "chairman" means the Chairman of a Local Council constituted under the Ordinance but in the case of a Metropolitan Corporation, the Chairman may be called the Lord Mayor, and in the case of Zonal Municipal Corporation and a Municipal Corporation the Chairman may be called the Mayor;
Section 3(xiv): `Government' means the Government of the Punjab;
Section 3 (xvii): `local council' means a local constituted under the Ordinance;
Section 3(xxiii): `municipal corporation' means a municipal corporation constituted for a city under the Ordinance;
Section 3 (xxxiii): `public road' means a road maintained by Government or by a local council or a local authority;
Section 3(xl): `road' includes a road which is not a thoroughfare;
Section 5(2): A Municipal Committee and Municipal Corporation constituted under the Ordinance shall be the successor of the Municipal Committee or the Municipal Corporation respectively constituted under the Municipal Administration Ordinance 1960 (X of 1960).
Section 6(1)(f): Constitution of Local Councils.--As soon as may be, the following local councils shall be, constituted:- a municipal corporation for each city;
Section 49(i); Functions of Union Councils:- A union council may if so directed by Government shall undertake all or any of the following functions:--
(i) provisions, maintenance, improvement and management of public ways, public roads, public streets, culverts, bridges and public buildings;
Section 182: Repeal of the Punjab Local Government Act, 1975.--(1) The Punjab Local Government Act, 1975 (XXXIV of 1975) is hereby repealed.
(2) Notwithstanding the repeal of the Punjab Local Government Act, 1975, any appointment, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suits instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Act or under such enactments as were repealed by the said Act, shall so far as it or they are not inconsistent with the provisions of the Ordinance, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under the Ordinance.
Punjab Local Government Ordinance, 2001 Section 2(xiii): `Government' means the Government of the Punjab.
Section 2(xvi); `local Government' includes--
(a) a District Government or a City District Government and Zila Council;
(b) a Tehsil Municipal Administration and Tehsil Council;
(c) a Town Municipal Administration and Town Council; and
(d) a Union Administration and Union Council.
Section 8: Creation of a City District.--(1) In addition to the Provincial headquarter notified by the Government as City District Lahore, the Government may, by notification in the official Gazette, declare a tehsil or tehsils within one or more adjoining districts as a City District if--
(a) the population of urban settlement therein or of proximate settlement exceeds one million people;
(b) the economy thereof is largely oriented to commercial, industrial, and services sectors, and, according to the last preceding census, the labour force employed in such sector or in non-agricultural sectors is more than six percent and
(c) the existing administrative and municipal infrastructure therein have become inadequate for efficient service delivery and require integrated development and management.
(2) For the purpose of creation of city district, the Unions in the district affected by such creation may be delimited in accordance with Section 6:
Provided that in all other districts Section 11 of this ordinance shall apply.
Section 13: Composition of District Government.--(1) The District Government shall consist of Zila Nazim, and District Administration.
(2) The District Government shall be competent to acquire, hold or transfer any property, movable and immovable, to enter into contract and to sue or be sued in its name, through District Coordination Officer.
Section 16(3): Authority and responsibility of District Government.--
The District Government shall be responsible to the people and the Government for improvement of governance and delivery of services within the ambit of the authority decentralized to it under this Ordinance, Section 18: Functions and powers of the Zila Nazim.--(1) The functions and powers of the Zila Nazim shall be to--
(e) oversee formulation and execution of the annual development plan, delivery of services and functioning of the District Government;
(f) maintain administrative and financial discipline in the District Government.
Section 32: Assignment of work to Tehsil Municipal Administration.--A District Government may, assign any of its functions to a Tehsil Municipal Administration or Union Administration, on such terms and conditions as may mutually be agreed:
Provided that the primary responsibility for discharge of such functions shall continue to vest with the District Government:
Provided further that no function or responsibility shall be transferred without allocation of corresponding resources and funds.
Section 49: Composition of Tehsil Municipal Administration.--
Section 54: Functions and powers of the Tehsil Municipal Administration.--(1) The functions and powers of the Tehsil Municipal Administration shall be to--
(h) provide, manage, operate, maintain and improve the municipal infrastructure and services, including--
(v) roads and streets, other than roads falling under the jurisdiction of, and maintained by, the District Government or Government and streets maintained by the Union Administration or Village Council;
Section 57: Functions of Tehsil Nazim.--The functions of Tehsil Nazim shall be--
(a) to provide vision and direction for efficient functioning of the municipal administration;
(b) to formulate strategies for development of municipal infrastructure and improvement of delivery of the municipal services of the tehsil;
Section 135: Inspection and supervision
Section 180: Succession of the properties, Assets and liabilities.--(1) Subject to Section 123, on commencement of this Ordinance, the properties, assets and liabilities of the Local Council, namely Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town committees, union councils under the Punjab Local Government Ordinance, 1979 (VI of 1979), shall be succeeded by the following local Governments under this Ordinance.--
(a) City District Government in the case of Metropolitan Corporation or Municipal Corporation in the concerned City District, as the case may be;
(b) District Government in the case of District Council;
(c) Tehsil Municipal Administration in the case of Municipal Corporations Municipal Committees and Town committees in the tehsil, as the case may be, and
(d) Union Administration in the case of union Councils:
Provided that the liabilities of the predecessor local Governments shall be discharged in accordance with the existing arrangements:
Provided further that the discharge of liabilities of the decentralized offices shall remain with the Government.
(2) The funds of a Metropolitan corporation, Municipal Corporation, Zila Council, Municipal Committee, town Committee and Union Council shall be transferred to a Local Government as the successor under sub-section (1).
Section 196: Repeal and Savings.--(1) On commencement of this ordinance,--
(i) the Punjab Local Government Ordinance, 1979 (VI of 1979), shall be repealed;
(ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000), shall be repealed; and
all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (I of 1979) shall stand dissolved.
Section 197: Removal of difficulty.--The Government may, by order, provide, for the removal of any difficulty which may arise in giving effect to the provisions of this Ordinance.
Mere reading of the aforesaid facts and provisions of law of the aforesaid Ordinances, then it is crystal clear that petitioner is not successor of the Municipal Corporation. The learned High Court had directed the petitioner merely accepting the statement of the D.C.O without adverting to the aforesaid provisions of law. It is settled principle of law that all the laws of the land must wear in the sleeves of the Judge as law laid down by this Court in Muhammad Sarwar's case (PLD 1969 SC 278). It is also settled principle of law that learned High Court had to decide the controversy between the parties after judicial application of mind as law laid down by this Court in various pronouncements. See G.M. Sikdar's case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173). It is also an admitted fact that learned High Court without observing the petitioner as guilty or discharging him issued direction to the petitioner to initiate proceedings under Land Acquisition Act to acquire the land in question whereas the petitioner is not legally competent to acquire the land of the petitioner in terms of the aforesaid provisions of law. The learned High Court had also not taken note of the subsequent events as stated by the parties before us that legal heirs of original owner Noor Muhammad have filed suit against the petitioner and others for securing compensation of land in question. It is also settled principle of law that superior Courts had ample jurisdiction to look into the subsequent events at the time of deciding the case. It is also settled principle of law that contempt is always between the contemnors and the Court. We have re-examined the facts available on record with the assistance of the learned counsel of the parties. We are of the view that the learned High Court had erred in law to direct the petitioner to initiate proceedings under land Acquisition Act to acquire the land of the predecessor-in-interest of Respondent No. 1 and others without adverting to the facts and provisions of law. It is pertinent to mention here that constitution petition filed by Respondent No. 1 was accepted by the learned High Court without securing report and parawise comments from petitioner and other respondents in the writ petition. Similarly contempt petition was accepted, as mentioned above, without giving any finding qua guilt of the petitioner or by discharging the petitioner without securing a reply from the petitioner and Respondent No. 2, therefore, impugned order is not sustainable in the eyes of law on any canon of justice. Adverting, to the contents of Criminal Original No. 409-W/2009, we find that a case for taking action against the petitioner is not made out.
In view of what has been discussed above this petition is converted into appeal and appeal is allowed. The impugned order is set aside with no order as to costs.
(R.A.) Appeal allowed.
PLJ 2010 SC 986 [Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk & Ch. Ijaz Ahmed, JJ.
SHAFQAT MEHMOOD and others--Appellants
versus
STATE--Respondent
Crl. Appeal No. 264 of 2008, decided on 27.10.2009.
(On appeal from the judgment dated 11.12.2006 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 550/2003, M.R. No. 8-T/2004).
Identification Parade--
----It is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused would not be seen by the witnesses before identification parade. [P. 994] A
Precaution--
----Identification of accused by witnesses--All these precautions would not only be taken but would be proved to have been taken and these precautions would be recorded in the initial record like general diary of the Police Station and daily register and the same would be produced in Court--Held: In absence of such precaution and evidence, no value can be attached to identification of the accused by witnesses. [P. 994] B
Identification Parade--
----Separate identification--Appreciation of evidence--Witnesses had opportunity to see the accused, identification parade which was held in the case was not in accordance with the rules--Held: Identification parade of each accused would be held separately otherwise confusion would be created and in the case identification parade of two sets of accused was held jointly--Such aspect of the case was not considered by both Courts below. [P. 994] C
Identification Parade--
----Value of--Picking out of accused in identification parade is not a substantive piece of evidence--Such evidence is merely corroborative piece of evidence. [P. 994] D
Identification Parade--
----Contents of FIR reveal that witnesses had seen the accused for first time--Validity--In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements--Held: If accused were not named in FIR identification parade becomes necessary. [P. 994] E
Identification Parade--
----Accused was not described by witness--No value and cannot be relied upon--Validity--Role of the accused was not described by the witness at time of identification parade which is always considered inherent defect--Such identification parade lost its value and cannot be relied upon. [P. 995] F
Identification Parade--
----Witnesses did not mention name and role of the accused to their statements recorded by magistrate after identification parade--Identification parade becomes doubtful--Accused had taken objection at the time of identification parade that they had already been shown to the witnesses but such objection was not taken into consideration by the Courts below. [P. 995] G
Identification Parade--
----Terms of contents of FIR--Witnesses did not know the accused before the occurrence--Identification parade was not held in accordance with law, therefore, identification in Court by the witnesses is also of no value. [P. 995] H
Identification Parade--
----Delay of 7 days--Identification parade was held after a delay of 7 days after the arrest of the accused--Such delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons. [P. 995] I
Appreciation of Evidence--
----Statements of eye-witnesses are also not consistent with each other--Fact was also not considered by Courts below in its true perspective coupled with the fact that material improvements were made by the witnesses before the Court which were noted by trial Court in their cross examination but did not draw right conclusion at the time of recording of finding of guilt against the accused. [P. 995] J
Rectification of Error--
----Error was not rectified by High Court while deciding the appeal of the accused--Supreme Court have re-examination the whole evidence on record and come to conclusion that both the Courts below had erred in law while giving finding of guilt against the accused. [P. 995] K
Justice--
----Duty to rectify--Finding of guilt recorded by Courts below against the accused--To accept it could amount to perpetuate a grave miscarriage of justice--Held: Supreme Court have already referred to misreading of evidence on record, therefore, it is duty of Court to rectify the same so that justice may be done with the parties. [P. 995] L
Circumstantial Evidence--
----Sentence on basis of circumstantial evidence--An accused can be convicted and sentenced on the basis of circumstantial evidence, if the chain has not been broken and each and every circumstance must connect with each other. [P. 995] M
Identification Parade--
----Basic piece of evidence--Identification parade which is not proved--Eye-witnesses did not bring on record sufficient material in view of inconsistency between the statement of eye-witnesses to connect the accused with commission of offence coupled with the fact that the contents of FIR are not in consonance with medical evidence--Prosecution badly failed to prove guilt against accused. [P. 995] N
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Appellants.
Syed Ali Imran Shah, Deputy Prosecutor General, Punjab for State.
Date of hearing: 27.10.2009.
Judgment
Ch. Ijaz Ahmed, J.--Petitioners/Appellants sought leave to appeal against the judgment dated 11.12.2006 wherein criminal appeal filed by them in the Lahore High Court, Rawalpindi Bench, Rawalpindi, against their conviction awarded by the trial Court, was dismissed.
"Ahmad Iqbal, Bank Manager, Habib Bank Ltd., Mankiala (PW-4) got registered the above mentioned case through his written complaint (Exh.PB) to the effect that on 17.5.2003 at about 10.45 a.m. he was sitting in his seat in the Bank. Muhammad Rafique being Bank Guard armed with repeater pump action 12 bore was performing his duties, whereas Muhammad Iqbal 2nd officer, cashier were present in the cash cabin, whereas Amir Hussain an other bank guard was standing empty handed in front of cash cabin in the bank. The door of the bank was open. Suddenly, Alto Suzuki car of saleti colour stopped in front of the bank in which there were five persons including the driver, three persons armed with .30 bore pistols, one of them was of slim body, wearing blue clothes, the second was of fair colour with a beard wearing shalwar qamiz and the third one wearing saleti colour shalwar qamiz, entered in the bank, whereas two persons, one with a large beard and other slim smart young wearing angori colour shalwar qamiz armed with pistols stood in front of the door. The persons coming inside the bank got the hands up of all on the pistol point. The mail with blue shalwar qamiz caught hold Muhammad Rafique guard from his collar and tried to snatch his gun. Muhammad Rafique grappled with him, then he made a straight fire which hit the guard on right side of his chest. The second fire was made by a person with a beard which hit Muhammad Rafique on his right dolla. Whereas the fire made by the third person hit him on the left side of his chest, and he fell down. The other two persons standing on the door also entered in the bank and picked up his gut. Muhammad Amir came forward, then the said two persons gave him butt blows, he became senseless; the accused had to take away the cash, but due to resistance they picked up the gun, came out from the bank and while firing three shots in the air went towards Kallar Saydian through Car No. IDK-5611. Muhammad Rafique succumbed to the injuries at the spot. He informed the police on telephone. Hence this case."
Under Section 396 PPC
Death plus payment of Rs. 20,000/- each as compensation to the legal heirs of deceased, in default whereof to undergo further R.I. for six months each.
Under Section 7(h) of ATA, 1997
To undergo R.I. for two years each plus payment of Rs. 10,000/- each as fine, in default whereof to suffer R.I for three, months each.
Under Section 394 PPC
To undergo R.I. for four years each plus payment of Rs. 10,000/- each as fine, in default whereof to suffer R.I for three months each.
Under Section 21-L of ATA, 1997
Besides the above, Aftab alias Tabi and Muhammad Ashiq, appellants, were further convicted and sentenced to undergo one year R.I. each.
The aforesaid sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.
"We have heard the learned counsel at some length. Leave to appeal is granted in this case involving death sentence to the petitioners, for reappraisal of evidence, in the interest of safe administration of criminal justice."
Hence the present appeal.
Learned counsel for the appellants submits as under:--
(i) that identification parades were conducted in violation of the High Court Rules and Procedure.
(ii) PW-4 Ahmad Iqbal admitted in his cross examination that he seen the convicts/accused in the police station about 3/4 days prior to the identification parade but this fact was not considered by both the Courts below.
(iii) PW-15 Ibrar Sarwar, SI admitted in his cross examination that appellants Shafqat Mehmood and Muhammad Zubair were arrested in police encounter on 17.5.2003 after receiving message about the occurrence in question which took place on 17.5.2003. He also admitted that about 150 police officials had taken part in the encounter but none of the accused was hit in the encounter as well as the police party. This fact does not appeal to the logic which was not considered by the Courts below.
(iv) PW-5 Amir Hussain had stated in his cross-examination that he had visited the Court five times and had opportunity to see the convicts/accused and his statement was recorded on the 6th date of hearing of the case by this trial Court coupled with the fact that Shafqat Mehmood and Muhammad Zubair, appellants, were neither identified by PW-5 Amir Hussain nor by PW-4 Ahmad Iqbal, Cashier, who was given up.
(v) The version stated in FIR is clearly in contradiction with the post-mortem report as is evident from the statement of PW-9 Dr. Hafiz Muhammad Qasim Khan.
(vi) Recovery of weapons from the appellants had no value in view of the report of the Forensic Science Laboratory which is negative.
(vii) PW-8 Zafar Mahmood, Constable, also admitted in his cross examination that when he reached at the spot with the Investigating Officer, he saw the repeater lying with the dead body of the deceased Muhammad Rafique. The convicts were acquitted under Section 13 of the Arms Ordinance, 1965 I view of the aforesaid statement of PW-8 Zafar Mahmood, Constable.
The learned Deputy Prosecutor General has supported the impugned judgment. He submits that occurrence had taken place in the broad day light. The Manager of the Bank was a natural witness who had seen the occurrence and also FIR was also recorded on his statement. The eye-witnesses PW-4 Ahmad Iqbal and PW-5 Amir Hussain had no enmity whatsoever with the convicts. Therefore, there was no justification for them to involve the convicts in such a heinous offence. Two convicts namely Shafqat Mehmood and Muhammad Zubair were arrested on the day of occurrence on 17.5.2003 whereas the convicts Muhammad Ashiq and Aftab alias Tabbi were arrested on 29.7.2003. Both the Courts below after proper appreciation of evidence had given finding of guilt against the convicts.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the basic facts and relevant portions from the cross-examination from the material witnesses particularly with regard to identification to resolve the controversy between the parties:--
(a) Incident took place on 17.5.2003 at 10.45 a.m. Formal FIR was recorded on the same day on 12,30 a.m. on the complaint of PW-4 Ahmad Iqbal, Manager of the Bank.
(b) Contents of the FIR do not contain the names of any accused except the description of the accused persons.
(c) Guard of the Bank (Muhammad Rafique) was murdered in the incident in question.
(d) Shafqat Mehmood and Muhammad Zubair, convicts, were arrested on the same day i.e. on 17.5.2003 within 3/4 hours of the incident.
(e) Muhammad Ashiq and Aftab alias Tabbi, convicts, were arrested on 29.7.2003.
(f) According to PW-13 Nazar Hussain, SI/SHO Shafqat Mehmood and Muhammad Zubair were sent to jail on 18.5.2003.
(g) Identification parade of Shafqat Mehmood and Muhammad Zubair was conducted by PW-10 Amjad Saeed, Deputy District Officer (Revenue) Murree, (formerly Special Judicial Magistrate Rawalpindi) on 24.5.2003. The said convicts/accused were identified by PW-4 Ahmad Iqbal, Bank Manager, who admitted in his cross-examination to the following effect:--
"I went to the P.S. to verify the factum of the arrest of the accused, 3/4 days before the identification parade. It is correct that after having seen the accused at the P.S. I became sure about, their arrest by the police ....... Shafqat and Zubair were present at the P.S. when I visited it and saw them there prior to identification parade."
(h) Muhammad Iqbal, Cashier, did not identify them who was given up.
(i) Identification parade of other accused, namely, Muhammad Ashiq and Aftab alias Tabbi was held on 11.8.2003 under the supervision of PW-12 Fakhur-ul-Islam Dogar, Special Judicial Magistrate. PW-4 Ahmad Iqbal and PW-5 Amir Hussain had identified them. Muhammad Iqbal, cashier, did not identify them.
(j) PW-9 Dr. Hafiz Muhammad Qasim Khan has admitted in his cross-examination to the following effect:--
"It is correct that according to the post-mortem report Ex.PG. the deceased received two bullet injuries,"
which is not in consonance with the contents of FIR.
(k) The prosecution has failed to prove that the accused took away the repeater gun of Muhammad Rafique, Guard, because prosecution own witness admitted that the same was lying near the dead body and was taken into possession by the police officials.
(l) Recovered weapons from the convicts/accused and empties has no value as the empties were not matched and Forensic Science Laboratory has submitted negative report in this respect.
(m) PW-10 Amjad Saeed, in his examination in chief stated as follows:--
"The accused told me that in P.S. Civil Lines, Rawalpindi, their photographs were taken, and in P.S. Kallar Syedan, they were shown to the P.Ws. which I reduced into writing."
(n) PW-13 Nazar Hussain, SI/SHO admitted in his cross-examination to the following effect:--
"I went straightaway to the place of dacoity, i.e., Mankiala. I went to the spot on a private taxi cab and not in the service vehicle I personally bore the expense of the fare. I did not specifically requisition the TA/DA from Police Department regarding the said fare, but I got it mentioned in my TA/DA bill in a general manner/way. When I reached the spot, I came to know that no damage was suffered by the Bank regarding its currency........It is correct that when I reached the bank, Sabir SI had already collected empties, gun, bloodstained earth etc. and made them into sealed parcel. I spent about 30 minutes on the spot, and then left for search of the accused. I took into custody the accused from the officials of Kallar Syedan PS at P.S. Kallar Syedan, but I cannot give the time. I produced Shafqat & Zubair before Illaqa Magistrate for the first time on 18.5.2003........I took into custody the accused Shafqat and Zubair on 18.5.2003 from the District Court premises of Rawalpindi at about 11/12 noon.......I took into custody the accused and nothing else. Volunteers, that the accused were taken into custody on 18.5.2003 and the car P.1, on 17.5.2003."
(o) The proceedings of the identification parade clearly showed that it was held in violation of High Court Rules and Orders as evident from pages 221-222 of the Paper Book.
(p) Cross-examination of PW-12 Fakhrul Islam Dogar
"The witnesses did not disclose as to what role the accused had played at the time of commission of offence."
(q) Cross-examination of PW-8 Zafar Mahmood
"We left the PS at about 11 a.m. We reached the spot witin 10 minutes. The dead body was lying in the Bank. The repeater gun was lying with the dead body when we reached the bank. The gun and the empties etc., were taken into possession by Sabir SI in my presence. Sabir recorded the statements of Amir Hussain guard, cashier and the complaint, i.e. manager of the bank, in my presence in the bank. I took away the dead body to the hospital at about 12.30 noon."
Both the Courts below did not read or misread the aforesaid pieces of evidence with regard to the identification parade of the appellants. It is settled principle of law that it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in Court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses. This aspect of the case was not considered by both the Courts below as evident from the perusal of the impugned judgment read with aforesaid pieces of evidence. The aforesaid pieces of evidence clearly envisage that witnesses had opportunity to see the appellants, therefore, identification parade which was held in this case was not in accordance with the rules. It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created and in the case in hand identification parade of two sets of accused was held jointly. This aspect of the case was not considered by both the Courts below. It is also settled principle of law that picking out of accused in identification parade is not a substantive piece of evidence. Such evidence is merely corroborative piece of evidence. It is pertinent to mention here that contents of the FIR reveal that witnesses had seen the accused for the first time. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements. It is also settled principle of law that if accused were not named in the FIR identification parade becomes necessary. It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon. As mentioned above, the aforesaid witnesses did not mention name and role of the accused in their statements recorded by the Magistrate after identification parade. It is an admitted fact that appellants had taken objection at the time of identification parade that they had already been shown to the witnesses but this objection was not taken into consideration by the Courts below. In such circumstances identification parade becomes doubtful and cannot be relied upon. It is an admitted fact that in terms of contents of FIR witnesses did not know the appellants before the occurrence. Identification parade was not held in accordance with law, therefore, identification in Court by the witnesses is also of no value. Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons. The statements of eye-witnesses are also not consistent with each other. This fact was also not considered by the Courts below in its true perspective coupled with the fact that material improvements were made by the witnesses before the Court which were noted by the trial Court in their cross-examination but did not draw right conclusion at the time of recording of finding of guilt against the appellants. This error was not rectified by the learned High Court while deciding the appeal of the appellants. With the help of the learned counsel of the parties we have re-examined the whole evidence on record and come to the conclusion that both the Courts below had erred in law while giving finding of guilt against the appellants. In view of the aforesaid discussion, we have come to the conclusion that the finding of guilt recorded by the Courts below against the appellants is on the face of it against the evidence or patently improbable or perverse that to accept it could amount to perpetuate a grave miscarriage of justice. We have already referred to misreading of evidence on record, therefore, it is our duty to rectify the same so that justice may be done with the parties. It is pertinent to mention here that appellants were convicted on the basis of circumstantial evidence. It is settled law that an accused can be convicted and sentenced on the basis of circumstantial evidence if the chain has not been broken and each and every circumstance must connect with each other. The basic piece of evidence in this case is the identification parade which is not proved in accordance with law even the eye-witnesses did not bring on record sufficient material in view of inconsistency between the statement of eye-witnesses to connect the appellants with commission of offence coupled with the fact that the contents of FIR are not in consonance with the medical evidence. All these circumstances, show that prosecution badly failed to prove guilt against the appellants. These aspects of the case were not considered by the Courts below in its true prospective.
It appears that both the Courts below had given concurrent conclusions of guilt against the appellants in cursory manner without application of mind, therefore, impugned judgment is not sustainable in the eyes of law. Even otherwise statement of eye-witnesses do not inspire confidence and they are also not trustworthy.
In view of what has been discussed above, we do not find any plausible reason for conviction of the appellants by the Courts below. Therefore, the appeal is accepted and convictions of the appellants are set aside and they are ordered to be released forthwith if not required to be detained in any other case. Consequently appellants are acquitted in the case in hand.
(R.A.) Appeal accepted.
PLJ 2010 SC 996 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Mian Shakirullah Jan, JJ.
ZAFAR IQBAL--Petitioner
versus
STATE & another--Respondents
Crl. P. No. 469 of 2009, decided on 16.11.2009.
(On appeal from judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 10.6.2009, passed in Crl. Revision No. 45 of 2009).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 336 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--Sentence to imprisonment for 7 years and payment of Arsh--Sustained acid burns on her face, neck and left arm--Disfigurement is sufficient to constitute offence u/S. 336, PPC and hence accused was rightly convicted--Held: Principal sentence is that of Arsh and the Court can also award sentence of imprisonment to extent of 10 years--Facial disfigurement is only to extent of five percent, which might be a scar of small size, the compensation (Arsh) and sentence of 7 years over and above is a bit on the heavier side--Petition after conversion into appeal was partially accepted to extent of sentence alone. [Pp. 997 & 998] A & B
Mr. Basharat Ullah Khan, ASC for Petitioner.
Mr. Muhammad Siddique Baloch, DPG for State.
Date of hearing: 16.11.2009.
Judgment
Sardar Muhammad Raza, J.--Zafar Iqbal seeks leave to appeal from the judgment dated 10.6.2009 of a learned Judge in chambers of Lahore High Court, Rawalpindi Bench, whereby, criminal revision filed by the petitioner was dismissed and his conviction under Section 336/34, PPC was upheld alongwith sentence to imprisonment for 7-years and payment of Arsh to the tune of Rs.500,000/-.
Zafar Iqbal, alongwith his co-accused Ghulam Hussain and Adnan is said to have had thrown acid on Mst. Sahib Bibi, wife of complainant Muhammad Iqbal, as a result of which, she sustained acid burns on her face, neck and left arm, covering 17 percent of the body area.
The occurrence is sufficiently proved by the injured lady, who herself appeared in Court, carrying the marks of occurrence. Her statement is duly supported, by the medico-legal report (P:86). Zafar Iqbal, petitioner in his statement under Section 342, Cr.P.C, admitted the occurrence, but threw the burden on his co-accused Ghulam Hussain. This was done at a time when Ghulam Hussain had already died during the trial. Third accused, Adnan is, however, acquitted most probably, for the reason that overt act of throwing acid is not attributed to him.
Learned counsel for the petitioner contended that there is a delay in lodging the FIR and that the dress worn by the victim at the time of occurrence had not been produced. No doubt, the FIR is delayed, but it has not been indicated as to what benefit the prosecution has derived by such delay. The clothes, even if produced, would have, at the most, proved the same thing which resultantly was given in the medico-legal report. It cannot be ruled out that due to damage to the clothes, the victim might have changed the dress, which she did. Her personal appearance with marks of occurrence on her body is sufficient to connect the accused with the commission of offence. The Courts below have rightly held him guilty.
Even disfigurement is sufficient to constitute offence under Section 336, PPC and hence the petitioner was rightly convicted thereunder, However, it is to be noticed that the principal sentence is that of Arsh and the Court can also award sentence of imprisonment to the extent of 10 years, in the given circumstances of each case. We have found that the facial disfigurement is only to the extent of five percent, which might be a scar of small size, the compensation (Arsh) to the extent of Rs.500,000/- and the sentence of 7-years over and above is a bit on the heavier side.
Consequently, the petition after conversion into appeal is partially accepted to the extent of sentence alone. The petitioner is sentenced to the payment of Rs.300,000/- as Arsh and an imprisonment of 5-years with benefit under Section 382-B, Cr.P.C. The imprisonment in default will remain intact.
(R.A.) Appeal partially accepted.
PLJ 2010 SC 998 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Muhammad Sair Ali & Jawwad S. Khawaja, JJ.
TALIB HUSSAIN--Petitioner
versus
STATE--Respondent
Crl. P. No. 320 of 2009, decided on 15.7.2009.
Prohibition (Enforcement of Hadd) Order, 1979 (4 of 1979)--
----Arts. 3 & 4--Trial shall be conducted without being influenced--Recovery of 1800 kuppies of liquar, 6 plastic drums, 45 bottles of desi liquar and factory--Prosecution had failed to produce witness despite the fact that trial magistrate issued process to procure their attendance repeatedly--Witnesses belonged to police department--Validity--Question of grant of bail--Prima facie--If the police is not taking interest in that one case then what would be their position as far as other criminal cases which were pending in the Court--There could be two possibilities either the case was false and prosecution has not come forward with the evidence or the accused was influential person and he had prevailed upon them not to depose against him so he could arrange his bail or ultimately acquittal from the Court--Held: Trial of the case would be conducted without being influenced in any manner from the instant order by applying independent judicial mind as per merits of the case. [Pp. 999 & 1000] A & B
Sh. Ahsan-ud-Din, ASC for Petitioner.
Ch. Tariq Mehmood, Addl. P.G. Pb. for State.
Date of hearing: 15.7.2009.
Order
In the instant case, petitioner-accused is in custody for the last about 10 months, as he is facing trial vide FIR No. 264 dated 18.9.2008 under Arts. 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 on stated allegations of possessing 1800 kuppies of liquor, 6 plastic drums, 45 bottles of Desi liquor and factory (manufacturing liquor) which were recovered from his house. Learned counsel for accused stated that prosecution has absolutely failed to produce witnesses despite the fact that the trial Magistrate issued process to procure their attendance repeatedly. On this, report was called from the trial Court. A perusal whereof indicates that after framing charge prosecution witnesses were summoned but they failed to appear in Court as a result whereof their bailable Warrants for 4th June 2009 were issued but no one turned up. Again on 2nd July 2009 non-bailable warrants of the arrest of the prosecution witnesses were issued, the case was adjourned for 11th July 2009 for evidence. On this date as well, no one turned up, therefore, the Magistrate ordered them to be summoned through DPO Attack. It is also informed by the learned counsel that the Magistrate fixed date of hearing on 13th July 2009 and 14th July 2009 but no progress has been made as witnesses were not in attendance. This situation seems to be very serious because it is a case in which police has raided the house of the petitioner and all the witnesses belong to police department and are reportedly posted in Attock but they are reluctant to appear in the Court although their non-bailable warrants of arrest have been issued and now the DPO has been asked to effect the warrants of arrest upon the prosecution witnesses.
Learned counsel stated that next date of hearing is 18th July 2009. Ordinarily, we would have considered the case of petitioner for grant of bail but without prejudice to his case as far as question of grant of bail is concerned, prima facie, we are of the opinion that if the police is not taking interest in this one case then what would be their position as far as other criminal cases which are pending in the Courts are concerned. There could be two possibilities either the case is false and prosecution has not come forward with the evidence or the petitioner is influential person and he has prevailed upon them not to depose against him so he may arrange his bail or ultimately acquittal from the Court. Apparently, the considerable quantity of the liquor has been recovered from his possession. The Court seized with the matter is taking full interest in disposal of the case but it is the prosecution who is causing hindrance in the disposal of the same, therefore, under the circumstances, we direct the DPO that he should execute the order of the learned trial Court and take responsibility to produce all these police officials who are the witnesses in the case on the next date of hearing without fail. He should also submit a report to this Court indicating as to why these witnesses were reluctant to appear in the Court. The trial Court is also directed to complete the trial without adjourning the matter, within the minimum period which should not be more than seven days and transmit the copy of the judgment to this Court before the next date of hearing i.e. 27.7.2009.
We may observe that the trial of the case shall be conducted without being influenced in any manner from the instant order by applying independent judicial mind as per merits of the case.
Copy of this order shall be sent to trial Court, DPO as well as PPO Punjab in due course. In the meanwhile, Secretary Health, Government of Punjab be also asked to submit the report as it was requisitioned on the last date of hearing. Copy of this order be also sent to Additional Prosecutor General Punjab who shall transmit it to Prosecutor General and hold a meeting with the PPO Punjab on 17th July 2009 and chalk out the program that in the cases pertaining to the police department there should not be any slackness and the Investigating Officer should be made responsible for producing witnesses. The PPO shall also adopt a mechanism to monitor the progress of the cases throughout the provinces and the Investigating Officer/SHO who have failed to produce their witnesses on their own responsibility or cases have been delayed on account of slackness of the prosecution, the concerned officer should be proceeded against under the disciplinary rules of the department and the action taken against such officer shall also be sent to the trial Court before whom the cases are pending. Copy of this order be sent to the Registrar Lahore High Court, Lahore for issuing direction through learned Chief Justice that the Courts seized with the criminal matter should not show any leniency by granting un-necessary adjournments to the prosecution and if they fail to produce the witnesses, matter should be reported to the concerned Incharge Police Officer with the copy to the Registrar for initiating action against them according to law and if despite the same no action is taken then the Registrar shall put up the matter before the learned Chief Justice for initiating contempt proceedings against them as they are causing hindrance in the completion of criminal cases expeditiously and on account of such conduct the accused persons remain in custody for years together. The copy of this order be sent to Registrar of all the other High Courts for adopting the same policy and in a similar manner, the prosecutor General Sindh and the A.Gs. Balochistan and NWFP shall hold meetings with the Inspectors General of Police concerned for framing uniform policy throughout the country to ensure expeditious disposal of criminal cases. The prosecutor Generals and A.Gs as well as the Registrars, High Courts of all the provinces shall submit a report of holding meeting and adopting a mechanism for early disposal of the cases before the next date of hearing i.e. 27th July, 2009. The Registrar of this Court shall monitor the holding of the meeting by these officers by offering clarification, if any, by holding telephonic conversation with them.
(R.A.) Order accordingly.
PLJ 2010 SC 1001 [Appellate Jurisdiction]
Present: Javed Iqbal, Mian Shakirullah Jan & Muhammad Sair Ali, JJ.
ABDUL KARIM (decd.) through L.Rs.--Appellants
versus
FAZAL MUHAMMAD SHAH (decd.) through L.Rs.--Respondents
Civil Appeal No. 664 of 2002, decided on 8.10.2009.
(On appeal against the judgment dated 4.7.2001 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur, in C.R. No. 161-D/1984).
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Applicability--Question of requirements--Seeking reversal of a decree in a pre-emption suit--Right of pre-emption as being not superior to vendee--Waiver of his right of pre-emption were contested before Courts below--Question for determination--Whether the appellant could arrest successfully to have an equal right with that of respondent on account of being co-sharer on the basis of purchase of property, prior to transaction subject matter of pre-emption suit, by virtue of sale through mutation lacking the requirements of S. 54 of Transfer of Property Act--Appellant has distinguished the sale through mutation, subject matter of pre-emption suit and sale of property on the basis of which a superior right of pre-emption is claimed--Held: High Court had set-aside the judgment of the trial Court, which had held that sale through an un-registered document not in accordance with the provisions of S. 54 of Transfer of Property Act was un-pre-emptable--Appeal was dismissed. [Pp. 1003 & 1004] A & B
1983 SCMR 988, PLD 1967 SC 411, 1983 SCMR 988 & 1999 SCMR 1870, rel.
Re-visit of Judgment--
----Scope of--No scope to re-visit them or have a view different from the one already taken by Supreme Court. [P. 1005] C
Kh. Muhammad Farooq, Sr. ASC and Mr. Muhammad Munir Peracha, ASC for Appellants.
Mr. Gulzarin Kiyani, ASC and Mr. M.S. Khattak, AOR, for Respondent No. 1.
Mr. Arshad Ali Ch., AOR for Respondent No. 2.
Date of hearing: 8.10.2009.
Judgment
Mian Shakirullah Jan, J.--The appellant (the defendant/vendee) is seeking reversal of a decree in a pre-emption suit granted in favour of the plaintiff/respondent by all the three Courts below, through the instant appeal with leave of the Court. The relevant portion of the leave granting order reads as follow:
"10. Having heard learned counsel for the parties at length, we grant leave to appeal to re-examine the question of limitation in a suit for pre-emption in the backdrop of a transaction of sale effected through mutation and also to consider the question of applicability of Sections 54 and 118 of the Transfer of Property Act in cases involving questions of ownership through a mutation in the light of relevant provisions of law and the cases decided earlier."
As a contest of the pleadings of the parties, five issues were framed out of which the two i.e., the first and last one, were not pressed at any stage. However, Issue No. 2 relating to limitation, Issue No. 3 with regard to plaintiffs/respondent's right of pre-emption as being not superior to defendant/vendee and Issue No. 4 relates to the plaintiffs waiver of his right of pre-emption were hotly contested before the trial Court and the High Court, however, before the appellate Court, the Additional Sessions Judge, only one issue i.e., Issue No. 4, was agitated and the other two issues were also not pressed. However, the issues so taken before the Courts were decided against the appellant.
The learned counsel for the appellant though has advanced the arguments on the question of waiver and limitation but half-heartedly without cogent reasons, however, they mainly argued the case on the question that the appellant is having an equal right of pre-emption or in other words the respondent has no superior right of pre-emption as he (appellant) being an owner/co-sharer in the property on the basis of purchase of the property through mutation prior to the attestation of the mutation, which is subject matter of the present pre-emption suit, and it was contended that the appellant ought not to have been non-suited merely on the ground that the transaction of sale has taken place through a mutation and not complying with the requirements of Section 54 of Transfer of Property Act. It was also contended that when for the purpose of pre-emption the sale through mutation, which is the subject matter of the pre-emption suit, is considered to be a transfer/sale and is held to be pre-emptable then on the same analogy in a pre-emption suit it may be open to both the parties i.e., the pre-emptor and the vendee/defendant to assert their claim or defending the case on the ground of co-sharership etc accrued to them on the basis of a sale evidence by mutation and not satisfying the requirement of Section 54 of the Act ibid and in this respect reliance was placed on the judgment of this Court in the case of Abdul Karim vs. Fazal Muhammad Shah (PLD 1967 SC 411) whereby the sale through mutation, subject matter of the pre-emption suit, was held to be valid for the purpose of pre-emption and a pre-emption suit was held to be maintainable qua such transaction. They further contended that the judgments of this Court in the cases of Muhammad Bakhsh vs. Zia Ullah and others (1983 SCMR 988) and Muhammad Fazal vs. Kaura through L.Rs. (1999 SCMR 1870) are required to be re-visited.
The learned counsel for the respondent vehemently opposed the contentions of the learned counsel for the appellant on all the three issues. On the question of requirements of Section 54 of the Act ibid he has referred to the judgments of this Court in the cases of Muhammad Bakhsh vs. Zia Ullah and others (1983 SCMR 988), Muhammad Fazal vs. Kaura through L.Rs. (1999 SCMR 1870) [already referred to by the learned counsel for the appellant with a request to re-visit them], Muhammad Bakhsh vs. Zia Ullah and others (PLD 1971 Baghdad-ul-Jadid 42) and Pir Bakhsh vs. Budhoo (PLD 1978 Baghdad-ul-Jadid 86) by contending that the law has already been settled by this Court and there is no need to re-visit the same and he submitted that the judgments of the Courts below are in line with the judgments referred to by him and need no interference.
Undisputedly Section 54 of the Act ibid was applicable in the area at the relevant time and the question for determination is as to whether the appellant could assert successfully to have all equal right with that of the respondent on account of being co-sharer on the basis of purchase of property, prior to the transaction, subject matter of the pre-emption suit, by virtue of sale through mutation lacking the requirements of Section 54 of the Act ibid. The judgments of this Court in Abdul Karim's case, relied upon by the learned counsel for the appellant, has distinguished the sale through mutation, subject matter of pre-emption suit, and the sale/purchase of the property on the basis of which a superior right of pre-emption is claimed. On Page 414 in the first para while making a reference to other reported judgments it was noted as under:--
"......the Legislature when enacting Section 54 of the Transfer of Property Act could not have intended to add this provision of law to other laws dealing with the sale of property and in force in the same areas. No doubt, a sale made in violation of the provisions of Section 54 of the Transfer of Property Act would not be a valid sale, but if the law of pre-emption permits that a sale, which is otherwise complete, can be pre-empted and if the pre-emptor is prepared to take over the defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and the vendee have colluded with each other to deprive him of his rights."
On page 417 it was observed as follows:--
".....We are, however, unable to accept this Contention, because, if the right of pre-emption is a right of substitution then certainly the person seeking to pre-empt can be put into the shoes of the stranger purchaser and exercise all the latter's rights including those to which he became entitled under Section 53-A of the Transfer of Property Act. In exercise of this right he too could defeat the suit of either the vendor or any other person claiming through the vendor to oust him from possession even if he had entered into possession on the basis of an unregistered document of conveyance. He would be in just as good or as bad a position as the vendee himself. We see no reason, therefore, why the transfer in such circumstances should not be pre-emptible when to hold otherwise would amount to opening the door for fraudulent persons to defeat the law of pre-emption, as, indeed was the endeavor of the parties in the case reported in ILR 16 All. 344."
And ultimately the findings of the High Court were maintained whereby it (the High Court) had set-aside the judgment of the trial Court, which (judgment of the trial Court) had held that sale through an unregistered document not in accordance with the provisions of Section 54 of the Act ibid was un-pre-emptable. In Muhammad Bakhsh's case (1983 SCMR 988) while dealing with the question of the requirements of Section 54 of the Act ibid, in pre-emption suits to examine whether the purchase on the basis of sale admitted but otherwise in violation of Section 54 of the Act ibid enforce their right of pre-emption against the respondents/vendees it was held, on Page 992 in the last para, as follows:
"The entries of the revenue record like the Jamabandi do not provide the foundation of title in property but are mere items of evidence to prove titled Wali Muhammad V. Muhammad Bux (3). They have a presumption of correctness which is rebuttable. The moment during scrutiny one reaches the transaction on the basis of which a change in the revenue record has been brought about then it is not the record but the transaction itself, not the secondary source but the primary one, which becomes the foundation of all claims and rights. It is clear that in the two cases before us the justification for the entries in the revenue record showing the plaintiffs as co-sharers or owners was an oral transaction of purchase given effect to by a mutation in contravention of Section 54 of the Transfer of Property Act. Such a transaction must satisfy the legal requirements and it is only when its conformity to law is established the title to property is created, legal rights and liabilities come into existence. If the very substratum of the entries of the revenue record is found to be defective, deficient, or wanting the entries of the revenue record cannot create title in property or give rise to rights and liabilities as is claimed by the appellants. They are of no avail to the appellant."
Abdul Karim's case heavily relied upon by the learned counsel for the appellant was also distinguished, on Page 993 in the last para of the judgment, as follows:--
"The decision of this Court in Abdul Karim's case may be topical but it does not advance the case of the appellants. In that case the meaning and scope of term sale as defined in Section 3(5) of Pre-emption Act was examined with a view to identify the sales which could be pre-empted. Its meaning and scope was held to be wider than of sales defined and dealt with under Section 54 of the Transfer of Property Act. Hence even those sales which did not satisfy the requirements of Section 54 of the Transfer of Property Act could be pre-empted. Without involving definition, scope or meaning of any such term the right to pre-empt a sale cannot be given an equally extended meaning to include within its orbit all inchoate, incomplete and imperfect sales as good sales for the purposes of acquiring an assertable or enforceable right of pre-emption."
(R.A.) Appeal dismissed.
PLJ 2010 SC 1006 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Ch. Ijaz Ahmed & Ghulam Rabbani, JJ.
JAVED MASIH and others--Appellants
versus
ADDITIONAL DISTRICT JUDGE, LAHORE and others--Respondents
Civil Appeal No. 1517 of 2006, decided on 12.1.2010.
(Against the judgment dated 24.4.2006 passed by Lahore High Court, Lahore, in W.P. No. 2981 of 2005).
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Ejectment petition--Rent was not deposited--Ground of default in payment of rent--Rent premises were jointly owned by three persons--Property in-question was sold--Rent Controller after recording the evidence of the parties dismissed the ejectment petition--No relationship of landlord and tenant existed between the parties--Right of defence was struck off--Appeal was dismissed--Being aggrieved the writ petition was filed before High Court, which was also dismissed--Challenge to--Held: In the first round of litigation before First Appellate Court the Court after re-evalution of the evidence on record had given finding of fact against the appellants that relationship of landlord and tenant had existed between the parties as is evident from the judgment--Appellant did not deposit rent in terms of order passed by Rent Controller--Court had given various opportunities to appellants to produce receipts qua depositing of rent in terms but appellants had failed to produce the same in proof of compliance of the order--Appeal was dismissed. [Pp. 1008 & 1009] A
Agreement to Sell--
----Appreciation of evidence--Agreement to sell does not contain any clause that the appellants had taken possession of the premises in terms of agreement to sell--All the Courts below had given concurrent findings of fact after proper appreciation of evidence on record against appellant--Supreme Court does not interfere in concurrent finding of fact arrived at by the Courts below while exercising power under Art. 185(3) of Constitution. [P. 1009] B
Constitutional Jurisdiction--
----Constitutional jurisdiction is a discretionary in nature--He who seeks equity must come with clean hands. [P. 1009] C
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Concurrent finding--No jurisdiction to substitute its own findings--Supreme Court has no jurisdiction to substitute its own finding in place of finding of the Courts below while exercising power under Art. 185(3) of Constitution. [P. 1009] D
PLD 1981 SC 246 and PLD 1981 SC 522 ref.
Concurrent Findings--
----Practice and rule of Court in civil appeals--Supreme Court would not normally go behind a concurrent finding of fact recorded by Court below, unless it can be shown that finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any mis-application of principle relating to appreciation of evidence, or finally, if finding could be demonstrated to be physically impossible--Held: Being the practice and rule of the Court in civil appeals, the burden lies heavily on the appellants to show that concurrent findings recorded by High Court are not sustainable on the record and should be interfered by Supreme Court. [Pp. 1009 & 1010] E
Mr. A.H.Masood, A.O.R. for Appellants.
Ex-parte for Respondents.
Date of hearing: 12.1.2010.
Judgment
Ch. Ijaz Ahmed, J.--Necessary facts out of which the present appeal arises are that Respondent No. 3 filed ejectment petition under Section 13 of Rent Restriction Ordinance, 1959 against the appellants before the Rent Controller, Lahore, on the ground of default in payment of rent. Appellants/defendants filed written statements and denied the relationship of landlord and tenant and also stated in reply to the ejectement petition that the rented premises are jointly owned by three persons, namely, Taj Muhammad, Nazir Ahmad and Ali Jan. The property in question was sold by Taj Muhammad and Nazir Ahmad vide agreement to sell dated 18.6.1997 to Appellant No. 3 and on failure of the vendor to execute a registered sale deed a suit for specific performance was filed. Out of the pleadings of the parties the learned Rent Controller had framed issue qua existence of the landlord and tenant relationship inter se between the parties. The learned Rent Controller after recording the evidence of the parties dismissed the ejectment petition vide order dated 5-3-2003 by holding that no relationship of landlord and tenant existed between the parties. Respondent No. 3 being aggrieved filed an appeal before the learned Additional District Judge who vide order dated 12.12.2003 accepted the appeal and remanded the case to the Rent Controller by observing that relationship of landlord and tenant between the parties existed. The Rent Controller directed the appellants to deposit the rent vide order dated 26.10.2004. The appellants failed to deposit rent in terms of order dated 26.10.2004, the learned Rent Controller had struck off right of defence of the appellants and passed the ejectement order against the appellants vide order dated 3.1.2005. The appellants being aggrieved filed an appeal before the District Judge, Lahore, who dismissed the same vide order dated 18.2.2005. Thereafter the appellants being aggrieved field Writ Petition No. 2981/2005 before the Lahore High Court, Lahore, which was dismissed. Thereafter the appellants filed CP. No. 1036-L/2006 before this Court which was fixed for hearing on 6.9.2006 and leave was granted in the following terms :--
"After considering the arguments of the learned ASC for the petitioner and going through the record we are of the view that this case suffers from gross misapplication of mind, misconstruction of the documents, ignorance of the material documents and facts on record by all the three Courts who have proceeded to decide the case in a cursory and hasty manner.
It was brought to the notice of the Rent Controller that the petitioners had filed a suit for a specific performance of agreement to sell dated 18.6.1997 prior to filing of the ejectment application but this fact does not find mention in the order/judgment of any of the three Courts, which is very material factor for deciding the above issue.
Leave to appeal is granted to the petitioners to re-examine and re-appraise the evidence on record for determination of the relationship of landlord and tenant between the parties".
Hence the present appeal.
Learned counsel for the appellants submits that all the Courts below had erred in law to decide the case against the appellants without adverting to the evidence on record. Relationship of landlord and tenant had not existed between the parties and this fact was not scrutinized by all the Courts below in its true perspective.
We have given our anxious consideration to the contentions of the learned counsel for the appellants and perused the record. It is an admitted fact that in the first round of litigation before the First Appellate Court the First Appellate Court after re-evaluation of the evidence on record had given finding of fact against the appellants that the relationship of landlord and tenant had existed between the parties as is evident from para 6 of the judgment of the Additional District Judge dated 12-12-2003. It is also an admitted fact that appellants did not deposit rent in terms of order dated 26.10.2004 passed by learned Rent Controller under Section 13(6) of the Punjab Urban Rent Restriction Ordinance. The learned Rent Controller had given various opportunities to the appellants to produce receipts qua depositing of rent in terms of order dated 26.10.2004 but the appellants had failed to produce the same in proof of compliance of the said order. Respondent No. 3 had taken a specific plea in Para 1 of the ejectment petition that predecessor-in-interest of the appellants had taken premises in question on rent from the predecessor-in-interest of Respondent No. 3 on 12.10.1991 and this fact was not denied by the appellants in reply to the ejectment petition as is evident from Para 1 of the reply. It is pertinent to mention here that agreement to sell does not contain any clause that the appellants had taken possession of the premises in question in terms of agreement to sell. All the Courts below have given concurrent findings of fact after proper appreciation of evidence on record against the appellants. This Court, normally, does not interfere in the concurrent findings of fact arrived at by the Courts below while exercising power under Article 185(3) of the Constitution.
It is a settled principle of law that constitutional jurisdiction is a discretionary in nature. He who seeks equity must come with clean hands. In view of the conduct of the appellants as mentioned above we are not inclined to exercise our power under Article 185(3) of the Constitution. It is also a settled principle of law that this Court has no jurisdiction to substitute its own finding in place of finding of the Courts below while exercising power under Article 185(3) of the Constitution. See Ata Ullah Malik's case (PLD 1964 SC 236). Learned High Court was justified to dismiss the writ petition which was filed by the appellants against the concurrent conclusions of the Courts below. The impugned judgment is in consonance with the law laid down by this Court in various pronouncements. See Muhammad Sharif's case (PLD 1981 SC 246) and Abdul Rehman Bajwa's case (PLD 1981 SC 522). The learned counsel for the appellant has failed to point out any piece of evidence which was misread or non-read by the Courts below. As mentioned above this Court would not normally go behind a concurrent finding of fact recorded by the Courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any mis application of a principle relating to appreciation of evidence, or finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, the burden lies heavily on the appellants to show that concurrent findings recorded by the High Court are not sustainable on the record and should be interfered by us. The learned counsel of the appellants has failed to bring the case in the said parameters. Even otherwise the learned counsel for the appellants has failed to raise any substantial question of law of public importance. The appeal has no force and the same is dismissed with costs.
(R.A.) Appeal dismissed.
PLJ 2010 SC 1010 [Appellate Jurisdiction]
Present: Nasir-ul-Mulk & Khilji Arif Hussain, JJ.
FEDERATION OF PAKISTAN, through Secretary, Ministry of Defence and another--Petitioners
versus
JAFFAR KHAN and others--Respondents
Civil Petition No. 1563 of 2009, decided on 17.2.2010.
(On appeal from the judgment dated 27.5.2009 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in C.R. No. 314 of 2006).
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Right of evidence was closed--Sufficient opportunities were provided to produce the evidence in support of their claim but failed to produce--Written statement cannot be exhibited in the case without the person--Validity--Document which had not been brought on record through witnesses and had not duly exhibited, cannot be taken into consideration by the Court--A party having produced no evidence on its own would have to abide by it and be bound by such evidence as had come on record--Written statement cannot be exhibited in the case without the person who filed the same being examined in the Court and cannot be treated as substantive evidence except where such statement amounts to admission of plaintiff's plea--Court has to take into consideration the document on which the petitioners relied upon, has no force as neither the copy of such document was brought on record nor during their cross-examination the witnesses of the respondents were confronted with the document--Concurrent findings of facts recorded by Courts below do not call for any interference by Supreme Court--Leave was refused. [P. 1013] A, B & C
Agha Tariq Mehmood, DAG for Petitioners.
Sardar M. Aslam, ASC for Respondents.
Date of hearing: 17.2.2010.
Judgment
Khilji Arif Hussain, J.--Feeling aggrieved by the dismissal of their Civil Revision No. 314 of 2006 by judgment dated 27.5.2009 passed by learned Single Judge in Chamber of the Lahore, High Court, Rawalpindi Bench, the Federation of Pakistan through Secretary, Ministry of Defence and another, the petitioners, seek leave to appeal by filing instant petition.
Precisely stated the facts of the matter to decide the petition are that the respondents/plaintiffs on 12-5-1993, filed a suit in the Court of Senior Civil Judge, Rawalpindi, against the petitioners, averring that they are the owners-in-possession of land measuring 75-Kanals, 1-Marla comprising Khasra Nos.1299 (5-Kanals, 17 Marlas), 1304 (3 Kanals, 1 Marla), 1308 (3-Kanals, 5 Marlas), 1309 (3 Kanals, 4 Marlas), 1314 (5 Kanals, 13 Marlas), 1294 (12 Marlas), 1303 (10 Kanals, 10 Marlas), 1311 (5 Kanals, 13 Marlas), 1312 (4 Kanals, 15 Marlas), 1315 (6-Kanals, 3 Marlas), 1317 (16 Marlas), 1306 (17 Kanals, 5 Marlas) and 1310 (8 Kanals, 7 Marlas) situated in village Jarahi near Dhamial Camp, Tehsil and District Rawalpindi, (hereinafter referred to as "the suit land") and the petitioners/defendants be restrained from interfering with their possession.
The petitioners/defendants contested the suit on the ground that the suit land was purchased vide registered sale-deed dated 13.2.1956 and acquired the same through an Award of the Collector dated 16.10.1967 and since then the petitioners/defendants are owners-in-possession of the suit land.
On the basis of the pleadings of the parties, learned trial Court framed five issues, including the issues "whether the suit land was obtained by Petitioner/Defendant No. 1 through registered sale-deed dated 13.2.1956 and Award of Collector dated 16.10.1967" and "whether plaintiffs are owners-in-possession of the suit land and entitled to the relief as prayed for?"
Learned Civil Judge, Rawalpindi, after hearing the parties with reference to the evidence produced before him, by judgment dated 20.3.1996, decreed the suit of the respondents/plaintiffs.
The petitioners aggrieved by the said judgment and decree filed appeal before the District Judge, Rawalpindi, who after hearing the parties dismissed the same vide his judgment dated 12.09.2005. There-against petitioners preferred Civil Revision No. 314 of 2006 before the Lahore High Court, Rawalpindi Bench, which too was dismissed by the impugned judgment dated 20.5.2009.
Heard Agha Tariq Mehmood, D.A.G. for the petitioners and Sardar Muhammad Aslam, ASC for the respondents.
The learned counsel for the petitioners vehemently argued that in the written statement, filed by the petitioners before the trial Court, they have specifically alleged that they owned the suit land on the basis of registered sale-deed dated 13.2.1956 and the Award of the Collector dated 16.10.1967. In support of his contention learned counsel placed reliance on the list of documents filed under Order VII, Rule 14, C.P.C., wherein the petitioners relied upon the said registered sale-deed and award passed by the Collector. The learned counsel argued that all the three Courts below failed to take into consideration the documents referred in the written statement and on this account judgment and decree passed by the trial Court and upheld by the appellate as well as by the revisional Court, are liable to be set aside.
We have taken into consideration the arguments of learned counsel for the petitioners and carefully perused the record.
From perusal of the record it reveals that, after filing the written statement, evidence of the respondents/plaintiffs was concluded on 31.7.1995 and petitioners/defendants were directed to produce their evidence on 17.9.1995, but on the said date petitioners have failed to produce the evidence and on their request matter was adjourned to 15.10.1995. On 15.10.1995, again petitioners have failed to produce the evidence and as a last opportunity to produce the evidence, matter was adjourned to 05.11.1995. Again on 05.11.1995, the petitioners failed to produce the evidence and in the interest of justice, the matter was adjourned for recording the evidence of the petitioners for 27.11.1995. On 27.11.1995, at the request of the petitioners, the matter was adjourned to 16.12.1995, as petitioners' witnesses were not present. On 16.12.1995, again at the request of the petitioners as their witnesses were not present, matter was adjourned to 12.12.1995. On 12.12.1995, application for adjournment was filed by the learned counsel for the petitioners on the ground that he is busy before the High Court and a last opportunity to produce the evidence was given to the petitioner and the matter was adjourned to 07.1.1996. On 07.1.1996 matter was adjourned to 18.1.1996 as a last opportunity. Again on 18.1.1996, petitioners failed to produce the evidence and the matter was adjourned to 23.1.1996 with a warning that no further opportunity will be given. On 23.1.1996, the petitioners failed to produce the evidence and the side of the petitioners was closed. No application was filed by the petitioners for recalling the order passed in exercise of power under Order XVII, Rule 3, CPC, nor the order was challenged by way of filing appeal and ultimately, on the basis of the material available on record, learned trial Court decreed the suit.
Having considered the matter from all angles in the light of material available on record, it appears that the learned trial Court granted more than sufficient opportunities to the petitioners to produce the evidence in support of their claim but they, for the reasons best known to them, failed to produce the same and, as such, learned trial Court rightly decreed the suit on the basis of material available before it.
The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court. A party having produced no evidence on its own would have to abide by it, and be bound by such evidence as had come on record. Written statement cannot be exhibited in the case without the person who filed the same being examined in the Court and cannot be treated as substantive evidence except where such statement amounts to admission of plaintiff's plea. The contention of the learned counsel for the petitioners that the Court has to take into consideration the document on which the petitioners relied upon, has no force as neither the copy of such document was brought on record nor during their cross-examination the witnesses of the respondents were confronted with the said document.
The concurrent findings of facts recorded by the three Courts below do not call for any interference by this Court. The petition is accordingly dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2010 SC 1013 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
MUHAMMAD IQBAL & others--Appellants
versus
LAHORE HIGH COURT through Registrar, etc.--Respondents
Civil Appeals No. 338, 339, 340 & 342 of 2006, decided on 1.2.2010.
(On appeal from judgment of Lahore High Court, Lahore dated 11.11.2005, passed in W.Ps. No. 10485, 10767, 10769 & 13972 of 2005 respectively).
Constitution of Pakistan, 1973--
----Art. 199(5)--Barred of--Posts of Addl. Distt. & Sessions Judge--Qualified the competitive examination, but were not selected for the reasons that they did not fulfil the required length of practice--Challenged through writ petitions, dismissed--Assailed--Question of--Orders passed by High Court were protected under Art. 199(5) of Constitution and cannot be challenged before High Court under Art. 199 of Constitution--Orders protected by Art. 199(5) of Constitution are only judicial orders and not those passed on administrative side--Order of non-selection of the appellants passed by High Court was in its administrative capacity and hence no immunity could be claimed under Art. 199(5) of Constitution--Validity--All judicial orders passed by a High Court can be challenged in accordance with the Constitution or the law are individually and specifically protected--For such purpose of protecting judicial orders, there was no need absolutely to enact the provisions of Art. 199(5) of the Constitution and that such provisions were given in the Constitution to protect, rather the non-judicial orders of High Court--Held: If such orders are allowed to be challenged before the same High Court, it would lead to creating ludicrous situations and hazardous consequences--Art. 199(5) protects all orders passed by High Court including administrative one--Appeals were dismissed. [Pp. 1015, 1017 & 1018] A, B & E
Constitution of Pakistan, 1973--
----Art. 199(5)--Transfers of subordinate officer--Chief Justice of High Court--Administrative capacity--Question of difference judicial and administrative powers exercised by High Court--Validity--If a Chief Justice of a High Court transfers a subordinate officer so to say, in his administrative capacity and if the same is set aside by another bench of the same High Court, one can well imagine the devastating consequences--Such can be visualized about any order of High Court and the resultant consequences thereof--It runs diametrically opposed to the principles of comity and can lead to complete destruction of judicial as well as administrative fabric of the institution. [P. 1017] C
Remedy--
----Whether such person aggrieved has any remedy is to be seen in light of each case--Ground of having no further remedy cannot be pressed into service if the relief claimed is not tenable. [P. 1018] D
PLD 1998 SC 103, ref.
Constitution of Pakistan, 1973--
----Art. 199(5)--Conflict of judgments--Protects all orders passed by High Court--Conflict of judgments had arisen between Lahore High Court and Peshawar High Court--Appointments in both High Courts--Delegated powers of Governor--Validity--Lahore High Court was perfectly valid and that of Peshawar High Court, as reported in Kaleem Arshad Khan's case supra was not in accord with true spirit of Art. 199(5) of Constitution. [P. 1018] F
Ch. Mushtaq Ahmed Khan, Sr. ASC for Appellants (in C.A. No. 338/2006).
Syed Zafar Abbas Naqvi, AOR and Syed Azhar Naveed Shah, ASC for Appellants (in C.A. No. 339/2006).
Mr. Amir Iqbal Basharat & Mr. Waqar-ul-Hassan, both in person (in C.A. No. 340/2006).
Mr. Shafqat Abbasi, ASC for Appellants (in C.A. No. 342/2006).
Mr. Saeed Yousaf, Addl. A.G. and Mr. Zahoor Ahmed, Sub Asst. Registrar (Confd), LHC for Respondents.
Date of hearing: 8.12.2009.
Judgment
Sardar Muhammad Raza Khan, J.--The appellants, by leave of the Court, have filed these appeals from the judgment dated 11.11.2005 of a learned Judge in chambers of Lahore High Court, whereby, their writ petitions stood dismissed as barred by Article-199(5) of the Constitution.
The brief facts of the case are that against an advertisement dated 3.4.2003, issued by Lahore High Court for 29 posts of Additional District and Sessions Judge, Muhammad Iqbal Khan, Arshad Mehmood, Amir Iqbal Basharat, Waqar-ul-Hassan and Javaid Hussain qualified the competitive examination, but were not selected for the reasons that they did not fulfil the required length of practice etcetera. Javaid Hussain appellant though qualified yet could not hit the merit list of 29 candidates. He was placed on the waiting list. He claimed his selection and appointment in the subsequent batch or batches, next first being that of 2005. Such non-selection was challenged through writ petitions, dismissed as aforesaid.
Coming directly to the real point in dispute arising out of Article-199(5) of the Constitution, the learned High Court is of the view that the orders passed by the High Court are protected under the aforesaid sub-article and cannot be challenged before the High Court under Article-199. To the contrary, the stance taken by the appellant is that the orders protected by Article-199(5) of the Constitution are only the judicial orders and not those passed on administrative side. That the order of non-selection of the appellants passed by the High Court was in its administrative capacity and hence no immunity could be claimed under Article-199(5) of the Constitution. Learned counsel appearing on behalf of the appellants placed reliance on a Division Bench judgment of Peshawar High Court in Kaleem Arshad Khan's case (2004 PLC (CS) 1558), whereby, the non-selection of writ petitioner therein was considered to be an administrative order, amenable to challenge under Article-199 of the Constitution. The learned counsel further placed reliance upon a Division Bench judgment of Indian Supreme Court in High Court of Madhya Pradesh v. Mahesh Prakash (AIR 1994 SC 2595). The Indian Supreme Court was of the view that the orders passed by a High Court in its administrative capacity could be challenged before the High Court, exercising constitutional jurisdiction.
The learned counsel for the respondent claimed, in nutshell, that the orders passed by the High Court whether in its judicial or administrative capacity, are both protected under Article-199(5) of the Constitution and hence the view of Lahore High Court was perfectly valid. Reliance was placed on an earlier judgment of Lahore High Court in Nusrat Elahi's case (1991 MLD 2546) and a subsequent judgment of a full Bench of Lahore High Court in Asif Saeed's case (PLD 1999 Lahore 350). Lahore High Court consistently seems to be of the view that orders passed by a High Court, whether judicial or administrative, are protected under Article 199(5) of the Constitution.
For sake of convenience, the relevant provision of the Constitution is reproduced:--
"199(5) In this Article, unless the context otherwise requires,--
"person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and
..............................
(a) .......................
(b) ......................."
As the conflict of judgments has arisen between Lahore High Court and Peshawar High Court, we may point out that in cases of appointment in both the High Courts, the High Court or the Chief Justice exercise the delegated powers of the Governor. Punjab Judicial Service Rules, 1994 as framed by the Governor, operate to delegate power under Rule-4 thereof to the High Court as appointing authority. On the other hand, Notification No. SOR-IV(E&AD)/3-11/2001, issued by Government of NWFP, Establishment and Administration Department, the Governor happened to delegate such power of appointment to the Chief Justice, Peshawar High Court. To our mind, the use of two different words like "High Court" and "Chief Justice" in the two provinces, make the least difference, because under Article 192 of the Constitution, the Chief Justice alongwith other Judges constitutes the High Court. So, we are left with only question of difference between judicial and the administrative powers exercised by the High Court with reference to the immunity given by Article-199(5) of the Constitution.
The view held by Lahore High Court is challenged in the light of Mahesh Prakash's case (supra), which is very well distinguished by Mr. Justice Mian Saqib Nisar speaking on behalf of the full Bench in Asif Saeed's case (supra). The learned Judge distinguished the Indian ruling on the ground that there are no provisions in the Indian Constitution analogous or parallel to Article-199(5) of our Constitution. Secondly, it was reasoned that the Indian Supreme Court was of the view, despite no analogous provision in their Constitution, that no writ would lie against the judicial order of a High Court. Meaning thereby "that the true purpose of this sub-article is more pointed towards protecting the non-judicial actions/orders/steps of this Court rather than its judicial orders". We perfectly agree with the view taken by Lahore High Court that all judicial orders passed by a High Court can be challenged in accordance with the Constitution or the law and are individually and specifically protected. For such purpose of protecting judicial orders, there was no need absolutely to enact the provisions of sub-Article 5 of Article-199 and that such provisions were given in the Constitution to protect, rather, the non-judicial orders of the High Court. We are further of the view that if such orders are allowed to be challenged before the same High Court, it would lead to creating ludicrous situations and hazardous consequences.
If a Chief Justice of a High Court transfers a subordinate officer, so to say, in his administrative capacity and if the same is set aside by another Bench of the same High Court, one can well imagine the devastating consequences. This can be visualized about any order of the High Court and the resultant consequences thereof. It runs diametrically opposed to the principles of comity and can lead to the complete destruction of judicial as well as administrative fabric of the institution.
While discussing the implications involved, the learned author Judge of Asif Saeed's case (supra) has gone further to reinforce his reasoning, saying:--
"It is clear that the Supreme Court of Pakistan has also been excluded from the definition of the word "person" clubbed, together with the High Court. Undoubtedly, it is inconceivable that the order of the Supreme Court on its judicial side can be challenged before the High Court in writ, irrespective of sub-Article (5). Now if the interpretation of the petitioners that administrative order of the High Court can in writ be challenged is accepted, the same rule would also apply to the Supreme Court, situation may arise where a full Court of the apex forum takes a non-judicial decision then on the basis of above reasoning a Single Judge of this Court may issue writ to quash the same which would he just preposterous. This also applies to the administrative decision taken by the Full Court of a High Court, particularly, when the same Judge/Judges are party to such a decision. There can be numerous examples cited to show fallacy of such an interpretation. If the same rule is allowed to prevail, rules made by the Supreme Court, under Article 191 and by the High Courts, under Articles 203, and 208 are not safe from attack and may become subject of every day's litigation leading to a hazardous situation.
To our mind the judicial orders of the Supreme Court and the High Court on jurisprudential plane, were already protected from the exercise of writ. It is only the administrative/executive or consultative functions/orders and acts which in fact have been saved under this sub-Article. By plain reading of sub-Article (5) and by applying settled rules of interpretation, High Court cannot be deemed to be conferred with two distinct characters i.e one judicial, which is immune from writ, and the other administrative which is amenable to the writ."
Whether such person aggrieved has any remedy, is to be seen in the light of each case but the fact remains that this ground of having no further remedy cannot be pressed into service if the relief claimed is not otherwise tenable. This Court in Muhammad Ikram Chaudhry's case (PLD 1998 SC 103) has emphatically held that "the factum that the aggrieved party may have no other legal remedy simpliciter will not bring this case within the purview of Article-199 of the Constitution, if otherwise, it does not fall within its compass". In Asif Saeed's case (supra) almost every aspect of the case has very elaborately been discussed, answered and distinguished wherever necessary. In the instant case the scenario would have been altogether different if the appointments had been challenged by someone seeking a writ of quo warranto.
Consequently, we are of the firm view that Article-199(5) of the Constitution protects all orders passed by the High Court, including the administrative one. The consistent view taken in this behalf by Lahore High Court is perfectly valid and that of Peshawar High Court, as reported in Kaleem Arshad Khan's case (supra) is not in accord with the true spirit of sub-Article (5). The same is over ruled. The impugned judgment dated 11.11.2005 is upheld and the instant appeals are hereby dismissed, holding that the impugned orders were protected under Article-199(5) of the Constitution.
(R.A.) Appeals dismissed.
PLJ 2010 SC 1019 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
ALLAH DAD & others--Appellants
versus
ABDUL GHANI & others--Respondents
Civil Appeal No. 674 of 2007, decided on 23.11.2009.
(On appeal from judgment of Lahore High Court, Multan Bench Multan dated 20.5.2002, passed in Civil Revision No. 1173/2001).
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Mala fide fresh round of litigation by filing an application u/S. 12(2), CPC--Application u/S. 12(2), CPC was to be filed before High Court and not before Addl. Distt. Judge--Jurisdiction--Question of maintainability--Regular second appeal was filed before High Court in its appellate jurisdiction--Held: Application u/S. 12(2), CPC was bound to be filed before High Court being the last Court of fact--Court finally deciding the appeal would be a proper Court to entertain application u/S. 12(2), CPC--Application u/S. 12(2), CPC was filed before the wrong forum--Appeal was dismissed. [P. 1020] A & B
Syed Kabeer Mehmood, ASC for Appellants.
Mr. Amin K. Jan, ASC for Respondents.
Date of hearing: 23.11.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Allah Dad and others have been granted leave to appeal from the judgment dated 20.5.2002 of learned Lahore High Court, Multan Bench, whereby, their revision petition against the judgment dated 25.8.2001 of Additional District Judge, Lodhran was dismissed. Resultantly, application filed by the appellants under Section 12(2), CPC stood dismissed on the ground that Additional District Judge had no jurisdiction to entertain such application.
Briefly, Allah Dad etcetera as owners of the property, on 19.12.1974, entered into an agreement to sell with one Abdul Ghani. As the contract was not performed, Abdul Ghani brought a suit for specific performance of contract, which was dismissed by the trial Court on 10.4.1984. On appeal, the Additional District Judge, vide judgment dated 7.5.1990, set aside the judgment of the trial Court and granted a decree in favour of Abdul Ghani. It was upheld by the learned High Court on 29.5.1997, against which leave to appeal was refused by the Supreme Court on 20.10.1997.
The owners initiated, apparently, a mala fide fresh round of litigation by filing an application under Section 12(2), CPC on 29.5.1999 before the Additional District Judge, which was dismissed. A revision was filed before the High Court which, through the impugned judgment dated 20.5.2002, met the same fate but on the ground that, in the circumstances, application under Section 12(2), CPC was to be filed before the High Court and not before the Additional District Judge.
`The final judgment' with reference to Section 12(2), CPC has been defined by this Court in Mubarik Ali's case (PLD 1995 SC 564) as one which, so far as the Court rendering it is concerned, is unalterable if it is not sought to be modified, reversed or maintained by preferring an appeal, revision or review. In the circumstances of the present case, the decree was originally granted by the Additional District Judge. It would have been final, had no regular second appeal been filed thereagainst. The fact is that a regular second appeal was filed before the High Court in its appellate jurisdiction. In the circumstances, the judgment in appeal dated 29.5.1997 was the final judgment and hence application under Section 12(2), CPC was bound to be filed before the High Court being the last Court of fact. This view was maintained by this Court in Abid Kamal's case (2000 SCMR 900), that a Court finally deciding the appeal would be a proper Court to entertain application under Section 12(2), CPC.
In the given conditions, the learned High Court has rightly held that the application under Section 12(2), CPC was filed before the wrong forum. No exception can be taken thereto. The appeal is hereby dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 1021 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed & Mahmood Akhtar Shahid Siddiqui, JJ.
AMEER UMAR and another--Appellants
versus
ADDITIONAL DISTRICT JUDGE, DERA GHAZI KHAN and others--Respondents
Civil Appeal No. 858 of 2006, decided on 2.2.2010.
(On appeal from the judgment dated 7.2.2005 passed by the Lahore High Court, Multan Bench Multan, in W.P. No. 5390 of 2003).
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. XLVII, R. 1--Constitution of Pakistan, 1973, Art. 185(3)--Application for review of judgment--Question of--To assume jurisdiction and passed consent decree--Suit for pre-emption on basis of collateral-ship and co-sharer--Trial Court decreed the suit in terms of compromise--Application for review and recalling of judgment, dismissed--First Appellate Court set aside the consent decree--Challenge to--Validity--Where no pre-emption decree was passed by trial Court or by any higher forum before 31.7.1981, no such decree could be passed thereafter by any Court or forum on the ground that matter was instituted or pending in the Court before 31.7.1986--Held: No decree was passed by any Court before 31.7.1986, therefore, any pre-emption decree passed after crucial date regarding right of pre-emption which was declared repugnant to injunction of Islam would be void and nullity in the eyes of law--Revisional Court was justified to reverse judgment of the trial Court--Trial Court had erred in law to assume jurisdiction and passed consent decree after 31.7.1986--Consent decree cannot be bestowed the jurisdiction by trial Court--Decree passed by trial Court on compromise in absence of any mandatory requirements of talb was contrary to law hence void which was validly set aside by revisional Court and affirmed by High Court--Appeal was dismissed. [P. 1025] A, B C & E
Civil Procedure Code, 1908 (V of 1908)--
----S. 96(3) & O.XXIII, R. 3--Consent decree--Limitation--Not barred against the consent decree--Even an appeal is not barred by S. 96(3) against the decree by consent, if the Court which passed the decree had no jurisdiction in the subject matter of the dispute meaning thereby a consent decree u/S. 96(3) of CPC is synonymous with lawful compromise u/O. 23, R.3, CPC--Where strict requirement of Order 23, R.3, have not be satisfied appeal/revision against was not barred. [P. 1025] D & F
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Infirmity or illegality committed by High Court while dismissing the constitutional petition--Held: Supreme Court generally does not interfere in concurrent conclusions by the Courts below while exercising power under Art. 185(3) of Constitution. [P. 1025] G
PLD 1981 SC 522 & 1974 SCMR 279, rel.
Constitution of Pakistan, 1973--
----Art. 185(3)--Constitutional jurisdiction--Supreme Court cannot substitute its own finding in place of findings recorded by Courts below while exercising power under Art. 185(3) of Constitution. [P. 1026] H
Constitution of Pakistan, 1973--
----Art. 185(3)--Constitutional jurisdiction--Discriminatory in nature--Constitutional jurisdiction under Art. 185(3) is discriminatory in nature--Supreme Court were not inclined to exercise of discretion in favour of the appellant. [P. 1026] I
PLD 1973 SC 236, ref.
Mr. S.M. Zameer Zaidi, ASC for Appellants.
Ch. Mushtaq A. Khan, Sr. ASC for Respondents.
Date of hearing: 2.2.2010.
Judgment
Ch. Ijaz Ahmed, J--Necessary facts out of which the present appeal arises are that present appellants filed a suit for pre-emption against Allah Dad/Respondent No. 3 regarding land in question measuring 40 kanals situated at Khatta No. 407 Mauza Pati Tali Tehsil and District D.G. Khan in the Court of Senior Civil Judge D.G. Khan on 29.1.1984 on the basis of collateral-ship share and co-sharer in the disputed khata. During the pendency of the suit compromise arrived at between the parties. The compromise was filed in the Court on 4-4-1988. They made statement for the decree of the suit vide written compromise Ex. C. 1. The trial Court decreed suit in term of the compromise vide judgment and decree dated 4-4-1988 wherein appellants/plaintiffs were directed to deposit the decretal amount Rs. 1,30,000/- after deducting 1/5th amount already deposited by them till 15-9-1988. The said amount was deposited by the appellants/plaintiffs within stipulated period which was not withdrawn by Respondent No. 3/defendant. Respondent No. 3/defendant being aggrieved filed an application for review and recalling of the judgment and decree dated 4-4-1988 under Order XLVII, Rule 1 read with Section 151 and Section 12(2) CPC in the Court of Senior Civil Judge D.G. Khan on 30-10-1988. Appellants filed written statement controverting the allegations leveled in the application. Out of the pleadings of the parties the trial Court framed 10 issues. Thereafter the trial Court after completing the legal formalities such as recording of the evidence of the parties and hearing of the arguments of the counsel of the parties, dismissed the application vide judgment and decree dated 27-5-2000. Respondent No. 3/defendant being aggrieved filed revision petition in the Court of Additional District Judge Taunsa Sharif who accepted the same vide judgment and decree dated 17.9.2003. Judgment and decree passed by the trial Court dated 27.5.2000 as also the judgment and decree dated 4.4.1988 were set aside and also granted relief to the extent that necessary ancillary matters would be dealt with by the learned trial Court which might ensue this judgment. Appellants being aggrieved filed Const. Petition No. 5390/2003 in the Lahore High Court, Multan Bench, Multan, which was dismissed vide judgment dated 7-2-2005. Petitioners/appellants being aggrieved filed C.P. No. 472-L/2005 before this Court which was fixed on 16-5-2006 and leave was granted in the following terms:
"Leave is granted to consider whether, in the facts and circumstances of this case the consent decree dated 4.4.1988 could be recalled on the ground that collateral's right to pre-empt had been declared to be un-Islamic by this Court in Government of N.W.F.P. through Secretary, Law Department versus Malik Said Kamal Shah (PLD 1986 SC 360)."
Learned counsel for the appellants submits that trial Court was justified to dismiss the application of Respondent No. 3/defendant as Respondent No. 3/defendant had effected compromise voluntarily and the application for compromise was duly signed by both the parties and their counsel. The trial Court after completing legal formalities decreed the suit vide judgment and decree dated 4-4-1988. The trial Court was justified to dismiss the application of Respondent No. 3/defendant with cogent reasons after proper application of mind in accordance with law but the revisional Court had erred in law to accept the revision petition without application of mind and the law laid down by the superior Courts. In support of his contentions, he has relied upon Abdul Hamid's case (PLD 1995 SC 649). He further urges that consent decree was passed in favour of the appellants, therefore, review petition/application under Section 12(2) CPC was not maintainable against the consent decree. This aspect of the cased was not considered by the revisional Court and the learned High Court in their judgments.
The learned counsel for Respondent No. 3 submits that learned trial Court had assumed jurisdiction wrongly. This Court had declared the Pre-emption Act, 1913 as un Islamic and the cut off date was also fixed by this Court 31-7-1986. There was no decree in favour of appellants/plaintiffs till 31-7-1986 in terms of Malik Said Kamal Shah's case (PLD 1986 SC 360). The decree secured by appellants/plaintiffs on 4-4-1988 from the trial Court was without lawful authority and nullity in the eyes of law. The trial Court was not justified to dismiss the application of Respondent No. 3/defendant without adverting to the facts and circumstances of the case in hand as no evidence was lead by the parties in terms of the law laid down in the Malik Said Kamal Shah's case (supra) read with Section 35(2) of the Pre-emption Act 1991 which was reversed by the revisional Court with cogent reasons after application of mind. The learned High Court had also re-examined the case under constitutional jurisdiction and upheld the judgment of the revisional Court. In support of his contentions he has relied upon:--
(1) Mian Pir Muhammad's case (PLD 2007 SC 302).
(2) Umar Bakhsh's case (1993 SCMR 374)
(3) Muhammad Bibi's case (PLD 1973 Karachi 444)
(a) Shariat Appellate Bench of this Court had declared the Pre-emption Act, 1913, repugnant to the injunctions of Islam in Malik Said Kamal Shah's case (supra) and cut of date was fixed 31-7-1986 for enacting pre-emption law according to the dictum laid down in Malik Said Kamal Shah's case.
(b) Appellants filed suit for pre-emption against Respondent No. 3/defendant under the provisions of Punjab Pre-emption Act, 1913 which was decreed vide consent decree dated 4-4-1988 without recording evidence of the parties.
(c) Respondent No. 3/defendant filed an application for review of the decree dated 4-4-1988 on 30.10.1988 which was dismissed vide judgment and decree dated 27.5.2000 which was reversed by the revisional Court vide judgment and decree dated 17.9.2003 which was also upheld by the learned High Court in its constitutional jurisdiction vide impugned judgment dated 7-2-2005.
(i) Malik Said Kamal Shah's case (PLD 1986 SC 360)
(ii) Sardar Ali's case (PLD 1988 SC 287)
(iii) Mian Pir Muhammad's case (PLD 2007 SC 302)
Original trial Court had erred in law to assume jurisdiction and passed consent decree after 31-7-1986, therefore, consent decree cannot be bestowed the jurisdiction by the trial Court. The learned revisional Court had accepted revision petition and rightly observed that the circumstances of the case law referred in Abdul Hamid's case (supra) are different from the facts of the case in hand. We have also re-examined all the judgments and facts of the said case and the case in hand and we are also of the view that the facts and question of law arose in the cited judgment is entirely different. It is also settled principle of law that even an appeal is not barred by Section 96(3) against the decree by consent, if the Court which passed the decree had no jurisdiction in the subject matter of the dispute meaning thereby a consent decree under Section 96(3) is synonymous with the lawful compromise under Order XXIII, Rule 3 CPC. The decree passed by the trial Court on compromise in absence of any mandatory requirements of talab is contrary to law hence void which was validly set aside by the revisional Court and affirmed by the High Court. It is also settled principle of law where strict requirement of Order XXIII, Rule 3 have not be satisfied appeal/revision against is not barred. See Muhammad Hussain Shah's case (1989 SCMR 1752). With the assistance of the learned counsel of the parties we have examined the case from all angles but we cannot find out any infirmity or illegality committed by the High Court while dismissing the constitutional petition of the appellants vide impugned judgment. It is also settled principle of law that this Court generally does not interfere in the concurrent conclusions by the two Courts below while exercising power under Article 185(3) of the Constitution as law laid down by this Court in various pronouncements. See Abdul Rehman Bajwa's case (PLD 1981 SC 522) and Khuda Bakhsh's case (1974 SCMR 279). It is also settled principle of law that this Court cannot substitute its own finding in place of findings recorded by the Courts below while exercising power under Article 185(3) of the Constitution as law laid down by this Court in Syed Azmat Ali's case (PLD 1964 SC 260). Even otherwise appellants have failed to raise any substantial question of law of public importance. It is settled principle of law that constitutional jurisdiction under Article 185(3) is discriminatory in nature keeping in view circumstances of facts of the case highlighted hereinabove we are not inclined to exercise our discretion in favour of the appellants as law laid down by this Court in Nawabzada Raunaq Ali's case (PLD 1973 SC 236).
(R.A.) Appeal dismissed.
PLJ 2010 SC 1026 [Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani & Mahmood Akhtar Shahid Siddiqui, JJ.
NADIR KHAN and another--Appellants
versus
SECRETARY, M/O COMMUNICATIONS, GOVERNMENT OF PAKISTAN & IGP, NATIONAL HIGHWAYS AND MOTORWAYS POLICE, ISLAMABAD--Respondent
Civil Appeal Nos. 1206 & 1207 of 2009, decided on 22.1.2010.
(On appeal against the judgment dated 26.5.2009 passed by Federal Service Tribunal, Islamabad in Appeal Nos. 426(P)(CS)/08 & 882(R)CS/08)
Civil Servant--
----Promotion--Question of--Whether he is fit for promotion in higher rank or not--Inducted on deputation basis with on step promotion--Induction was withdrawn and then were repatriated to parent department--Challenge to--Appeal was accepted by Tribunal--Assailed--Leave was refused--Appellant sought High Court that his name be included in the promotion list--Inquiry was exonerated--Major penalty of compulsory retirement was awarded--Appeal was also dismissed by F.S.T.--Concealed the factual position with connivance--Incorrect information was provided--Guilty of misconduct--Validity--Even promotion on officiating basis was a promotion and allegations of forgery or fraud were not borne out--Nothing was brought on record to indicate that induction eligibility criteria of NH & MP excluded those who were officiating SIs--Held: Show-cause notice and findings rendered by inquiry officer were against the weight of the evidence led and the allegations leveled could not be proved--Award of major penalty of compulsory retirement was not sustainable--Appeals were allowed. [P. 1035] A & B
Mr. Shoaib Shaheen, ASC with Appellants.
Mr. Shah Khawar, DAG with Ch. Akhtar Ali, AOR for Respondents.
Date of hearing: 22.1.2010.
Order
Tassaduq Hussain Jillani, J.--This judgment shall dispose of Civil Appeal Nos. 1206 & 1207 of 2009 as they are directed against a consolidated judgment dated 26.5.2009 passed by the Federal Service Tribunal vide which appellants appeals against the order of the Inspector General, National Highways & Motorways Police awarding them major penalty of compulsory retirement was affirmed and their appeals were dismissed.
Facts giving rise to the instant appeals briefly stated are that the appellants started their carrier as Constables in NWFP Police, they were promoted as ASIs and SIs. From there, they were transferred to the Frontier Reserve Police, Peshawar. According to them they were serving as SIs in the Frontier Reserve Police when with the approval of their departmental head they were inducted into National Highway and Motorway Police on deputation basis with one step promotion as Senior Patrolling Officers (SPOs, BPS-16) after thorough scrutiny of their service record by the Induction Committee headed by the DIG in the year 1997. Later on they were absorbed as SPOs on 28.4.2001. On an anonymous complaint to the effect that they were not SI's when they were inducted into the National Highway and Motorway Police and that they were only promoted as SI on officiating basis, an inquiry was conducted and vide the order dated 4.2.2006 their induction was withdrawn and then were repatriated to their parent department. The appellants approached the Tribunal by filing Appeal No. 505(R)CS/2005 which was accepted by the Tribunal vide the judgment dated 25.11.2007 allowing the respondents to take any action against for the alleged misconduct done in the past or present. The respondent-Department assailed the judgment of the Tribunal in Civil Petition No. 192 to 194/2008 before this Court and leave was refused vide the order dated 2.4.2008. Thereafter the appellants approached the learned Islamabad High Court with a prayer that their name be included in the promotion list of SPOs. The High Court vide order dated 4.4.2008 disposed of their petitions with the observation that if ultimately they are exonerated in the inquiry, they shall be considered for promotion in accordance with law and rules applicable to them. A fresh inquiry was conducted in terms of the order of the Tribunal dated 25.11.2007 which ultimately culminated in the award of major penalty of compulsory retirement vide the order dated 16.7.2007. Their appeals before the Federal Service Tribunal stand dismissed vide the impugned judgment.
Learned counsel for the appellants in support of these appeals submitted that appellants have not been guilty of any misrepresentation or forgery; that they were promoted as ASIs in 1994; that in 1995 they were promoted as SIs; that they passed/qualified police promotional course i.e. Recruits, Lower and Intermediate School Courses from PTC Hangu, NWFP and NH & MP Orientation Course from PTC Sihala, Islamabad and served the department without any complaint whatsoever on their record; that during the inquiry no evidence was led to prove the allegations of forgery and that the finding of guilt and the penalty awarded are not sustainable.
Learned Deputy Attorney General, on the other hand, defended the impugned judgment by submitting that appellants are members of a disciplined force; that they were guilty of misrepresentation at the time when they applied for induction into National Highway and Motorway Police and by posing themselves as Sub Inspectors whereas they were merely constables.
We have heard learned counsel for the appellants and learned Law Officer and have gone through the record.
The charge sheet and statement of allegations served on the appellants are similar and the one served on appellant Mukhtar Ali Khan is being reproduced as follows:--
"(i) That you were taken on deputation in National Highways & Motorway Police w.e.f. 01.09.1997 against the post of SPO (BPS-16) and later on inducted in NH & MP in the same rank considering your rank as Sub-Inspector (BPS-14) in your parent department but on scrutiny it has come to the notice that your original rank in the Parent Department was list "D" Head Constable and promoted as ASI temporarily and thereafter as SI/PC purely on temporary basis.
(ii) This fact was not within the knowledge of National Highway and Motorway Police even at the time of your joining this department on deputation as well as at the time of your induction that you were on deputation in FRP from Malakand Range (Parent Department) for a period of three years temporarily and you were promoted by the FRB as SI/PC purely on temporary basis and your original rank in Malakand Range (Parent Department) was Head Constable "D" list. But you deliberately concealed these facts from this department with mala fide intention for ulterior motives and got the rank of SPO by providing fake and false documents with connivance of some FRP officials despite the fact that you were well aware of your status in FRP and original rank in your parent department. (Emphasis is supplied)
(iii) You manoeuvred forged, fakes, fictitious and bogus documents with the connivance of some officials of FRP and used these documents as genuine knowingly it were fake and bogus documents, as such, you willfully, deliberately, intentionally and maliciously concealed the actual and material facts from the NH & MP so as to get yourselves inducted herein. The letter of PPO, NWFP, Peshawar dated 20.02.2008, in which the Commandant FRP has been directed for their fraudulent action, against the delinquent officials of FRP for their fraudulent action, reflects that you had committed the gross and grave misconduct with the connivance of some FRP officials.
(iv) You were also well aware of these facts that Frontier Reserve Police is a temporary force and therefore, all benefits in service structure are considered "temporary" within FRP. However, you did not disclose these facts and got the rank of SPO by fraudulent means.
(v) You were basically "D" list Head Constable in your parent department and you manoeuvred forged and fake documents with connivance of some FRP officials and you posed yourself as regular SI and fraudulent managed to induct in NH & MP as SPO and was drawing salary of SPO since 1997, thereby you caused heavy loss to government exchequer."
"Mukhtiar Ali Khan
Nadir Khan
(2) So far the unlawful and defective statement of allegation is concerned the following few lines are submitted for considerations.
(i) Selective Committee of NWFP Police recommended me for NH&MP and later on I was taken on deputation in NH&MP on 01/09/1997 so for my rank is concerned I was Sub-Inspector Platoon Commander and drawing my pay in BPS-14. The platoon commander is a rank in FRP equal to Sub-Inspector in District Police and Patrolling Officer in Motorway Police. (Emphasis is supplied)
(ii) As stated below, my service record was requisitioned by the Motorway Police wherein all the entries were available, which was thoroughly checked by the induction committee at the time of my induction and for the second time when the anonymous complaint against my rank was received. The induction committee has already decided the said complaint.
(iii) After taking me on deputation, the Motorway Police requisitioned my Service Record from NWFP wherein each and every paper was/is available. At the time of my induction, my service record, as per induction policy then in vogue, was thoroughly checked by the induction committee headed by a senior officer of
"(i) I was taken on deputation in NH&MP without my consent and was forced to report to Motorway Police on 23/10/1997. At that time, I was not willing to serve in Motorway Police. So far as my rank is concerned I was Sub-Inspector Platoon Commander drawing my pay in BPS-14. The platoon commander is a rank in FRP equal to Sub-Inspector in District Police and Patrolling Officer in Motorway Police.
(ii) As stated below, my service record was requisitioned by the Motorway Police wherein all the entries were available, which was thoroughly checked by the induction committee at the time of my induction and for the second time when the anonymous complaint against my rank was received. The said complaint has already been decided by the induction committee for the second time on 26/06/2004.
(iii) After taking me on deputation, the Motorway Police requisitioned my Service Record from NWFP wherein each and every paper was/is available. At the time of my DIG rank. When my service record and other particulars were found by the said committee in accordance with the criteria, a letter was written by the IG NH&MP to IG NWFP for issuance of NOC for my induction. The IG NWFP, after obtaining consent of all concerned, sent the NOC directly to IG NH&MP. It is pertinent to mention that neither I provided my service record nor I was directed to do so, nor the letters regarding the correspondence between the two Inspector Generals were procured by me nor copies of e same were indorsed to me nor I was in the knowledge of the said correspondence till my induction in NH&MP copy of which was also not endorsed to me. In this connection, page-34 of the paper book filed by NH&MP in the Supreme Court (page-8 of the Service Tribunal Judgment, Letter No. FHP-41(5)/05/E dated 04/02/2006 is referred. The relevant paras are 3 & 4, wherein it has been mentioned that my rank was not concealed by me but was communicated as Sub-Inspector by the IGP NWFP. So far the letter of PPO NWFP dated 20/02/2008 is concerned, the IG NH&MP had requested the PPO vide letter dated 04/02/2008 the IG NWFP has shown his willingness to accept me as platoon commander BPS-14. This position clearly shows that I neither manoeuvred, nor forged, nor faked, nor fictitious
induction, my service record, as per induction policy then in vogue, was thoroughly checked by the induction committee headed by a senior officer of DIG rank. When my service record and other particulars were found by the said committee in accordance with the criteria, a letter was written by the IG NH&MP to IG NWFP for issuance of NOC for my induction. The IG NWFP, after obtaining consent of all con-cerned, sent the NOC directly to IG NH&MP. It is pertinent to mention that neither I provided my service record nor I was directed to do so, nor the letters regarding the correspondence between the two Inspector Generals were procured by me nor copies of e same were indorsed to me nor I was in the knowledge of the said correspondence till my induction in NH&MP copy of which was also not endorsed to me. In this connection, page-34 of the paper book filed by NH&MP in the Supreme Court (page-8 of the Service Tribunal Judgment, Letter No. FHP-them as genuine, knowingly, willfully, deliberately, intent-ionally or maliciously rather it is the departmental authorities who are behind me and wanted to squeeze me, for which I do reserve my right to approach the proper forum/Court.
(iv) FRP came into being in the year 1986 and is a permanent force. So far as the information provided by the Commandant regarding its temporariness, is not based on fact and for that very purpose, doors of the Court would be knocked at proper time. The Standing Order No. 3 of 1999/FRP has no sanctity in the eyes of law being devoid of approval of the provincial government. Even otherwise it has nothing to do with my promotion as I was promoted as ASI in 1992 and SI in 1994, therefore, the standing order of 1999 has no application to my case.
(v) I performed that duty of SPO and my original rank as determined by the Supreme Court of Pakistan by dismissing the appeal of the department, I could not be called as D-list head constable which amounts to the contempt of the Supreme Court of the Pakistan. I have caused no loss to the government as I had performed the duty of SPO 'and had drawn its pay. Furthermore, the judgment of the Supreme Court of the Pakistan reported as PLD 1992 SC 2007 is very much clear on this point.
41(5)/05/B dated 04/02/2006 is referred. The relevant paras are 3 & 4, wherein it has been mentioned that my rank was not concealed by me but was communicated as Sub-Inspector by the IGP NWFP. So far the letter of PPO NWFP dated 20/02/2008 is concerned, the IG NH&MP had requested the PPO vide letter dated 04/02/2008 the IG NWFP has shown his willingness to accept me as platoon commander BPS-14. This position clearly shows that I neither manoeuvered, nor forged, nor faked, nor fictitious and bogus document has ever been produced by me nor used them as genuine, knowingly, willfully, deliberately, intentionally or maliciously rather it is the departmental authorities who are behind me and wanted to squeeze me, for which I do reserve my right to approach the proper forum/Court.
(iv) FRP came into being in the year 1986 and is a permanent (vi) In addition to what has been stated above, the federal service tribunal in its detailed in (sick) judgments dated 25/11/2007 has made so many
repeated observation on the allegation leveled against me in the present proceeding and has diluted upon the merit of allegation which is the subject of the present enquiry and proceeding, keeping in view detailed observation being made by honorable service tribunal the allegation leveled against the respondent accused has already been turned down by the service tribunal, so a person cannot be vexed twice for a single allegation. Service tribunal in negative has answered the fate of these allegations.
Furthermore, the above points have been alleged before the Federal Service Tribunal Islamabad as well as the Supreme Court of Pakistan by the NH&MP but they have been ignored and now could not be re-agitated.
The NH&MP is estopped to initiate such like proceedings because they have file appeal in the Supreme Court of Pakistan which has been turned down by the Court without any such observations of the depart-mental proceedings despite the repeated requests of Mr. Niaz Ahmad Rathore DAG to the Supreme Court Pakistan.
force. So far as the information provided by the Commandant regarding its temporariness, is not based on fact and for that very purpose, doors of the Court would be knocked at proper time. The Standing Order No. 3 of 1999/FRP has no sanctity in the eyes of law being devoid of approval of the provincial government. Even otherwise it has nothing to do with my promotion as I was promoted as ASI in 1992 and SI in 1994, therefore, the standing order of 1999 has no application to my case.
(v) I performed that duty of SPO and my original rank as determined by the Supreme Court of Pakistan by dismissing the appeal of the department, I could not be called as D-list head constable which amounts to the contempt of the Supreme Court of the Pakistan. I have caused no loss to the government as I had performed the duty of SPO and had drawn its pay.
The judgment of honorable Supreme Court related to the above subject is attached.
Furthermore, the judgment of the Supreme Court of the Pakistan reported as PLD 1992 SC 2007 is very much clear on this point."
"Clause 4 of the Standing Order No. 3 also provides that the principles of temporary promotion as per Police Rules in the Rank of ASI and SI as Section Commanders and Platoon Commanders shall be applicable and such promotion shall be for two years and purely on temporary basis because FRP is temporary sanctioned force for the time being. Therefore, all benefits in service structure shall be considered temporary within FRP whereas the aim of such promotion should be to test the officer whether he is fit for officiating promotion in the higher rank or not.
Though the following officers concerned falls under category (1) officers of Literate Group but being a temporary sanctioned force no proper list "E" as per Police Rules has been maintained in the FRP and all these officers were promoted at par with other officers as Platoon Commanders having no other vacancies in the FRP.
SI/PC Hafiz Noor Muhammad
SI/PC Hafiz Nadir Khan
SI/PC Hafiz Said Asghar
SI/PC Mukhtar Ali"
It is evident from the afore-referred letter that the appellants were duly promoted as Sub Inspectors and the aim of such promotions was "to test the officer whether he is fit for promotion in the higher rank or not". The learned Deputy Attorney General was specifically confronted with the contents of the letters from PPO, Peshawar, referred in the preceding paragraphs and he in all fairness conceded that even promotion on officiating basis is a promotion and the allegations of forgery or fraud are not borne out. Nothing was brought on record to indicate that the induction eligibility criteria of NH&MP excluded those who were officiating SIs. If they had played any foul, the P.P.O NWFP in his letter dated 20.2.2008 to which reference has been given above, would not have informed Motorway Police that "as per report of the Commandant FRP, the officers if repatriated can be accepted as Platoon Commandants in their original status and seniority list `D'".
In the afore-referred circumstances, we are of the view that the show cause notice and the findings rendered by the Inquiry Officer are against the weight of the evidence led and the allegations leveled could not be proved. The award of major penalty of compulsory retirement in these circumstances is not sustainable. Consequently, both these appeals are allowed, the order dated 4.2.2006 of the Inspector General, National Highway and Motorway Police and the impugned judgment dated 26.5.2009 passed by the Federal Service Tribunal are set aside. Appellants shall be reinstated in service and shall be entitled to back-benefits as well.
(R.A.) Appeals allowed.
PLJ 2010 SC 1036 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Anwar Zaheer Jamali & Khilji Arif Hussain, JJ.
ZAFAR--Appellant
versus
STATE--Respondent
Crl. Appeal No. 79 of 2009, decided on 26.1.2010.
(On appeal from the judgment dated 10.5.2006 of the Lahore High Court, Lahore passed in Criminal Appeal No. 250-J of 2001 and MR No. 428 of 2001).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Court can summon material witness to do justice--To extent of examination of quantum of sentence--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed--Challenge to--No mitigating circumstances were pointed out for the accused nor it appeared from the record to call for awarding sentence less than the normal sentence of death--Only nominated accused in committing brutal murder of deceased and there was no reason for false involvement of the accused--Held: Prosecution is duty bound to place all evidence to throw light on crime before the Court, however in exercise of power under Section 540, Cr.P.C. Court can summon material witness to do justice in order to arrive at the truth--In absence of mitigating circumstances to justify lesser sentence than provided under S. 302(b), PPC which are not available on record--Appeal was dismissed. [Pp. 1038 & 1039] A & B
Hafiz Aman, ASC for Appellant.
Mr. Shahid Mehmood Abbasi, DPG for Respondent.
Date of hearing: 26.1.2010.
Judgment
Khilji Arif Hussain, J.--This appeal, by leave of the Court, to the extent of examination of quantum of sentence has been preferred against the judgment dated 10.5.2006 passed by the Lahore High Court, Lahore dismissing appeal of the appellant whereby, Murder Reference was answered in affirmative and death sentence passed by the trial Court against the appellant was confirmed.
Brief facts, to decide the appeal are that in the F.I.R lodged by the complainant Tariq, prosecution case is that Mst. Kausar sister of the complainant was married to Zafar-accused two years earlier to the registration of the FIR. Mst. Kausar had come to their house three days ago after annoying with her husband/appellant. On 18.5.1999 a day prior to the occurrence, appellant had also come to their house for reconciliation with his wife. During the course of talking, he had quarrelled with Khalid (deceased) elder brother of the complainant. Thereafter, appellant went away after advancing threats of murder to him. On the preceding night the complainant, Khalid (deceased), Mst. Ramai (their mother), other inmates of the house, Humayyun and Mansha (PW.8) were sleeping in the Courtyard of the house. At about 1.30 a.m. the complainant after hearing sound of foot-fall, awoke up and saw that appellant while armed with hatchet had reached near the cot of Khalid deceased who was sleeping. The complainant raised hue and cry whereupon Humayyun, Mansha, Mst. Ramai and other inmates also awoke up and within their view appellant inflicted two hatchet blows to Khalid (deceased) simultaneously, which hit him on the upper part of his right eye, at the forehead and upper part of his right ear over head. The appellant succeeded in running away from the spot while brandishing hatchet in the air. The deceased Khalid succumbed to the injuries on the spot.
In order to prove its case, the prosecution produced 10 witnesses. The ocular account of the incident in question was furnished by the complainant (PW.7) and Muhammad Mansha (PW.8) who also deposed about the motive. The medical evidence was led by Dr. Mushtaq Bashir (PW.6) and ASI (PW.10) stated about the various steps taken by them during the investigation of this case.
In the statement under Section 342 Cr. P.C. appellant denied the allegations and professed his innocence.
On conclusion of the trial, learned trial Court vide its judgment dated 11.6.2001 convicted the appellant under Section 302(b) PPC and sentenced him to death as Tazir'. The appeal filed by the appellant before the Lahore High Court, Lahore, was dismissed vide judgment dated 10.5.2006, which has been impugned through this appeal.
Heard Hafiz Aman, ASC for the appellant and Mr. Shahid Mehmood Abbasi, D.P.G. for the Sate.
Learned counsel for the appellant vehemently argued that Muhammad Mansha PW.8 was a chance witness and as such his evidence cannot be relied upon being a weak type of evidence. The ocular evidence is not corroborated with the medical evidence and in this regard, he relied upon the statement of Dr. Mushtaq Bashir PW.6. Learned Advocate further argued that prosecution has not produced other eye witness to prove the case, which can be termed as mitigating circumstance for awarding sentence lesser than death.
On the other hand, learned Advocate for the State argued that even if for the sake of argument it is accepted that Muhammad Mansha PW.8 was chance witness, evidence of Tariq PW.7 an eye witness of the occurrence is in line with the medical evidence and facts narrated in the F.I.R are confidence inspiring and it is the prerogative of the prosecution to decide which evidence it wants to produce to prove its case.
We have gone through the evidence on record, judgments passed by the trial Court as well as by High Court with the assistance of the learned counsel for the parties and the leave granting order dated 25.3.2009. We are of the view that no mitigating circumstance has been pointed out by the learned counsel for the appellant nor it appears from the record to call for awarding sentence less than the normal sentence of death under Section 302(b) PPC. The appellant is brother-in-law of the complainant and the only nominated accused in committing brutal murder of complainant's brother and there was no reason for false involvement of the appellant. The appellant has caused repeated hatchet blows on the vital parts of the deceased and Dr. Mushtaq Bashir PW.6 in his report noted the following injuries on the dead body of the deceased:-
Incised wound 9 cm x 2 cm on the right side of fore-head, underlying bone was fractured. Brain matter was coming out.
Incised wound 12 cm x 4 cm on the right temporal and parietal area of skull underlying bone was fractured and brain was coming out of the wound.
Incised wound 8 cm x 4 cm on the right side of head underlying bone was fractured and brain matter was coming out.
Incised wound 5 cm x 2 cm on the right side and back of head, underlying bone was fractured and brain matter was coming out."
Having considered the matter from all angles in the light of material available on record, we are of the view that prosecution is duty bound to place all evidence likely to throw light on the crime before the Court, however in exercise of power under Section 540 Cr.P.C. Court can summon material witness to do justice in order to arrive at the truth. The deceased was a young man of 24/25 years of age and in the absence of mitigating circumstances to justify lesser sentence than provided under Section 302(b) PPC which are not available on record. The list appeal has no merit and the same is accordingly dismissed.
(R.A.) Appeal dismissed.
PLJ 2010 SC 1039 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Mian Shakirullah Jan & Nasir-ul-Mulk, JJ.
TARIQ AZIZ and others--Petitioners
versus
MUHAMMAD IRSHAD and others--Respondents
Civil Petition No. 1422 of 2008, decided on 25.3.2009.
(On appeal against the judgment dated 13.10.2007 passed by Peshawar High Court, Peshawar, in W.P. No. 944 of 2007).
NWFP Local Government (Conduct of Elections) Rules, 2005--
----Rr. 30(2)(iii) & 35(4)(iii)(a)--Electoral College Act, 1964, Ss. 40(2)(c) & 45--Constitution of Pakistan, 1973, Art. 185(3)--Election of Nazim and Naib Nazim of Union Council--Ballot papers of one polling station polled in favour of respondent and these ballet papers though bearing the official mark but not the signature of presiding officer, if counted as valid votes then it gives a leading position to respondent and if declared these as invalid votes take the petitioners to winning position--Controversy requires the interpretation of Rule 30(2)(ii) & Rule 35(4)(iii)(a)--Rule 30 relates to the voting procedure when voter presents himself to obtain vote and he is issued vote after observing the codal formalities--Presiding Officer is required to stamp the ballet paper with official mark and also to put his signature on the ballot paper whereas the Rule 35 of Rules, 2005 deals with the proceedings at close of the poll--Such a controversy has long before been settled by Supreme Court under alike election provisions u/Ss.40(2)(c) and 45 of Electoral College Act--Held: Ballot papers bearing official mark of the presiding officer are valid votes and were rightly held so resulting in the declaration of respondent as returned candidates--Leave refused. [Pp. 1040, 1041 & 1042] A, B, C & D
PLD 1966 SC 492, PLD 2002 Pesh. 173, ref.
Mr. Abdul Rauf Rohaila, ASC and Mr. M.S. Khattak, AOR for Petitioners.
Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. Arshad Ali Ch., AOR for Respondents
Date of hearing: 25.3.2009.
Judgment
Mian Shakirullah Jan, J.--The contest between the parties is over election of Nazim and Naib Nazim of the Union Council No. 14, Lahori, district Peshawar, held in August, 2005 under the provisions of NWFP Local Government (Conduct of Elections) Rules, 2005. The petitioners were declared as returned candidates which was challenged through an election petition before the Election Tribunal which was accepted and, instead, Respondent Nos. 1 & 2 were declared as returned candidates. The Writ Petition, filed by the petitioners, before the High Court also failed and now the present petition for leave to appeal.
2. The main and decisive point involved in the case is the inclusion of 251 votes/ballot papers of one polling station polled in favour of Respondent Nos. 1 & 2 and these ballot papers though bearing the official mark but not the signature of the Presiding Officer if counted as valid votes then it gives a leading position to Respondent Nos. 1 & 2 and if declared these as invalid votes take the petitioners to a winning position. This controversy also requires the interpretation of Rule 30(2) clause (iii) and Rule 35(4) clause (iii)(a), which respectively read as follows:--
"30. Voting procedure.--(1)-----
(2) Before a ballot paper is issued to an elector--
(i) ---
(ii) ---
(iii) the ballot paper shall on its back stamped with the official mark and signed by the Presiding Officer.
35. Proceeding at the close of the poll--(1) -----
(2) -----
(3) ------
(4) The Presiding Officer shall--
(i) -----
(ii) -----
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear
(a) no official mark."
The divergent decisions of the Returning Officer and of the Election Tribunal were also the result of different interpretation of the aforesaid two legal provisions as the Returning Officer held the aforesaid ballot papers as invalid while the Election Tribunal held otherwise holding the ballot papers as valid and the latter findings were also affirmed by the High Court.
We have heard the learned counsel for the petitioners as well as for the respondents and have gone through the available record of the case.
The perusal of the aforesaid provisions of law indicate that the former rule relates to the voting procedure when voter presents himself to obtain vote and he is issued vote after observing the codal formalities, the Presiding Officer is required to stamp the ballot paper with official mark and also to put his signature on the ballot paper whereas the latter rule deals with the proceedings at the close of the poll. In other words it may be stated that the former rule prescribes the procedure for voting while the latter rule prescribes the procedure for counting at the time of close of the poll.
Such a controversy has long before been settled by this Court, under alike election provisions under Sections 40(2)(c) and 45 of the Electoral College Act, 1964, in the case of Akbar All vs. Razi-ur-Rahman Khawaja, etc. (PLD 1966 SC 492) wherein it was held as follows:--
"By Section 45, Electoral College Act, 1964, the Legislature has provided only one condition in clause (a) that the Presiding Officer shall exclude the ballot papers "which do not bear the official mark". Section 40 which lays down the voting procedure inter alia prescribes that a ballot paper shall on its back be stamped with the official mark and initialed by the Presiding Officer. There is no inconsistency between the provisions of this section and Section 45 if they are read side by side. While the Presiding Officer is required by Section 40 to fulfill both the conditions a ballot paper shall be rejected under Section 45 only if it does not bear the official mark. The requirement that the Presiding Officer shall initial a ballot paper is therefore directory and not mandatory in the sense that failure to comply with it will render the ballot paper invalid."
In the line of the aforesaid dictum, the Peshawar High Court in the case of Arbab Aamir Ayub Khan and another vs. Chief Election Commissioner of Pakistan, Islamabad and 4 others (PLD 2002 Pesh. 173) has also held the ballot paper bearing only official mark of the Presiding Officer as valid votes and were counted in favour of the candidate in whose favour the same have been cast. The relevant part of the judgment reads as under:--
"Under the Election Rules, both stamp of official mark and signature of the Presiding Officer are not required to render the ballot paper valid and worth counting. Rule-30 of NWFP Local Government Elections Rules, 2000 prescribes the voting procedure. Under Rule-30(2)(iii)(iv), it has been made mandatory upon the Presiding Officer that before issuing ballot paper to an elector, the ballot paper shall on its back be stamped with the official mark and singed by the Presiding Officer whereas Rule-35(4)(iii)(a) while prescribing the procedure at the close of the poll, provides that Presiding Officer shall count the votes cast in the favour of each contesting candidate excluding from the count the ballot papers which bear no official mark. The simple perusal of the provision of Rules 30 and 35 connotes that the former has prescribed guidelines for the Presiding Officer who is directed to stamp and sign the ballot paper before delivering it to the elector before casting vote while under the latter Rule-35, restriction is imposed on holding the votes, already cast, as valid which bear the stamp or official mark only. In other words, the Presiding Officer is required to count the cast ballot papers of the contesting candidates which bear the official mark. It appears that the legislature in its wisdom has intentionally waived off the condition of signature by the Presiding Officer at the time of counting after the poll is over."
We, while following the judgment of this Court, are of the view that the ballot papers bearing official mark of the Presiding Officer are valid votes and were rightly held so resulting in the declaration of Respondent Nos. 1 & 2 as returned candidates. The learned counsel for the petitioners has also half heartedly agitated the other point by concluding that full opportunity of producing evidence to the petitioners has not been afforded. We have attended to this aspect of the case also and which has very elaborately been dealt with by the Election Tribunal as well as by the High Court that the production of the remaining evidence by the respondents has got no relevance to the issue in hand as that evidence mainly pertains to the polling station over which the parties were having no dispute and rather the pleadings of the parties mainly raising the aforesaid controversy i.e., holding of the ballot papers not bearing the signature of the Presiding Officer as valid or invalid, and which view was rightly taken by the two forums below.
No exception can be taken to the findings and conclusion arrived at by the High Court which has affirmed the finding of the Election Tribunal. We see no ground for the grant of leave. Consequently, leave to appeal is refused and the petition is dismissed.
(R.A.) Leave refused.
PLJ 2010 SC 1043 [Review Jurisdiction]
Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ.
GHULAM MURTAZA--Petitioner
versus
ABDUL SALAM SHAH and others--Respondents
C.R. Petition No. 58 of 2007 in Civil Appeal No. 798 of 2003, decided on 1.10.2009.
(On review against the judgment dated 13.2.2007 passed by this Court in Civil Appeal No. 798 of 2003).
Constitution of Pakistan, 1973--
----Art. 188--Review of the judgment passed by Supreme Court--Memo of petition before Supreme Court--Grounds on the basis of which notice was issued to respondents were not raised and taken before Supreme Court--Validity--Parties are bound of their pleadings--Held: It is settled principle of law that even fresh point/plea is generally not allowed by Supreme Court to raise during arguments of the petition and appeal and fresh pleas cannot be allowed to raise during the arguments of the review petition--Every judgment pronounced by Supreme Court is presumed to be considered solemn, and final decision on all points arising out of the case--If Court has taken a conscious and deliberate decision on a point of fact or law a review petition will not be competent--Further held: In the interest of justice and fairplay Supreme Court have re-examined the case keeping in view the principles with regard to review of the judgment u/Art. 188 of the Constitution--Petition has failed to bring the case within the parameters prescribed by Supreme Court in the judgment--Review was dismissed. [Pp. 1045 & 1046] A, B & G
PLD 1974 SC 322, PLD 1971 SC 766 & AIR 1940 PC 219, rel.
Review Petition--
----Competency--A review petition not competent where neither new and important evident error has been described nor any error apparent on the face of record--Held: Such error may be error of question of law or fact but conducted precedent is that it must be self evident floating on the surface and not requiring elaborate discussion or process of ratio cination. [P. 1045] C & D
Review--
----Scope--The review is not meant for rehearing of the matter. [P. 1045] E
Review--
----Scope of--Grounds taken in support of the petition--Scope of review is always very limited and confined to the basic aspect of the case referred to at review stage which was considered in judgment but if the grounds taken in support of the petition were considered in the judgment and decided on merits the same would not be available for review in the form of re-examination of the case on merits. [P. 1045] F
Malik Saeed Hassan, ASC for Petitioner.
Mr. M. Saleem Shahnazi, ASC for Respondent Nos. 2 to 7.
Date of hearing: 1.10.2009.
Order
Ch. Ijaz Ahmed, J.--Petitioner has sought review of the judgment dated 13-2-2007 passed by this Court wherein the petition, filed by the petitioner before this Court, in which leave to appeal was granted vide order dated 18-4-2003, was dismissed vide impugned judgment dated 13-2-2007. Hence the present review petition.
Learned counsel for the petitioner submits that essential facts regarding the full payment of sale consideration and the delivery of possession as part performance of the contract, escaped the notice of the Court as a result of which the judgment was materially effected. He further urged that on the death of the vendor, the agreement to sell which was executed on his behalf by his attorney during his life time would remain effective after his death and would be binding on his legal heirs. He further submitted that important question of law regarding interpretation of the document was not decided in accordance with law and the judgment on the basis of which the appeal was dismissed would also advance the case of the petitioner. The execution of the general power of attorney by the predecessor-in-interest of Respondent Nos. 2 to 7 was not denied and this fact was also not considered in its true perspective in the impugned judgment.
Learned counsel for the respondents submitted that learned counsel for the petitioner had taken new pleas which were not taken by him in the memo of petition and also did not raise the said pleas during the argument when the appeal was finally decided by this Court vide impugned judgment dated 13-2-2007. He further urged that scope of review is limited one. In support of his contention he relied upon Major (R) Barkat Ali's case (2006 SCMR 562).
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. The memo of revision petition before the High Court, memo of petition before this Court, leave granting order dated 18-4-2003, arguments raised by the learned counsel for the appellant on 13-2-2007 mentioned in para 2 of the impugned judgment and the grounds urged by him on 17-1-2008 clearly envisage that the grounds on the basis of which notice was issued to the respondents were not raised and taken before this Court. It is settled principle of law that parties are bound of their pleadings. See Murad Begum's case (PLD 1974 SC 322). It is also settled principle of law that even fresh point/plea is generally not allowed by this Court to raise during the arguments of the petition and appeal and fresh pleas cannot be allowed to raise during the arguments of the review petition as law laid down in the following judgments:--
(i) Ishfaqur Rehman's case (PLD 1971 SC 766)
(ii) John E Brownlee's case (AIR 1940 P.C. 219)
(i) Abdul Majeed's case (1980 SCMR 504)
(ii) Mst. Kalsoom Malik's case (1996 SCMR 710)
(iii) Noor Hassan Awan (2001 SCMR 367)
(iv) Ayyaz Baig's case (2002 SCMR 380)
(v) Daewoo Corporation's case (2004 SCMR 1213)
(vi) Muhammad Afzal's case (2004 SCMR 1348)
(vii) M/s PIA's case (2004 SCMR 1737)
(viii) Sh. Muhammad Amjad's case (PLD 2004 SC 32)
(ix) Syed Wajihul Hassan Zaidi's case (PLD 2004 SC 801)
(R.A.) Petition dismissed.
PLJ 2010 SC 1046 [Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ.
OIL AND GAS DEVELOPMENT COMPANY, etc.--Appellants
versus
NAZAR HUSSAIN and 2 others--Respondents
Civil Appeal Nos. 1124 to 1126 of 2009, decided on 18.1.2010.
(On appeal against the judgment dated 10.4.2009 passed by Federal Service Tribunal, Islamabad in Appeal Nos. 740, 913 & 925 (R)CE/2004).
Constitution of Pakistan, 1973--
----Art. 212--Oil and Gas Development Corporation Ordinance, 2001, S. 5--Scope of--Restoration to their original posts and respondents penalty of compulsory retirement was converted into a minor penalty of stoppage of two increments for a period of two years--Charges of misconduct--Committed theft of drill pipes joints various sizes--Appeals were accepted by Federal Service Tribunals--Challenge to--Remedy lay before Federal Service Tribunal--Question of--Whether Service Regulations framed in 1994 under Repeal of Oil and Gas Development Corporation Ordinance, 1961, were still is in vogue and has statutory force--Corporation was converted into public limited company--Repeal and promulgation of new Ordinance--Validity--No fresh regulations or service rules were enacted--S. 5 of Oil & Gas Development Corporation Ordinance, 2001, specifically provides that the officers, workmen or other employees of corporation on the incorporation of the company in terms of Ordinance shall be deemed to be employees of the company and shall have same rights and privileges--Employees of Oil & Gas Development Company to be government under Service Regulations framed in 1994 unless of course they are varied and amended or repealed--Despite specific query, appellants had not been able to point out the pecuniary loss suffered by company and it is not denied that alleged pipes were recovered and were restored to the company--Held: Neither raise any question of law of public importance within meaning of Art. 212 of Constitution nor they point out any illegality to warrant interference--Appeals were dismissed. [Pp. 1049, 1050 & 1051] A, B, C & D
Ch. Naseer Ahmed, ASC and Mr. M.S. Khattak, AOR for Appellants.
Mr. Abdul Rahim Bhatti, ASC for Respondents.
Date of hearing: 18.1.2010.
Order
Tassaduq Hussain Jillani, J.--This order shall dispose of Civil Appeal Nos. 1124, 1125 & 1126 of 2009 as they are directed against a consolidated judgment dated 10.4.2009 vide which the learned Federal Service Tribunal allowed the appeals of the respondents and directed that the Respondents Nazar Hussain (Security Inspector) and Mazharul Hassan (Assistant Driller) shall stand restored to their original posts and respondent Muhammad Fayyaz Umer's penalty of compulsory retirement was converted into a minor penalty of stoppage of two increments for a period of two years.
"17.........impugned orders mentioned against each appellant as detailed above are set aside and the appellants are reinstated into service with effect from the dates they were dismissed from service with the direction to the department to hold fresh disciplinary proceedings against the appellants as per law within 4 months of the date of this order, removing the legal lacunae as observed and summarized in para-14 of the order also taking into consideration the circumstances leading to the acquittal of appellant Haji Nazar Hussain from the criminal case as contained in Court order dated 3.11.1999 which is placed on record in Appeal No. 54(r)CE/2000. Back benefits and the question of retention or otherwise of the appellants in the service of the respondent department shall depend on the findings of the de novo disciplinary proceedings."
Pursuant to the inquiry report dated 12.9.2003 the Competent Authority awarded minor penalty to Nazar Hussain (Security Inspector) and Mazharul Hassan (Assistant Driller), demoted them to the next lower post whereas the respondent Muhammad Fayyaz Umer was awarded major penalty of compulsory retirement. This was challenged in appeal which stands allowed vide the impugned judgment dated 10.4.2009 mainly on two grounds i.e. that the major penalty of demotion with regard to two respondents did not specify the period and secondly the de novo inquiry was not conducted as per law i.e. in terms of Removal from Service (Special Powers) Ordinance, 2000.
Learned counsel for the appellants submits that the assumption of jurisdiction by the Federal Service Tribunal was not tenable in law as the respondents were not being governed by statutory rules; that the appellant-Company (Oil and Gas Development Corporation Limited) came into being in terms of Oil and Gas Development Corporation Ordinance, 1961; that though regulations were framed under the said Ordinance for regulating the service of the employees, called the Oil and Gas Service Regulations, but with the repeal of the former Ordinance by the Oil and Gas Development Corporation Reorganization Ordinance, 2001, those regulations also stood repealed or they lost their statutory character even if they continue to govern the employees. He further contended that because of the repeal of the 1961 Ordinance (No. XXXVII), the regulations framed in 1994 lost their statutory character, de novo inquiry was not required to be conducted under the Removal from Service (Special Powers) Ordinance, 2000.
Learned counsel for the respondents, on the other hand, defended the impugned judgment by submitting that the Oil and Gas Service Regulations, 1994, still remained in the field as after the repeal of 1961 Ordinance and promulgation of Oil and Gas Development Corporation Ordinance, 2001, no fresh rules or regulations have been framed and that being so, the Removal from Service (Special Powers) Ordinance, 2000, was applicable and the mandate of the remand order passed by the Tribunal dated 4.1.2003 required that the de novo inquiry should be conducted under the said ordinance; that having not been done, the learned Tribunal rightly interfered, set aside the penalty and directed reinstatement of Nazar Hussain and Mazharul Hassan and converted the major penalty of Muhammad Fayyaz Umer in to minor penalty of stoppage of two increments for a period of two years. He further submitted that on merits it has never been the case of the appellant-Company that the alleged misconduct of the respondents caused any pecuniary loss. He lastly submitted that one of the co-accused in the inquiry namely Baz Khan, driver, who allegedly transported the stolen pipes, was reinstated by the Company which is evident from the order of the Service Tribunal dated 27.9.2002 in Service Appeal No. 85(R)/2000, a copy of which was placed on record.
We have heard learned counsel for the parties and have gone through the impugned judgment.
With the repeal of Oil and Gas Development Corporation Ordinance, 1961, and the advent of the new law, the Corporation was converted into a public limited company vide Oil and Gas Development Corporation Ordinance, 2001 called the Oil and Gas Development Reorganization Ordinance. It is not denied that pursuant to the repeal and promulgation of the new Ordinance referred to above, no fresh regulations or service rules were enacted. Section 5 of Oil and Gas Development Corporation Ordinance, 2001, specifically provides that the officers, workmen or other employees of the Corporation on the incorporation of the Company in terms of the afore-referred Ordinance shall be deemed to be the employees of the Company and shall have same rights and privileges.
Section 24 of the General Clauses Act provides as follows:--
"24. Continuation of orders, etc. issued under enactments repealed and re-enacted. Where any [Central Act] or Regulation is, after the commencement of this Act, repealed and reenacted without modification, then unless it is otherwise expressly provided, any [appointment, notification], order, scheme, rule, form or bye-law, [made or] issued under the provisions so re-enacted [and when any] [Central Act] or Regulation, which, by a notification under Section 5 or 5A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification been withdrawn from and re-extended to such area or any part thereof the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section."
"12. So far as the third contention, the same is misconceived. The said non-statutory Regulations cannot be said to be special law when the Ordinance No. XVII of 2000 itself states vide Section 11 that it would over-ride all other laws notwithstanding any thing to contrary, consequently the said contention has also not merit and substance."
"We have heard the learned counsel for both sides and agree with learned counsel for the petitioners that the High Court did not take into account the provisions of Section 5 reproduced above. After having gone through the said provisions, we are not left in any manner of doubt that the Rules governing the petitioners in matters of employment, were the Rules of 1994. Since the said Rules have been incorporated into law through reference made by Section 5 of the Ordinance, the said Rules, if anything, are elevated to a status even higher than that of mere statutory rates, which are framed under rule making powers granted by a statute."
Interestingly in the afore-referred case, the stand of the learned counsel for the appellant-Company (he was a different counsel) was that the afore-mentioned Service Regulations were statutory in character and the remedy lay before the Federal Service Tribunal.
In this view of the above, we are of the view that the employees of the Oil and Gas Development Company continue to be governed under the Service Regulations framed in 1994 unless of-course they are varied and amended or repealed as the case may be. So far as the merits of the case are concerned, it is not denied that the principal accused namely Baz Khan, who allegedly transported the joint pipes in question, was reinstated into service by the appellant-Department. Despite specific query, learned counsel for the appellants has not been able to point out the pecuniary loss suffered by the Company and it is not denied that the alleged pipes were recovered and were restored to the Company.
For what has been discussed above, we do not find any merit in these appeals as they neither raise any question of law of public importance within the meaning of Article 212 of the Constitution nor they point out any illegality to warrant interference. The appeals having no merits are accordingly dismissed.
(R.A.) Appeals dismissed.
PLJ 2010 SC 1051 [Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmood and Sayed Zahid Hussain, JJ.
WAPDA through S.E. Acquiring Cell CRBC Project WAPDA, D.I. Khan and others--Appellants
versus
SYED ALI and others--Respondents
Civil Appeals No. 2001-2004 of 2001 and CMAs No. 917 to 920 of 2009, decided on 9-6-2009.
(On appeal from the judgment dated 22-5-2001 of Peshawar High Court, Circuit Bench, D.I. Khan passed in R.F.As No 5,6,8 and 9 of 2000)
Constitution of Pakistan, 1973--
----Art. 173--Land Acquisition Act, 1894, S. 3(b)--Acquisition of land by Provincial Government--Person interested--Where the Provincial Government acquires any land required by it for its own expense, the actual acquisition shall vest with the Federal Government as Art. 173 of the Constitution, in such a case, the Federal Government will become person interested in the case--Appeal was dismissed. [P. 1057] A
Mr. Mazhar Alam Khan, ASC a/w Raja Abdul Ghafoor, AOR for Appellants (in both appeals).
Mr. M. Bilal, ASC for Respondents (in both appeals).
Mr. Sanaullah Khan Gandapur, ASC for Respondent No. 1 (in C.A. No. 2002 of 2001) and for Respondent No. (in C.A. No. 2003 of 2001).
Date of hearing: 9.6.2009.
Judgment
M. Javed Buttar, J.--These appeals are directed against the judgment dated 22.05.2001 passed by a learned Division Bench of Peshawar High Court, Circuit Bench D.I.Khan, whereby RFAs No. 5,6,8 and 9 of 2000 instituted by the appellants were partly allowed and the price of the acquired land was fixed as Rs.50,000/- per kanal alongwith 15% compulsory acquisition charges and 6 % simple interest. However, there was no order as to costs.
Relevant facts are that vide Award No. 54 dated 26.06.1993 passed by Land Acquisition Collector, the land in dispute measuring 182 kanals 7 marlas situated in village Kotala Saidan Tehsil and District D.I. Khan was acquired for the benefit of WAPDA for the construction of Distributory No. 6 CRBC Project at the rate of Rs.8,000/- per kanal Notification under Section 4 of the Land Acquisition Act, 1894 was published on 17.04.1988. Notification under Section 17 of the said Act was issued on 23.11.1988. The above price was fixed alongwith 15% compulsory acquisition charges, 5% severance charges and 6% simple interest from the date of taking over possession till the date of payment of compensation.
The petition of respondents/land owner's for the enhancement of the compensation through a reference under Section 18 of the Land Acquisition Act to the Land Acquisition Collector was forwarded to District Judge D.I. Khan which was transferred to District Judge/Judge Land Acquisition, Tank Camp at D.I.Khan who after regular trial vide his judgment dated 07.03.1994 enhanced the rate of compensation to Rs.22,000/- per kanal alongwith 15% compulsory acquisition charges plus 6% compound interest on the difference from the date of possession till the payment of amount. Being aggrieved thereby, both the parties filed Regular First Appeal in Peshawar High Court Bench D.I.Khan and a learned Division Bench of the said Court at D.I.Khan Bench vide judgment dated 06.03.1998 remanded the case to learned Referee Court for a fresh decision with the direction to appoint a Local Commissioner to ascertain the market value of the land in dispute at the time of the announcement of the award of the Land Acquisition Collector. On remand Mr. Ghulam Hur Khan, Advocate was appointed as the local commissioner who after summoning the parties and spot inspection submitted his report to the Referee Judge and the Referee Judge, this time senior Civil Judge, D.I.Khan vide his judgment dated 02.12.1999 fixed the price of the acquired land at the rate of Rs.68,000/- per kanal alongwith 15% compulsory acquisition charges and 6% simple interest on the difference from the date of possession of the acquired land till the recovery of amount minus what the land owners had received. The appellants assailed the same through RFAs No. 5,6,8 and 9 of 2000 which resulted in the judgment impugned before us.
We have heard learned counsel for the parties and have also seen the available record with their able assistance.
It is submitted by learned counsel for the appellants that the Referee Judge determined the market rate of the acquired land merely on the basis of the report of the local commissioner who had no criteria or evidence before him to come to the conclusion that the market rate of the said land was Rs. 68,000/- per kanal, that similarly learned High Court also had no evidence before it to conclude that the market rate was Rs.50,000/- per kanal, that the acquired land was shown agricultural in nature whereas the rate awarded to land owners by learned High Court was that of urban land and that against the same award the learned High Court decided RFA No. 3 of 1995 on 15.04.1999, the price of the land was fixed at the rate of Rs.18,000/- per kanal on the basis of "Osat Yaksala" (one year average) and the same should have been the basis for fixing price of the land in dispute.
Learned counsel for the respondents/land owners while vehemently opposing the appeals have firstly taken preliminary objection to the maintainability of the present appeals and have submitted that beneficiaries of the acquired land have no right and locus standi to either file reference against the award of compensation or appeal against the judgment arising out of the reference under Section 18 of the Land Acquisition Act, 1894 or any appeal and the same can be filed only by the, land owners or the Provincial Government through Collector. Reliance in this regard has been placed on BP Pakistan Exploration and Production through Attorney vs Sher Ali Khawaja and another (PLD 2008 SC 400), Defence Department of Pakistan through Secretary Ministry of Defence vs Province of Punjab and another (2006 SCMR 402), Pakistan through Military Estate Officer, Kharian Cantt and, another vs Abdul Hayee Khan through Legal Heirs and 5 others (PLD 1995 SC 418), Iftikhar Hussain Shah and others vs Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193) and Pir Khan through his Legal Heirs vs Military Estate Officer, Abbottabad and others (PLD 1987 SC 485).
In these judgments, with reference to Section 18 and Section 50(2) of Land Acquisition Act (I of 1894), it has been held that the beneficiaries of the acquired land have no right to challenge the compensation given to the deprived owners of the land by the competent Court and same could be assailed by the affected land owners, or the concerned Provincial Government through Collector and the Federal Government is not authorized to file appeal against the decision of competent Court relating to amount of compensation for the acquired land and the award made by the Land Acquisition Collector becomes final so far as local authority or company is concerned and there is no alternative for such authority or company but to give effect to it.
In answer to above said preliminary objection, learned counsel for the appellants has referred to a judgment dated 18.02.1991 passed by learned Shariat Appellate Bench of Supreme Court of Pakistan in Shariat Appeal No. 7 of 1989 titled Muhammad Khan vs Jamil-ur-Rehman and others in which the declaration and directions given by the learned Federal Shariat Court in its judgment dated 30.03.1989 in Shanat Petition No. 06/1 of 1988 were upheld and Shariat Appeal No. 7 of 1989 was dismissed.
The declaration and directions of the learned Federal Shariat Court were as under:--
"For the aforesaid reasons we declare that omission to give right of making reference, filing cross-objections and appeal to the Federal Government or to the department of the Federal Government or of the Provincial Government or a company or a local authority for whose benefit land is acquitted in Sections 18(3) and (4), 22-A and 54 of the Land Acquisition Act, 1894 as well as depriving a company or a local authority of the right of appeal in Proviso to Section 50(2) of the Act are repugnant to the Injunctions of Islam."
"6. A person who has not accepted the award has a right of reference to the Court under S.18 of the Act. A reference under this section can be made only on the application of an interested person. "The person interested", according to Section 3(b) of the Act, "includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interest in land if he is interested in an casement affecting the land". By means of sub-section (3) of Section 18 of the Act, a Provincial Government has been authorized to refer the matter to the Court if it has not accepted the award. This section does not provide any reference on behalf of the department of the Federal Government or the Provincial Government for which the land has been acquired. In case a reference has been made by the Collector on the application of an interested person, a right has been- granted to the Provincial Government or a local authority or a Company for which land is being acquired; by means of Section 22-A, to file a cross-objection to the objection-made by any person interested and the Court may reduce the amount awarded by the Collector. Under this section, the Provincial Govt. has been authorized to file a cross-objection but no such right has been afforded to the Federal Govt. or its department or department of the Provincial Govt. for which land is being acquired. According to Section 50(2) of the Act, in any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation provided that no such local authority or Company shall be entitled to demand a reference under Section 18. This section gives a right to appear in proceeding and adduce evidence before a Collector or Court for the purpose of determining the amount of compensation but a reference under Section 18 is barred by the same proviso. No such right has been granted to the Provincial Government or its department. Learned counsel for the appellant referred to Article 152 of the Constitution and submitted that a Provincial Government may file a cross-objection on behalf of the Federation and therefore there is no necessity of any amendment as proposed by the Federal Shariat Court. This contention is devoid of force.
Article 152 of the Constitution only contemplates that the Federation may require the Province to acquire the land on its behalf, and at-the expense, of the Federation or, if the land belongs to the Province, to transfer it to the Federation on such terms as may be agreed. According to this Article, the Federation may ask a Province to acquire land on its behalf. The determination of the terms may be decided by an agreement between the Federation and the Province or in default of agreement, may be determined by an arbitrator appointed by the' Chief Justice of Pakistan. This Provision of the Constitution is not relevant to the determination of the controversy raised before the Federal Shariat Court. This Court in Pir Khan V. Military Estate Officer (PLD 1987 SC 485) has held that "Section 50(2) of the Land Acquisition Act, 1894 expressly and in terms controls Section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section 18. According to sub-section (2) of Section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under Section 18 by them is barred."
"7. The grounds which weighed with the Federal Shariat Court in making the recommendation are cogent and sound. The amendments in the aforesaid provisions of the Act would make the law more consistent and equitable. It is against all cannons of principle and equity that the Provincial Govt. may have a right refer the matter to Court and file a cross-objection but the Federal Government and its department are not given such a right. It would amount to negation of justice and is repugnant to the Injunctions of Islam. The wisdom behind such amendments would be to give all the parties a fair opportunity to prove regarding the reasonable amount of compensation to be awarded. A party who has to pay the money from its own funds should have been given a chance to adduce evidence for the purpose of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross-objection, lead evidence and file an appeal, to those parties who have been denied such a right under Sections 18, 22-A, 50 and 54 of the Land Acquisition Act."
In view of what has been stated above, we see no force in this appeal. The same is dismissed. Necessary amendments shall be made before 30th of Sept, 1991."
We have been informed that consequently a necessary amendment has been made in the Provinces of Sindh and Balochistan but no such amendment has been made in other Provinces. Land Acquisition (Sindh Amendment) Ordinance, IV of 1992 was promulgated by the Governor of Sindh and gazetted on 7th July, 1992, In sub-section (3) of Section 18 of the above Act for the words "the Provincial Government", the words and commas "The Federal Government, the Provincial Government, a Company or a Local authority, as the case may be," were substituted. Consequential amendments were also made in Sections 20, 22-A, 31 and 50 of the above Act. Similar amendments were made in the Province of Balochistan through Land Acquisition (Balochistan Amendments) Ordinance V of 2000 gazetted on 3rd October, 2000. However, the effect of Land Acquisition (Sindh Amendment) Ordinance IV of 1992 was considered by this Court in BP Pakistan Exploration and Production through Attorney vs Sher Ali Khawaja and another (PLD 2008 SC 400) and it was held that since the Ordinance had not been laid before the Provincial Assembly, therefore, it did not attain the status of an Act and stood repealed at the expiration of three months from its promulgation and thus lost its efficacy on 06.10.1992 as the life of the Ordinance under the Constitution was only 90 days.
As regard the judgments passed by this Court which have been relied upon by learned counsel for the respondents to contend that the present appeals are not maintainable, it may be mentioned that the above said judgment dated 18.02.1991 passed by learned Shariat Appellate Bench of the Supreme Court of Pakistan in-Shariat Appeal No. 7 of 1989 has not been referred to and the effect of said judgment has not been considered.
We may add here that Article 149 empowers the Federal Government to give directions to the Provincial Government so as to protect and advance its own executive authority in discharging its responsibilities under the Constitution and the laws, obliging thereby the Provincial Government to comply with such directions. Article 152 empowers the Federation to require the Province to acquire the land required by it at its expense. Article 173 of the Constitution provides that on such acquisition the land shall vest in the Federal Government. The Federal Government, in such cases has a direct interest in the property sought to be acquired, and the Federal Government necessarily becomes "person interested" as defined in Section 3(b) of the Act. In Himalaya Tiles and Marble (P.) Ltd. v Francis Victor Coutinho (dead) by L.Rs (AIR 1980 SC 1118), it was held by the Indian Supreme Court,' with reference to Section 18 of the Land Acquisition Act (1894), that the definition of a `person interested' given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. Thus the definition of "person interested" in Section 18 must be construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. This view accords with the principles of equity, justice and good conscience.
If the above interpretation is followed the beneficiary would be entitled to file a reference under Section 18 and appeal under Section 54 of the Act.
In view of the, above mentioned, it is doubtful that respondents can successfully argue that the present appeals filed by the beneficiaries are incompetent. We have expressed doubt because we have not been assisted properly. In any case, in our opinion, for the reasons given below, these appeals are liable to-be dismissed on merits, therefore, we are not going into the issue of maintainability of the present appeals and leave this question open for decision in future at some appropriate time in some appropriate case.
Learned Counsel for the respondents, on merits, have submitted that the Local Commissioner after hearing both the parties and after spot inspection and after holding a detailed inquiry, had correctly concluded that the market value of the land in dispute at the time of making of the award, was Rs.68,000/- per kanal and since the land owners have not assailed the judgment impugned before us whereby the rate of compensation has been reduced from Rs.68,000/- to Rs.50,000/-, they would be satisfied if the same is kept intact. Learned counsel in this regard have taken us through the report of the Local Commissioner and have further submitted that keeping in view the potential of the land in dispute, the price of land in-dispute has been reasonably worked out by the learned High Court with some modification in the correctly worked out price by the Referee Judge. Reliance in this regard has been placed on Murad Khan through his widow and 13 others vs Land Acquisition Collector, Peshawar and another (1999 SCMR 1647) and Province of Punjab through Collector, Attock vs Engr. Jamil Ahmad Malik and others (2000 SCMR 870).
We have given our anxious consideration to the entire facts and circumstances of the case. We have also noted that there is no allegation of mala fide on the part of the local commissioner in regard to his report. He was appointed under the remand order passed, by the High Court. We have also noticed that the land in dispute had the potential of urbanization because the neighbouring village Taiken had acquired the status of a Town and Dera Development Authority had already been established there at the time of announcement of the award, therefore, the land in dispute at the time of its acquisition had good potential of urbanization. Learned Judges of the High Court after taking into consideration the evidence available on the record and the entire circumstances of the case, correctly concluded that it was safe to fix Rs.50,000/- per kanal as the market value of the land at the time of its acquisition which in our opinion, a potential buyer would have been willing to pay to a willing seller. As regards previous decision dated 15.04.1999 of the High Court in R.F.A. No. 3/1995, we have no information about the location and situation of subject land of said R.F.A. except that it was part of same award, which is not sufficient.
In view of the above mentioned, we find no merit in these appeals which are dismissed with costs throughout. Miscellaneous applications (CMAs No. 917 to 920/09) moved by the respondents for setting aside the order of the ex-parte proceedings also stand disposed of
(A.A.) Appeal dismissed.
PLJ 2010 SC 1059 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ.
ABDUL RASHID--Appellant
versus
MUHAMMAD YASEEN and another--Respondents
Civil Appeal No 1826 of 2005, decided on 2.10.2009.
(On appeal from the judgment dated 5-10-2005 passed by the Lahore High Court, Multan Bench Multan in C.R No. 424-D of 1994).
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Sale deed--Registered sale-deed prior in time must be given due weightage over the latter sale-deed. [P. 1062] A
Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Transfer of ostensible owner--Bona fide purchaser was required to prove on record that he entered into transaction of sale in good faith having believed that the transferor was the ostensible owner of the property. [P. 1063] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Where two Courts below while giving their findings on a question of law had committed material irregularity or acted to read evidence on point which resulted in miscarriage of justice then High Court could re-examine the question and give its findings in exercise of revisional jurisdiction--Appeal dismissed. [P. 1063] C
Khadim Nadeem Malik, ASC for Appellant.
Mian Saeed-ur-Rehman Farrukh, ASC for Appellant.
Date of hearing: 2.10.2009.
Judgment
Ch. Ijaz Ahmed, J.--Appellant filed appeal against the judgment of the Lahore High Court, Multan Bench, Multan, dated 5.10.2005 wherein the learned High Court held set aside the judgments of the Courts below while exercising power under Section 115 CPC. Hence this is a direct appeal before this Court.
"1. Whether the suit is bad for mis-joinder of parties and cause of action? OPD.
Whether the plaintiffs have no locus standi to file the suit? OPD
Whether the plaintiffs are estopped by their words and conduct to file the suit, OPD.
Whether the plaintiffs are the owners of the land in question and the defendant has encroached on it, OPD.
Whether the defendant is a bonafide purchaser for value and without notice of the plaintiffs ownership? OPD.
Whether the defendant is entitled to any compensation for the constructions made by him on the land in question, if so, to what amount? OPD, 7. Whether the suit is barred by time, OPD.
Relief.
The learned trial Court after completing legal formalities such as recording the evidence of the parties dismissed the suit vide judgment and decree dated 27.2.1991. Respondents being aggrieved filed an appeal in the Court of Additional District Judge, Multan, who dismissed the same vide judgment dated 27-1-1994. Respondents being aggrieved filed Civil Revision No. 424-D of 1994 in the Lahore High Court, Multan Bench, Multan, which was accepted vide impugned judgment. Hence the present appeal.
Learned counsel for the appellant submits that learned High Court erred in law to disturb the concurrent findings of the Courts below, therefore, the impugned judgment is not sustainable in the eyes of law. He relied upon Abdul Qahir's case (PLD 2002 SC 321). He further submits that the appellant is a bona fide purchaser of land in question without notice and this fact was not considered by the learned High Court in the impugned judgment in its true perspective. He also relied upon Muhammad Bashir's case (2003 SCMR 774). He further urges that the appellant is in possession of the land in question since 1951 and this fact was not considered by the High Court in the impugned judgment. He further urges that impugned judgment is not sustainable in the eyes of law on any canon of justice as the learned High Court had reversed the concurrent findings of the Courts below without adverting to the reasoning of the Courts below and without observing that any material illegality or irregularity was committed by the Courts below.
Learned counsel for the respondents submits that the land in question was purchased by respondents from original owner vide sale-deed dated 6-2-1967 where the appellant purchase the same land from the original owner Khalilur Rehman on 22-3-1975 whereas appellant filed Constitutional Petition against Khalilur Rehman challenging his ownership over the land in question which was dismissed on 27-7-1973 and subsequently purchased the said land from him on 22-3-1975. He further urges that learned High Court was justified to give due weight to the sale-deeds which were registered prior in time as compared to the sale-deed registered after the prior sale-deeds. He further urges that registered sale-deed is itself notice to public at large including the appellant. Therefore, ingredients of Section 41 of Transfer of Property Act is not attracted.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties which is to the following effect:--
"6. Now, Exh.P2 is the sale-deed in favour of Muhammad Yasin petitioner and it narrates that the land located in Khasra No. 2544 with boundaries mentioned herein is being sold to him. Similarly, Exh. P3 narrated that the land located in Khasra Nos, 2544 & 2545 with boundaries mentioned therein is being sold to Muhammad Ibrahim petitioner. It is but established on record and admitted on all hands that Khalil-ur-Rehman was the exclusive owner of the property having purchased it from Yaqoob Khan. A bare comparison of the boundaries stated in the sale-deed and those stated in the plaint and of course in the sale-deed Ex.DWl/B being relied upon by the respondent do who show that these pertain to the same land. Needless to state that the petitioners purchased the land in the year 1967 whereas Khalil-ur-Rehman sold the same to respondent in the year 1975.
I have already noted above that there is no denial that the respondent is in possession of the said land. Now, the learned Courts below have not cared to read the said documents or the pleadings of the parties while proceeding to record their findings on the relevant issues after a rigmarole discussion. Perhaps this is why they have paid special attention to the issue pertaining to the bona fide purchaser and have taken care to answer the same in favour of the respondent. Now, I may note here that only piece of evidence in support of the said issue is the statement, of Abdul Rasheed respondent as DW2. In his cross-examination after admitting that the property was evacuee he expressed his ignorance that it was transferred to Muhammad Yaqoob Khan and it was then sold to Khalil-ur-Rehman. He, however, admitted that he had field a writ petition against the allotment and it was dismissed. There is not even a word in his entire statement that he conducted any inquiry within the meaning of Section 41 of the Transfer of Property Act, 1882 before proceeding to purchase the land from Khalil-ur-Rehman."
Mere reading of the aforesaid operative part of the impugned judgment clearly envisages that the learned High Court had decided the Revision Petition after application of mind considering the pleadings of the parties as is evident from paragraphs 2 to 5 apart from the paragraphs reproduced hereinabove. The learned High Court after re-appraisal of the evidence/re-examination of the record had come to the conclusion that both the Courts below were erred in law to decide the case against the respondents while dismissing their suits without adverting to the real controversy between the parties as the sale-deeds were executed in favour of the respondents on 6-2-1967 whereas sale-deed qua the said land by the said owner in favour of the appellant on 22.3.1975. It is settled proposition of law that registered sale-deed prior in time must be given due weight over the latter sale-deed. It is pertinent to mention here that the sale-deeds relied upon by the respondents are prior in point of time while the sale-deed allegedly executed from the same owner Muhammad Yaqoob in favour of the appellant was executed after about 8 (eight) years from the sale-deeds executed in favour of the respondents. Logically, subsequent sale carries no weight or value in the eyes of law because a piece of land cannot be sold twice by the same vendor coupled with the fact that appellant filed constitutional petition against the owner Muhammad Yaqoob challenging his title over the land in question which was dismissed on 27.7.1973 and allegedly subsequently purchased the said land from him on 22.3.75 as mentioned above. The respondents had taken a specific plea in the contents of plaint that respondents had purchased the land in question on 6.2.1967 whereas the appellant/defendant had simply denied the factum of execution of sale-deed on the basis of which appellant/defendant claimed benefit of bonafide purchaser in terms of Section 41 of the Transfer of Property Act which is reproduced here under:--
"41. Transfer of ostensible owner:--
Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:
Provided that the transferee, after taking reasonable care to ascertain the transferor had power to make the transfer, has acted in good faith."
(i) Maulana Riazul Hassan's case (1991 SCMR 2513).
(ii) Mst. Noor-un-Nisa's case (NLR 1995 SCJ 117)
(iii) Muhammad Bashir's case (2003 SCMR 774)
It is settled proposition of law that if it is found that the two Courts below while giving their findings on a question of law have committed material irregularity or acted to read evidence on point which is resulted in miscarriage of justice then the High Court will have the occasion to re-examine the question and give its finding on that question in the exercise of revisional jurisdiction as law laid down by this Court in Shaukat Nawaz's case (1988 SCMR 851). The learned High Court had taken a lot of pain to re-examine the evidence on record as both the Courts below had decided the case against the respondent without application of mind and without perusing the record, as mentioned above, appellant/defendant did not even allege in the written statement that respondent had made any inquiry qua the status of the land in question, therefore, learned High Court was justified to enter in the concurrent conclusions arrived at by the Courts below while exercising power under Section 115 CPC. In such situation it is the duty and obligation of the High Court to interfere in the findings recorded by the Courts below while exercising power under Section 115 CPC which is in consonance with the law laid down by this Court in G.M. Sikdar's case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173).
In view of what has been dismissed above we do not find any infirmity or illegality in the impugned judgment. Therefore, the appeal has no merit and the same is dismissed with no order as to costs.
(A.A.) Appeal dismissed.
PLJ 2010 SC 1064 [Appellate Jurisdiction]
Present: Javed Iqbal, Mian Shakirullah Jan & Muhammad Sair Ali, JJ.
Mst. ASMAT-UN-NISA and another--Appellants
versus
GOVERNMENT OF NWFP through Secretary Industries and others--Respondents
Civil Appeal No. 19 of 2001 in C.P. No. 1191 of 1998, decided on 22.10.2009.
(On appeal from the judgment dated 13-07-1998 passed by the Peshawar High Court, Peshawar in W.P No. 190 of 1996)
Constitution of Pakistan, 1973--
----Art. 184--Leave to Appeal--Leave to appeal was granted to consider the following propositions:--
(i) Whether by virtue of Para 66 of Land Acquisition Circular No. 54 dated 6.12.1912 issued by the Government of NWFP, the said Government is under an obligation to return the land to the owners appellants as it is no longer required for the purpose for which it had been acquired earlier ?
(ii) Whether, by virtue of Notification dated 16.10.1995, the Government of NWFP had abandoned the object for which the land had been acquired, the appellants are entitled to the restitution of land under the Land Acquisition Circular No. 54 ibid?
(iii) Whether the stand of the Government of the NWFP in its parawise comments as well as in the written, is vague inasmuch they had proposed to utilize the land for "some other public purpose" and is not entertainable on two-fold grounds that--
(a) it was patently mala fide as the property had been given over to the NWFP Police Welfare Trust;
(b) when the purpose is sought to be altered it can only be done by a separate Notification with reference to the law laid down in Yaqoob Khan and 41 others v. Member (Colonies) Board of Revenue, Punjab etc. (PLD 1979 Lahore 882) and Union of India New Dehli and others, v. Nand Kishore and another (AIR 1982 Delhi 462).
(iv) Whether the object of Para 66(1) ibid, of the NWFP Circular No. 54 ibid would be defeated because the classification/character of the "agricultural and postoral and "has since undergone changes by afflux of time for its utilization for the purpose for which it was acquired? [P. 1066] A
Land Acquisition Act, 1894 (I of 1894)--
----S. 4--Constitution of Pakistan, 1973, Art. 184--Acquisition of land--Use of acquisition land for purpose other than the one for which it was originally acquired--Land in-question was put to use for the purpose for which the same was acquired for 40 years--Such land was later converted for construction of hospital which was now functional and in operation--Original owner would have no cause of action to object to such a use--Land in-question had vested in Provincial Government on completion of acquisition process--Respondent authority could in use of bonafide exercise of discretion put the same to any other public purpose on abandonment or frustration or change or non-requirement of land for the original purpose of acquisition--Petition dismissed. [P. 1073] B
Kh. Muhammad Farooq, ASC for Appellants.
Mr. M. Bilal, Sr. ASC for Respondents No. 1 & 2.
Ex-parte for Respondent No. 3.
Date of hearing: 22.10.2009.
Judgment
Muhammad Sair Ali, J.--In this appeal by leave appellants call in-question judgment dated 21.5.1998 passed by Hon'ble the then Chief Justice of the Peshawar High Court dismissing appellants' Writ Petition No. 190 of 1996.
"(i) Whether by virtue of Paragraph 66 of Land Acquisition Circular No. 54 dated 6.12.1912 issued by the Government of NWFP, the said Government is under an obligation to return the land to the owners appellants as it is no longer required for the purpose for which it had been acquired earlier ?
(ii) Whether, by virtue of Notification dated 16.10.1995, the Government of NWFP had abandoned the object for which the land had been acquired, the appellants are entitled to the restitution of land under the Land Acquisition Circular No. 54 ibid?
(iii) Whether the stand of the Government of the NWFP in its parawise comments as well as in the written, is vague inasmuch they had proposed to utilize the land for "some other public purpose" and is not entertainable on two-fold grounds that--
(a) it was patently mala fide as the property had been given over to the NWFP Police Welfare Trust;
(b) when the purpose is sought to be altered it can only be done by a separate Notification with reference to the law laid down in Yaqoob Khan and 41 others v. Member (Colonies) Board of Revenue, Punjab etc. (PLD 1979 Lahore 882) and Union of India New Dehli and others, v. Nand Kishore and another (AIR 1982 Delhi 462).
(iv) Whether the object of Paragraph 66 (1) ibid, of the NWFP Circular No. 54 ibid would be defeated because the classification/character of the "agricultural and postoral and "has since undergone changes by afflux of time for its utilization for the purpose for which it was acquired?
Kh. Muhammad Farooq, ASC for the appellants recounted the facts of the case and repeated the submissions made before the High Court. On the propositions formulated for consideration in the above quoted leave granting order, he though relied upon the principles settled in the judgment in the case of "Province of Punjab through Collector, Lahore and another, v. Saeed Ahmad and 4 others. (PLD 1993 S.C. 455)" but clarified that the judgment related to Paragraph 100 of the Punjab Financial Commissioner's Order 28 read with Paragraph 493 of the Land Administration Manual but the instant matter pertains to NWFP to which Paragraph 66 of Land Acquisition Circular No. 54 of NWFP applied. And that it necessarily obliged the NWFP Government to return the acquired land on frustration of the purpose of acquisition to the land owners. And that the High Court should have applied the said circular to non-agricultural and non-pastoral land by corollary instead of denying the land owners of the urban land. The right of return and restoration of the acquired property on frustration of the purpose of acquisition. He also relied upon the cases of "Government of Sindh and others, v. Mst. Sirtaj Bibi and another" (PLD 2001 Karachi 442), "Shahbaz and another, v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 5 others" (1992 MLD 2121), "Muhammad Aslam Khan, etc. v. Province of Punjab, etc" (PLD 1979 Lahore 843), "Union of India, New Dehli and others, v. Nand Kishore and another" (AIR 1982 Dehli 462). He supported his above referred contentions with the first two judgments while later two judgments were cited to contend that the purpose of acquisition could be changed only by fresh acquisition proceedings.
In the contrary arguments Mr. M. Bilal, Sr. ASC for the respondents relied upon the case of "Syed Nazar Abbas Naqvi v. Commissioner, Sargodha Division, Sargodha and 29 others". (1996 SCMR 1277) to state that once the acquisition proceedings/process was completed, the land vested absolutely in the Provincial Government who can thereafter use it for any other public purpose as well. He further submitted that the land in-question was used for 40 years by Government Transport Service, Peshawar for the purpose of acquisition and thereafter on winding up of GTS through Notification dated 31.10.1995, the same was utilized as per notification dated 8.10.2002 for another public purpose i.e. building of a hospital which was completed and inaugurated on 31.03.2009 and was presently functioning.
Heard.
For construction of GTS Bus Stand etc, land in-question was acquired. The process of acquisition was completed through award dated 14.11.1955. Litigation on the compensation between the land owners and erstwhile Government of West Pakistan concluded on this Court's judgment dated 4.10.1982 in Civil Appeals No. 21-P of 1978 and 22-P of 1978. The compensation so determined was received by the appellant land owners.
Undisputedly the parties admit and jointly state that the acquired property was utilized and put for the purpose of acquisition for a period of good forty years till dis-investment and dis-banning of Government Transport Service, Peshawar (GTS) through Notification No. SO.II (Imd)TPT/7-99/88.VI w.e.f. 31.10.1995. Whereafter Government of NWFP started working on various propositions qua the acquired property.
It was then that the appellants' filed Writ Petition No. 190 of 1996 allegedly against the proposal of sale through auction by the Government and also prayed for return of the acquired land to them purportedly on abandonment and frustration of the object of acquisition. The respondent Government etc in their contesting reply denied abandonment/frustration of the purpose, the proposal for auction of the said property and persisted that the land was needed for other public purposes. Through impugned judgment dated 13.7.1998, this writ petition was dismissed, hence the present appeal through leave.
The then Hon'ble Chief Justice of the Peshawar High Court dilating upon the controversy, in depth analyzed the applicable provisions and Paragraphs of the Land Administration Manual on the right of the land owners to be returned or restored the land acquired from them on non-requirement of the same for the purpose of its acquisition. The import and impact of the judgment of this Court in "Province of Punjab through Collector, Lahore and another, v. Saeed Ahmad and 4 others" (PLD 1993 S.C. 455) was also examined. After detailed discussion it was observed that:--
(i) Para 100 of Financial Commissioner's Order 28 and Para 493 of the Land Administration Manual were examined by the Supreme Court in Saeed's case (above referred) and it was held that the said provisions related to agricultural or pastoral land only and not to the non-agricultural and non pastoral land like in the present case where the acquired land was located in the heart of Municipal Area. Wherefor Saeed's case was of no help to the petitioners because acquired land in this case was agricultural and the Government had itself notified its return to the previous owners. Even otherwise the Government could not be compelled to restore the land as a matter of right to the previous land owners.
(ii) The provisions in Para 66 of the Revenue Circular No. 54 of the NWFP were similar to those of Para 100 of Financial Commissioner's Order 28 and Para 493 of the land Administration Manual on the subject of return of the land to the previous owners. Para 66 also related to the agricultural and pastoral land and it conferred no right on the previous owners to claim return of the acquired land on abandonment of the purpose of acquisition because it only provided that agricultural and pastoral land should in the first instance be offered to the original owners if its de-acquisition was decided by the Government.
It was not denied by the learned ASC for the appellants that the land sought to be returned by the appellants as successors-in-interest of the previous owners, was an urban land located in the center of the Municipal Area, Peshawar. It was also admitted that above referred Para 100, Para 66 and Saeed's case related to the agricultural and pastoral land. It was also admitted that the present case did not fall within the scope of the above referred provisions but the learned ASC for the appellants pleaded for applying the said provisions to the non-agricultural and non-pastoral lands as well.
No convincing reason or credible grounds could however be advanced for such a plea and no provision of law or principle of interpretation or precedent was shown to us to enlarge the provisions of above paras by stretching their applicability to non-agricultural and non-pastoral lands when the said provisions were circumscribed and confined only to the agricultural and pastoral lands.
Admittedly, the case of "Province of Punjab through Collector, Lahore and another vs. Saeed Ahmad and 4 others" (PLD 1993 SC 455) related to agricultural land acquired by the authority who decided and thus notified to restore the non-utilized part of such land to the original owners instead of selling the same through open auction or using the same for a notified public purpose. And this Court on threadbare analysis of the provisions of Paragraph 100 of Financial Commissioner's Order No. 28 and Paragraphs 493 to 495 of the Land Administration Manual concluded that:--
"A perusal of the above-quoted para, indicates that when agricultural or pastoral land has been permanently acquired for public purpose by any department of Government and is no longer required for such purposes, the disposal of the same shall be guided by the general considerations mentioned in Paragraphs 493 to 495 of the Land Administration Manual, hereinafter referred to as the Manual. It may further be noticed that Paragraph 493 of the Manual has two parts; the first part envisages that the land permanently acquired, which is no longer required, is to be handed over to the Deputy Commissioner of the district for disposal under the orders of the Commissioner, whereas, the second part of it lays down that as a matter of grace, Government is usually willing to restore agricultural and pastoral land to the persons from whom it was acquired or to their heirs on their refunding the amount paid as compensation less 15 per cent, granted for compulsory acquisition...........
If the competent authority decides to give the option to the previous owner of the land to have a portion of un-utilized acquired land, it will not violate the language or spirit of the above Paragraph. On the contrary, it will be equitable and just to give preference to the previous owners as compared to the strangers who may be interested in purchase of the above portion of un-utilized land.
........it may be stated that there is no doubt that the Government has the option either to put the land to auction or as a matter of grace, restore the same to the previous owner in terms of Paragraph 100 of the Order. It, therefore, must follow that a previous owner cannot compel the Government to restore the unutilized land as a matter of right. However, we may observe that the discretion vested in the Government under the above Paragraph is to be exercised fairly and reasonably, and not arbitrarily or capriciously. The present case stands entirely on different footing inasmuch as the competent authority decided to restore the unutilized land to the previous owners,.......
---------- There seems to be no prohibition in law for the Government to utilize land for any other public purpose than for which originally it was intended, so long as the action is bona fide........"
"9. -------------------an acquired land when no longer is required for the stipulated purposes, it may be disposed of by its return to the petitioners who are successors-in-interest of the last owner of the land. The Land Acquisition Act provides no specific scheme or formula for the disposal of the land when it was not required for the stipulated public purpose. Nevertheless, in such situation, it was desirable that it should be restored to the last owner either on payment of price assessed as compensation at the time of award or its market value or by an open auction, as it may be deemed expedient. In such respect, the discretion vested in the School authorities or Education Department or Ministry of Education or the Government, to come to the rescue of the petitioners by restoring necessary portion of the land to them to enable them to utilize their house, without any hardship or inconvenience. As the discretion primarily vested in the authorities mentioned above, this Court was not allowed to usurp the discretion of such authorities, by granting any relief in the case."
The case of "Muhammad Aslam Khan etc vs. Province of Punjab etc" (PLD 1979 Lahore 843) was a case where prior to completion of process of acquisition and award therein, the purpose for which the land was proposed to be acquired had been fulfilled. It was therefore, held that the impugned notification issued under Section 4 had lapsed and could not be given effect to and if the land under question was needed for another public purpose, the acquiring authority had the powers to issue fresh notification.
The above judgments were heavily relied upon by the learned ASC for the appellants with a rider that under Para 100, Punjab Government's offer of restoration depended entirely upon the good grace and discretion of the Government but he contended that in the Province of NWFP, the acquiring authority, on abandoning the purpose of acquisition, was bound under Paragraph 66 of NWFP Circular No. 54 to offer the same to the private owners. Learned ASC however, admitted that the above referred Para 100 and NWFP Para 66 identically applied only to agricultural and pastoral land and not to any other classification of land like non-agricultural, non-pastoral, urban, or town land etc; for which he neither referred to any provision of law or policy orders or scheme. It is also clear that on non-requirement of the acquired land for the purpose of its acquisition or on frustration or change or abandonment of such purpose, the decision will be that of the acquiring authority or the Government to use it for another public purpose or to return it to the original owners, who otherwise have no vested right to compel restoration of such land to them.
The case of Government of Sindh and others vs. Mst. Sirtaj Bibi and another" (PLD 2001 Karachi 442) was a case of withdrawal from the acquisition of the proposed land by the Government before the possession was taken over and not applicable to the case of the appellant.
The learned single Judge of the High Court had however held that the discretion primarily vested in the acquiring authorities to return or restore or de-acquire the property to the original owners and the Court could not usurp the discretion of authorities by ordering restoration or de-acquisition of the land.
"9. Section 16 of the Land Acquisition Act shows that on acquisition being completed the property vests in the Government free from all encumbrances. After such vesting the land acquired could be put to any use which the law authorizes and is relatable to public purpose or to statutory duties. In the case of "Union of India, New Dehli and others vs. Nand Kishore and another" (AIR 1982 Dehli 461) and "Secretary of State v. Amulya Charan Banerjee and others" (AIR 1927 Calcutta 874) such use has been held to be permissible. The precedents cited by the learned counsel for the appellant all relate to the stage where the proceedings for acquisition had not been completed, the land had not vested in the acquiring authority and before that the diversion of the public purpose had taken place. There the Court intervened to say that the diversion of the purpose demanded that the notification under Section 4 should issue de novo giving out the exact public purpose so that objections could be filed.----------"
"35A. Thirdly counsel argued that public purpose is a very wide term and the Government is entitled to change one purpose to another. We cannot accept this submission. Public purpose is the foundation of compulsory acquisition of land. Compulsory acquisition is the taking of land from the owner without his agreement. This can be done for a stated public purpose. S.6 (2) says that the Government has to declare the public purpose. The proceedings can be continued for that given public purpose. The only course open to it is to start fresh acquisition proceedings (sic). This was the view which the Punjab Division Bench took. I am in respectful agreement with this view.
Counsel referred us to Lajya Ram Kapur v. Dehli Administration. ILR (1972) Dehli 517 for the proposition that it is open to the Government to change the purpose at any time it liked. I do not agree. In Lajya Ram Kapur, Rangarajan J. relied on Baldev Singh v. State of U.P., AIR 1965 All. 433 and Secy. Of State v. Amulya Charan Banerjee, AIR 1927 Cal 874. These are cases where the land had vested in the Government. The Courts held that after vesting the Government can put the land to such purpose as it likes. From the Dehli decision it is not clear whether the land had vested in the Government in that case or not. The principle of law is, as I have said, this. There is a clear line of demarcation. On one side of the line are cases where the land had not vested in the Government. The Courts held that the Government cannot change the purpose and the acquisition is invalid. Jaipal Singh (supra) decided by the Punjab Division Bench vividly examplifies it. On the other side of the line are cases where the land had vested in the Government. The Courts held that the owner cannot come to Court for re-conveyance of the land on the ground that the Government is using his land for a purpose other than that for which it was acquired. The Supreme Court decision in Ghulam Mustafa (supra) is an illustration of this class of cases.
--------On taking possession private ownership will end and public ownership will begin. Long after the transference of property from private ownership to public ownership the acquiring authority can use it for any other purpose if the motive of the acquiring authority at the time of compulsory acquisition was pure."
In the present case on completion of acquisition process, the acquired land absolutely vested in the Provincial Government who in bona fide exercise of discretion could put the same to any other public purpose on abandonment or frustration or change or non-requirement of the land for the original purpose of acquisition. The acquired land was originally utilized for the object of acquisition and was so used for a period of forty years. On dis-investment of GTS, Peshawar, Government of NWFP through Notification No. Rev: V/MISC: Pesh: dated 1.10.2002 decided to utilize the acquired land for constructing and setting up a hospital. We have ben informed that the hospital after construction/completion was inaugurated on 31.3.2002 and was since functional providing health facilities to the general public.
In view thereof, we do no find any merit in this appeal. The same is accordingly dismissed with costs.
(A.A.) Appeal dismissed.
PLJ 2010 SC 1074 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
Ch. MUHAMMAD MUNIR and another--Petitioners
versus
ELECTION TRIBUNAL, MANDI BAHAUDDIN & others--Respondents
Civil Petitions Nos. 888 & 1270-L of 2007, decided on 13.5.2009.
(On appeal from the Orders dated 8.11.2007 & 29.6.2007 of the Lahore High Court, Lahore, passed in WP. Nos. 10998 & 2165 of 2007).
Punjab Local Government Election Rules, 2005--
----R. 12(4)--Disqualification of candidate--Principle of throw away votes--Applicability--Where the disqualification of a returned candidate was not known to the voters, the phrase throw away votes' of the electors would not be applicable for the simple reason that such disqualification was notnotorious' being not publically or generally known to the voters hence to hold in such a case that vacant seats on account of the disqualification of the returned candidates would be given to the contesting candidates for having secured second highest number of votes in such election, rather, the appropriate course in such eventuality would be to direct the Election Commission to hold fresh election on the vacant seats. [P. 1079] A
PLJ 2004 SC 463, 2000 SCMR 250, 2004 SCMR 1484, 2005 SCMR 1139, PLD 2003 SC 268 & PLD 2006 SC 1978, ref.
Administration of Justice--
----No proceedings in a Court of law exercising civil jurisdiction ipso facto can be defeated because of non-impleading of one of the necessary parties or proper party or impleadment of an improper petitioner or respondent as the case be and for that matter even if a necessary party having not been transposed as a co-petitioner in such proceedings or civil suit, the Court always enjoyed ample powers to transpose any of the respondent as co-petitioner and vice versa, in as much as, depending upon the nature of the cause, if it finds that lis can effectively be adjudicated upon without the transposition, the Court will be competent to decide the cause accordingly. [P. 1082] B
Malik Muhammad Qayyum, Sr. ASC and Mr. Arshad Ali Ch., AOR for Petitioners (in both cases).
Hafiz S.A. Rehman, Sr. ASC for Respondent Nos. 2 & 3 (in C.P. No. 888/2007).
Ch. Muhammad Anwar Bhinder, Sr. ASC for Respondent Nos. 3 & 4 (in C.P. 1270-L/2007).
Date of hearing: 21.4.2009.
Judgment
Raja Fayyaz Ahmed, J.--These civil petitions for have to appeal have been directed against the judgment dated 8.11.2007 & 29.6.2007 passed by the learned Lahore High Court, Lahore, whereby, Writ Petition No. 10998 of 2007 filed by petitioner Chaudhry Muhammad Munir and Writ Petitions Nos.2165 & 2654 of 2007 filed by the petitioner and Respondent No. 8 Tassadaq Hussain against the judgments of the Election Tribunals have been dismissed.
C.P.888 OF 2007.
The petitioner in this case and Respondent No. 4 Raja Muhammad Aslam contested the election in the year 2005 for Nazim and Naib-Nazim respectively of Union Council No. 112, Bhagnagar, Tehsil Sarai Alamgir, District Gujrat, whereas; Respondent Nos.2 & 3 namely, Ch. Ashaq Hussain & Mazhar Iqbal also contested the election of the office of Nazim & Naib Nazim respectively of the said Union Council. The petitioner and Respondent No. 4 as a result of the election were declared and notified as returned candidates for the office of the Nazim & Naib Nazim of the said Union Council respectively.
Respondents Nos.2 & 3 feeling themselves dissatisfied with the election result of the petitioner and Respondent No. 4 statedly being disqualified to contest the said election as validly nominated candidates, challenged the same by filing election petition before the election tribunal, Mandi Bahauddin. The petitioner and Respondent No. 4 filed separate contesting written statements. The election tribunal in the light of the pleadings of the parties framed issues. Both the parties produced oral & documentary evidence in support of their case and finally the Election Tribunal accepted the election petition of Respondents Nos. 2 & 3 vide judgment dated 2.11.2007, thereby declared the election of the petitioner and Respondent No. 4 as void and consequently, declared the Respondents Nos.2 & 3 as returned candidates for the offices of the Nazim & Naib Nazim of the said Union Council, to have been duly elected within the purview of Rule 12(4) Punjab Local Government Election Rules, 2005. The matter was referred to the Provincial Chief Election Commissioner, Lahore for further proceedings and safe custody of the record.
The petitioner feeling aggrieved from the judgment of the election tribunal filed writ petition before the learned Lahore High Court, Lahore challenging the judgment of the Election Tribunal, which was dismissed as abovesaid by the learned High Court.
On perusal of evidence, findings of facts have been recorded by the Election Tribunal in its judgment dated 2.11.2007 that the Matriculation Certificate of the petitioner Chaudhry Muhammad Munir Exh.P3 was a fake document provided by him with his nomination papers and thereby claimed to be qualified and eligible to contest the election for the office of the Nazim of the said Union Council. The Election Tribunal further noted that the original Matriculation Certificate produced marked as Exh.R1 was issued in favour of one Muhammad Munir son of Saeed Ahmad Sheikh having altogether the different parentage and the contentions raised by him that he is in possession of the genuine Matriculation Certificate and thus was qualified to contest the election could not be substantiated before the Tribunal. Also findings of facts have been recorded by the Election Tribunal in the light of the evidence adduced by the parties that Respondent No. 4 Raja Muhammad Aslam, had not furnished full and complete particulars of assets owned and possessed by him in his declaration made at the time of submission of his nomination form and thus, both the petitioner and Respondent No. 4 were disqualified to contest the election. The learned High Court after having taken into account the material pieces of evidence relating to the petitioner & Respondent No. 4 concluded vide judgment impugned herein that in exercise of Constitutional Jurisdiction detail examination of evidence cannot be made in view of the well reasoned order passed by the Election Tribunal.
CP NO. 1270-L OF 2007.
The learned Tribunal in the light of the evidence adduced by the parties before it, on appraisal of evidence and in the light of the issues concluded that the petitioner was disqualified to contest the election of the office of the Nazim of the said Union Council for having submitted incorrect declaration in respect of his assets in the prescribed form filed before the Returning Officer in violation of Rule 12(4) Punjab Local Government Election Rules, 2005 and thus disqualified to contest the election for the said office thereby, declared the election of the returned candidates for having jointly contested the election for the office of the Nazim & Naib-Nazim of the said Union Council respectively to be void; simultaneously, the other candidates having secured the next highest number of the votes namely; Malik Muhammad Iqbal Respondent No. 3 and Muhammad Iqbal Tahir Respondent No. 4 declared as elected for the said offices.
The learned High Court in the light of the contentions put forth on behalf of the parties and having taken into account the evidence adduced before the Election Tribunal found favour with the findings recorded by the Election
Tribunal, further concluded that the petitioner Chaudhry Muhammad Azeem could not take benefit of the plea that disqualification of the petitioner was not
notorious' on the principle ofthrow away votes' would not be applicable in the case for the reason that the said plea was not specifically agitated and taken in the written statements to the election petitions filed before the Election
Tribunal nor any evidence in such behalf was adduced before the Tribunal. The learned High Court thus, applying the principle of sinker in the light of the reported judgments in the case of Mian Ahmad Saeed and others v. Election
Tribunal for Kasur at Okara and 7 others (2003 SCMR 1611) & Sher Zaman Sher and others v, Jahanzeb Khan and others (PLJ 2004 SC 463) held that the petitioner and Respondent No. 8 since contested the election jointly for the office of the Nazim & Naib-Nazim of the said Union Council respectively will share the fate of the election equally and the disqualification of former will invalidate the election of the latter also. As a result of the above said declared position both the writ petitions were dismissed.
The learned counsel for the parties have been heard, Malik Muhammad Qayyum, learned Sr. ASC for the petitioner in both these petitions argued that he would not question the findings of facts recorded by the Election Tribunal nor argued the case on merits. He strenuously contended that in the given facts and circumstances of the case, the doctrine of throw away votes' in absence of positive evidence of the disqualification beingnotorious', the concerned respondents could not have been declared as elected respectively to the offices of Nazim &
Naib-Nazim of the said Union Council for having secured next highest votes in the election. The learned counsel for the petitioner maintained that the learned High Court has dealt with the matter in a slipshod manner and failed to attend to the question involved in the case as highlighted by him, which caused serious prejudice to the voters of the area who have thereby been deprived of their rights of franchise to which they were entitled. He further contended that the learned High Court failed to exercise jurisdiction in the matter, inasmuch as; essentially the relief to have been granted by making appropriate directions for holding of the fresh election to both the offices of the Nazims
& Naib-Nazims of the said Union Councils. To supplement his view point, reliance has been placed on a reported judgment i.e. Sh. Amjad Aziz v. Haroon
Akhtar Khan and 10 others (2004 SCMR 1484).
Hafiz S.A Rehman, the learned Sr. ASC for Respondents Nos. 2 & 3 submitted that the judgment passed by the Election Tribunal was not assailed in the writ petition by Respondent No. 4 Raja Muhammad Aslam who jointly contested the election with the petitioner, hence; he having accepted the same cannot be a beneficiary nor the petitioner for such reason would be entitled to question the judgment sought to be impugned through the instant petition for having jointly contested the election with Respondent No. 4 from the said Union Council and they both as such; have to sail or sink together. He placed reliance on (1) Shaukat Ali and another v. District Returning Officer and another (PLD 2006 SC 78), (2) Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others (2004 SCMR 1484), & (3) Sardar Muhammad Amir Khan v. Nadeem Akhtar & others (2007 SCMR 1044).
Ch. Muhammad Anwar Bhinder, the learned Sr. ASC for Respondent Nos. 3 & 4 argued that the Miscellaneous Application No. 1547 of 2008 submitted before this Court for transposition of Tasadaq Hussain Respondent No. 8 as co-petitioner in the case having not been allowed, consequently rendered the instant petition as not maintainable and incompetent because the petitioner and Respondent No. 8 have to sail and sink together on account of their joint election to the office of the Nazim & Naib-Nazim of the said Union Council respectively. Further, the learned counsel argued that Respondent No. 8 cannot be transposed as a co-petitioner as he having accepted the judgment of the High Court did not further challenge the same nor there could be any legitimate justification for such transposition. He also contended that the principle of notoriety is not applicable in the case, therefore, in view of the Rule 12(4) Punjab Local Government Election Rules, 2005 for filing incorrect statements of assets, fresh election for the seats of Nazim & Naib-Nazim of the said Union Council could not have been ordered for being a simplicitor technical violation of the rule thus, the impugned judgment is unexceptionable. To supplement his view point the learned counsel has placed reliance on the judgments reported in (1) Wali Muhammad and others v. Raja Muhammad and others (1978 SCMR 415), (2) Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others (2003 SCMR 1611), (3) Muhammad Sadiq and others v. Ali Asqhar Khan and others (1995 CLC 1529), (4) Ghulam Siddique v. Collector Land Acquisition and others (1996 MLD 1399), (5) Muhammad Abid Hassan and others v DRO and others (PLD 2005 Lahore 712), (6) Sheikh Muhammad Akram and another v. Sheikh Muhammad Yaqub and others (PLD 2006 Lahore 24) & (7) Sher Zaman Sher and others v. Jehanzeb Khan and others (PLJ 2004 SC 453).
The contentions put forth on behalf of the parties learned counsel have been considered in the light of the impugned judgments passed by the learned
High Court, the Election Tribunals in both the matters and the case law cited during the course of arguments, have been gone through carefully. It is an undisputed feature of the case that in both the petitions it has not been disputed on behalf of the contesting respondents that principle of throw away votes' is not attracted because of the disqualification being notnotorious' and further it is an admitted position on record that it was nobody's case before the Election Tribunals that the said disqualification of the returned candidates was known to the electors or they knew about the facts relating to the disqualification of candidates at the time of the filing and acceptance of their nomination papers by the Returning Officer. In a number of authorities consistently it has been held by this Court that where the disqualification of a returned candidate was not known to the voters, the phrase throw the votes' of the electors would not be applicable for the simple reason that such disqualification was notnotorious' being not publicly or generally known to the voters hence to hold in such a case that vacant seats on account of the disqualification of the returned candidates would be given to the contesting candidates for having secured second highest number of votes in such election, rather; the appropriate course in such eventuality would be to direct the
Election Commission to hold fresh election on the vacant seats. For convenience, the consistent view of this Court quoted above, to come into operation as per reported judgments, out of which for instance a few for convenience can be referred i.e. of (1) Iqbal Zafar Jhaqra v. Khalilur
Rahman (2000 SCMR 250), (2) Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others
(2004 SCMR 1484), (3) Muhammad Boota v, Election Tribunal and others (2005 SCMR 1139), (4) Ellahi Bakhsh v. District & Sessions Judge/Election Tribunal and others (PLD 2003 SC 268), & Shaukat Ali v. District Returning Officer (PLD 2006 SC 1978).
Hafiz S. A Rehman, the learned counsel for Respondents Nos. 2 & 3 in CP No. 888/2007 was of the view that respondent Raja Muhammad Aslam who jointly contested the election with the petitioner did not challenge the judgment passed by the Election Tribunal in writ petition, hence; he having accepted the same cannot be a beneficiary nor the petitioner for such reason would be entitled to take any benefit for having contested the election jointly, hence; they both have to sink together whereas; in the connected Petition No. 1270-L/07 the learned counsel for Respondent Nos. 3 & 4 argued that Miscellaneous Application for transposition of Tassadaq Hussain Respondent No. 8 as co-petitioner in the case having not been allowed, rendered the instant petition as incompetent because the petitioner and Respondent No. 8 have to sail and sink together on account of their joint election. Thus, the respondent having accepted the position even did not approach to this Court, therefore, the petitioner and the Respondent No. 8 have to sink together.
notorious' the principle ofthrow away votes' would not be applicable and thus appropriately, fresh election of the vacant seats can legitimately be ordered but to this an exception has been raised that besides the petitioners in both the cases, the returned candidates other than the Nazims since did not challenge the judgments passed in these cases by the learned High Court consequently, the petitioners, as well as; the respondents who held office of the Naib-Nazims of the Union Councils have to sink with the petitioners and could not be beneficiary of the non-application of the followed principle though their disqualifications being not notorious'.
As has been held by this Court in a chain of authorities in various cases of which a few have been mentioned above, have to be taken and understood in their actual basic context that the electors/voters can not be deprived of their rights to franchise provided the disqualification of a returned candidate was found to be notnotorious' thus, having examined the same in its underlying perspective, it can be safely concluded that in a case of disqualification of a returned candidate having not been found to be not notorious' invariably fresh election on the vacant seats to be held though the disqualification may relate to the concealment of any fact required to be correctly and truly given in the prescribed declaration filed with the nomination paper by a candidate or affect to his candidature as a validly nominated candidate or to his eligibility to contest the election, therefore, in absence of any mandate provided by the law or under the Punjab Local Government Election Rules, 2005 it cannot be claimed with inflexibility where the disqualification was notnotorious' for any act or omission, the other candidates who contested the election having secured 2nd highest votes to be declared as elected to the vacant seats without any exception, seems to us to be not a just and correct approach to the issue without looking into the facts and circumstances of each case warranting otherwise.In the case of petitioner Ch. Muhammad Munir, he was found to have furnished a fake Matriculation Certificate to the Returning Officer to show his eligibility for contesting the election to the office of the Nazim of the Union Council. Consequently, the Election Tribunal on appraisal of evidence adduced by the parties before it found the petitioner to have not been eligible at the time of filing of the nomination paper to contest the election, as well as; Respondent No. 4 Raja Muhammad Aslam having furnished incomplete particulars of assets owned and possessed by him in his declaration form submitted with his nomination paper and thus the petitioner & Respondent No. 2 were found to be disqualified to contest the election, thereby, the Tribunal accepted the Election Petition, declared the petitioner and the said respondent's election as void consequently, respondents Ch. Ashaq Hussain and Mazhar Iqbal for having secured the highest number of votes in the Election declared as elect candidates to the vacant seats.
In this case the High Court failed to exercise the jurisdiction by not examining the question apparent on the face of the record that the disqualification of the petitioner and Respondent No. 4, Raja Muhammad Aslam was not notorious' and thus the phrasethrow away votes' was not applicable and as to whether Respondents No. 2 & 3 were entitled to have been declared as the candidates elect respectively on the seats which fell vacant on account of the disqualification of petitioner and Respondent No. 4.
In C.P. No. 1270-L of 2007 main thrust of the argument advanced on behalf of the contesting respondents was that since Respondent No. 8 Tassadaq
Hussain has not been transposed as co-petitioner for there being no justification to do so, as the said respondent having not challenged the decision of the Tribunal before the High Court amounts to the acceptance of the same, rendered this petition as incompetent, moreover; the disqualification of the returned candidates has since been found to be though not notorious' but only a violation of the rules which rendered them as disqualified, therefore, no exception can be taken to the impugned judgment. It is worth while to note that these contentions revolve around and relate to the conduct of Respondent
No. 8 for having not challenged the judgment of the Election Tribunal in writ jurisdiction nor even before this Court hence; the petitioner and the said respondent in view of their election being joint, have to sink together; in our opinion would amount to penalize the electors and to deprive them of their rights to vote against vacant seats of the Union Council. The arguments put forth on behalf of the respondent learned counsel in both the petitions if allowed to prevail would mean that one of the successful joint candidates by his conduct could obstruct and frustrate the legitimate course of holding fresh election on the seats which fell vacant on account of the disqualification of the returned candidates for being though not anotorious' disqualification which course, we find to be not permissible. Also for the added reason that no proceedings in a Court of law exercising civil jurisdiction ipso facto can be defeated because of non-impleading of one of the necessary parties or proper party or impleadment of an improper petitioner or respondent as the case be and for that matter even if a necessary party having not been transposed as a co-petitioner in such proceedings or civil suit, the Court always enjoyed ample powers to transpose any of the respondent as co-petitioner and vice versa, in as much as; depending upon the nature of the cause, if it finds that lis can effectively be adjudicated upon without the transposition, the Court will be competent to decide the cause accordingly. These petitions for the above reasons could not be treated as incompetent in view of the vested interests of the voters of the Union Councils, who by means of the impugned judgments have been deprived of their rights to vote for the candidates of their choice under the law. The default on the part of returned candidates of their acts and omissions would not impeach the voters to exercise their rights to vote nor the
Court in exercise of the powers vested in it under the Constitution for doing complete justice would feel deterred to pass proper orders and to issue directions. It is pertinent to note that Civil Miscellaneous Application No.
1547 of 2008 filed in C.P. No. 1270-L of 2007 has not been rejected by this
Court which remained un-disposed of.
Thus, in view of the above discussion and reasons, both these petitions are converted into appeals and accordingly allowed with no orders as to costs. The Election Commission of Pakistan is directed to take necessary steps to conduct fresh election of the vacant seats of the offices of Nazims & Naib-Nazims of both the Union Councils.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 1083 [Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman, Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhri, JJ.
MUHAMMAD AKBAR alias AKKU--Petitioner
versus
STATE--Respondent
Jail Petition No. 42(S) of 2008, decided on 29.4.2009.
(On appeal against the judgment dated 15.7.2008 passed by the Federal Shariat Court in Crl. A-108/2001/M.R. No. 2/E of 2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 300, 302 & 377--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 12--Offence of unnatural lust--Quantum of sentence--Culpable homicide not amounting to murder--Conviction & sentence of death for offence u/S. 12 of Offence of Zina, imprisonment for life u/S. 377, PPC, sentenced to death u/S. 302(b), PPC--For committing sodomy with a 15 years old mentally retarted boy--Lost his life due to injuries caused to him during sexual intercourse--Question of--Held: Intention of the accused was to satisfy unnatural lust with the victim, without having any intention to cause his murder--Act of the petitioner amounts to culpable homicide not amounting to murder covered by Exception, 4 of Section 300 (old) PPC--Conviction of the petitioner was altered from offence u/S. 302(b), PPC to offence u/S. 302(c), PPC, and sentence is reduced to 14 years R.I.--Convictions and sentences recorded u/S. 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and u/S. 377, PPC were maintained--However sentences were reduced in both the offences to 14 years R.I.--Petition converted into appeal, partly allowed. [Pp. 1086 & 1087] A & B
PLD 1996 SC 274, ref.
Mr. Hafiz Aman, ASC for Petitioner.
Mr. Shabbir Lali, DPG. Pb. for State.
Date of hearing: 29.4.2009.
Order
Muhammad Farrukh Mahmud, J.--This petition, seeking leave of this Court, is directed against the judgment dated 15.07.2008 handed down by learned Federal Shariat Court in case FIR No. 275 of 1996, registered at Police Station, City, Hafizabad, on 05.07.1996 for offence under Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with offences under Sections 377 and 302 PPC, whereby the appeal filed by Akbar-petitioner was dismissed, and the convictions and sentences recorded by the learned trial Court, which were as follows, were confirmed:--
(i) The petitioner was convicted for offence under Section 12 of offence of Zina and was sentenced to death.
(ii) He was convicted for offence under Section 377 PPC and sentenced to imprisonment for life, fine of Rs. 20,000/- was also imposed upon the convict in default to payment thereof the convict was to suffer 6 months S.I.
(iii) He was also convicted for offence under Section 302(b) PPC and sentence to death. He was also to pay compensation of Rs. 50,000/- to the legal heirs of the deceased in default of payment thereof he was to suffer 6 months S.I.
The case was registered on the statement of Muhammad Suleman Shahid (PW-8) father of deceased Imran Munnoo. The relevant facts are that Imran deceased S/o complainant was mentally retarded. On 30.06.1996 he was playing outside his house when Akbar-appellant who also lived in the same Mohallah, took away Imran-deceased to a deserted place and committed sodomy with him. Due to the act of the petitioner Imran-deceased fainted and after coming into senses narrated the incident to his father, who reported the matter to the police.
Due to the act of the petitioner the deceased received serious injuries, he was admitted in the hospital, unfortunately he could not survive and died on 06.07.1996, due to injuries.
During trial prosecution examined 12 witnesses in support of its case. Muhammad Suleman Shahid (PW-8), father of the deceased, appeared before the learned trial Court and stated in accordance with the FIR. Muhammad Akram (PW-4) stated that on the fateful day i.e. 30.06.1996 he saw Imran-deceased in the company of Akbar-petitioner. Muhammad Ashraf (PW-5) corroborated the statement of PW-4. Dr. Shaukat Mumtaz (PW-6) stated that he conducted postmortem examination on the dead body of Imran who was aged about 15 years. His opinion is being reproduced as under:
"In my opinion the cause of death in this case was due to cardio-respiratory failure as a result of septicaemia due to peritonitis which in turn occurred as result of intestinal obstruction leading to perforation as a result of trauma and inflamation to anal canal and rectum that proved fatal and sufficient enough to cause death in ordinary course of nature. Time between injury and death was about one week, while time between death and postmortem examination was from 12 to 18 hours.
This PW also examined the petitioner on 19.07.1996 and found him fit to perform sexual intercourse.
Dr. Capt. Muhammad Arif (PW-2) stated that he examined Imran on 02.07.1996 for sodomy test. His findings are being reproduced as under:--
"2. On examination the posterior wall of inner canal had an abraded contusion, 1 cm X 4 cm in size. It was tender and slightly swollen. Three anal swabs were taken, sealed in a bottle and handed over to the said Zahoor Abbas 133/C of P. S. City Hafizabad.
There was no other mark of injury on the body of said Muhammad Imran. The opinion was not declared and was deferred till the receipt of report of Chemical Examiner Punjab, Lahore.
The probable duration of injury was about 2 to 3 days Bx.P.B is the correct carbon copy of my medicollegal examination which is under my hand signature and seal of the office.
The report of the Chemical Examiner Ex.P.C. was received which I have perused and according to the said report Ex.P.C. the swabs sent for chemical examination were found with stained with semen.
Opinion.
In view of the report of the Chemical Examiner Ex.P.C. in my opinion the act of sodomy was committed with above-mentioned Imran.
In his statement recorded under Section 342 Cr.P.C. the petitioner claimed to be innocent and stated that he was involved in the case due his enmity with the complainant. The petitioner did not appear in his defence under Section 340(2) Cr.PC nor produced any defence evidence.
The learned counsel appearing on behalf of the petitioner, after arguing the case at some length, summed up his argument by praying that the petitioner did not deserve the capital punishment in the circumstances of the case.
Conversely it has been argued that the petitioner did not deserve any leniency who subjected a 15 years old boy to sodomy which caused his death. It was further argued that the petitioner was rightly sentenced to death as the victim was mentally retarded.
We have heard the learned counsel for the parties and have scanned the record of the case. The statement of PW-8 who is unfortunate father of the deceased is based on the statement of deceased himself which he made before his father while he was injured and had been subjected to sodomy. No reason exists to doubt the statement of PW-8 which is fully supported by the medical evidence and corroborated by the circumstances of the case. There is nothing on record to show as to why complainant and victim should depose against the petitioner. The prosecution has proved its case through reliable evidence against the petitioner beyond any doubt.
Having come to this conclusion we have given our anxious thought to the quantum of sentence. Admittedly, Imran lost is life due to injuries caused to him during sexual intercourse. It is no body's case that the petitioner was armed or caused any injury with a weapon to the deceased at the time of occurrence. The circumstances of the case lead to the conclusion that the intention of the petitioner was to satisfy unnatural lost with the victim, without having any intention to cause his murder. The act of the petitioner amounts to Culpable Homicide not amounting to murder covered by Exception, 4 of Section 300 (old) PPC. The exceptions given in Section 300 (old) PPC can be looked into by us. The judgment of this Court in the case of Ali Muhammad vs. Ali Muhammad and another (PLD 1996 SC 274) is referred to on this context. The relevant Para of the judgment is being reproduced:--
"29. The new Section 302 itself divides Qatl-i-Amd, for purposes of punishment into three categories:
(1) Qatl-i-Amd which is punishable with death as Qisas;
(2) Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and
(3) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qarl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of Section 302, keeping in mind the majority view in Gul Hassan Case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old Section 300, P.P.C. read with the old Section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new Section 302 of the P.P.C."
(M.S.A.) Appeal partly allowed.
PLJ 2010 SC 1087 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed & Jawwad S. Khawaja, JJ.
ZAFAR IQBAL--Petitioner
versus
MUHAMMAD ANWAR and others--Respondents
Crl. P. No. 300 of 2009, decided on 1.7.2009.
(On appeal from the judgment/order dated 15.4.2009 passed by Islamabad High Court, Islamabad in Crl. Misc. No. 81-BC/2009).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Bail, grant of--Non-prohibitory clause--Held: Where offence falls within the non-prohibitory clause, consider favourably by granting bail as a rule but decline to do so in the exceptional cases--As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case. [P. 1090] A
PLD 1995 SC 34 & 2002 SCMR 1797 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 489-F--Bail, grant of--Remained in jail for a period of six months--No legal justification--An accused, charged for a criminal offence, ordinarily cannot be kept into custody for the purpose of punishment--Accused had already remained in jail for a period of six months and if the prosecution failed to establish guilt against him, his longer detention would cause him loss and his liberty would be curtailed for a considerable period without any legal justification. [P. 1091] B
Bail--
----Scope--Under the non-prohibitory clause as well, an accused cannot claim bail as a matter of right but such facility can be extended to him as a matter of concession, simultaneously, keeping in mind the fact that the petitioner had already returned a huge portion of amount received by him from the complainant--Since the civil litigation had already commenced at the behest of the respondent who had filed a suit for recovery of the amount against the petitioner--Bail was allowed. [P. 1091] C
PLD 1995 SC 34 & 2002 SCMR 1797, ref.
Mr. Haroon-ur-Rashid, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Mr. Nazir Ahmed Bhutta, ASC and Ch. M. Akram, AOR for Respondent No. 1.
Ch. Tariq Mehmood, Addl. Prosecutor for State.
Date for hearing: 26.6.2009.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition is directed against the judgment dated 15.04.2009 passed by Islamabad High Court, Islamabad whereby Cr. Misc. No. 81-BC/2009 filed by the Respondent No. 1 was allowed and the post arrest bail allowed to the petitioner vide order dated 30.09.2008 by the High Court was recalled.
Precisely stating facts of the case are that an FIR No. 124 dated 14.04.2006 was registered with Police Station Margallah, Islamabad under Section 489-F PPC, against the petitioner Zafar Iqbal on the complaint of the Respondent No. 1 Muhammad Anwar, to the effect that the petitioner issued a cheque of Rs.400,000/- (four lacs), which was dishonoured from the bank on presentation. On registration of the case, the petitioner applied for post-arrest nail before the Civil Judge-cum-Judicial Magistrate, Islamabad which was dismissed vide order dated 17.06.2006. Feeling aggrieved, the petitioner approached the learned Sessions Judge, Islamabad, with the same request, which met the same fate. The petitioner challenged the said order before the Lahore High Court, Rawalpindi Bench, Rawalpindi by filing Cr. Misc. No. 1072-B of 2006, which was accepted and petitioner was conditionally allowed interim bail on 18.10.2006, which later on was confirmed vide order dated 29.11.2006 in terms of undertaking by the petitioner that the amount due to the Complainant/Respondent No. 1 i.e. Rs.1800,000/- (eighteen lacs) shall be paid in equal installments of Rs.900,000/- each, on 04.01.2007 and 04.02.2007. Afterwards, the petitioner failed to pay the outstanding amount, as result whereof the Respondent No. 1 moved an application for cancellation of bail before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was disposed of in view of the agreement dated 11.02.2008 whereby the petitioner undertook to pay an amount of Rs. 700,000/- (seven lacs) through pay order dated 13.02.2008 and the remaining amount of Rs. 1,100,000/- (eleven lacs) within next three months. The bail granted to the petitioner ultimately was cancelled vide order dated 30.07.2008. Thereafter, the petitioner again applied for grant of bail after arrest before the Islamabad High Court by way of filing Cr. Misc. No. 312-B of 2008, which was allowed vide order dated 30.09.2008 and the petitioner was admitted to bail, for the reason that he has paid Rs.700,000/- (seven lacs) in cash to the Respondent No. 1 (acknowledged by the Respondent No. 1) and gave the undertaking that the balance of Rs. 1,100,000/- (eleven lacs) shall be paid within three months.
It may be noted that the petitioner again failed to comply with his undertaking, resultantly the Respondent No. 1 moved Cr. Misc. No. 81-BC/2009 for cancellation of bail, already granted to the petitioner. The learned High Court, on the request of the petitioner adjourned the matter twice to settle the matter amicably, with the direction that no further adjournment would be allowed. However, on third date of hearing, no one appeared on behalf of petitioner. Resultantly, the petition was allowed by means of impugned order dated 15.04.2009 on merits and on account of petitioner's failure to attend the Court, whereby the post-arrest bail allowed to him vide order dated 30.09.2008 was recalled. Hence this petition.
Learned counsel contended that the petitioner had already spent about 6 months in Jail, against the maximum sentence of 3 years under Section 489-F PPC, therefore, being allegedly involved, his case falls within the prohibitory clause of Section 497 Cr.P.C, as such he is entitled for release on bail because in such like cases grant of bail is rule whereas denial is exception. He further stated that the Courts have to decide the case following the principle of law, without considering the amount involved in the case, like falling within the mischief of Section 489-F PPC.
On the other hand, learned counsel for the complainant argued that the petitioner despite furnishing undertaking, failed to comply with the same, therefore, the High Court had rightly re-called the concession of bail granted to him. He further explained that the petitioner had entrusted huge amount to him for the purpose of running business but he had deceived him by mis-appropriating the amount in clandestine manner as evident from the facts of the case. The complainant explained to him that he had given the amount to the petitioner for the purpose of investment and after sometime he had also given him profit but lateron stopped the payment, therefore, he filed a complaint against him because a cheque issued by him was dishonored. Further, the undertaking to return the money was also violated therefore, he had filed a suit for recovery of his money and had also lodged a criminal case against him as well.
Learned Addl. Prosecutor General supported the impugned order of the High Court.
We have heard the learned counsel for the parties and have also examined the record, so made available, carefully. A perusal whereof suggests to draw inference that there was no business deal between the parties and the amount of Rs.400,000/- was initially given by the complainant to the petitioner for making investment and giving him profit of the same but at the time when he failed to make the payment of profit for one or the other reasons, he got registered a case against the petitioner. As far as Section 489-F PPC is concerned it prescribes sentence of 3 years. The Courts, in such like cases where offence falls within the non-prohibitory clause, consider favourably by granting bail as a rule but decline to do so in the exceptional cases. As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case. Reference may be made to the case of Tariq Bashir and 5 others vs. The State (PLD 1995 SC 34) wherein it has been mentioned that "Section 497 Cr.PC. divided non-bailable offence into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years; the principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception; so the bail will be declined only in extraordinary and exceptional cases, for example :--
(a) where there is likelihood of abscondance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict."
This principle has also been reiterated in the case of Subhan Khan vs. The State (2002 SCMR 1797).
It is also one of the important aspects of the case that an accused, charged for a criminal offence, ordinarily cannot be kept into custody for the purpose of punishment. As in the instant case the petitioner had already remained in jail for a period of six months and if the prosecution failed to establish guilt against him, his longer detention would cause him loss and his liberty would be curtailed for a considerable period without any legal justification.
We may further observe that under the non-prohibitory clause as well, an accused cannot claim bail as a matter of right but such facility can be extended to him as a matter of concession, simultaneously, keeping in mind the fact that the petitioner had already returned a huge portion of amount received by him from the complainant. Since the civil litigation had already commenced at the behest of the respondent who had filed a suit for recovery of the amount against the petitioner, we are inclined to grant him bail under the facts and circumstances of the case narrated herein above. These are the reasons of our short order dated 26-6-2009 which is reproduced as under:--
"For the reasons to be recorded later, petitioner is ordered to be released on bail subject to furnishing surety bond in the sum of Rs. 1,00,000/- and PR in the like amount to the satisfaction of the learned trial Court. Learned trial Court is directed to complete the trial of the case within four weeks. Abdul Sattar S.I./Investigating Officer, present in Court, is directed to produce all the witnesses before the trial Court at his own responsibility. No adjournment shall be granted unless otherwise unavoidable and the compliance report shall be sent to the Registrar for our perusal in Chambers. Petition is converted into appeal and allowed in the above terms"
(M.S.A.) Appeal allowed.
PLJ 2010 SC 1092 [Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmud & Mahmood Akhtar Shahid Siddiqui, JJ.
NAZIR SHEHZAD and other--Appellants
versus
STATE--Respondent
Crl. Appeal No. 95 and 96 of 2007, decided on 11.5.2009.
(On appeal against the judgment dated 28.11.2001 passed by the Lahore High Court, Lahore in Crl. A. No. 218-J/1999 in M.R. No. 518-T of 1999).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 40--Pakistan Penal Code, (XLV of 1860), Ss. 365-A & 201--Appreciation of evidence--Discovery based on information furnished by accused led to recovery of dead body--Information furnished by appellant to I.O. can be used against them under Art. 40 of the Qanun-e-Shahadat Order, 1984--Where there has been discovery as a result of confession made under Art. 40 of the Qanun-e-Shahadat Order, 1984, it is expected to find the discovery of something which can be associated with the deceased--Mere plurality of information received before discovery shall not necessarily take any of these informations out of the Section--In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery--Appeals dismissed. [P. 1098] A
AIR (29) 1942 Calcutta 593 & 1968 P.Cr.LJ 221, ref.
Ch. Muhammad Akram, ASC for Appellant (in Crl. A. No. 95 of 2007).
Mr. Naeemul Hassan Sherazi, ASC for Appellant (in Crl. A. No. 96 of 2007).
Ms. Rukhsana Malik, Addl. PG. Pb. a/w Ch. Akhtar Ali, AOR for State.
Date of hearing: 11.5.2009.
Judgment
Muhammad Farrukh Mahmud, J.--These appeals, by leave of this Court, are directed against judgment dated 28.11.2001 handed down by learned division bench of Lahore High Court, Lahore in case FIR No. 106 registered at Police Station Nasirabad, on 21.04.1998 for offences under Section 365-A PPC, 320 PPC and 201 PPC, whereby the appeals were dismissed and convictions and sentences, recorded by the learned trial Court vide judgment dated 19.11.1999, as given below were up held and maintained:--
"Samar Jan William, appellant death under Section 302(B) PPC and to pay compensation of Rs. 1,00,000/-, in default of payment of fine to undergo RI for 2 years, Death under Section 365-A, PPC, 7 years RI and to pay a fine of Rs. 2,00,000/- in default 6 months RI u/S. 201 PPC.
Nazir Shahzad appellant Death and to pay compensation of Rs. 1,00,000/-, in default 2 years RI, u/S. 302(b) PPC.
Death under Section 365-A, PPC, 7 years RI and to pay a fine of Rs.20,000/- in default six months RI u/S. 201 PPC"
After completion of investigation both the appellants were sent up to face trial. During trial prosecution produced 13 witnesses in support of its case. The complainant appeared as PW 9 and stated in accordance with the facts given in the FIR. Thereafter he gave the details of the developments which took place after the registration of The case, by stating that his friend Banjumen had given him mobile telephone which had facility of CLI, and that his friend Shehzad had given him a room in his building where he and his wife attended to the phone calls turn by turn. As soon as the accused persons contacted on the phone the Police Officer present there watched the number and tried to search the accused by finding out the place from where the call was made. He further stated that on 01.05.1998 he received telephone call from the accused who demanded Rs. 1,00,000/- as ransom and directed him to reach Dalgaran Chowk alongwith ransom money. The accused threatened that if ransom amount was not paid to them they would kill his son Junaid Jabbar. The accused also warned him that he should not inform the police. Thereafter the complainant put ransom amount in a brown envelope and reached Police Station alongwith Zaigum Waseem (PW-10) and S.A. Pervaiz. The ransom amount consisted of two currency notes of denomination of Rs. 1000/- and 98 non-genuine notes of the same denomination. Rao Jameel I.O. (PW-13) after hearing the complainant and his companions signed the two genuine currency notes and formulated the raiding party. The complainant was followed by police party. The complainant went alone to Dalgaran Chowk where Nazir Shehzad appellant met him who took the packet containing ransom money from the complainant and put it in the right pocket of his trouser. On inquiry of the complainant about his son, Nazir Shehzad stated that son of the complainant would be handed over after payment of full ransom and walked away after extending threats to the complainant. After some time both the appellants were arrested by the police and within the presence of the complainant, the ransom amount was recovered from Nazir Shehzad vide memo. Ex.PG. At the same time, the Scooter which was being used by both the appellants, after changing its number plate was taken into possession. On the same date, in the evening the complainant identified the dead body of his son Junaid Jabbar which was lying at the mortuary at Mayo Hospital. The complainant also identified the shoes, belt and burnt trouser of the deceased. Zaigum Waseem (PW-10) who is brother of the wife of the complainant stated about the abduction of Junaid Jabbar for ransom and corroborated the events narrated by complainant which happened on 01.05.1998. He further stated about the recoveries affected at the instance of appellants. Dr. Shakeel Ahmad (PW-2) stated that he had conducted postmortem examination on the dead body of Junaid Jabbar at 5:30 p.m. on 01.05.1998. His statement is being reproduced as under:-
"On 1.5.98 I was posted as Demonstrator in the Department of Forensic Medicine and Toxicology, when I was directed to conduct the post mortem of deceased Junaid Jabbad s/o Jabbar caste Christian r/o Uhna Abad Ferozpur Road Cander Garten School Lahore. It was a skeltionised, putrified dead body of a young adult male brought by Headconstable Abdul Rashid No. 5168 and PC Umer Farood No. 9154 and identified by Zagham Waseem s/o Latif Bhatti and Jabbar s/o P. Ditta caste Christian. Post mortem was conducted vide DD No. 7930 issued by RSP/SP-MT Lahore, dated 1.5.98 vide police papers. Time on death was 1.5.98. Post mortem was conducted on 1.5.98 at 5.30 p.m.
EXTERNAL APPEARANCE.
A skeltinised putrified deadbody of a young adult male recongnized by above mentioned idnentifires as Junaid Jabbar from the belonging on the deadbody i.e. a black burnt half pent muddy with black muddy burnt shrinken belt with steel buckle present. Brownish black boots with laces both muddy. This was a headless skeltionised deadbody having present length 157 cm without had. No soft tissue was present skeltinised body appear to be of 18 years. Bones were burnt and muddy.
CRANIUM AND SPINAL CORD.
(1) Scalp and skull, membranes brains were absent.
(2) Vertebrae, spinal cord, stated.
THORAX.
Walls, ribs and cartilages-stated.
(3) Rest of the organs in the whest cavity were absent.
ABDOMEN.
All the organs were absent.
DETAIL OF SKELTIONISED BODY.
(1) Skelton was incomplete. It was a human deadless skelton of a male deadbody.
(2) Skelton was incomplete.
(3) Both humerous bones were present with burnt ends.
(4) Both scapula bones were present.
(5) No. hyoid bone was present.
(6) Sternum was present, broken into pieces in the chest cavity.
(7) All the ribs were present and detached from its attachment to the sternum. The tips of the bones(ribs) were burnt.
(8) Starting from 5th ceryical vertebra till soorem, all vertebras were present but had lose attachment with each other easily separable by simple handling.
(9) Pelvic bones were present and were of a male deadbody.
(10) Both femur bones were present.
(11) Both Tibia and fibula on the right side were present but were separate from its attachment at the ankle joint.
(12) Foot-both-bones were present in the boots with no soft tissues on them.
OPINION.
Autopay findings are consisting with the skeltionized, putrified deadbody of an adult male. Deadbody is an advanced stage of putrification. Due to absence of soft tissues and advanced stage of putiefaction, it is not possible to comment on the exact cause of death.
Probable time between injury and death-not known. Between death and post mortem 15-20 days. After post mortem the deadbody alongwith cloths, last worn alongwith carbon copy of post mortem report, police papers, all signed and handed over to the police. Ex.PA is the correct caroon copy of which is in my hand and signed by me. Ex.PA/1 and PA/2 are the pictorial diagrams."
After the closure of the prosecution case, the statements of both the appellants were recorded under Section 342 Cr.P.C. Both of them claimed to be innocent, however that did not appear in their defence under Section 340(2) Cr.P.C and did not lead any defence evidence.
Conversely it has been argued that the prosecution proved its case through independent and reliable evidence and that the PWs had no previous enmity with the appellants and that the confession recorded by the magistrate was fully corroborated by the remaining evidence and that both the learned Courts below had correctly convicted and sentenced the appellants who deserved no sympathy.
(a) PW 11 admitted that after recording the statements of the accused he handed the accused back to the police.
(b) Perusal of the confessional statements Ex.PM and Ex.PN reveals that before recording the statements of the accused they were not informed, that they would not be handed over back to police whether they confessed or not.
Above noted circumstances were over looked by the learned Court below which wrongly relied upon the confessions.
The evidence of PW 7 is also not reliable as he did not know the accused previously and no identification test was held after the arrest of the accused in order to ascertain the identity of the accused by PW 7.
Having rejected, above noted pieces of evidence, we have considered and scrutinized the remaining prosecution evidence, in depth. PW 13 stated in clear terms that, after arrest of the accused he firstly interrogated Samar Jan and later on he interrogated Nazir Shehzad. Both the appellants, who were separately interrogated, informed the I.O. about the place i.e. Rohi Nala in the area of Police Station Kahna, where they had thrown the dead body. This discovery based on the information furnished by the appellants led to the recovery of dead body from the Nullah. There is no doubt about it that prior to information furnished by the appellants the whereabouts of dead body were not known to any one. The information furnished by the appellants to the I.O. can be used against them under Article 40 of Qanun-e-Shahadat Order, 1984. As in a case of circumstantial evidence where there has been discovery as a result of confession made under article 40 of the Qanun-e-Shahadat Order, 1984, it is expected to find the discovery of something which can be associated with the deceased.
The mere plurality of information received before discovery shall not necessarily take any of these informations out of the section. In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery, so was held in the case of Naresh Chandra Das and another Vs. Emperor (A.I.R. (29) 1942 Calcutta 593).
It was held by this Court in the case of Sher Muhammad Vs. The State (1968 P.Cr J 221) as follows:--
"In the absence of any explanation by the accused as to how he came to have knowledge of the dead body in the disused well, it may fairly be presumed that he was the person who had thrown the body in a dismembered state into the well."
The medical evidence supports the prosecution case that Junaid Jabbar was done to death and his death was not natural. The statement of the doctor also reveals that the dead body was that of a 18 years old boy which was duly identified by PW 9-father of the. deceased. PW 9 himself stated that he identified the dead body of his son after seeing the shoes, belt, and trouser of the deceased. The statements of both these witnesses were not challenged on this point. Hence it could not be said that the dead body was not identified.
The motive behind the occurrence is proved through over whelming evidence. PW 9, PW 10 PW 12 and PW 13 have stated that the deceased was abducted for ransom. It is in evidence that complainant and his wife received telephone calls demanding ransom. It is also in evidence that the accused issued threats to the complainant that in case ransom was not paid his son would be done to death. It is also in the evidence that the ransom amount was put in envelop and delivered to Nazir Shehzad on the demand of the accused. The ransom amount was subsequently recovered from appellant Nazir Shehzad after his arrest. No other motive is available on the record of the case. There is no reason to disbelieve the PWs on this regard. The Scooter belonging to the deceased was being used by both the appellants and was recovered at the time of the arrest of the accused. Both the accused also led to various recoveries of articles which fully implicated them and fully corroborated the prosecution case.
(M.S.A.) Appeals dismissed.
PLJ 2010 SC 1099 [Appellate Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain & Muhammad Sair Ali, JJ.
ABDUL MUKTADAR and another--Petitioners
versus
DISTRICT AND SESSIONS JUDGE, JHANG and 2 others--Respondents
Civil Petition No. 645 of 2009, decided on 8.5.2009.
(On appeal from the order dated 20.3.2009 passed by the Lahore High Court, Lahore in W.P. No. 7099-F/2008).
Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Pakistan Penal Code, (XLV of 1860), S. 302--Leave to appeal--Amendments--Private complaint was filed on the ground that true version had not been recorded--Sought correction in the names of accused persons which was allowed--Being dissatisfied the petitioners assailed the order by invoking constitutional jurisdiction u/Art. 199 of Constitution--Petition was dismissed--Challenge to--Validity--Amendment means addition, deletion insertion or substitution but the proposed amendment by respondents for the correction of names was neither deletion or addition nor insertion or substitution but correction simplicitor having no bearing whatsoever on merits of the case--Held: No correction can be made in the names of accused persons specially when they were not nominated in FIR or complaint for the simple reason that it is not in consonance with the record--Names of the petitioners were incorporated in complaint but probably due to some omission, correct names could not be mentioned--Further held: Non-mentioning of correct names due to an in-advertant omission or lack of knowledge cannot be corrected when it is not prejudicial or detrimental in any manner whatsoever--Leave refused. [Pp. 1101 & 1103] A & D
Amendment and Correction--
----Synonymous nor interchangeable--Removal or rectification of errors--Amendment and correction are neither synonymous nor interchangeable because correction mainly relates to removal or rectification of errors, mistakes, inadvertent omissions, defect or faults--Whereas the amendment connotes, addition, deletion, insertion and substitution having substantial bearing on the character of pleadings irrespective of its nature--Complaint cannot be declared such a sacrosanct document wherein no change can be made however, impact whereof is to be examined before granting such permission. [P. 1101] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 203 & 204--Private complaint--Initiation of process--Availability or non-availability of sufficient incriminating material--Correction of names--Initiation of process u/Ss. 203 & 204, Cr.P.C. depends upon availability or non-availability of sufficient incriminating material--Substitution of a person and correction of names are entirely two different things which cannot be amalgamated--Correction of names and substitution of accused persons are not synonymous and one and the same thing and a line of distinction has rightly been drawn by High Court in impugned order. [P. 1101] C
Mr. Muhammad Aslam Uns, ASC and Mr. Mehmood Ahmed Sheikh, ASC for Petitioners.
Nemo for Respondents.
Date of hearing: 8.5.2009.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 26.3.2009 whereby the writ petition preferred on behalf of petitioners has been dismissed and order dated 9.6.2008 passed by learned Session Judge, Jhang has been kept intact.
Precisely stated the facts of the case are that a private complaint was lodged by Mst. Samina Tariq on the ground that true version had not been recorded by the police in FIR No. 591/2005 got registered under Sections 302 PPC with Police Station Sadar, Jhang against the petitioners alleging therein that murder of her husband was committed by the respondents. After completion of necessary formalities and recording preliminary evidence, the learned Sessions Judge issued process against seven accused persons including petitioners. Mst. Samina Tariq moved an application on 29.8.2006 seeking correction in the names of two accused persons (petitioners) which was allowed by means of order dated 9.6.2008. Being dissatisfied the petitioners assailed the said order by invoking the Constitutional jurisdiction as conferred upon learned High Court under Article 199 of the Constitution of Islamic Republic of Pakistan. The writ petition was, however, dismissed, hence this petition for leave to appeal.
Mr. Muhammad Aslam Uns, learned ASC entered appearance on behalf of petitioners and contended with vehemence that after issuance of process no amendment detrimental or prejudicial to the case of petitioners can be permitted as has been done by the learned Courts below. It is urged with firmness that petitioners were neither named in the FIR nor named in the private complaint and respondents kept silent when preliminary inquiry was being conducted and therefore, names of the petitioners could not have been incorporated in the complaint which amounts to flagrant violation of law. It is next contended that private complaint by no means can be amended after the initiation of process by the Court concerned as it is not permissible. It is pointed out that amendment sought by the respondents was not rectification simplicitor but involvement of the petitioners against whom no evidence whatsoever has been available as there names were never mentioned in the FIR.
We have carefully examined the above mentioned contentions in light of relevant provisions of law and record of the case. Let we make it clear at the outset that "amendment" means addition, deletion, insertion or substitution but the proposed amendment by respondents for the correction of names was neither deletion or addition nor insertion or substitution but correction simplicitor having no bearing whatsoever on merits of the case. As mentioned hereinabove Mst. Samina Tariq (respondent) has sought correction qua the names of two accused persons (petitioners). It is to be noted that legally the terms "amendment" and "correction" are neither synonymous nor interchangeable because correction mainly relates to removal or rectification of errors, mistakes, inadvertent omissions, defects or faults. Whereas the "amendment" connotes, addition, deletion, insertion and substitution having substantial bearing on the character of pleadings irrespective of its nature. The complaint cannot be declared such a sacrosanct document wherein no change can be made however, impact whereof is to be examined before granting such permission.
It is to be kept in view that initiation of process under Sections 202 and 204 Cr.P.C. depends upon the availability or non-availability of sufficient incriminating material and it has nothing to do with the correction of names. It is to be noted that substitution of a person and correction of names are entirely two different things which cannot be amalgamated. As mentioned hereinabove the correction of names and substitution of accused persons are not synonymous and one and the same thing and a line of distinction has rightly been drawn by the learned High Court in the order impugned, relevant portion whereof is reproduced herein below for ready reference:--
"5. It is true that names of Abdul Muqtadar and Abdul Khaliq sons of Abdul Ahmad Khan residents of Satellite Town, Jhang do not figure in the F.I.R. and the private compliant case. The complainant sought correction of names and other particulars of the accused on the ground that Abdul Muqtadar and Abdul Khaliq, petitioners were commonly known as Rehan alias Guloo and Shahzeb alias Mithu, respectively. Here, I would say that before recording evidence in the main case, it is not desirable to form a definite opinion about counter claims of the parties qua the particulars of the accused persons under discussion. Any observation by this Court may adversely affect the case and cause of either side before the inception/conclusion of trial and therefore, I am not ready to hold mini trial of the case before its regular trial. To my mind, Constitutional interference in the matter at this stage would amount to encroachment upon the functions of the trial Court. I leave the matter to the judgment of the learned trial Court already seized of the entire case including the point in issue. Disposed of accordingly."
"6. The name of the father of both the accused in-question as given in the compliant and as proposed to be written is same. Even their castes are not going to be changed through the proposed amendment. In the complaint they were cited to be residents of Satellite Town Jhang and through the proposed amendment also, they are to be shown as residents of Z-Block Satellite Town. Some times people are more known by their nick names/alias. Accused No. 4's name was recorded as Rehan. alias Guloo, whereas the name of accused No. 6 was recorded as Shall Zaib alias Mithu, but through the proposed amendment, the said names are to be written by way of alias, whereas the actual names of Accused Nos. 4 & 6 are to be written as Abdul Muqtadar and Abdul Khaliq, respectively. It is thus evident that through the proposed amendment, the complainant is not implicating any new persons, hence, the application is allowed. The amended compliant be filed on 17.06.2008, where-after Accused Nos. 4 & 6 shall be summoned".
We are not persuaded to agree with prime contention of the learned ASC on behalf of the petitioners that no correction can be made in the names of accused persons specially when they were not nominated in the FIR or complaint for the simple reason that it is not in consonance with the record. The names of the petitioners were incorporated in the complaint but probably due to some omission, correct names could not be mentioned. It may not be out of place to mention that issuance of process would have no bearing on merits of the case as it was issued against the same persons whose names are required to be corrected. It is repellant even to common sense that non-mentioning of correct names due to an in advertent omission or lack of knowledge cannot be corrected when it is not prejudicial or detrimental in any manner whatsoever.
In view of what has been discussed hereinabove the petition being devoid of merit is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2010 SC 1103 [Constitutional Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Main Shakirullah Jan & Raja Fayyaz Ahmed, JJ.
MUHAMMAD ILYAS, CHIEF MANAGER/ATTORNEY OF ALLIED BANK LTD.--Petitioner
versus
SHAHID ULLAH, etc.--Respondents
Crl. Petition Nos. 320 & 421 of 2008, decided on 31.3.2009.
(On appeal from the judgment/order dated 12.8.2008 passed by Peshawar High Court, Peshawar in Cr. Misc. No. 717/2008)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of bail--Principles--Held: At the stage of considering plea for the grant of concession of bail, the Court seized of the matter is not required to enter into deeper appreciation of evidence, as it is only to see on the basis of tentative assessment of evidence, whether the accused are prima facie, involved in the commission of offence or not. [P. 1108] A
Cancellation of Bail--
----If the order of granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice or if the Court comes to the conclusion that the same is perverse, on the face of it, or has been passed in violation of the law, then it can be recalled. [P. 1108] B
2007 SCMR 482, 2006 SCMR 1292, 2006 SCMR 1265, 2004 SCMR 1160, ref.
Mr. Muhammad Rashid Qamar, ASC and Raja Abdul Ghafoor, AOR for Petitioner (in both cases).
Mr. Shahid Kamal Khan, ASC a/w Respondent No. 1 (in Crl. P. 320/2008).
Mr. M. Arif Khan, ASC and Mr. M.S. Khattak, AOR a/w Respondent No. 1 (in Crl. P. 421/2008).
Mr. Ghulam Muhammad, SSP (Investigation) Peshawar a/w Mr. Mir Hassan, CIO, Peshawar on Court Notice.
Nemo for State (in both cases).
Date of hearing: 31.3.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--The instant petitions have been filed against the judgments dated 12.8.2008 and 31.10.2008 respectively passed by the Peshawar High Court, Peshawar whereby accused namely Shahid Ullah and Arif Ali were granted concession of bail.
Briefly stating facts of the case are that as per FIR No. 4 dated 2.5.2008 registered under Sections 419, 420, 468, 471 PPC a Cheque No. 0106454 dated 17th April, 2008 for a sum of Rs. 6.00 Millions allegedly issued on behalf of M/s Kohinoor Textile Mills Ltd. from their Account No. 01-200-4120-2 paid in clearing on 28.04.2008, was fake, because no such cheque was issued by the said client in favour of any Jamshed Jan. It is to be noted that the said cheque was collected by Bank of Khyber, Saddar Road, Peshawar through clearing. The Manager, Bank of Khyber was contacted for seeking assistance in order to trace out the culprit and for the recovery of Rs.6.00 Million. Ultimately, on 9th May 2008, accused Jamshed Jan was arrested from the Branch of Bank of Khyber and was found to be the person who had presented the stolen cheque and got it encashed. Accordingly, during the investigation of the case, said accused Jamshed Jan disclosed his actual name as Shahid Ullah and it further revealed that false account was opened with the connivance of one Arif Ali, accused officer of Bank of Khyber. During the process of investigation, Shahid Ullah (Jamshed Jan) made confessional statement. Both the accused prayed for concession of bail. Additional Sessions Judge, Peshawar on 25th June 2008 granted bail to Arif Ali whereas plea of co-accused Shahid Ullah was declined. Against the order of Additional Sessions Judge, the Peshawar High Court, Peshawar vide judgment dated 12th August 2008 refused to cancel bail of Arif Ali and at the same time accepted request of Shahid Ullah. As such instant petitions have been filed.
Learned counsel for the petitioner contended that both the accused were not entitled for concession of bail in view of overwhelming evidence available against them, therefore, orders of learned High calls for interference.
On the other hand learned counsel appearing for both the accused stated that offences charged against them fall within the non-prohibitory clause, therefore, under Section 497(2) Cr.P.C. they are entitled for the concession of bail.
Mr. Muhammad Rashid Qamar, learned ASC, who appeared on behalf of Arif Ali, stated that he was involved in the commission of offence on account of statement made by the co-accused Shahid Ullah (Jamshed Jan). Besides, there is no other evidence to connect him with the commission of the offence, therefore, learned Additional Sessions Judge has rightly granted bail to him and for this reason, learned High Court declined to cancel the same. As far as, accused Shahid Ullah (Jamshed Jan) is concerned, on his behalf Mr. Muhammad Arif, learned ASC argued that confessional statement made by him was a result of coercion, therefore, the same cannot be given weightage and the High Court has rightly applied the principle that if the co-accused person has been released on bail, the respondent/accused Shahid Ullah (Jamshed Jan) was also entitled to the same treatment.
We have heard the learned counsel for the parties and have also gone through the case file accordingly.
At this stage, we consider it appropriate to make brief reference in respect of investigation of instant case. It is misfortune aspect of the case that Investigating Officer as well as SSP (Investigation) have not shown positive interest in the investigation, as it is evident from the fact that initially request was made for grant of 10 days police remand. The Presiding Officer allowed two days' police remand but thereafter, no request was made for further remand although in the meantime no recovery of the amount illegally withdrawn by the accused persons was affected. Contrary to it, after two days accused Shahid Ullah was produced for recording of confessional statement, paving a way for him for judicial custody. Similarly, accused Arif Ali, who actually opened the account of Jamshed Jan in Khyber Bank Ltd. Saddar Road, Peshawar, was not interrogated properly and after expiry of two days police remand, he was also sent to judicial custody. Be that as it may, instant case has to be decided in view of the available material as well as the legal position.
It is to be noted that Arif Ali as a Banker has allegedly committed a crime with the connivance of Shahid Ullah, therefore, they were accused for the commission of scheduled offences under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 [herein after referred to as "the Ordinance, 1984] falling within the mischief of Sections 409, 468 and 471 PPC.
Learned counsel for the petitioner contended that High Court of Peshawar failed to take into consideration this aspect of the case, which according to him had a serious implication on the facts of the instant case qua the release of the accused on bail, because under the Ordinance, 1984 bail cannot be claimed as a matter of right by an accused in term of Section 5(6) read with Section 12 of the Ordinance, notwithstanding the fact that the case for grant of bail in terms of Section 497(2) Cr.P.C. has been made out. He has placed reliance, in this behalf, upon the case of Chaudhry Shujat Hussain v. The State (1995 SCMR 1249). Relevant Para therefrom is reproduced herein below:--
"8. A comparison with Section 497, Cr.P.C. will show that there is departure from the said provision. In his regard reference can be made to Section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the Code, the Ordinance will prevail. In Allied Bank's case, it was observed that "the Ordinance, being a special law conferring special power and jurisdiction on the Special Court and providing a special forum and procedure relating to the trial of scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure". It may also be noted that Section 5(6) is couched in a negative language. It is well-settled principle of interpretation of statute that where any provision couched in negative language requires as act to be done in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal. In this regard the observations in the Allied Bank's case are relevant and further the learned Deputy Attorney-General has referred to certain passages from Maxwell's, Interpretation of Statute and Craise leading to the same conclusion. At this stage I may clarify that there is a misconception which is sometime expressed that if an act is provided to be done in a manner it should be done in that particular manner otherwise it will be illegal. This cannot be general rule for applying such provisions of law. There may be cases where directions contained in an enactment are directory and not prohibitory. But where the language used is in negative or mandatory term for performance of a particular act, only then it can be said that any act done or an order passed in breach of such negative or mandatory language will be illegal. Any act or order done in breach of affirmative language expressed in directory manner may not lead to the same result but this will entirely depend upon the facts and circumstances of the case and the object and language of the statute."
In view of above dictum, we are of the considered opinion that in the given circumstances of the case, prima facie, accused Arif Ali alongwith his co-accused Shahid Ullah were involved under Sections 409, 468 and 471 PPC being scheduled offences of the Ordinance, 1984. For the purpose of special enactment, the sentences prescribed under these Sections of PPC have been modified to the following effect:--
Criminal breach of trust by public servant or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Forgery for the purpose of cheating. Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.
Using as genuine a forged document. Whoever fraudulently or dishonestly uses as genuine any document he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
Unfortunately, neither the learned High Court nor the Additional Sessions Judge had taken note of the above legal position.
Herein above are the reasons of our following short order dictated in the Court:--
"For the reasons to be recorded later, these petitions are converted into appeal and allowed. Concession of bail, granted to the accused namely Shahid-Ullah and Arif Ali by the High Court vide impugned judgments dated 12.8.2008 and 31.10.2008 are set aside. Both the accused are present in the Court are ordered to be taken into custody forthwith.
Mr. Ghulam Muhammad SSP (Investigation) Peshawar and Mir Hassan, Chief Investigating Officer, Peshawar are also present in the Court in pursuance of earlier order dated 25.3.2009. Prima facie it seems that the investigation has not been conducted properly, therefore, IGP/PPO NWFP and Chief Secretary, Government of NWFP are directed to take disciplinary action against both of them and result of the same be informed to this Court within a period of three months by sending a report to the Registrar of this Court.
Investigating agency is however, directed to submit the challan against the accused before the Special Court under the provisions of Offences In Respect of Banks (Special Courts) Ordinance, 1984. Order accordingly.
(M.S.A.) Order accordingly.
PLJ 2010 SC 1109 [Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmud & Muhammad Sair Ali, JJ.
NASRULLAH KHAN and 2 others--Appellants
versus
STATE--Respondent
Crl. Appeal No. 105 of 2005, decided on 25.5.2009.
(On appeal against the judgment dated 17.2.2003 passed by the Lahore High Court, Lahore in Crl. A. No. 681 of 2002, MR No. 59-T-2002).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 121--Grave and sudden provocation--Benefit of sudden and grave provocation can only be given if the provocation was not sought. [P. 1115] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 121--Grave and sudden provocation--Conviction and sentence--Where a person causes the death of another person it is for him to show that his act was removed from the category of murder by one of the exceptions--Provocation must be such as will upset not merely a hasty, hot-tempered and hyper-sensitive person but would upset also a person of ordinary sense and clamness--Law does not take into account abnormal creatures reacting abnormally in given situations--The law contemplates the acting of normal beings in given situations and the protection that is offered by the exceptions is the protection of normal being reacting normally in a given set of circumstances. [P. 1116] B
Sardar Ahmed Khan, ASC for Appellants.
Mian Asif Mumtaz, D.P.G. Punjab for Respondents.
Date of hearing: 25.5.2009.
Judgment
Muhammad Farrukh Mahmud, J.--This appeal, by leave of this Court, is directed against judgment dated 17.2.2003 handed down by learned Division Bench of Lahore High Court, Lahore in case FIR No. 194 registered at Police Station Qila Kalarwala on 30.10.2000 for offences under Sections 302/324/34 P.P.C read with Section 7 of Anti Terrorism Act, 1997, whereby the sentence of death on five counts and sentence of fine of Rs. 100000/- each on each count under Section 7(a) of Anti Terrorism Act, 1997 recorded by learned trial Court vide judgment dated 27.4.2002 recorded against the appellants, was upheld.
The sentences of life imprisonment and fine of Rs. 100000/-(one Lac) each on each count for causing injuries to Master Aslam, Nadeem Aslam, Azeem Aslam, Qaseem Aslam, Naseer Ahmad and Muhammad Arif, recorded by the learned trial Court were maintained, however, the conviction was altered from offence under Section 7(b) of Anti Terrorism Act, 1997 to offence under Section 7 (c) of the Act. The judgment passed by the learned trial Court relating to R.I for one year each on each count for non payment of fine was maintained, similarly, benefit of Section 382-B Cr.P.C extended to the convicts was maintained.
Muhammad Iqbal son of Fazal Hussain was also tried with the appellants. He was accordingly convicted and sentenced by the learned trial Court but he did not challenge his convictions and sentences before the learned High Court, however, the learned High Court upheld the judgment recorded by the learned trial Court against him while answering Murder Reference qua him, in the above noted terms.
PW-28 Muhammad Muzaffar Malik, SHO Police Station Qila Kalarwala reached the place of occurrence within half an hour and recorded the statement of Mushtaq Ahmad complainant-PW.8, at 6.a.m.
According to statement of the complainant, Muzaffar, Zulfiqar Ali and Tasneem Aslam had also witnessed the occurrence and that complainant and other PWs could identify the assailants. The descriptions of the two accused who had entered into the room and resorted to firing was given in the statement.
One of the accused was aged about 24-25 years, was of strong physique was keeping beard his height was about 5 feet 7/8 inches and was wearing shalwar kameez', the other accused was of the height of, about 5 feet 6/7 inches, he was of wheatish complexion, had a strong physique was aged about 20-25 years and was wearingshalwar kameez'.
The motive behind the occurrence was that the complainant and other persons present in Baitulzikar belonged to Ahmdia Sect.
Nadeem Butt and Nasrullah Khan appellants in their statements recorded under Section 342 Cr.P.C pleaded to be innocent and claimed that they were involved in the present case due to enmity. Shakil Ahmad appellant took specific plea of grave and sudden provocation which is being reproduced:--
"For the just decision of this case, we would like to reproduce the reply to Question No. 13 given by Shakil appellant in his statement recorded u/S. 342 Cr.P.C. The same reads as under:--
"On 30.10.2000 at about 10 a.m. Khatm-e-Nabooat Conference was being convened by International Khatm-e-Nabooat Organization in the area of Chowk Qila Kalarwala adjacent to village Gattalian, district Sialkot, in which, renowned religious scholar namely Maulana Ali Sher Haideri, Maulana Manzoor Ahmad Chinioti, Syed Atta-ull Munium Bukhari, Mualana Muhammad Nawaz Baloch and others had to address. In village Gattalian, there are seven places of worship of Qadianies and majority population of village Gattalian are Qadianies. The Qadiani community of village Gattalian felt open challenge for their religious integrity in the area and by all means and at every cost, Qadianies wanted to sabotage/stop this Conference and in this connection, Qadianies have hatched a conspiracy to physically eliminate all the above mentioned scholars. Night before the eventful day, the organizer of the Conference deputed volunteers to watch the activities of Qadianies in different areas as they were apprehending some mischief from Qadiani community. I was deputed in the village Gattalian. After fajar prayers, I went to village Gattalian and while I was passing in the street of Gattalian I saw so many pairs of shoes inside baitul zikar and heard a person addressing to others gathered there. He was asking them "that holding of Khatim-e-Nabooat Conference in our area is a question for religious ghairat and we cannot tolerate any Such Conference in our vicinity particularly when we are commanding majority in the area of Qila Kalarwala. He was also asking to the persons gathered that Mirza Ghulam Ahmad Qadiani is truthful holy prophet, Nabi, Rasul and also Maseeh Mahud. He was referring a book written by Mirza Ghulam Muhammad Qadiani "Aik Galti Ka Izahala".
Tooba Naooz-o-billah, he was asking that Muhammad was not last Prophet and we being truthful followers of Mirza Ghulam Ahmad Qadiani cannot allow the above noted religious scholars to insult Mirza Ghulam Ahmad Qadiani in our area. He was giving derogatory remarks in the honour of Hazrat Muhammad (PBUH) and also defiling the sacred names of Sehaba-e-Karam and Ummahat-ul-Momineen.
He was also asking that in order to sabotage the Khatm-e-Nabooat Conference they have collected a huge quantity of arms and ammunition and stored the weapons in baitul zikar. Now it depends upon them whether such Conference should be allowed or not. All the religious scholars of that Conference should be killed. He further asked the audience to do or die.
After hearing those words I lost my control and being truthful Ashiq-e-Rasool entered in that room, where many Kalashnikovs and other ammunition was lying, picked up one of them and made indiscriminate firing on the persons present there. They also picked up their weapons and fired on me but I luckily escaped and decamped from the spot."
While arguing for Shakil Ahmad appellant the learned counsel referred to his statement and submitted that the defence plea of grave and sudden provocation was made out from the circumstances of the case, therefore Shakil Ahmad also did not deserve capital punishment.
Conversely, it has been argued that Nadeem But and Nasrullah Khan appellant had accompanied the rest of the accused therefore, they were rightly convicted and sentenced by the learned Courts below. Commenting upon the defence plea advanced by Shakil Ahmad appellant, the learned counsel has submitted that after taking the specific plea of grave and sudden provocation the onus had shifted upon Shakil Ahmad under Article 121 of `Qanoon-e-Shahadat' to prove his defence plea that in support of the defence plea no witness was produced so much so that Shakil Ahmad himself did not avail the opportunity to appear as witness under Section 340(2) Cr.P.C, that the defence plea was bogus and belated and the statement of eye witnesses were fully corroborated by the medical evidence, motive, recovery of weapon at the instance of Shahid Ahmad and its tallying with the empties recovered from the spot. The learned counsel cited following judgments of this Court wherein the principle of burden of proof of defence plea had been discussed.
Elahi Bakhsh and others versus The State and others, (2005 SCMR 810).
Muhammad Naeem and another versus State, (PLJ 2005 Supreme Court 159).
We have heard learned counsel for the parties at length and have scanned the record of the case. In support of its case prosecution has produced four eye witnesses Mushtaq Ahmad, Muzaffar Ahmad, Arif and Master Aslam, out of them Arif and Master Aslam PWs. 10 and 11 received injuries during the occurrence and their presence could not be denied. The presence of Mushtaq Ahmad complainant has also been admitted, all these witnesses have given consistent and trustworthy account of the occurrence. It is evident from the fact that they did not exaggerate the role assigned to Nasrullah Khan and Nadeem Butt appellants. All the eye witnesses have corroborated each other on all the material points. They were subjected to lengthy cross-examination yet no dent could be caused in the veracity of their statements. The occurrence took place at 5.30 a.m. whereas the statement of Mushtaq Ahmad was recorded at 6.00 a.m. within half hour of the occurrence, detail of the occurrence and descriptions of the accused have been given in the promptly lodged report. The identification test was conducted by PW.30 Muhammad Tajamal Abbas Rana Magistrate. Perusal of his statement, on oath, reveals that the witnesses while identifying the accused had also described the role played by them. Furthermore, all the PWs identified the accused before learned trial Court and also specified their roles. The argument of the learned counsel that no light was available at the time of occurrence is devoid of any force as it cannot be presumed that the Daras was being given in a room which had no lights.
The statements of the eye witnesses are fully supported by the medical evidence as the deceased who were five in number lost their lives due to firearm injuries, similarly, remaining six persons who survived had also received firearm injuries.
The ocular evidence is also corroborated by the evidence of motive which is not disputed.
Perusal of the report of Forensic Science Laboratory Ex.PNNN, reveals that 28 empties recovered from the spot tallied with the weapon recovered from Shakil Ahmad while rest of the three crime empties tallied with the weapon recovered at the instance of Muhammad Iqbal (whose case is not before us), so this piece of evidence also corroborates the eye witness account.
Now coming to the defence plea it has rightly been observed by the learned High Court that it was an after through as Shakil Ahmad appellant did not appear before the police immediately. The belated defence plea is neither supported by any evidence nor by the circumstances of the case. As already noted above even Shakil Ahmad did not appear as a witness in support of his defence plea. According to defence plea the complainant and other members of the community had collected huge quantity of arms and ammunition which were stored in Baitulzikar. This assertion is belied by the circumstances that no one was posted as guard by the complainant party at the door of the Baitulzikar nor any one was posted to guard the stored ammunition.
It is settled law that benefit of sudden and grave provocation can only be given if the provocation was not sought. In this regard we would like to reproduce following lines of the defence plea:--
"Night before the evenful day, the organizer of the Conference deputed volunteers to watch the activities of Qadianies in different areas as they were apprehending some mischief from Qadiani community. I was deputed in the village Gattalian."
The above noted portion of the defence plea makes it manifest that Shakil Ahmad, who was resident of Daska had gone to village Gattalian with a specific purpose. The perusal of Article 121 of `Qanun-e-Shahadat' makes it manifest that where a person causes the death of another person it is for him to show that his act was removed from the category of murder by one of the exceptions. The provocation must be such as will upset not merely a hasty, hot-tem-pered and hypersensitive person but would upset also a person of ordinary sense and calmness. The law does not take into account abnormal creatures reacting abnormally in given situations. The law contemplates the acting of normal beings in given situations and the protection that is offered by the Exception is the protection of normal beings reacting normally in a given set of circumstances. Where the provocation was sought by the accused, as in this case, it cannot furnish any defence against the charge of murder. In Mehra Mistak versus Emperor, (A.I.R. 1934 Lahore 103), it was observed as follows:--
"A person cannot be said to have done an act under grave and sudden provocation if he was already cognizant of the circumstances which are alleged to have caused him the provocation."
Both the learned Courts, for valid and cogent reasons, have rejected the defence plea, due weight is to be given to the opinion of learned Courts. In nutshell, in our opinion, the defence plea was neither supported by any reliable evidence nor by the circumstances of the case and was rightly rejected.
In view of the above noted circumstances, we are of the considered opinion that the prosecution proved its case against appellants beyond any reasonable doubt. The appeal to the extent of Shakil Ahmad appellant is dismissed.
We have given our considered thought to the quantum of sentence qua Nasrullah Khan and Nadeem Butt appellants. Admittedly they remained present in the compound of the Baitulzikar but they did not raise any `Lalkara' and did not fire a single shot aiming at the persons present in Baitulzikar. It finds support from the fact that the empties recovered from the spot did not tally with the weapons allegedly recovered at their instance. Their roles were distinguishable from the role of those accused who fired, killed and injured the persons present in Baitulzikar. Hence while maintaining their convictions on five counts under Section 7 (a) of Anti Terrorism Act, 1997, we reduce their sentences to life imprisonment on all counts. The convictions and sentences of life imprisonment recorded under Section 7 (c) of Anti Terrorism Act, 1997 are maintained. All the sentences would run concurrently. The benefit of Section 382-B Cr.P.C would be given to Nasrullah Khan and Nadeem Butt appellants. The amount of fine inflicted upon the appellants is converted into compensation under Section 544-A on all counts, in default of payment thereof, each of the convict on each count would suffer imprisonment for six months.
With the above modification, relating to the sentences of Nadeem Butt and Nasrullah Khan, this appeal is partly allowed.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 1117 [Appellate Jurisdiction]
Present: Javed Iqbal, Raja Fayyaz Ahmed & Syed Zahid Hussain, JJ.
HAJI--Appellant
versus
STATE--Respondent
Crl. Appeal No. 98 of 2005, decided on 9.9.2009.
(On appeal from the judgment dated 13-5-2003 the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No 126, Criminal Revision No. 81 and MR No. 166 of 1999).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 2(e)--Ocular evidence--Minor variations--Administration of justice--Where there was no motive to falsely involve the appellant with the commission of the offence nothing in their evidence suggested that they were inimical towards the appellant then mere interse relationship would not be a reason to discard their evidence. [P. 1124] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 2 (e)--Ocular evidence--Where the evidence of the ocular witness was convincing, straight forward and fitted in the circumstances of the case, no benefit on account of the same could be extended to the appellants--Appeal dismissed. [P. 1125] B
Sardar Muhammad Siddique Khan, ASC for Appellant.
Raja Shahid Mehmood Abbasi, DPG for State.
Date of hearing: 9.9.2009.
Judgment
Raja Fayyaz Ahmed, J.--This Criminal Appeal by the leave of this Court is directed against the judgment dated 13.5.2003 passed by the learned Division Bench of the Lahore High Court, Multan, Bench Multan, whereby Criminal Appeal No. 126 of 1999 preferred by the appellant against his conviction under Section 302 (a) PPC, having been sentenced to death by the Additional Sessions Judge, Burewala; was dismissed by altering his conviction to that under Section 302 (b) PPC consequently by maintaining his sentence to death as Tazir, Murder Reference No. 166 of 1999 forwarded to the learned High Court under Section 374 Cr.P.C. was answered in affirmative by confirming the death sentence besides the Criminal Revision No. 81 of 1999 filed by the complainant was accepted by awarding Rs. 100,000/- as compensation to be paid to the legal heirs of the deceased by the convict under Section 544-A Cr.P.C. and in default thereof to further suffer six months SI.
Appellant Haji son of Wali Dad was tried by the learned Additional Sessions Judge, Burewala in Sessions Case No. 1/SC of 1995. (Sessions trial No. 7 of 1995) alongwith his co-accused Naseera son of Eida, Fareed son of Naseera and Mureed son of Naseera under Sections-302/34 PPC in case FIR (Exh. PF) No. 345 of 1993 dated 17.12.1993 of PS Gaggo, District Vehari registered on the report of Faqeer Hussain complainant (PW-6). Vide judgment dated 15.3.1999 passed by the Additional Sessions Judge, Burewala, hereinafter referred to a the `trial Court' convicted and sentenced the appellant Haji as abovementioned, while his co-accused were acquitted of the charge by extending benefit of doubt in their favour.
The appellant alongwith his co-accused were indicted for committing Qatl-e-Amd of Ghulam Rasool deceased in the light of accusation, as contained in the FIR and the incriminating material produced with the report submitted under Section 173-Cr.P.C. to which they did not plead guilty. In order to substantiate the accusation, the prosecution produced (8) witnesses namely; Abdul Ghaffar, Constable (PW-1), Dr. Fayyaz Mahmood, Medical Officer (PW-2), Ghulam Fakhar-ud-Din, Patwari (PW-3), Ahmad Din Head Constable (PW-4), Muhammad Anwar (PW-5), Faqeer Hussain (PW-6), Manzoor Ahmad (PW-7) & Ghulam Fareed, the then SHO, PS Gaggo (PW-8).
After close of prosecution evidence, the appellant and his co-accused were examined by the learned trial Court under Section 342-Cr.P.C. in the light of the accusation and the incriminating material adduced at the trial by prosecution to which they each denied and disputed. The appellant pleaded to be innocent in the case. In answer to Question No. 13 the appellant stated as under:
"I am innocent. The occurrence took place during the night hours. It was an unseen occurrence and a blind murder. The complainant and other PWs learnt about the murder of Ghulam Rasool, deceased, and then they came to the spot on the next morning. The police summoned tracers to the spot to locate the culprits by tracing out their footprints and the police hauled up many persons as suspects for the murder of Ghulam Rasool deceased who were let off and we were falsely challaned in this case."
The appellant did not opt to record his statement on oath in disproof of the charge within the meaning of Section 340 (2) Cr.P.C. nor produced any evidence in defence except that he produced a certified copy of Khasra Gridawari as (Exh.D-A).
" On examination it was a dead body of a male aged about 35 years, well built, eyes closed, mouth closed, face pale, lying flat on the cot.
Rigor mortis was present and post-mortem staining were also present. The body was wearing Qameez cream coloured, white Bunyan, black and gray sweater and chadar having blue colour and black and brown lines.
Following injuries were observed on the dead body:--
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the front of chest on left side, 9 cm below the nipple and 2 cm medial to the mid mammary, line.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the left side of abdomen, 13 cm transversely away towards the left side.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the left anterior superior iliac spine.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock, 5 cm below the anterior superior iliac spin.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock 1 cm below the Injury No. 4.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock below the Injury No. 5.
A punctured wound 1 cm x 1 cm x going deep with inverted margins, 5 cm vertically below the lateral edge of left inguinal ligament on the buttock.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock 14 cm below the anterior superior iliac spine.
A punctured wound 1 cm x 1 cm x going deep with inverted margins on the lateral side of left buttock 8 cm below the Injury No. 8.
A punctured wound 1 cm x 1 cm with inverted margins on the scrotum 3 cm below the penis.
A bluish swelling 4 cm x 4 cm on the lateral side of right chest, 20 cm below the right axila.
A bluish swelling 10 cm x 8 cm on the right side of right abdomen, 13 cm above the anterior superior iliac spine.
A bluish swelling 4 cm x 4 cm on the right lateral abdomen 7 cm below the right upper lateral edge of inguinal ligament.
On dissection.
A. Pellet from Injury No. 1 entered, traveled below skin and passed into abdomen and passed through the right lobe of liver and torn it and then through right lobe lied at the site of Injury No. 11.
B. Pellet entered from Injury No. 2 and passed through descending colon, through mesentry of small gut, injured the superior mesenteric artery and passed through the jejunum at two places and after passing through the abdominal wall lied at Injury No. 12 below the skin from where it was recovered.
C. After passing from Injury No. 3 pellet entered into abdomen and after passing from the mesentery of small gut and coecum it lied under skin at site of Injury No. 13 from where it was recovered.
Scalp, skull and vertebrae, membranes, brain, spinal cord, were normal and not required to be opened. Walls, ribs, and cartilages were normal. Pleurae, larynx, tracheae, right lung, left lung were normal. Pericardium was normal and heart was also normal and was contracted. Blood vessels are mentioned above. Injuries on the wall of abdomen have been mentioned above. Peritoneum has already been mentioned, above and was full of blood. Mouth, Pharynx and Esophagus, Diaphragm were normal. Stomach was normal and contained dirty white one ounce semi digested food, Pancreas were normal. Small intestines have already been mentioned and it contained blood and gas and semi digested material. Large intestine have already been mentioned and contained gas and faecal matter. Liver has also already been mentioned. Spleen kidneys, and bladder were normal. Injuries on organs of generation and external genetalia have already been mentioned. Injuries on muscles have already been mentioned and there was no disease, deformity, fracture or dislocation of bones and joints.
In my opinion the cause of death was shock and severe haemorrhage as a result of Injuries No. 1, 2 and 3 were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem and were caused by fire arm.
The time between the injuries and death was about 5-15 minutes and between death and post-mortem examination was about 8-10 hours.
After post-mortem examination the dead body of the deceased, postmortem examination report, police papers, last clothes of the deceased and one sealed bottles containing three pellets were handed over to the police."
Correct carbon copy of the post-mortem examination report containing the above noted findings was produced as (Exh.PB) by PW-2 and the diagram showing the locale of the injuries observed on the dead-body of the deceased was produced as (Exh.PB/1). He further stated that he also medically examined Haq Nawaz PW but the original MLR and carbon copy thereof was not available on the file. His statement in this context was not completed on the date.
Faqeer Hussain complainant (PW-6) disclosed in his report (Exh.PF) that he alongwith his relative Manzoor Ahmed (PW-7) had jointly obtained one square of land on contract from Malik Jaffar whereas; towards the east of this parcel of land, out of Square No. 14 a piece of land measuring 15-acres was taken on lease by one of his relatives namely Ghulam Rasool. He alleged that on 16.12.2003 at evening time the wheat crop standing on the leased land held by Ghulam Rasool was damaged by the cattle let loose by the sons of Haji son of Wallu & Naseera son of Eida on which said Ghulam Rasool snubbed the sons of the abovesaid persons and the cattle were moved out of the crop field. At about 8.a.m. the complainant alleged to have been standing with Manzoor Ahmed (PW-7) and Haq Nawaz PW (not produced) on the eastern `watt' of Killa No. 15 of square No. 14. Haq Nawaz had irrigated the wheat crop on the preceding night. PW Haq Nawaz brought meal for Ghulam Rasool alongwith Muhammad Anwar on a motorcycle and no sooner he alighted from the motorcycle, Haji (appellant) armed with .12 bore double barrel gun, Naseera equipped with scimitar (barchhi), Mureed with a hatchet, Naseera and Fareed raised lalkara that Ghulam Rasool should not go alive today on which Haji (appellant) fired two shots with his .12 bore double barrel gun straight on Ghulam Rasool which hit at his left side of the chest, left flank and on left pelvis, whereas, the pellets also hit on the upper part of the left arm of Haq Nawaz. Ghulam Rasool, according to the complainant succumbed to the injuries on the spot and they were warned by the abovesaid persons not come near to him, else they will meet the same fate thus; due to fear they kept silent. Thereafter; on their hue & cry the accused persons fled away from the spot with their weapons.
The learned counsel for the appellant, as well as; Mr. Shahid Mahmood Abbassi, DPG for the State have been heard at length in the light of the impugned judgment and evidence available on record, gone through carefully with their assistance. The judgment passed by the trial Court has also been perused.
The learned counsel for the appellant contended that Haq Nawaz PW according to the prosecution case also suffered pellet injuries in the occurrence but was not produced by the prosecution at the trial who if produced might not have supported the prosecution case and secondly; non-production of the injured witness whose presence at the place of incident could not be doubted cast serious doubt on the prosecution story. The learned counsel vehemently argued that on the same set of evidence, the co-accused namely, Naseer, Fareed and Mureed have already been acquitted by the trial Court by extending benefit of doubt arisen from the prosecution evidence; essentially required to have been extended in favour of the appellant as well. In the alternative the learned counsel submitted that in case his contention do not persuade the Court, the punishment of imprisonment for life instead of death penalty would meet the ends of justice in the circumstances of the case.
The learned DPG by controverting the arguments put forth on behalf of the appellant, argued that no piece of evidence available on record has been mis-appraised, misconstrued or non-read by both the learned Courts which concurrently found the appellant guilty on the charge as well as; appropriately punished under the law to which no exception could be taken. According to the learned DPG, no mitigating circumstance appeared in evidence which could militate against the gravity of the offence committed by the appellant to justify lesser punishment, as for no fault on the part of the deceased; the appellant committed his cold blooded murder. The case of the co-accused acquitted by the trial Court was justified as the prosecution failed to substantiate the charge against them beyond shadow of any reasonable doubt, therefore, in accord with the principles of criminal administration of justice by extending benefit of doubt in their favour, the co-accused were acquitted by the trial Court.
The contentions put forth on behalf of the parties have been considered and evaluated in the light of the entire evidence scanned and re-appraised in its entirety as well as; the submission made for lesser punishment. From the unimpeahced testimony of Dr. Fayyaz Mahmood, MO., (PW-2) it was proved by the prosecution that the cause of death of the deceased was the shock and severe haemorrhage resulted on account of gun shot Injuries No. 1, 2 & 3 suffered by the deceased which were sufficient to cause his death in ordinary course of nature and were anti-mortem in nature. The time between the injuries and the death was about 5 to 15 minutes and between the death and post-mortem examination was 8 to 10 hours which coincide with the prosecution case.
On the same day at 10.45 a.m he (PW-2) medically examined Haq Nawaz and found the following injuries on his person:--
"A lacerated wound with flapping skin and blackened margins at some places, wound measuring 9 cm x 5 cm muscle deep some places going deep on the outer side of right arm 11 cm below right shoulder.
A punctured wound 0.5 cm x 0.5 cm back to Injury No. 1 and 12 cm below the top of shoulder."
The injuries suffered by PW Haq Nawaz were kept under observation for X-Ray and the probable duration of the injuries were observed to be 4-hours, caused by firearm. Photostat copy of MLC was tendered in evidence as (Exh.PE) being the true copy of the original attested by PW-2.
Two ocular witnesses of the occurrence namely; Faqeer Hussain complainant and Manzoor Ahmed PW were produced by the prosecution at the trial. The account of the incident as given by the complainant in his deposition before the trial Court is consistent on all material particulars as narrated by him in his report lodged with the PS mentioned above. He specifically alleged that shots were fired by the appellant straight on the deceased which hit him on his chest, left flank and left pelvis on which the pellets landed on the person of the deceased stand fully corroborated from the medical evidence of Dr. Fayyaz Mahmood, M.O., (PW-2). Manzoor Ahmed (PW-7) also deposed at the trial in line with the prosecution case and he also spoke about the motive part of the prosecution story by stating that a day prior to the main occurrence Ghulam Rasool had abused the children of Haji and Naseera accused as the cattle of the accused had damaged the wheat crop of Ghulam Rasool deceased. The date, time and the venue of the offence and the presence of Haq Nawaz PW who brought the meal for Ghulam Rasool on a motorcycle and no sooner he alighted from the motorcycle Haji accused armed with .12 bore gun, Naseera equipped with scimitar (barchhi), Fareed having hatchet with him and Mureed armed with `lathi' came there out of whom Fareed and Naseera accused exorted lalkara that Ghulam Rasool should not go alive today, whereupon, Haji accused fired 2 shots from his .12 bore gun which hit on the chest of Ghulam Rasool hitting at his left flank and left pelvis as well as; the pellets hit on the right upper arm of Haq Nawaz. Ghulam Rasool having suffered gun shots fell down and breathed his last. Furnishing full and complete corroboration to the prosecution story, both these ocular witnesses were subjected to lengthy cross-examination by the defence but their testimony remained firm, consistent and reliable on all material particulars. Some minor variations in their evidence are insignificant, having no material effect on the incriminating nature of their testimonies which get due corroboration from the medical evidence of PW-2 reproduced hereinabove. Both the ocular witnesses undoubtly are interse related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere interse relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident. The appellant in his statement recorded under Section 342 Cr.P.C. mentioned above, stated that it was an un-seen occurrence as the complainant and the other PWs having learnt about the murder of the deceased visited the spot on next morning. He further stated that police also acquired the services of a tracker for finding out the culprits and during the process many persons were rounded-up as suspects but latter on they were roped in the case falsely. The occurrence had taken place during the day light at about 8.00 a.m. and the presence of the PWs in the given circumstances of the case at the place of occurrence could not be doubted. Haq Nawaz PW no doubt as per medical evidence referred to above had also suffered two pellets injuries on his person caused by firearm discharge which further lend support to the ocular account of the PWs 6 & 7 about the incident. PW Haq Nawaz is the nephew of the acquitted accused Naseera, as also related to the other accused and thus in such circumstances, non-production of the PWs by itself would not adversely reflect upon the prosecution case and, therefore, no adverse inference against the prosecution could be drawn. The defence could have produced the said PW or in alternative could have applied to the trial Court to examine the said witness as the Court witness under Section 540 Cr.P.C. but none of such admissible course was adopted. Hence; it could not be rightly said that the prosecution withheld a material piece of evidence from the Court or that if produced would not have supported to the prosecution story. The evidence of the ocular witnesses i.e. PWs 6 & 7 corroborated by the medical evidence and in overall facts and circumstances of the case is capable of safe reliance for purpose of conviction of the appellant on the capital charge. Besides the above-mentioned pieces of prosecution evidence; crime weapon 12 bore gun (P.7) was recovered at the instance of the appellant on his pointation including two empties secured from the place of incident by Ghulam Fareed, I.O (PW-8) in presence of PW Manzoor Ahmed Report of the FSL confirmed that gun (P.7) was used and the crive empties were fired from the said gun. There is no reason to disbelieve the recovery of the gun on pointation of the appellant and the empties secured from the place of incident during first visit of I.O. to the place of occurrence. The bloodstained earth was also secured from the place of incident and bloodstained clothes of the deceased after postmortem examination on the dead body of the deceased were also taken into possession by the I.O. and sent to the Chemical Examiner and Serologist for report. Positive report of these articles received from expert tendered in evidence by Ghulam Farted, I.O. further lends support as circumstantial piece of evidence to the prosecution story which could not be discredited or impeached by the defence. Hence; appropriately have been believed by the learned High Court and the trial Court. The motive part of the prosecution case has also been proved which the defence at the trial failed to impeach hence; in our considered opinion the learned Courts rightly believed the aforementioned incriminating pieces of evidence, for valid reasons based on evidence correctly appraised and scanned by both the learned Courts. As regards the case of the co-accused of the appellant; the prosecution since failed to substantiate the charge against them in the light of the role assigned to them by the complainant beyond shadow of any reasonable doubt nor they were even alleged to have actively participated in the commission of the crime, thus; their case was distinguishable and for such a reason, the evidence of the ocular witnesses could not be discarded which otherwise is convincing, straight forward and fits in the circumstances of the case, hence; no benefit on this score could be extendable to the appellant. There is no mitigating or extenuating circumstance available on record so as to justify for awarding lesser punishment for life to the appellant. The appellant had without any justifiable reason committed the cold blooded murder of the deceased, therefore, normal penalty of death awarded by the trial Court and confirmed by the High Court is un-exceptionable
(A.A.) Appeal dismissed.
PLJ 2010 SC 1126 [Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmud & Muhammad Sair Ali, JJ.
IJAZ AHMED etc.--Appellants
versus
STATE--Respondent
Crl. Appeal No. 430 of 2005, decided on 29.5.2009.
(On appeal from the judgment dated 7.3.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 505 of 2000 and M.R. 447-T of 2000).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10(4) & 16--Conviction and sentence--Awarded by trial Court--Maintained by High Court--Appreciation of evidence--Non-production of independent witness--Case of elopment--Statement of star witness, alleged victim--Victim accompanied the accused to many public places but never ever raised alarm at any time, place or occasion--Delay in reporting the matter to the police has no plausible explanation--Sequence of events completely discredit the story of victim that she was forced to accompany the accused and who compelled her to live with them and to submit to their design and acts--Doctor who examined the victim opined that victim did not find any mark of violence or injury on her body nor she find any mark of violence or injury on her private areas--Only reveals about sexual inter-course of a married woman--It does not show as to the nature of sex had undergone or been subjected to either forcibly or otherwise--Evidence of recovery of pistol does not inspire confidence--No independent witnesses was associated during the recovery proceedings--Recovery was from an open place which was accessible to all--It was a case of elopement, she had left with appellant on her own, hence, conviction of appellant was altered from offence u/S. 10(4) to offence u/S. 10(2)--Appeal partly allowed. [Pp. 1131 & 1132] A, B, C, D, E & F
Malik Muhammad Kabir, ASC for Appellants.
Mian Asif Mumtaz, DPG, Punjab for State.
Date of hearing: 29.5.2009.
Judgment
Muhammad Sair Ali, J.--Through this Criminal Appeal by leave of this Court judgment dated 07.03.2002 passed by the Lahore High Court, Lahore has been challenged by the appellants Ijaz Ahmed and Tahir Hussain. A learned Division Bench of the High Court per the impugned judgment maintained the convictions and sentences of the appellants under Sections 16 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 awarded by Special Court No. 6, constituted under Terrorism Act 1997, Lahore through its judgment dated 26.04.2000 sentencing appellants to death under Section 10(4) and to seven years R.I. alongwith fine of Rs.20,000/- each or otherwise to undergo R.I. for six months each under Section 16 of the Ordinance, 1979. Murder Reference was accordingly answered in affirmative. The appellants were however, acquitted of the charges under Section 380 PPC. Their appeal was thus decided by the Lahore High Court, Lahore through the impugned judgment.
On written application (Ex.PA) of Syed Amjad Hussain as to the incident dated 16.10.1999, FIR No. 557 of 1999 (EX.PA/1) was registered on 22.10.1999 at 4:30 P.M., Police Station Shumail Chaowni, Lahore. The complainant reported that accused Ijaz while living with his neighbour Noor Muhammad, developed illicit relations with his wife Mst. Maqsoodan Bibi with the help of Mst. Shehnaz Bibi wife of Ismael. And on 16.10.1999 when the complainant came back from duty around 4:00 P.M., he found his wife and two children missing from home. On inquiry, he was informed by his brother Muhammad Aslam son of Mubarak Ali and Imran Shah son of Manzoor Shah that they had seen his wife Mst. Maqsoodan Bibi and the children boarding a wagon at Rangers Bus Stop with Ijaz Ahmed, Shehnaz Bibi and Tariq (alias Tahir). The complainant thus reported that his wife had been abducted for commission of Zina by Ijaz Ahmed etc. and Rs.25,000/- and clothes had also been taken away from the house. FIR was registered at 4:30 P.M. on 22.10.1999, Ijaz Ahmed accused was arrested on 25.10.1999. Maqsoodan Bibi and children were recovered on 25.10.1999 as per memo. (Ex.P.B). Pistol (P.I) was recovered at the instance of Ijaz accused vide recovery memo. (Ex.P.C). Rough site plan (Ex.P.E) was also prepared. Tahir Hussain and Shehnaz Bibi accused were arrested on 01.11.1999. A sum of Rs.5000/- was allegedly recovered from Tahir Hussain through recovery memo. of currency (Ex.P.D). On completion of investigation, challan was submitted against the accused persons.
On receipt of challan, the trial Court framed charges against the accused who denied the same and claimed trial. The prosecution produced nine witnesses i.e. the complainant Syed Amjad Hussain as PW. 1, Muhammad Afzal as PW.2 and Muhammad Aslam as PW.3. They repeated the story recorded in the FIR. Maqsoodan Bibi appeared as PW.5, narrating her version of her abduction by the accused persons and subjecting her to Zina-bil-Jabr. Dr. Rukhsana Tabassam PW.9, examined Maqsoodan Bibi on 25.10.1999. Chemical Examiners report also was placed on record as (Ex.P.K).
The accused were examined under Section 342 Cr.P.C. They denied correctness of the allegation levelled against them and proclaimed their innocence in the matter. They opted not to make statements on oath under Section 340(2) Cr. P.C. but produced five defence witnesses, namely Said Muhammad, Zahoor Hussain, Tasawar Hussain, Muhammad Yousaf and Haji Muhammad Ramzan (D.Ws. 1 to 5).
The learned trial Court through judgment dated 26.04.2000 found the charges against the accused persons to have been proved and thus convicted and sentenced the accused persons as under:--
"UNDER SECTION 16 OF OFFENCE OF ZINA (ENFORCEMENT OF HUDOOD) ORDINANCE NO.VII OF 1979):
All the accused were sentenced to rigorous imprisonment for seven years each and to pay a fine of Rs.20,000/- each or in default whereof to further undergo rigorous imprisonment for six months each.
UNDER SECTION 380 PPC:
Ijaz Ahmad and Tahir Hussain were sentenced to rigorous imprisonment for seven years each with a fine of Rs.20,000/- each or in default whereof to further undergo rigorous imprisonment for six months each.
UNDER SECTION 10(4) OF ORDINANCE NO. VII OF 1979:
Ijaz Ahmad and Tahir Hussain were sentenced to death
Sentences under Section 16 of Ordinance No. VII of 1979 and Section 380 PPC were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was extended to them."
All the three accused persons i.e. Ijaz Ahmed, Tahir Hussain and Shehnaz Bibi filed Criminal Appeal No. 505 of 2000 against the trial Court's judgment. Murder Reference No. 447-T of 2000 sought confirmation of the sentence of death awarded to Ijaz Ahmed and Tahir Hussain convicts.
The learned Division Bench of the Lahore High Court, held prosecution to have failed to establish charge against the appellants under Section 380 PPC and thus set-aside the conviction on this count and acquitted the accused persons of the said charge. However, convictions and sentences of appellants under sections 16 and 10(4) of the Ordinance were maintained. Dismissing the appeal, death sentences awarded to Ijaz Ahmed and Tahir Hussain were confirmed. Hence the present criminal appeal.
Learned counsel for the appellants repeated the contentions raised by them before this Court at leave stage. The same were taken note of in the Leave Granting Order dated 07.11.2005 which read as under:--
"5. We have heard Ch. Muhammad Akram, learned counsel for the petitioners at length and have gone through the record and proceedings of the case in minute particulars.
Leave to appeal is granted, inter-alia, to consider the above contentions for save administration of criminal justice."
Learned counsel adding to the submissions stated that at maximum it was a case of Section 10(2) and Maqsoodan Bibi, as is evident from her own statement and the remaining evidence, had eloped with the accused persons. Further contended that there is no evidence on record against the appellant Tahir Hussain, wherefor, the High Court not only misread the evidence but non-read the same. In the contrary arguments, Mian Asif Mumtaz, Dy. Prosecutor General, Punjab supported the impugned judgment.
We have considered the submissions of the learned counsel for the parties, the evidence and the record. Maqsoodan Bibi's statement as PW.5 provides a reasonable clue to the riddle. In examination-in-chief, she admitted that Mst. Shehnaz Bibi, was on visiting terms and tried to persuade Maqsoodan Bibi to marry Ijaz Ahmed after getting divorce from her husband i.e. the complainant Syed Amjad Hussain, PW.1. And that on the day of occurrence 16.10.1999 Shehnaz Bibi, Ijaz Ahmed and Tahir Hussain came to her house and by putting pistol against the head of her minor son forcibly took away Rs.25,000/- as well as her children directing her to come to the wagon stand or face death of her children. And that Mst. Shehnaz Bibi accused took her to the wagon, stand where they all boarded the wagon and went to Vehari. And that they checked into of hotel room in Vehari where appellants committed Zina-bil-Jabr with her for 08/09 days. They then brought her and the children to Lahore Railway Station from where she was recovered by Police and her husband, and accused Ijaz Ahmed was arrested while Tahir Hussain slipped away. And that on her recovery she was medically examined and produced before the Magistrate for her statement under Section 164 Cr.P.C. But being mentally disturbed, her statement could not be recorded whereupon she was sent to Darul Aman. And that after eight days, she was produced from Darul Aman before the Magistrate where her statement under Section 164 Cr.P.C was recorded.
Maqsoodan Bibi is the star witness of the case. She left or was made to have her house alongwith her two minor children Ahmed Ali aged 05 years and Maryam Bibi 02 years on 16.10.1999. She remained in the company of the accused till 25.10.1999. She was standing at a wagon stand near Railway Station alongwith her children and the accused, when she was allegedly recovered by the I.O. who was accompanied by husband of Maqsoodan Bibi and Muhammad Afzal brother of Amjad Hussain Shah. At the time of recovery of Maqsoodan Bibi, Ijaz Ahmed appellant was with her and was arrested. There is no evidence on record that Maqsoodan Bibi, on seeing her husband rushed towards him or called for help. On the contrary, she was standing, without raising any protest at the bus stand. She admitted in her statement that from her house, she was went with Shehnaz Bibi to the wagon stand through main bazaar of Dogaij Town; a thickly populated area. In cross-examination she also admitted that she did not raise alarm during the journey from her residence to the Rangers Bus stop although the Rangers Police was present near the said Bus stop or while going to Vehari in the wagon. She further admitted that she and the accused reached Railway Station at about 11/12 noon and thereafter was taken to Bus stop on a Riksha and that she reached at the bus. She categorically admitted that she did not raise alarm at any of the places. As per her own statement, it is evident that she accompanied the accused, to many public places but never ever raised alarm at any time, place or occasion. The only explanation offered by her is that Ijaz Ahmed accused was armed with pistol therefore, she was too terrified to raise any alarm. She did not state anywhere that from 16th to 25th of October, 1999, Ijaz Ahmed appellant did not leave her and children ever alone. Intriguingly she was recovered while in the company of Ijaz Ahmed from a public place. Simultaneous with her recovery, Ijaz Ahmed arrested but did not carry any pistol on him nor was any weapon recovered from his possession. According to prosecution the pistol had been hidden in an open place and was got recovered by Ijaz Ahmed on 31.10.1999 i.e. six days after his arrest. Arrest of Ijaz Ahmed without the pistol, from the Railway Station in the company of Maqsoodan Bibi, belies her story of remaining quiet due to fear.
The matter was reported to Police through a written application dated 16.10.1999 (Ex.P.A) by the husband of the Maqsoodan Bibi on 22.10.1999, six clays after Maqsoodan Bibi was found missing from the house alongwith two minor children. The delay in reporting the matter to the police has no plausible explanation. The contents of Ex.P.A reveal that Ijaz Ahmed had developed illicit relations with Maqsoodan Bibi and her husband knew of it and complained to Noor Muhammad; the host of Ijaz Ahmed. Maqsoodan Bibi thus evidently left her house alongwith two minor children at her own will and according to the complainant also took away cash worth Rs.25,000/- and clothes. Sequence of these events completely discredit the story of Maqsoodan Bibi that she was forced to accompany the accused and who compelled her to live with them and to submit to their design and acts.
According to Ex.P.A, the complainant was informed on 16.10.1999 by his brother Muhammad Aslam PW.3 and his brother-in-law Imran Shah that they had seen the Maqsoodan Bibi and children and accused boarding the bus/wagon yet they let her and the child go away quietly and did not immediately report the matter to the police or the complainant. This is highly unlikely conduct by closest or blood relatives. It is thus evident that complainant and all the relatives knew his wife had eloped with the accused.
Dr. Rukhsana Tabassm, P.W.9 stated that she examined Maqsoodan Bibi on 25.10.1999 at 4:00 P.M. She did not find any mark of violence or injury on the body of Maqsoodan Bibi nor did she find any mark of violence or injury on her private areas. She further stated that according to report of Chemical Examiner, the swabs were found to be stained with semen. The medical evidence is too general in nature. It only reveals about sexual inter-course of a married woman. It does not show as to the nature of sex she had undergone or been subjected to either forcibly or otherwise.
According to I.O. Ijaz Ahmed was arrested on 25.10.1999. While in custody on 31.10.1999 he led to the recovery of pistol P.I which was taken into possession vide recovery memo. Ex.P.C. The evidence of recovery of pistol does not inspire confidence. No independent witnesses was associated during the recovery proceedings. The recovery was from an open place which was accessible to all. Ijaz Ahmed statedly remained through out with Maqsoodan Bibi so when did he get a chance to hide his pistol. Furthermore recovery of Rs.5000/- from the possession of Tahir Hussain accused had not been believed by the High Court. Suffice to say that the notes were not marked and recovery could not be used against the accused.
We have noticed that all the witnesses except for police officials and the Lady Dr. Rukhsana Tabassam were closely related to the complainant. No independent witness was produced before the learned Trial Court from any of the places where Maqsoodan Bibi had allegedly been taken to or made to stay by the accused persons.
In the above noted circumstances, we are of the considered opinion that it was a case of elopement and Maqsoodan Bibi had left with Ijaz Ahmed appellant on her own. Hence, we alter the conviction of Ijaz Ahmed appellant from offence under Section 10(4) Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 to offence under Section 10(2) ibid. His sentence is reduced to the period already undergone by him in the Jail. He is acquitted of the charge for the offence under Section 16 of Offence of Zina (Enforcement of Hudood) Ordinance "No. VII of 1979. He shall be released from Jail forthwith if not required in any other case. The judgments passed by the learned Courts below are accordingly modified.
The case of Tahir Hussain appellant stands on different footings. According to FIR Maqsoodan Bibi had developed illicit relationship with Ijaz Ahmed only. There is no independent incriminating evidence available against Tahir appellant. This appeal is allowed to the extent of Tahir Hussain. The judgment passed by the learned Courts below to his extent are set-aside. He is acquitted of all the charges and shall be released forthwith if not required in any other case. With above noted modifications, this appeal is partly allowed.
(M.S.A.) Appeal allowed.
PLJ 2010 SC 1133 [Appellate Jurisdiction]
Present: Javed Iqbal, Sarmad Jalal Osmany & Sayed Zahid Hussain, JJ.
Mst. RAZIA alias JIA and another--Appellants
versus
STATE--Respondent
Crl. Appeal Nos. 138, 602 and 139 of 2005, decided on 6.5.2009.
(On appeal from the judgment dated 3.7.2003 of the Lahore High Court, Lahore passed in Crl. A. 903/1998 and MR. No. 365 of 1998).
Child Witness--
----Witness was of tender age does not ipso facto make his evidence unreliable--Before acting upon the evidence of child witnesses, close and careful scrutiny is required which in the instant case was duly adopted by the trial Court and a note to that effect was also recorded by the trial Court about his satisfaction--No merit in as much as there is no hard and fast rule that either all should be acquitted or all convicted. [P. 1137] A & B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 308--Sentence of death to wife for committing qatl-e-amd of her hushand--Question of death sentence--Female accused was convicted for having committed `qatl-i-amd' (her husband) u/S. 302(b), PPC--Circumstances are such (five minor children having lost their father and mother facing death sentence) as would strongly call for the exercise of discretion by the Court to alter the sentence of accused--Thus having regard to the facts and circumstances of the case, while maintain the conviction death sentence was converted into sentence of life imprisonment. [Pp. 1137 & 1138] C & D
PLD 2007 SC 111, 2004 SCMR 4, 1999 SCMR 2203, 2003 SCMR 855 & 2000 SCMR 338, ref.
Mr. Aftab Ahmad Bajwa, ASC for Appellants.
Mian Asif Mumtaz, DPG, Punjab for State.
Date of hearing: 17.4.2009.
Judgment
Sayed Zahid Hussain, J.--Mst. Razia alias Jia and Manzoor Ahmad (appellants) alongwith two others namely Nemat Ullah Qazi and Pappu, were tried for the murder of Bashir Ahmad deceased under Section 302/34 PPC. The two appellants were convicted by the learned Trial Court, vide judgment dated 06.8.1998 under Section 302(b) PPC and were sentenced to death each and to pay a fine of Rs.25,000 each or in default of payment thereof to undergo simple imprisonment for one year each. The amount so recovered was ordered to be paid to the heirs of Bashir Ahmad deceased. Other two accused namely Nehmat Ullah Qazi and Pappu were acquitted. Mst. Razia and Manzoor Ahmad challenged their convictions through Criminal Appeal No. 903 of 1998, which was heard alongwith Murder Reference No. 365 of 1998. The learned Division Bench of the Lahore High Court, Lahore dismissed their appeal and confirmed the death sentence by answering the reference in affirmative vide judgment dated 03.7.2003. Mst Razia assailed the matter through C.P.L.A No. 638-L of 2003 and J.P. No. 367 of 2003 whereas Manzoor Ahmad filed J.P. 359 of 2003. Leave was granted by this Court on 23.5.2005 which order reads as follows:--
"We have heard Mr. Aftab Ahmad Bajwa, ASC for Mst. Razia alias Jia convict and Ch. Muhammad Anwar Khan, ASC for Manzoor Ahmad convict. Manzoor convict was alleged to be the paramour of Mst. Razia petitioner and the two were accused of having murdered the husband of Mst, Razia i.e. Bashir Ahmad deceased. The ocular testimony comprised the statements of two children of Mst. Razia petitioner and Bashir deceased i.e. Naveed (PW-3) and Naheed Akhtar (PW-4). There is a finding of the learned trial Judge affirmed by the Hon. High Court that both the children were mature persons and their testimony was thus reliable.
Two persons have been sentenced to death in these cases and we consider it appropriate to re-appraise the evidence to ensure that the conviction and punishments recorded against the said two petitioners had been validly recorded. Another question which would require examination would be the imposition of death penalty on Mst. Razia petitioner in view of the provisions of Section 308 of the Pakistan Penal Code.
In this view of the matter, all these petitions i.e. Crl. Petition No. 638-L, Jail Petitions Nos. 359 & 367 of 2003 are allowed and leave to appeal is granted in all these cases for the said purpose. The delay in the filing these petitions is condoned." These appeals have accordingly come up for hearing before this Court.
The background in which the same have arisen is that on 8.8.1996, Mumtaz Hussain ASI was on patrol duty alongwith Muhammad Rashid, Sher Ali and Akhtar Ali constables within the area of Police Station City, Raiwind, Lahore when he learnt of a dead body lying on a road side. On his examination and report, FIR No. 184/96, was registered at Police Station City Raiwind at 10.30 a.m. under Section 302, PPC against unknown persons. From the personal search of the dead body it transpired that he was Bashir Ahmad Carpenter of Intelligence Bureau, 94-Upper Mall, Lahore. The dead body was later on dispatched for postmortem through Muhammad Rashid and Akhter Ali constables. It was on 10.8.1996 that Muhammad Hanif and Taj Din came to the Police Station, when they identified the dead body, which was delivered to them. The Investigating Officer on the same day went to the house of the deceased wherefrom he recovered Iron Rod (EX.P3). He had appeared as PW.9 and states that since he was transferred therefore, investigation was taken over by Muhammad Iqbal S.I. (PW.11) who arrested Mst. Razia on 12.10.1996. The investigation file thereafter, was entrusted to Rauf Ahmed Inspector (PW.6) who arrested Manzoor Ahmad, the other co-accused. On his transfer, the file was handed over to the successor SHO, Inspector Muhammad Sawar (PW.10) who in the course of investigation arrested Pappu co-accused. Taj Din (PW.1) the real uncle of Bashir Ahmad deceased had given the background of strained relations between Bashir Ahmad and his wife Mst. Razia due to her bad character. Muhammad Hanif (PW.2) is real brother of the deceased who supports the testimony of Taj Din (PW. 1). The two eye-witnesses of the occurrence are Naveed (PW.3) the son of Bashir Ahmed deceased and Naheed Akhtar (PW.4) daughter of the deceased. The postmortem report described.--"the cause of death in this case in interference with respiratory system at different levels under Injuries No. 1, 2, 3 and 6." The detail of the whole incident, resulting in the elimination of Bashir Ahmad deceased, which took place at his residence in the night between 7th and 8th of August 1996, was witnessed by his children Naveed and Naheed Akhtar.
According to PW.3 Naveed and PW.4 Naheed Akhtar their father Bashir Ahmad had fallen down due to the injuries suffered by him at the hands of the accused when Mst. Razia their mother placed the pillow on his mouth in order to choke his breathing system.
"5. After going through the record of this case, especially the statements made by Naveed (PW.3) and Naheed Akhtar (PW.4) we too have felt impressed by the statements of these child witnesses. The said statements were absolutely consistent, categorical and emphatic and the same inspired complete confidence. Through the said statements not only the motive nourished by the appellants had been proved but hatching of a conspiracy and then its cold-blooded execution had also been established to the hilt. The medical evidence had also provided complete support to these witnesses and, thus, we have found no reason for not placing a whole-hearted reliance upon their statements. In this view of the matter we have no other option but to conclude that active participation of the appellants and sharing of common, intention by them in respect of the murder in issue had been proved beyond reasonable doubt. The normal wages of a crime of murder is death and in the circumstances of this case the appellants deserved no less. This appeal, is, therefore, dismissed and the convictions and sentences of the appellants recorded by the learned trial Court are upheld and maintained with the slight modification that the sentences of fine shall be treated as directions regarding payment of compensation and in case of default in payment thereof the appellants shall undergo simple imprisonment for six months each instead of simple imprisonment for one year each ordered by the learned trial Court."
Mr. Aftab Ahmad Bajwa, Advocate the learned counsel for the appellant has endeavourd to point out contradictions, inconsistencies and improprieties in the case setup by the prosecution. According to him none of the convicts was nominated in the FIR nor there was any evidence about removal of the dead body of the deceased from the house. It is also contended that on the same set of evidence Nehmat Ullah Qazi and Pappu had been acquitted therefore no conviction could be ordered on the basis of the same evidence. He also makes reference to a Habeas Corpus petition (Criminal Misc. No. 1033-H/96) filed by Nehmat Ullah Qazi for the recovery of Mst. Razia as a factor for false involvement in the case. The said petition had been disposed of by the Lahore High Court, Lahore on 02.9.1996. It is vehemently contended by the learned counsel that no safe reliance could be placed upon the testimony of Naveed 12 years (PW.3) and Naheed Akhtar 10 years (PW.4) who were minors.
The learned Deputy Prosecutor General, Punjab has vehemently supported the concurrent appreciation of evidence and view formed by the trial Court and the High Court in recording and maintaining the conviction of the appellants Manzoor Ahmad and Mst. Razia.
The careful perusal of the material on record leads us to the same conclusion as was reached by the learned High Court. The testimony of Naveed (PW.3) and Naheed Akhtar (W.4) who made such confidence inspiring statements as to the events and occurrence that took place in the house before their eyes, cannot be brushed aside. As mentioned above, the trial Court had taken all possible and due steps to judge the level of their intelligence and maturity before proceeding to record their statements, Naveed was 12 years of age whereas Naheed Akhtar was of the age of 10 years. It may be observed that mere fact that a witness was of tender age does not ipsofacto make his evidence unreliable. It is true that before acting upon the evidence of child witnesses, close and careful scrutiny is required which in the instant case was duly adopted by the trial Court and a note to that effect was also recorded by the trial Court about his satisfaction. The two witnesses indeed had given a consistent account of the occurrence and the participants who were present at that time taking part in doing away with their father. This was not all, their ocular testimony derived strength and corroboration from the other evidence including the postmortem report. The cause of death tallied with their testimony. It cannot be lost sight, that these two eye-witnesses were related to the deceased (their father) and the appellant (their mother). They had no reason whatsoever for implicating their mother falsely. A very lengthy cross-examination was conducted which they faced but on all material aspects they remained consistent and undeterred. The learned Judges of the Division Bench of the High Court, were well justified in finding no fault with their testimony and reliance of the trial Court upon their evidence. Some minor discrepancies or even contradictions having no material bearing do not result in vitiating the findings recorded by, the two Courts on proper appreciation of the evidence. The contentions of the learned counsel thus loose its significance.
The contention of the learned counsel as to the acquittal of Pappu and Nehmat Ullah Qazi by the trial Court has also no merit in as much as there is no hard and fast rule that either all should be acquitted or all convicted. As mentioned above Pappu was acquitted by the trial Court as he had not been nominated even by Taj Din (PW.1) and Muhammad Hanif (PW.2) initially. He had even been exonerated during the course of investigation as well. Moreover, he was real brother of Mst. Razia. The acquittal of Nehmat Ullah Qazi was also backed by valid justification. It may be observed that it is the quality of the evidence before the Court upon which the finding of guilt or otherwise are to be based. Whereas in the case of Mst. Razia and Manzoor Ahmad there was convincing and confidence inspiring evidence for recording their convictions; it was not so qua Pappu and Nehmat Ullah Qazi. About the conviction of the appellant Mst. Razia and Manzoor Ahmad, the learned Division Bench of the High Court observed that their statements "were absolutely consistent, categorical and emphatic and the same inspired complete confidence. Through the said statements not only the motive nourished by the appellants had been proved hut hatching of a conspiracy and then its cold-blooded execution had also been established to the hilt. The medical evidence had also provided complete support to these witnesses."
On due appreciation and appraisal of the evidence no exception can be taken to the view so taken by the High Court. Thus reverting to the first part of the leave granting order, we find that they were rightly convicted.
"This is settled law that provisions of sections 306 to 308, P.P.C. attract only in the cases of Qatl-i-amd liable to qisas under Section 302(A), PPC and not in the cases in which sentence for Qatl-i-Amd has been awarded as tazir under Section 302(b), PPC. The difference of punishment for Qatl-i-Amd as qisas and tazir provided under Sections 302(a) and 302(b), PPC respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under Section 302(b), PPC and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of `Qatl-i-Amd', keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR, 2203, Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338." The Court while maintaining the conviction under Section 302(b) PPC awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B Cr.P.C.
(M.S.A.) Order accordingly.
PLJ 2010 SC 1139 [Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
PEER DIL & others--Petitioners
versus
DAD MUHAMMAD--Respondent
Civil Petition No. 79-Q of 2008, decided on 28.5.2009.
(On appeal from the judgment dated 15.7.2008 passed by the High Court of Balochistan, Quetta in Civil Revision No. 111/2006).
Civil Procedure Code, 1908 (V of 1908)--
----O. XXIII, R. 3--Consent decree--In case of any deviation, violation and departure from the judgment/decree based on consent and compromise, the provisions enumerated in Order XXIII Rule 3, CPC can falsely be pressed into service--Held: Consent decree or order is nothing but a contract between the parties within command of the Court superadded to it and its force and effect is derived from contract between the parties on the basis whereof consent decree was passed and hence it is binding upon the parties until a fraud is alleged in procuring such decree. [P. 1143] A
Balochistan Civil Dispute (Shariat Application) Regulation, 1976--
----Reguln. 4--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Appeal before Majlis-e-Shoora was not competent in view of the provisions as mentioned in Section 4 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976--Leave refused. [P. 1143] B
Mr. Jamal Khan Mandokhail, ASC for Petitioners.
Nemo for Respondent.
Date of hearing: 28.5.2009.
Judgment
Javed Iqbal, J.--This civil petition for leave to appeal is directed against the judgment dated 15.7.2008 passed by learned Single Judge in High Court of Balochistan, Quetta whereby the revision petition preferred on behalf of Dad Muhammad (respondent) has been accepted by reversing the judgment and decree dated 28.2.2006 passed by Majlis-e-Shoora, Zhob whereby appeal filed on behalf of petitioners was allowed.
Precisely stated the facts of the case are that Dad Muhammad (respondent/plaintiff) filed a suit for specific performance with the prayer that the award made on 24.8.1985 be made binding upon the petitioners and implemented in letter and spirit. The suit was contested by the petitioners and an application under Order VII Rule 11 CPC for the rejection of plaint was moved by invocation of the provisions of res judicata which was rejected by the learned Qazi Zhob/Sherani by means of order dated 3.10.2005 which was reversed by Majlis-e-Shoora, on appeal by means of judgment and decree dated 28.2.2006 which was assailed before the learned High Court by filing a revision petition and acceptance whereof has culminated into this civil petition for leave to appeal.
Mr. Jamal Khan Mandokhail, learned ASC entered appearance on behalf of petitioners and contended that the learned single Judge in High Court has not appreciated the legal and factual aspects of the controversy in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the arbitration agreement in-question has already been acted upon and the award given by the arbitrator was made rule of the Court by means of judgment and decree dated 1.10.1985 and hence the question of institution of fresh suit for implementation of the arbitration agreement and award between the same parties does not arise. It is contended that the suit in-question should have been dismissed but on the contrary the learned single Judge in High Court has accepted the Revision Petition declaring that the suit is maintainable which is a glaring illegality and on this score alone the judgment impugned is liable to be set aside. It is next contended that no fresh agreement whatsoever was inexistence on 24.8.1985 on the basis whereof a new suit could have been instituted escaped the notice of the learned single Judge causing serious prejudice against the petitioners. It is next contended that the suit is not competent and ought to have been rejected in view of the provisions as enumerated in Order VII, Rule 11 CPC. Mr. Jamal Khan Mandokhail, learned ASC also argued that the order passed by the appellate Court could not have been reversed on the grounds which are not tenable in law and besides that no reasoning whatsoever has been given by the learned single Judge for reversing the judgment of the appellate Court.
We have carefully examined the above mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree of learned Qazi, Zhob/Sherani, the judgment and decree passed by Majlis-e-Shoora, as well as the judgment impugned. After having gone through the entire record and perusing the judgment as mentioned hereinabove, we are not persuaded to agree with the prime contention of Mr. Jamal Khan Mandokhail, learned ASC that the suit should have been dismissed pursuant to the provisions as enumerated in Order VII Rule 11 CPC because the controversy has been set at naught completely by means of judgment dated 1.10.1985 passed on the basis of award which was made rule of the Court for the reason that the earlier judgment/decree being a consent decree was obviously passed pursuant to the provisions as enumerated in Order XXIII, Rule 3 CPC and being a consent decree based on compromise between the parties can safely be equated to that of a contract, breach whereof would give rise to the fresh cause of action and a fresh suit can be filed by an aggrieved person for the redressal of his grievances. In such like eventualities the judicial consensus seems to be that "a compromise decree is a contract between the parties and its breach would give cause of action to the other party to approach the Court to seek remedy. Compromise decree is but a contract with superadded command of a Judge. Whether a subsequent suit is barred by reason of Section 47, Civil Procedure Code, 1908 depends upon the existence of a decree which is executable for the purpose of the reliefs sought to be enforced in subsequent suit whether an earlier contact is superseded by a later contract, on account of a certain alteration, depends on whether the parties intended to rescind the original contract. It is possible to vary a term of an original contract in such a way as to keep alive the original contract. Where a decree is passed on a compromise, the decree and not the compromise in the decree bound the parties especially in view of the parties' intention, indicated in the compromise preceding the decree itself that a "decree should be obtained on the basis of the compromise". Arunachallam v. Sethupathi (AIR 1925 Mad. 1260), C. J. Smith v. A. Kenny (AIR 1924 Pat. 231), Jahuri Lal v. Kandhai Lal (AIR 1935 Pat. 123), Hiralal v. Durga Bai (AIR 1937 Nag. 413), Mitha v. Ramal Dass (AIR 1937 Lah. 828), Amin Cotton Co. Ltd. v. Mohd. Jamil & Co. (PLD 1967 Karachi 795), A.R. Khan v. P.N. Bogha through Legal Heir (PLD 1987 SC 107), Haji Muhammad Asghar v. Malik Shah Muhammad Awan and others (PLD 1986 SC 542), Abdul Wahab and others v. Habib Ali and others (PLD 1969 Lah. 365), Muhammad Hussain and others v. Walayat Shah and others (PLD 1959 Lah. 526), Zahirul-Said Alvi v. Lachhmi Naravan (AIR 1932 Privy Council 251), Surendra Nath Mitra and others v. Tarubala Dasi (AIR 1930 Privy Council 158). Sajjad Hussain v. Musarat Hussain Shah (1989 SCMR 1826).
It is worth mentioning that an identical question concerning compromise was discussed in case titled Ramchandra Dec Garu v. Chaitana Sahu and others (AIR 1920 PC 139), Chandoo v. Murlidhar and others (AIR 1926 Oudh. 311) by referring 54 CJS Para 314, Halsbury's Laws of England, Fourth Edition, Volume 37 para. 382 and Volume 3 Para. 1118 and it was concluded that the only option available for an aggrieved party was either to file a review or institute a fresh suit. It can thus safely be concluded that the suit preferred on behalf of respondent was maintainable.
We have also examined the judgment/decree of learned Majlis-e-Shoora (appellate Court), operative portion whereof is reproduced herein below for ready reference:--
It reveals from the operative portion of the judgment as reproduced herein above that the legal aspects of the controversy could not be appreciated properly. The learned Majlis-e-Shoora, ignored that the earlier judgment/decree decided on 1.10.1985 was based on compromise executed between the parties on the basis of award given by the arbitrator which was made rule of the Court subsequently. Admittedly it was a consent decree based on compromise and none compliance whereof provided a fresh cause of action on the basis whereof a fresh suit could have been instituted to get the compromise implemented in letter and spirit. In case of any deviation, violation and departure from the judgment/decree based on consent and compromise, the provisions enumerated in Order XXIII Rule 3 CPC can safely be pressed into service. There is no cavil to the proposition that a consent decree or order is noting but a contract between the parties within command of the Court superadded to it and its force and effect is derived from contract between the parties on the basis whereof consent decree was passed and hence it is binding upon the parties until a fraud is alleged in procuring such decree which is not the case of petitioners. In this regard we are fortified by the dictum laid down in case titled Nazir Ahmad v. Ghulama (1987 SCMR 1704), Shah Wali v. Ghulam Din (PLD 1966 SC 983), Khurshid Akbar v. Manzur Ahmad (1982 SCMR 824), Bhai Khan v. Allah Bakhsh (1986 SCMR 849), Halsbury's Laws of England, Fourth Edn., Vol. 37, para. 390.
If we agree with the view point as canvassed at bar by Mr. Jamal Khan Mandokhail, learned ASC it would mean that a consent decree based on compromise can be violated and its compliance depends on the whims and wishes of a party and in such an eventuality no remedy would be available to an aggrieved party which does not appeal to logic and reason and more so it would make the provisions redundant as contemplated in Order XXIII Rule 3 CPC.
We may mention here that even the appeal before Majlis-e-Shoora was not competent in view of the provisions as mentioned in Section 4 of the Balochistan Civil Dispute (Shariat Application) Regulation, 1976.
The learned ASC on behalf of petitioners could not point out any illegality or infirmity warranting interference in the judgment impugned. In such view of the matter, the petition being devoid of merits is dismissed and leave refused.
(M.S.A.) Leave refused.
PLJ 2010 SC 1144 [Appellate Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain & Muhammad Sair Ali, JJ.
STATE BANK OF PAKISTAN & others--Petitioners
versus
Mst. MUMTAZ SULTANA & others--Respondents
Civil Petition Nos. 123-K & 179-K of 2007, decided on 5.8.2009.
(Against the order dated 14.11.2006 & 26.1.2007 of the High Court of Sindh, passed in C.P. No. D-969/05 & C.P. No. 1683/2006 respectively).
Constitution of Pakistan, 1973--
----Arts. 2-A, 4, 25 37, 38, 199 & 187--Voluntary Golden Handshake Scheme was floated by the bank--Employees exercised the option--Efficacy, applicability and implementation of the scheme--Judgments of Supreme Court--Non implementation of--Scope of--Held: Undoubtedly, the State Bank of Pakistan is the Central Bank of the country vested with multiple responsibilities and functions as per the statute--It was, its own duty and obligation to have redressed the grievances of the employees instead of relegating them to seek remedy from the Courts--Legal position declared by Supreme Court, necessity of approaching the Court would not have arisen. [P. 1149] A
Judgment in Rem and Judgment in Personam--
----The legal position stated and declared by Supreme Court about the scheme was not for one segment of employees--It was for one and all, falling within the purview of the scheme--Ambit of Arts. 189 and 190 of the Constitution would get attracted with all force. [P. 1149] B
Constitution of Pakistan, 1973--
----Art. 141--Whether they are parties or not in litigation--Question of--Issue about the employees, not being party to the litigation before Supreme Court looses significance as the Bank itself was party, who was obliged to follow and implement the judgment in letter and spirit, to one and all. [P. 1150] C
Principle of laches--
----It will be unjust, if the employees were to be knocked out on the principle of laches in approaching the High Court or for availing some other remedy as just and fair order has been made by the High Court--It will advance the cherished goal of justice for all, similarly situated--Leave refused. [P. 1152] D
Mr. Khalid Anwer, Sr. ASC for Petitioners (in both cases).
Mr. Fakhr-ud-Din G. Ibrahim, Sr. ASC for Respondents No. 1-43, 92-101 (in C.P. No. 123-K/07).
Mr. Abdul Raheem Bhatti, ASC for Respondents No. 44-91, 102-104 (in C.P. 123-K/07).
Mr. Fakhruddin G. Ibrahim, Sr. ASC for Respondents No. 1-495 (in C.P. No. 179-K/07).
Mr. Abdul Raheem Bhatti, ASC for Respondents No. 496-979 (in C.P. No. 179-K/07).
Date of hearing: 5.8.2009.
Judgment
Sayed Zahid Hussain, J.--Mumtaz Sultana and others had filed Petition (C.P. No. D-969 of 2005) under Articles 199 & 187 read with Articles 2-A, 4, 25, 37 & 38 of the Constitution of Islamic Republic of Pakistan, 1973 for extending the retirement/pensionary benefits to them as per the judgment of this Court dated 29.4.2004. The petition was decided by the learned Division Bench of the High Court of Sindh, Karachi on 14.11.2006 issuing direction that "the pensionary benefits of the predecessors-in-interest of the petitioners would be calculated as of 15.12.1997 and consequently the petitioners given the same in accordance with the decisions of the Hon'ble Supreme Court in the various CPLAs referred to above." This judgment has been assailed through CPLA No. 123-K/07 seeking leave to appeal there against. Likewise, Jamil Akhtar Siddiqui and others filed a petition (C.P. No. D-1683/06) for almost a similar relief. The said petition was thereafter decided by the learned Division Bench of the High Court of Sindh on 26.1.2007 with reference to the decision in C.P.No. D-969/05. C.P. No. 179-K/07 has been filed there against for leave to appeal.
The respondents in these petitions, who were petitioners before the High Court, were either the employees or widows of deceased employees. The petitioner bank will be hereafter referred to as the "Bank" and the respondents as the "Employees". Due to the identity of the subject-matter and the controversy involved, the petitions have been fixed together and heard as such, which will stand disposed of through this judgment.
On 23.10.1997, Voluntary Golden Handshake Scheme (VGHS) was floated by the Bank through Circular No. 9 of 1997. Hundreds of employees exercised the option there-under within the prescribed period and were informed that they would be relieved from their duties w.e.f. 15.12.1997. Disputes started cropping up leading to the litigation about the efficacy, applicability and implementation of the scheme. According to Mr. Khalid Anwar, the learned Sr. ASC, the first judgment on the issue by this Court was of 2.4.2001 in C.P.No. 12 of 2001 to 63 of 2001 etc. Abdul Qadir Ismail and others v. State Bank of Pakistan (2001 SCMR 884) under which the pensionary benefits were to be calculated by taking into account the period between 01.12.1997 to 15.12.1997. The second judgment brought to our notice is dated 19.11.2002, wherein the Bank was directed to calculate the pensionary benefits of the "petitioners and other employees", who had opted for Voluntary Golden Handshake Scheme on the basis of last pay drawn. The third judgment on the subject was of 29.4.2004, Khyber Zaman & others v. Governor, State Bank of Pakistan, Karachi & others (2005 SCMR 235), whereby pensionary benefits/retirement benefits were ordered to be paid to the petitioners by calculating all the retirement/financial benefits on the basis of last pay drawn after treating the date of retirement as 15.12.1997. The fourth judgment in the matter was dated 3.2.2005, when they were directed to approach the bank for relief and in case of denial, to approach the proper forum. The fifth judgment cited by the learned counsel is of 3.2.2005, which is order of withdrawal of the petitions, with a view to first approach the Bank for relief and then to approach the proper forum if they were dissatisfied with the ensuing order of the Bank. The object of the learned counsel to state these developments and point out these successive judgments by this Court was to show that the scope of relief and benefit continued successively varying; and that such a benefit could only be given to the petitioners before the Court and non-parties were not entitled to such a benefit. The representations filed by the Employees did not prove fruitful and appeals filed by them before Federal Service Tribunal were hit by the judgment in Muhammad Mubeen-us-Salam & others v. Federation of Pakistan through Secretary, Ministry of Defence & others (PLD 2006 SC 602). They then filed the above mentioned petitions before the High Court of Sindh.
After stating the object and purpose of floating Voluntary Golden Handshake Scheme that it was; "In order to survive as the leading policy making institution of the country it had to restructure and modernize as an institution and customize its policies to cater to its own workforce. The SBP introduced several initiatives one of whom was to offer an honourable exit to its redundant employees vide its Voluntary Golden Handshake Scheme 1997 ("the Scheme") which was introduced by way of Circular No. 9 of 1997 dated the 23rd day of October 1997." He informs us that the employees, who had voluntarily opted for retirement have continuously engaged the Bank in litigation by making unwarranted belated claims, having enormous financial implications. According to the learned counsel the "Employees" herein were not entitled to such benefits as they were not party before this Court in the judgments referred to above. He invoked the bar of limitation that stood in their way in filing the- petitions before the High Court, which suffered from laches but the High Court has by disregarding these aspects granted relief to them. It is contended that through the second judgment, the scope of benefit was extended to the "petitioners and other employees" but in the later judgments there is no mention of "other employees" which means that only the petitioners were entitled to such benefits. Distinction between a judgment in-rem and judgment in-personam is being highlighted to contend that since the employees were not parties in the earlier round of litigation before this Court, the benefit of the judgment could not be extended to them. Reference in this context is being made to Article 55 of Qanoon-e-Shahadat Order, 1984. He has cited Muhammad Sohail and 2 others v. Government of N.W.F.P. and others (1996 SCMR 218), [which highlighted the distinction in judgment in-rem and judgment in-personam with reference to an earlier judgment in Pir Bakhsh & others v. The Chairman, Allotment Committee & others (PLD 1987 Supreme Court 145)], Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others [1996 SCMR 1185), [in this case it was held that the benefit of the judgment of Service Tribunal/Supreme Court could be extended to those civil servants who were not party to the litigation, the judgment in Muhammad Sohail's case, supra, was given on 31.10.1995 by Ajmal Mian, J (as his lordship then was) whereas in Hameed Akhtar Niazi's case which was decided on 24.04.1996, the author of the judgment was the same Hon'ble Judge], Chairman Pakistan Railways, Lahore v. Muhammad Latif & others (1984 SCMR 286), [Shafi-ur-Rehman, J., (as he then was) had held that the benefit of determination made by the Court could not be denied to a non-party to the litigation], Tara Chand & others v. Karachi Water and Sewerage Board, Karachi & others (2005 PLC (CS) 368), [the same principle reiterated as in Hameed Akhtar Niazi's case], Zulfiqar-ul-Husnain and 19 others v. Oil and Gas Development Corporation (2003 SCMR 1115), The Chairman, District Screening Committee, Lahore & another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), The Chairman, P.I.A.C. and others v. Nasim Malik (PLD 1990 SC 951), Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division and 2 others (PLD 1990 SC 692), Anwar Hussain v. Agricultural Development Bank of Pakistan & others (PLD 1984 SC 194), [in this case and the case of The Principal, Cadet College, Kohat & another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), the status of the employees of non-statutory organizations qua writ jurisdiction was examined]. His contention is that the petitions also deserved to be dismissed as the same were not maintainable in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The delayed pronouncement of judgment by the learned High Court has also been brought to our notice with reference to the provisions of Rule 1 of Order 20 CPC and Juma Khan & others v. Mst. Bibi Zenaba & others (PLD 2002 SC 823), Sheikh Mahmud Ahmed v. Azad Government of the State of Jammu & Kashmir through Chief Secretary, Muzaffarabad (PLD 1987 SC (AJ&K) 21).
Mr. Fakhruddin G. Ibrahim, the learned Sr. ASC for the Employees has pleaded for the dismissal of the petition emphasizing that jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 is discretionary and since the equity is against the Bank, it is not a fit case for grant of leave. According to him, the judgment of the High Court is just and fair, which redressed the grievance of the Employees, by giving them the benefits about which this Court had already given its verdict. It is contended that a public institution like State Bank of Pakistan, should not have denied the benefit to its employees; and that in the judgment dated 29.4.2004, the use of the word "petitioners" did not necessarily mean the exclusion of "other employees". He also invokes the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 to contend that the State Bank of Pakistan should not have made discrimination inter-se the Employees. According to the learned Counsel though the Employees were not party before this Court in the earlier rounds yet they have rightly been given relief by the High Court and that this Court has also got the power of doing complete justice under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973. He has cited Muhammad Baran & others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab, & others (PLD 1991 SC 691), [in this case the leave already granted was withdrawn], Haji Behram Khan v. Abdul Hameed Khan Achakzai & others (PLD 1990 SC 353), Muhammad Yaqoob v. The Chief Settlement and Rehabilitation Commissioner, Lahore & others (1988 SCMR 563), and an unreported judgment dated 11 & 12.6.2008 passed in Civil Appeal No. 558/2008.
Mr. Abdul Raheem Bhatti, the learned ASC, contends that earlier judgments were implemented by the Bank irrespective of the fact whether Employees were party before the Court or not and that it was only the later judgment, which was not being implemented on the plea of their being non-party. He has cited Khyber Zaman & others v. Governor, State Bank of Pakistan, Karachi & others (2005 SCMR 235), Abdul Qadir Ismail & others v. State Bank of Pakistan & others (2001 SCMR 884), Khawaja Abdul Hameed Nasir & others v. National Bank of Pakistan & others (2003 SCMR. 1030), [following Hameed Akhtar Niazi's case the benefit was extended to all the persons falling in the same category and covered by the circular], Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan & others (1996 SCMR 1185), Chief Executive, Progressive Paper Limited/The Chairman, National Press Trust, Islamabad v. Syed Asad Abbas, etc. (2006 SCJ 160) & Aamir Ikram & 10 others v. District Health Officer, Vehari & others (2003 PLC (CS) 488), [in this case it was observed that similar relief had been granted by the Court earlier to other employees, the employees approaching the Court later on could not be denied the same relief].
There is no denial of the fact that the `employees' had been in the service of the Bank, who opted for retirement under the Golden Hand Shake Scheme; and also that disputes started cropping up about the import, effectiveness and implementation of the said Scheme. In the first judgment ibid the matter was decided about the relevant period i.e. 01.12.1997 to 15.12.1997 in the year 2001. In the second judgment, the direction made by this Court was "to calculate the pensionary benefits of the petitioners and other employees who had opted for Voluntary Golden Handshake Scheme and the payments already made shall be adjusted." It was in the year 2002. In the third judgment, the decision was made in the year 2004 that "pensionary benefits/retirement benefits shall be paid to the petitioners by calculating all the retirement/financial benefits on the basis of last pay drawn" as on 15.12.1997. The fourth and fifth judgments ibid were of year 2005. Non implementation in stricto senso by the Bank gave rise to contempt proceedings and the employees were directed to approach the Bank in the first instance and then to seek remedy before the proper forum, if not satisfied. They did approach the Bank but were not given the benefit ensuing from the judgment. Their grievance thus remained un-redressed and thus had to file Constitution petitions in the High Court of Sindh.
Undoubtedly, the State Bank of Pakistan is the Central Bank of the country vested with multiple responsibilities and functions as per the statute. It is indeed a statutory public body. It was, its own duty and obligation to have redressed the grievances of the employees instead of relegating them to seek remedy from the Courts. Had it, itself given them what was due, as per the legal position declared by this Court, necessity of approaching the Court would not have arisen. Juristically, there is distinction between judgment in-rem and judgment in-personam, as adumbrated and highlighted by the learned counsel for the petitioner. Though such a proposition cannot be disputed yet the applicability of such a doctrine to the instant case is out of question. Undoubtedly and undisputedly the State Bank of Pakistan was party before this Court in all the above referred judgments. The legal position stated and declared by this Court about the scheme was not for one segment of employees. It was for one and all, falling within the purview of the Scheme. The ambit of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 would get attracted with all force. There is no dearth of precedents where as a result of the legal position stated by the Court benefits accruing, were given even to those who were not party before this Court. Reference in this context may be made to Hameed Akhtar Niazi's case supra, Chairman Pakistan Railways case supra, Khawaja Abdul Hameed Nasir's case supra, and Aamir Ikram's case supra.
Even in India where by virtue of Article 141 of their Constitution, the law declared by the Supreme Court is considered to be binding on all Courts the Supreme Court took the view, as per page 5958 of Volume-V of Constitution of India by Dr. Durga Das Basu, Eighth Edition "the law declared by the Supreme Court is binding on the State, and, therefore, its officers are bound to follow it, whether they are parties or not in the litigation". It may be mentioned that the issue about the employees not being party to the litigation before this Court looses significance as the Bank itself was party, who was obliged to follow and implement the judgment in letter and spirit, to one and all. The effect of the judgment of the Supreme Court cannot be whittled down or washed away on such premises as are being canvassed by the Bank.
Indeed it does not behove that a statutory institution like State Bank of Pakistan should rest its defence on such flimsy grounds to deny the benefit to those, who had been working for it. In M/s. Pfizer Laboratories Limited v. Federation of Pakistan & others (PLD 1998 SC 64) Ajmal Mian, J, (as his lordship then was) referred to the observations made in M/s. Shiv Shanker Dal Mills etc. v. State of Haryana and others, etc. (AIR 1980 Supreme Court 1037), that the public bodies should not take the plea of limitation in returning the money to the public nor "a negative plea of alternate remedy" should be taken; and that in writ jurisdiction "it is perfectly open for the Court, exercising this flexible power, to pass such order such as public interest dictates and equity projects". What the High Court has done in the instant case by accepting the petitions of the employees, is simply to give effect to the judgment of the Court and redress the grievance of the employees as they were not being treated justly and fairly and in consonance with the judgment of this Court. The High Court rather felt bound by the judgment of the Court and instead of demeaning the same, acted in compliance of dictates of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
Justice (Retd) Fazal Karim in his work "Judicial Review of Public Actions" has dealt with this subject in Volume-II at pages 512, 521 and 533 and observed :--
"The matter can be looked at as follows. The superior Courts serve, while deciding cases, two purposes; one, the private purpose of deciding disputes between the parties and two, the public purpose of making law to ensure uniformity and thereby to ensure confidence in the administration of justice and in appropriate cases to clarify the law, the practice and procedures and thereby to help maintain the standards of first instance Courts and tribunals. As Lord Diplock observed in Hoffmann-La Roche v. Secretary of State "Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in relying on the law which the statutory instrument purported to declare".
"The classic example of such a decision being binding upon third parties is Cooper v. Aaron. Although the State of Arkansas was not a party in the historical Brown case, yet the governor and the legislature of that state were held bound by the Supreme Court's decision in Brown."
"The use of precedent also promotes equality, namely, the ideal that like cases should be treated alike, which is one of the most important ingredients of justice. "Like cases must be decided alike, not only to achieve distributive justice but primarily to maintain the certainty".
(underlining by me for relevance and emphasis)
It may be kept in view that while maintaining and observing the distinction between a judgment in-rem and a judgment in-personam, as highlighted in the premier judgment of this Court in Pir Bakhsh & others v. The Chairman, Allotment Committee & others (PLD 1987 Supreme Court 145); the benefit can still not be denied to the employees in this case, as the petitioner bank had been a party before this Court, who not only was bound by the judgment but also was under a legal duty to apply equally to all those falling within the scheme.
A distinction between a benefit and liability under a legislative instrument or judgment cannot also be overlooked. For instance in Messers Army Welfare Sugar Mills Ltd. & others v. Federation of Pakistan & others (1992 SCMR 1652), while construing a notification it was observed that "there is a marked distinction between a notification which purports to impair existing/vested rights or imposes new liabilities or obligations retrospectively and a notification which purports to confer benefit retrospectively". Thus the principle governing the issues of liabilities and benefits are not the same. Analogically the employees herein became entitled to the benefits the moment this Court interpreted the scheme and laid-down principles as to its import and efficacy.
There is yet another aspect spelt out from the latter judgment dated 03.02.2005 numbered as 4th and 5th. Had the intention of the Court been to restrict the benefit only to the parties to those cases, the employees (non-parties) would have been non-suited by dismissing their petitions instead of directing them to approach the Bank for relief and to approach the proper forum, in case the need so arises. The intention is manifestly clear.
According to the learned counsel the judgment was rendered by the learned Judges of the High Court of Sindh, Karachi, after long time of hearing the matter, but this itself does not have the effect of impairing the correctness, legality and efficacy thereof as all essential aspects of the matter have been given due care and is reflective of application of mind to the real controversy.
It cannot be ignored that all the employees have now been granted relief by the High Court through the impugned judgment, Undoubtedly, the judgment of this Court has the binding force unless it is reviewed. It has remained intact so far. It has got to be enforced and complied with. There is no use, rather it will be unjust, if the employees were to be knocked out on the principle of laches in approaching the High Court or for availing some other remedy as just and fair order has been made by the High Court. It will advance the cherished goal of justice for all, similarly situated. The equity and the justice of the case demands that leave may not be granted in such a case.
In view of the above, we find no justification for grant of leave. Leave to appeal is accordingly declined. The Petitions are dismissed.
(M.S.A.) Petitions dismissed.